FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35559/05 by Rasul GULIYEV against Azerbaijan

The European Court of Human Rights (First Section), sitting on 28 May 2009 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Khanlar Hajiyev , Dean Spielmann , Sverre Erik Jebens , judges,

and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 30 September 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Rasul Guliyev , is a n Azerbaijani national who was born in 1947 and lives in New York . He is represented before the Court by Mr M. Mustafayev, 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.

1. Background

From 1990 to 1993 the applicant held a number of the highest managerial posts in the country ’ s oil sector. For a few months in 1993 he held office as a First Deputy Prime Minister and from 1993 to 1996 was the Speaker of the Milli Majlis (Parliament). In 1996 he resigned from office and left the country. Since then he has resided in the United States of America , from where, he founded and has led the Democratic Party of Azerbaijan, whose headquarters are in Baku .

As a result of a criminal investigation that commenced in 1996, on 7 April 1998 the Chief Prosecutor ’ s Office charged the applicant with a number of criminal offences, including misappropriation of public funds and abuse of power during his work with the oil companies and in the government. On 10 October 2000 the Sabail District Court remanded him in custody pending trial on the basis of the bill of indictment. On 17 October 2000 the Court of Appeal upheld that order.

However, the applicant was not arrested, because he did not return to Azerbaijan after his departure in 1996. In 2002 he applicant attempted through his lawyers to have the detention order quashed, but without success (see Guliyev v. Azerbaijan (dec.), no. 35584/02, 27 May 2004).

2. Events prior to the parliamentary elections of 6 November 2005

The applicant stood in the elections to the Milli Majlis of 6 November 2005 as a candidate for the opposition coalition Azadliq . On 27 August 2005 he was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Khatai Fourth Election Constituency no. 36.

On the same day, 27 August 2005, in connection with the criminal proceedings pending in respect of the applicant, the Chief Prosecutor delivered a decision with a view to “securing the execution” of the detention order of 10 October 2000, which was still in force. The Chief Prosecutor noted that Article 70.4 of the Election Code, which provided election candidates with immunity from prosecution and arrest during the election process, did not apply to the applicant ’ s situation, as it afforded immunity only for acts committed during the period between the date of the candidate ’ s registration for election and the date of the announcement of the election results, and the applicant had been prosecuted for acts committed several years prior to his registration as a candidate. Accordingly, the Chief Prosecutor confirmed that the detention order of 10 October 2000 was enforceable throughout the entire election period.

In essence, this decision confirmed that, if the applicant decided to return to Azerbaijan after his formal registration as a candidate, he would be arrested pursuant to the detention order of 10 October 2000.

The applicant challenged the Chief Prosecutor ’ s decision of 27 August 2005 in the courts. On 8 September 2005 the Sabail District Court dismissed that challenge and agreed with the Chief Prosecutor ’ s interpretation that immunity under Article 70.4 of the Election Code did not apply in the applicant ’ s case. On 19 September 2005 the Court of Appeal upheld the Sabail District Court ’ s decision.

On 26 September 2005 the applicant submitted a complaint with the Constitutional Court , arguing that the domestic law had been misinterpreted. On 12 October 2005 the Constitutional Court refused to admit the applicant ’ s complaint.

On 12 October 2005 two members of the Academy of Sciences lodged a petition with the Sabail District Court for the applicant to be granted bail, and expressed their readiness to stand as sureties for the applicant. On 14 October 2005 and 19 October 2005, respectively, the Sabail District Court and the Court of Appeal rejected that request.

In the meantime, on 17 October 2005, the applicant boarded a charter flight from London to Baku . However, it appears that during the flight he changed his mind about landing in Baku and instead landed in Simferopol , Ukraine . Immediately after landing, he was arrested by the Ukrainian authorities at the request of their Azerbaijani counterparts.

On 20 October 2005 the Zheleznodorozhny District Court of Simferopol reviewed the grounds for the applicant ’ s arrest. It noted that documents submitted by the Azerbaijani authorities did not meet the formal requirements necessary for the institution of extradition proceedings. Moreover, from the applicant ’ s identity papers it was evident that he had refugee status and had been granted political asylum in the US . In such circumstances, the court concluded that there were no grounds for the applicant ’ s arrest and that the request of the Azerbaijani authorities appeared to be politically motivated. The court ordered the applicant ’ s immediate release. It appears that, after this incident, the applicant returned to the US .

