FIRST SECTION
DECISION
Application no. 31876/11
Khadija Seyfaddin Gizi SHIRINOVA
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 12 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 10 May 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Khadija Shirinova, is an Azerbaijani national, who was born in 1977 and lives in Baku. She was represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was self-nominated to stand for election in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in Shamkir City Electoral Constituency No. 98.
4. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 8 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC”) eleven signature lists containing 510 voter signatures in support of her candidacy. The final deadline for submission of signature lists was set at 6 p.m. on 8 October 2010. According to the applicant, she submitted the lists to the ConEC personally at 5:50 p.m.
5. By a decision of 9 October 2010, the ConEC refused to register the applicant as a candidate, finding that she had submitted the signature lists after the expiry of the deadline at 6 p.m. on 8 October 2010.
6. The applicant appealed to the Central Electoral Commission (“the CEC”).
7. By a decision of 17 October 2010, the CEC found that the applicant had submitted the signature lists in time. However, after the verification of the validity of signature lists by a group of CEC experts, the CEC found that 129 out of 510 signatures submitted by the applicant were invalid for various reasons and that, as a result, the number of the remaining, valid signatures (381) was below the minimum of 450 required by law. Therefore, the CEC upheld the ConEC decision on refusal to register the applicant.
8. The applicant lodged an appeal with the Baku Court of Appeal against this decision, arguing that the CEC findings and procedures were arbitrary. On 28 October 2010 the Baku Court of Appeal upheld the CEC decision of 17 October 2010.
9. The applicant lodged an appeal with the Supreme Court.
10. By a decision 4 November 2010 the Supreme Court upheld the Baku Court of Appeal’s judgment.
COMPLAINTS
11. Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicant complains that her right to stand as a candidate in free elections and her right to an effective remedy were breached, because she was arbitrarily disqualified from running for election. In particular, the procedures for verification of voter signatures in support of her candidacy and for examination of her complaints lacked transparency and sufficient safeguards against arbitrariness, and the decisions of the electoral commissions and domestic courts were arbitrary and contrary to a number of requirements of the domestic electoral law.
THE LAW
12. The applicant complained under Article 3 of Protocol No. 1 and Article 13 of the Convention about allegedly wrongful disqualification from running for election and alleged arbitrariness of the proceedings conducted by the domestic electoral authorities and courts.
13. The Court notes that it is necessary to determine whether 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. ...”
14. The Court reiterates its established case-law pertaining to the requirements of exhaustion of domestic remedies and the six-month period, which are closely intertwined. The requirement of exhaustion provides the State with an opportunity to put matters right through their own legal system before answering to an international tribunal (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). The purpose of the six-month rule is to promote security of the law, ensure that cases raising issues under the Convention are examined within a reasonable time, and protect the authorities and other persons concerned from being in a situation of uncertainty for a long period of time (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, among other authorities, İpek v. Turkey (dec.), no. 39706/98, 7 November 2000). The term “final decision”, which is a starting point of the six-month period, refers to the final decision resulting from the normal frame of exhaustion of domestic remedies in accordance with the generally recognised rules of international law (see, among other authorities, Nikolova and Velichkova v. Bulgaria (dec.), no. 7888/03, 13 March 2007).
15. The Court observes that it has consistently held the view (shared by the parties in previous similar cases, and by the applicant in the present case) that in election-related disputes a decision taken at a cassation instance by the Supreme Court of Azerbaijan is a final domestic decision within the meaning of Article 35 of the Convention. In the present case, the Supreme Court delivered the final decision on 4 November 2010.
16. The six-month period starts running from the date on which the applicant and/or his or her representative has sufficient knowledge of the final domestic decision (see Koç and Tosun v. Turkey (dec.), no. 23852/04, 13 November 2008). Where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the copy of the decision (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V).
17. Rule 47 § 2 of the Rules of Court requires the applicants to provide information enabling it to be shown that the admissibility criteria (exhaustion of domestic remedies and the six-month rule) laid down in Article 35 § 1 of the Convention have been satisfied. Accordingly, it is incumbent on the applicant to submit relevant documents establishing the date of service of the final decision where such service took place after the date of delivery of the decision or establishing that an applicant or his or her representative otherwise became aware of the decision at a later date. If the applicant fails to provide such information and simply submits (as in the present case) that the date of delivery constituted the “date of the final decision”, it must be presumed that the applicant and/or his or her representative had sufficient knowledge (or, where relevant, were served with a written copy) of the final decision on the date of delivery of the decision.
18. In the present case, as noted above, the final decision was delivered on 4 November 2010. In her application, the applicant submitted that this was the date of the final decision; she has not made any remarks as to whether this decision had been made available to her at a later date and has not provided any documentary evidence in this regard. Accordingly, in the light of the information provided under Rule 47 § 2 of the Rules of Court, the Court considers that, for the purposes of the present case, the six-month period started to run on 4 November 2010.
19. It remains to be determined if the application was introduced before the six-month period expired. The Court reiterates that, according to the established practice of the Convention institutions and Rule 47 § 5 of the Rules of Court, the date of introduction of the application shall as a general rule be considered to be the date of the first communication from the applicant setting out – even summarily – the object of the application, on condition that a duly completed application form has been submitted within the time-limit fixed by the Court.
20. In the present case, the first communication by the applicant sent to the Court was a duly completed application form together with annexes. However, although the application form was dated 4 April 2011 (a date falling within the six-month period), the envelope containing the application form, as well as the copies of relevant documents, was postmarked 10 May 2011, later than six months after the date of the final decision.
21. According to the Court’s case-law, in order for the date featuring on a first communication to be considered as the date of introduction of an application, it should be posted at the latest on the day after the date which appears on the communication. In the absence of any explanation for an interval of more than one day between the date on which the first communication was written and the date on which it was posted (that is, the date of the postmark recording the date on which the application was sent to the Court), the latter is to be regarded as the date of introduction of an application (see Arslan v. Turkey (dec.), no. 36747/02, ECHR 2002-X; Růžičková v. the Czech Republic (dec.), no. 15630/05, 16 September 2008; and Kemevuako v. the Netherlands (dec.), no. 65938/09, 1 June 2010).
22. Having regard to the above, the Court finds that the date on which the envelope containing the original application form was postmarked, namely 10 May 2011, should be considered as the date of introduction of the present case. Accordingly, the application was introduced after the expiry of the six-month period.
23. It follows that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 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