Information Note on the Court’s case-law No. 129
April 2010
Namat Aliyev v. Azerbaijan - 18705/06
Judgment 8.4.2010 [Section I]
Article 3 of Protocol No. 1
Stand for election
Failure by domestic authorities to adequately investigate complaints of electoral irregularities: violation
Facts – The applicant complained of a series of irregularities in parliamentary elections in which he had been credited with 14.19% of the vote behind the winning candidate in his constituency, who was credited with 41.25%. In complaints to the Constituency Electoral Commission and the Central Electoral Commission, he alleged various irregularities – including unlawful interference, undue influence, ballot-box stuffing, the harassment of observers, inaccuracies in the electoral rolls and discrepancies in electoral protocols. In support of his allegations, he submitted to the Central Electoral Commission originals of affidavits by election observers, together with audio tapes and other evidence. The Constituency Electoral Commission rejected the applicant’s complaint as unsubstantiated without further elaboration, while the Central Electoral Commission did not reply to the applicant but issued a final protocol approving the overall election results nationwide.
The applicant appealed to the court of appeal, but it dismissed his claims as unsubstantiated, after ruling that the photocopies of the affidavits he had produced were inadmissible in evidence as domestic law required production of either the originals or notarised copies. A further appeal to the Supreme Court was also dismissed. Although the applicant explained that the original affidavits were with the Central Electoral Commission, the Supreme Court noted that he had failed to establish that he had lodged a complaint with that body.
Law – Article 3 of Protocol No. 1: The Court noted, firstly, that it was not the applicant’s right to win the election that was at stake, but his right to stand freely and effectively for it. It therefore rejected the Government’s argument that the applicant had finished too far behind the official winner of the election for the alleged irregularities to have made any difference to the result. The irregularities alleged by the applicant were serious as, if confirmed, they were capable of thwarting the democratic process. His complaints had been examined at the domestic level, so the Court’s role was limited to verifying whether that examination was effective and devoid of arbitrariness. When it dismissed the applicant’s complaint the Constituency Electoral Commission appeared to have relied exclusively on the statements of local electoral officials – who, not surprisingly, had denied any wrongdoing – without explaining why their statements were considered more reliable than the much more detailed and fact-specific evidence the applicant had presented. Nor had it given any reason for finding the applicant’s claims “unsubstantiated”. As to the complaint the applicant had made directly to the Central Electoral Commission, it seemed simply to have been ignored, without any explanation.
The applicant’s subsequent appeals to the court of appeal and the Supreme Court had not been addressed adequately either. Despite guidance in the Venice Commission’s Code of Good Practices in Electoral Matters cautioning against excessive formalism in the examination of election-related appeals, both courts had rejected affidavit evidence submitted by the applicant on the grounds that the copies provided had not been duly certified. Such a rigid and overly formalistic approach had not been justified: the Central Electoral Commission, which apparently was in possession of the originals, could have been asked to confirm the authenticity of the affidavits while the applicant should have been afforded an opportunity to provide additional evidence. Since it was not only the alleged infringement of the applicant’s individual rights that was at stake but also, on a more general level, the State’s compliance with its duty to hold free and fair elections, the domestic courts should have taken reasonable steps to investigate the allegations without imposing unreasonable and excessively strict procedural barriers on the complainant. Further, not all the applicant’s allegations had been based on the observers’ affidavits. He had also referred to apparent inconsistencies in several electoral protocols disclosing potential large-scale tampering with ballots. However, the domestic courts had not requested the electoral commissions to submit those protocols to them for independent examination and had remained silent on that section of the applicant’s complaint.
In sum, States had to ensure that a genuine effort was made to address the substance of arguable individual complaints of electoral irregularities and that decisions were sufficiently reasoned. The applicant’s complaints had not been effectively addressed at the domestic level and had been dismissed in an arbitrary manner.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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