3. Parliamentary elections of 6 November 2005

There were a total of thirty-two polling stations in the constituency, of which three were special stations installed in military barracks and prisons. At the end of the election day (6 November 2005), the applicant ’ s representatives obtained copies of election protocols drawn up by each of the thirty-two Polling Station Electoral Commissions (“the PECs ”). According to the copies of the PEC protocols in the applicant ’ s possession, he received the highest number of votes in the constituency. Specifically, he received a total of 4,552 votes, while his closest rival, a candidate from the ruling party (S.), received 4,375 votes. The applicant received the highest number of votes in twenty polling stations, while S. received the highest number in eight polling stations and a third candidate received the highest number in the remaining four polling stations.

By a decision of 7 November 2005, the ConEC invalidated the results in five polling stations (nos. 3, 4, 20, 21 and 25) owing to infringements of the election law in those stations on the election day. According to the PEC protocols in the applicant ’ s possession, he had obtained more votes than S. in each of the five stations concerned.

According to the applicant, the ConEC decision did not state any reasons or identify the specific infringements that were alleged to have occurred.

After an official tabulation of the results by the ConEC (which did not take into account the votes cast in Polling Stations nos. 3, 4, 20, 21 and 25, where the election results had been invalidated), the election protocol drawn up by the ConEC indicated that the applicant had received 3,669 votes and S. 3,907 votes. The ConEC protocol named S. as the winner.

The ConEC submitted its protocol together with the relevant documents concerning the election in the constituency for review by the Central Electoral Commission (“the CEC”).

On 10 November 2005 four PEC members, six observers (who were also the applicant ’ s representatives) and about twenty voters from Polling Stations nos. 3, 4 and 25 submitted similarly-worded complaints to the CEC, noting that there had been no irregularities in the election process in those polling stations and that the ConEC ’ s decision of 7 November 2005 to invalidate the results in those polling stations was groundless and, so, unlawful.

On 22 November 2005 the CEC summarily rejected these complaints as unsubstantiated.

On 23 November 2005 the CEC issued its final election protocol and submitted it, together with other relevant documents, to the Constitutional Court for review and approval of the election results. The CEC protocol indicated S. as the winner of the election in Khatai Fourth Election Constituency no. 36.

On 24 November 2005 the applicant lodged an appeal with the Court of Appeal against the CEC ’ s decision of 22 November 2005. He requested the court to quash the electoral authorities ’ decision to invalidate the election results in the five polling stations, to include the votes cast in those polling stations in the overall election results in the constituency, and to declare him the winner of the election there. He argued, inter alia , that the election authorities ’ decision to invalidate the election results in the five polling stations was unreasoned and arbitrary, as it failed to make clear what specific infringements of election law had served as a ground for the invalidation.

On 26 November 2005 the Court of Appeal dismissed the applicant ’ s appeal, on the grounds that it was unsubstantiated as the applicant had failed to submit any evidence in support of his claims. The Court of Appeal does not appear to have conducted an independent review of the grounds for the invalidation of the election results in the five polling stations or to have requested and independently examined any evidence of the irregularities which, according to the election authorities, had occurred in those polling stations.

On 29 November 2005 the applicant lodged a cassation appeal with the Supreme Court, reiterating his complaints against the election authorities and arguing that the Court of Appeal had unlawfully shifted onto him the burden of proving that there had been no irregularities in the five polling stations instead of requiring the election authorities to substantiate the grounds for invalidating the election results in those polling stations.

On 30 November 2005 the Supreme Court dismissed the applicant ’ s cassation appeal as unsubstantiated.

4. The applicant ’ s requests for identity papers

In the meantime, on 5 August 2005, the applicant ’ s representative applied to the Yasamal District Police Office for a national identity card for the applicant. Such cards are used for identification purposes within Azerbaijan . By a letter of 10 August 2005, the Yasamal District Police Office refused to issue the identity card, on the grounds that, under the domestic law, the application should have been made by the applicant in person.

