FIRST SECTION
DECISION
Application no. 40141/11
Parviz SAMADOV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 26 November 2013 as a Committee composed of:
Erik Møse, President,
Khanlar Hajiyev,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 8 June 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Parviz Samadov, is an Azerbaijani national, who was born in 1975 and lives in Baku. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was a self-nominated candidate in the parliamentary elections of 7 November 2010 in the single-mandate Narimanov First Electoral Constituency No. 29.
4. According to the applicant, prior to election day, his electoral rights had been infringed in various ways by various authorities and officials of local electoral administration. His complaints in this regard lodged with the Central Electoral Commission (“the CEC”) prior to election day were dismissed as unsubstantiated.
5. Following election day, according to the official election results, the applicant lost the election in his constituency.
6. On 9 and 10 November 2010 the applicant lodged complaints with the CEC, alleging that there had been a number of irregularities and serious breaches of electoral law during election day, such as ballot-stuffing, “carousel” voting, false reporting of inflated voter turnout figures and other inconsistencies in the results records of polling-station electoral commissions, obstruction of observers, voting by people not registered as voters in the constituency, and so on. He requested the CEC to invalidate the election results in his constituency because the election had been unfair owing to the above-mentioned irregularities.
7. By a decision of 18 November 2010, following a hearing held in the applicant’s absence, the CEC dismissed the applicant’s complaints as unsubstantiated.
8. The full text of the CEC decision of 18 November 2010 was published in the official newspaper Azərbaycan on 19 November 2010.
9. By a letter of 20 November 2010, the CEC also sent a certified copy of the decision to the applicant (however, it is unclear when this letter was posted).
10. On 29 November 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Aapeal, reiterating his complaints about the alleged election irregularities committed before and during election day, further complaining that the examination of his complaints by the CEC had been ineffective, and requesting the court to quash the CEC decision of 18 November 2010, to invalidate the election results in his constituency, and to apply to the law-enforcement authorities with a request to institute criminal proceedings against officials of local electoral commissions responsible for the alleged breaches of electoral law.
11. On 1 December 2010 the Baku Court of Appeal rejected the applicant’s appeal as lodged out of time. In particular, having regard to Article 112.1 of the Electoral Code, the court found that the applicant had missed the three-day appeal period for challenging the CEC decision in courts. It noted that, while the full text of the CEC decision of 18 November 2010 had been officially published on 19 November 2010, the applicant had lodged his appeal ten days later, on 29 November 2010.
12. During the hearing, the applicant claimed that he had complied with the time-limit specified in Article 112.1 of the Electoral Code based on the following arguments: (i) no copies of the 19 November 2010 issue of the newspaper Azərbaycan had been available for sale at the time when he wanted to buy it; (ii) he had been traveling out of the country during the period from 22 to 26 November 2010, for the purposes of defending his doctorate thesis; (iii) he had received a copy of the CEC decision mailed to him by the CEC only on 26 November 2010; and (iv) in cases where an impugned decision of an electoral commission was both published and sent to the affected person, Article 112.1 gave the affected person a choice to lodge his or her appeal within three days either of the date of publication of the decision or the date of receipt of its copy from the CEC, irrespective of which date was earlier.
13. The Baku Court of Appeal found that the applicant’s arguments were baseless and did not constitute a good reason for missing the appeal period. It noted that, within the meaning of Article 112.1 of the Electoral Code, in the applicant’s case the appeal period started to run from the date of publication of the full CEC decision on 19 October 2010, even though the applicant might have also received a copy by mail later. In this respect it also relied on Article 377.1 of the Civil Code, which specified that a claim period started to run on the date when a person first became aware or ought to have become aware of a violation of his rights.
14. Furthermore, the Baku Court of Appeal refused to request the law‑enforcement authorities to open criminal proceedings against certain electoral-commission officials, finding that it had not been shown that they had committed actions involving any elements of a criminal offence.
15. The applicant lodged an appeal with the Supreme Court against the Baku Court of Appeal’s decision of 1 December 2010. On 8 December 2010 the Supreme Court upheld the Baku Court of Appeal’s decision as correct and dismissed the applicant’s appeal.
B. Relevant domestic law
16. According to Article 112.1 of the Electoral Code, candidates and other affected persons may complain about decisions or actions (or omissions to act) violating electoral rights of candidates or other affected persons, within three days after publication or receipt of such decisions or occurrence of such actions (or omissions) or within three days after an affected person has become aware of such decisions or actions (or omissions).
17. According to Article 377.1 of the Civil Code, a claim period starts running on the day a person becomes aware or ought to have become aware of a violation of his right.
