Communicated on 26 August 2014
FIRST SECTION
Application no. 43776/11
Tariel SHIRINLI
against Azerbaijan
lodged on 8 June 2011
STATEMENT OF FACTS
The applicant, Mr Tariel Shirinli, is an Azerbaijani national, who was born in 1955 and lives in Imishli. He is represented before the Court by Mr I. Aliyev, a lawyer practising in Baku.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was self-nominated to stand as a candidate in the parliamentary elections of 7 November 2010 from the single-mandate Imishli Electoral Constituency No. 79. On an unspecified date the Constituency Electoral Commission (“the ConEC”) preliminarily accepted his nomination as a candidate and issued him with official signature sheets in order to collect a minimum of 450 voter signatures in support of the nomination, as required by law. Under the Electoral Code, the ConEC would decide whether to register the applicant as a candidate following the submission of all required registration documents, including the filled signature sheets.
The applicant collected 550 voter signatures and submitted them to the ConEC, together with other relevant documents, on 5 October 2010.
By a decision of 11 October 2010, the ConEC refused to register the applicant as a candidate. The ConEC found that, out of the 550 signatures submitted by the applicant, 139 were invalid for various reasons and that, therefore, the total number of valid signatures was below the minimum of 450 required by law.
This decision was made available to the applicant on 14 October 2010.
In the meantime, the official pre-election campaigning period for all registered candidates started on 15 October 2010.
The applicant lodged an appeal against the ConEC decision with the Central Electoral Commission (“the CEC”), arguing that the ConEC’s conclusions concerning the validity of signatures had been arbitrary and unreasoned and that the ConEC decision had been taken without compliance with a number of procedural requirements of the Electoral Code. The applicant submitted his complaint to the post late in the day on 16 October 2010. The complaint was sent out by the post office on 18 October 2010, because it was submitted after the last dispatch on 16 October and because the 17 October was a non-working day.
By a decision of 22 October 2010, the CEC rejected the applicant’s appeal, finding that the applicant missed the three-day appeal period provided by the Electoral Code.
The applicant appealed against the CEC decision, reiterating his complaints and arguing that the CEC had not ensured his attendance and had taken its decision in breach of a number of the applicant’s other procedural rights under the Electoral Code. He also argued that he had not missed the appeal period and, in support of this contention, attached a copy of the postal receipt showing that he had posted his complaint on 16 October 2010 to the CEC by registered mail.
By a decision of 28 October 2010, the Baku Court of Appeal dismissed the applicant’s appeal, upholding the CEC’s finding that the applicant had missed the appeal period. The court noted that the copy of the postal receipt did not prove that the envelope posted on 16 October 2010 had actually contained the document in question (the complaint against the ConEC decision).
The applicant lodged a further appeal with the Supreme Court. On 3 November 2010 the Supreme Court granted this appeal, finding that, even assuming that the applicant had posted his complaint on 18 October, he had complied with the appeal period, because the appeal period had started to run on 15 October and expired on 18 October (not counting 17 October, the non-working day). The Supreme Court quashed the CEC decision of 22 October 2010 and the Baku Court of Appeal’s decision of 28 October 2010. However, without remitting the case to the CEC or the appellate court for examination of the merits of the appeal, and without examining itself the merits of the applicant’s complaint against the ConEC’s decision of 11 October 2010, the Supreme Court ordered the CEC to register the applicant as a candidate.
On 4 November 2010 the CEC registered the applicant as a candidate, in compliance with the Supreme Court’s order. The CEC issued him with the candidate’s registration card the next day, on 5 November 2010.
The last full day of the official pre-election campaigning period was effectively 5 November 2010, owing to the statutory ban on any campaigning during the 24-hour blackout period before voting day.
On 5 November 2010 the applicant lodged a complaint with the Baku Court of Appeal, against the ConEC and the CEC. He requested the postponement of the election in his constituency, owing to the fact that he had insufficient time to conduct his pre-election campaign. He also sought compensation from both electoral commissions in respect of moral damage in the amount of 15,000 Azerbaijani new manats. On 5 November 2010 this complaint was declared inadmissible owing to the failure to pay the correct amount of court fees. The inadmissibility decision was subsequently upheld by the Supreme Court on 29 November 2010.
The applicant lost the election of 7 November 2010.
On 10 November 2010 the applicant lodged a complaint with the ConEC, arguing that, owing to the arbitrary decisions by both electoral commissions refusing to register him and the ensuing significant delay in registration, he had been unable to conduct an effective pre-election campaign on equal conditions with other candidates, all of whom had been campaigning since 15 October 2010. He also claimed that there had been a number of irregularities in various polling stations during the voting day. He requested, inter alia, the invalidation of the election results in the constituency.
On 13 November 2010 the ConEC dismissed the complaint. It noted that the applicant’s complaints about the refusal to register him had been examined by the courts and that he had obtained a ruling in his favour. As for the alleged irregularities during the voting day, it was found that the applicant’s claims were unsubstantiated. This decision was made available to the applicant on 20 November 2010.
On 23 November 2010 the applicant lodged an appeal against this decision with the CEC, reiterating his complaints.
By a decision of 25 November 2010 the CEC dismissed the applicant’s appeal. It noted that his complaint had been duly examined by the ConEC. The CEC further noted that, on 22 November 2010, it had already formally approved the election results in the majority of the constituencies, including the applicant’s, and had forwarded this decision for the final approval by the Constitutional Court. In such circumstances, there was no longer any basis for granting any of the applicant’s requests.
The applicant appealed to the Baku Court of Appeal.
On 26 November 2010 the Baku Court of Appeal dismissed the applicant’s appeal. As to the late registration, it noted that the applicant’s complaints about the refusal to register him had been examined by the courts and that he had ultimately obtained a ruling in his favour. As to the alleged irregularities during the voting day, the court noted that the CEC had already examined the lawfulness and fairness of the elections and had approved the election results in the majority of the constituencies, including the applicant’s, on 22 November 2010. In any event, the applicant had failed to substantiate his allegations with any evidence.
Following the applicant’s further appeal, on 8 December 2010 the Supreme Court upheld the Baku Court of Appeal’s judgment of 26 November 2010.
In the meantime, the applicant was also involved in another set of proceedings. In those proceedings, he raised before the CEC arguments similar to those raised in the proceedings described above, however his complaint was declared inadmissible owing to non-compliance with the formal requirements (lack of a clearly defined claim). The final decision in those proceedings was delivered on 1 December 2010 by the Supreme Court.
COMPLAINTS
1. The applicant complains under Article 3 of Protocol No. 1 to the Convention that, owing to the arbitrary decision refusing to register him as a candidate and the subsequent delayed registration following a number of appeals, he was unable to participate in the parliamentary elections under equal conditions with other candidates, because he had only a few days for conducting his pre-election campaign.
2. Relying on Article 13 of the Convention in conjunction with the above complaint, the applicant complains that the domestic proceedings were ineffective.
QUESTIONS TO THE PARTIES
1. Has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to stand as a candidate in free elections which ensure the free expression of the opinion of the people in the choice of legislature? Did the procedure for determination of the candidate’s eligibility contain sufficient safeguards to prevent arbitrary decisions, preventing arbitrary or unreasonable delays in registration? Did the delay in registration of the applicant’s candidacy in the present case result in the infringement of his right to stand for election in equal and fair conditions?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of Protocol No. 1, as required by Article 13 of the Convention?
3. The parties are requested to submit copies of all the complaints and appeals submitted by the applicant to the electoral commissions and domestic courts, as well as any other official documents relating to the domestic proceedings which are not already available in the file.
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