The applicant ’ s representative, acting on behalf of the applicant, challenged this refusal in the Yasamal District Court, arguing that the Law on the Identity Card of an Azerbaijani Citizen (“the Identity Card Act”) permitted legal representatives to apply for and obtain identity cards on behalf of their clients.

On 5 October 2005 the Yasamal District Court dismissed that action, noting that the Identity Card Act allowed only minors and other persons lacking part or all of their legal capacity to act through a legal representative. Even in such cases, the term “legal representative” in the context of this Act meant only close family members or, in the case of those lacking part or all of their legal capacity, their legal guardians. In all other cases, citizens had to apply for an identity card in person. The court further noted that the applicant himself was not subject to any incapacity and that his representative was unrelated to him and was acting under a power of attorney. The court found that, in such circumstances, the Yasamal District Police Office ’ s refusal was lawful.

On 21 December 2005 the Court of Appeal upheld the Yasamal District Court ’ s judgment. On 13 April 2006 the Supreme Court upheld the lower courts ’ judgments.

On 8 August 2005 the applicant ’ s representative had also sent a letter to the Ministry of Foreign Affairs concerning the applicant ’ s diplomatic passport. He noted that, pursuant to the Law on the Entry into and Departure from the Country and on Passports (“the Passports Act”), the applicant, as a former Parliamentary Speaker, had a lifelong entitlement to a diplomatic passport. He enquired whether the original diplomatic passport issued to the applicant in 1995 was still valid and asked for it to be replaced with the new design of diplomatic passport (the design had changed in 1995). The Ministry of Foreign Affairs refused, noting that certain documents were missing from the application and that the applicant had to apply for the passport in person. The Ministry also noted that, pursuant to a 1997 amendment to the Passports Act, all diplomatic passports with the old design had expired in 1997.

The applicant ’ s representative, acting on behalf of the applicant, challenged this refusal in the Yasamal District Court. On 5 October 2005 the Yasamal District Court found that the Ministry ’ s refusal was lawful, as the Passports Act required the applicant to apply for the passport in person. On 29 November 2005 and 31 March 2006, respectively, the Court of Appeal and the Supreme Court upheld that ruling.

B. Relev ant domestic law

Article 70.4 of the Election Code as worded at the material time, provided that during the period from the date of registration as an election candidate to the date of official publication of the election results, a registered candidate could not, without the consent of the relevant prosecutor, be held criminally liable, arrested or punished under the administrative procedure for any acts committed after his or her registration as a candidate. However, the candidate could be arrested if caught in the act of committing a crime.

After the votes have been counted at the polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the voting in the station (Articles 106.1 ‑ 106.6 of the Election Code). One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within 24 hours (Article 106.7).

The ConEC must verify whether the PEC protocol complies with the law and whether it contains any inconsistencies (Article 107.1). After all the PEC protocols have been submitted, the ConEC tabulates, within two days after the election day, the results from the various polling stations and draws up a protocol reflecting the aggregate results of the vote in the constituency (Article 107.2). One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days after the election day (Article 107.4). If the ConEC discovers mistakes, impermissible changes or inconsistencies in a protocol (or accompanying documents) submitted by a PEC, it may order a recount of the votes in the relevant election constituency (Article 107.6).

The CEC then verifies whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2). If within four days after the election day the CEC discovers mistakes, impermissible changes or inconsistencies in the protocols (or accompanying documents) submitted by a ConEC, it may order a recount of the votes in the relevant election constituency (Article 108.4).

When reviewing a request to invalidate an election win by a registered candidate, the electoral commission has the right to hear submissions by ordinary citizens and officials and to obtain relevant documents and materials (Article 112.8).

Irregularities aimed at assisting candidates who were not ultimately elected cannot serve as a basis for the invalidation of election results (Article 114.5).

COMPLAINTS

1. The applicant complain ed under Articles 5, 6, 13 and 14 of the Convention of unfairness in the proceedings concerning the refusal to suspend the detention order of 10 October 2000 in view of his immunity as an election candidate and of the refusal of his request to substitute the pre ‑ trial detention order with release on bail.

2. He complained under Article 5 of the Convention about the unlawfulness of his three days ’ detention in Simferopol , Ukraine .