COMPLAINTS
18. The applicant complains under Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention that there had been a number breaches of the electoral law and other irregularities before and during election day, which had infringed his right to stand as a candidate in free elections, and that the domestic authorities, including the electoral commissions and courts, had failed to duly and effectively examine his complaints and to investigate such irregularities.
19. Relying on the same Convention provisions, the applicant complains about the domestic courts’ refusal to request the law-enforcement authorities to open criminal proceedings against certain officials of electoral commissions allegedly responsible for breaches of electoral law.
THE LAW
20. The applicant complains under Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention that his right to stand for election was breached owing to various irregularities before and during election day and that the domestic authorities and courts failed to effectively examine his complaints about those irregularities.
21. The Court notes that it is necessary to determine whether this part of the application complies with the admissibility requirements set forth in Article 35 of the Convention, which provides, in so far as relevant:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. ...”
22. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing the States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with this rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-66, Reports of Judgments and Decisions 1996‑IV). Furthermore, the complaints intended to be made subsequently in Strasbourg should have been made to the domestic courts at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200).
23. In the present case, the applicant raised his complaints concerning the alleged breaches of the electoral law in his constituency before the CEC, as required by the domestic law. The CEC found his complaints unsubstantiated and dismissed them. Under the domestic electoral law, the CEC decision could be appealed before Baku Court of Appeal, a remedy which was available and, in theory, sufficient to afford redress in respect of the breaches alleged. The applicant attempted to have recourse to this remedy by lodging an appeal. However, the Baku Court of Appeal determined that the applicant missed the appeal period provided by law and, therefore, refused to examine the merits of the appeal concerning the election irregularities and the allegedly ineffective examination of his complaints by the CEC. This decision was confirmed by the Supreme Court on 8 December 2010.
24. The Court reiterates that the complexity of the electoral process and associated time-restraints necessitating streamlining of various election‑related procedures require relatively short time-limits for lodging and examination of election-related appeals in order to avoid retarding the electoral process (see, mutatis mutandis, Namat Aliyev v. Azerbaijan, no. 18705/06, § 90, 8 April 2010). In his submissions both before the domestic courts and the Court, the applicant disagreed with the finding that he had missed the appeal period prescribed by law.
25. In so far as the applicant disagreed with the domestic courts’ interpretation of the manner of calculation of the appeal period under Article 112.1 of the Electoral Code, the Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This applies in particular to the interpretation by courts of rules of a procedural nature such as the prescribed manner and prescribed time for lodging appeals. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among other authorities, Platakou v. Greece, no. 38460/97, § 37, ECHR 2001‑I, and Hajiyev v. Azerbaijan, no. 5548/03, § 35, 16 November 2006). In the present case, the Baku Court of Appeal found that the three-day time-limit under Article 112.1 of the Electoral Law started to run when the applicant first became aware to ought to have become aware of the impugned CEC decision, whether it was the date of its publication or the date a copy of the decision was given to him. As the full text of the CEC decision of 18 November 2010 was officially published on 19 November 2010 in accordance with the law, the applicant ought to have become aware of it on that date and the appeal period started to run from that date. It has not been shown that the domestic court’s interpretation of this rule in the present case was inconsistent with the interpretation or the manner of application of the same rule in other cases. The Court does not find this interpretation arbitrary or incompatible with the Convention.
26. As to the applicant’s argument that the 19 November 2010 issue of the newspaper Azərbaycan was unavailable for him to purchase, the Court considers it implausible and does not find any arbitrariness in the domestic courts’ rejection of this argument. Even though in his application before the Court the applicant claimed that he would provide documents proving this allegation, he did submit any such documents together with his application or at a later date. In any event, according to the information available to the Court, the newspaper Azərbaycan is ordinarily available for sale and, moreover, can be freely consulted in a number of other ways such as, for example, through its internet website. Moreover, in addition, the CEC also published full texts of its decisions on its own website which was freely accessible to the public.
27. Lastly, the Court finds no arbitrariness in the domestic court’s finding that the applicant’s absence from Azerbaijan from 22 to 26 October 2010 did not constitute a good reason for missing the appeal period.
28. Accordingly, by failing to comply with the time-limit laid down in the domestic law for lodging an appeal against the CEC decision, the applicant failed to exhaust the available domestic remedies in the present case.
29. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
30. As for the applicant’s submissions concerning domestic authorities’ refusal to take action to institute criminal proceedings against the officials of electoral commissions, the Court finds, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André WampachErik Møse
Deputy RegistrarPresident
Full & Egal Universal Law Academy