3. The applicant complained under Article 3 of Protocol No. 1 to the Convention and Article 14 of the Convention that the criminal charges against him and the order for his detention were politically motivated. He further complained that the criminal proceedings, which were still pending, had prevented him from returning to Azerbaijan and conducting his pre ‑ election campaign under the same conditions as the other candidates.

4. The applicant complained under Article 3 of Protocol No. 1 to the Convention that, by arbitrarily invalidating the election results in five polling stations in his constituency, the authorities had violated his right to stand as a candidate in free elections.

5. Lastly, he complained under Article 6 of the Convention of unfairness in the proceedings concerning the refusal to issue him with a domestic identity card and a diplomatic passport.

THE LAW

1. Relying on Articles 5, 6, 13 and 14 of the Convention, the applicant complained that the proceedings concerning the refusal to grant him immunity from arrest under Article 70.4 of the Election Code, as well as the proceedings concerning the refusal to substitute the preventive measure of remand in custody with release on bail, had been unfair and politically motivated.

(a) In so far as the applicant complained under Article 5 of the Convention, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

(b) In so far as the applicant complained of procedural unfairness under Article 6 of the Convention, the Court reiterates that a person claiming unfairness of proceedings relating only to his detention cannot, in principle, claim to be a victim of a violation of Article 6 when the criminal proceedings against him are still pending and no final conviction has yet been issued in the relevant proceedings (see Guliyev v. Azerbaijan (dec.), no. 35584/02, 27 May 2004).

As to the effect of the refusal to grant the applicant immunity under the Election Code on his right to stand as a candidate in the parliamentary elections, this issue is covered by the applicant ’ s other complaint which, inter alia , raises issues under Article 3 of Protocol No. 1 to the Convention (see complaint no. 3 above and section 3 below).

Lastly, the Court finds that the present complaint raises no separate issues under Articles 13 and 14 of the Convention.

For the above reasons, the Court concludes that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained that he had been detained for three days in Simferopol , Ukraine , in breach of Article 5 of the Convention.

The Court notes that, notwithstanding the fact that the applicant was detained pursuant to a request by the Azerbaijani authorities, he was deprived of his liberty by the Ukrainian authorities and remained under the jurisdiction of Ukraine during the entire period of the detention in question. However, it does not appear from the application that the applicant wished to lodge a separate complaint against Ukraine . The Court notes that, in his application form, the applicant clearly stated his intention to direct his complaint only against the Republic of Azerbaijan . As such, the alleged violation of his right to liberty in Ukraine cannot be attributable to the respondent State.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. Relying on Article 3 of Protocol No. 1 to the Convention and Article 14 of the Convention, the applicant complained that the criminal proceedings against him had been based on political motives and, as a result, he had been unable to return to Azerbaijan to conduct his pre-election campaign.

The Court considers that, apart from the Convention provisions expressly relied on by the applicant, the present complaint, in substance, also raises an issue of the length of criminal proceedings which falls within the ambit of Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

4. The applicant complained under Article 3 of Protocol No. 1 to the Convention about the allegedly arbitrary decision of the domestic authorities to invalidate the election results in five polling stations of the election constituency where he had stood as a candidate for parliamentary elections.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicant complained under Article 6 of the Convention of unfairness in the proceedings concerning the refusal to issue him with a domestic identity card and a diplomatic passport.

The Court notes that a claim to an identity card or a passport is not a “civil” right, as it is not of a pecuniary or otherwise of a private law character (see, mutatis mutandis , Peltonen v. Finland , no. 19583/92, Commission decision of 20 February 1995). Accordingly, Article 6 of the Convention does not apply to the proceedings in question, as they did not concern the applicant ’ s “civil rights and obligations”. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

Moreover, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that, in the particular circumstances of the present case, the refusals to issue the applicant with an identity card and a diplomatic passport do not raise any issues under any other provisions of the Convention or its Protocols.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the alleged violation of the applicant ’ s right to liberty and security (Article 5 of the Convention), the applicant ’ s alleged inability, due to the length of the criminal proceedings against him, to participate in the elections under the same conditions as other candidates (Articles 6 § 1 and 14 of the Convention and Article 3 of Protocol No. 1 to the Convention) and the invalidation of the election results in five polling stations of the applicant ’ s constituency (Article 3 of Protocol No. 1 to the Convention) ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President