Communicated on 26 January 2021 Published on 15 February 2021

FIFTH SECTION

Application no. 29852/16 Igbal Feyruz oglu AGAZADE against Azerbaijan lodged on 18 May 2016

STATEMENT OF FACTS

The applicant, Mr Igbal Feyruz oglu Agazade , is an Azerbaijani national, who was born in 1968 and lives in Baku. He is represented before the Court by Mr K. Bagirov, a lawyer practising in Baku.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was the chairman of the Umid party. He stood as a candidate in the 2015 parliamentary elections in Khatai Third Electoral Constituency no. 35. There were 33 precincts in the constituency.

After vote-counting on the precinct level at the end of election day, the applicant ’ s observers were given copies of election results records from 22 precinct electoral commissions (PEC). Results records from the remaining 11 PECs were not given to him. According to the applicant, the information in the copies of the results records in his possession, as well as the statements of his observers from the 11 other PECs, showed that he had received the highest number of votes in the constituency.

After the vote counts received from the precincts had been aggregated by the constituency electoral commission ( ConEC ) and the results had been sent to the Central Electoral Commission (CEC), the official election results showed that the applicant received 6,710 votes, the second highest number of votes, behind the winning candidate (A.A.) who had 8,626 votes.

On 2 November 2015 the applicant lodged a complaint with the CEC asking for cancellation of election results in three precincts (nos. 17, 18 and 26) where A.A. officially received higher numbers of votes. He complained inter alia that, according to the observers present during the vote-counting in the relevant PECs, he had obtained the highest numbers of votes in all three of those precincts; however, the relevant PEC chairmen had taken all the documents and ballots and had left the precincts without drawing up the official PEC results records after the vote-counting, as required by law. Subsequently, the official results records for those precincts published by the ConEC showed significantly different vote counts and overall voter turnout numbers than those observed during the vote-counting. On 5 November 2015 the CEC forwarded the applicant ’ s complaint to the ConEC . On 7 November 2015, after recounting votes cast in those precincts, the ConEC cancelled the election results in two of them (nos. 18 and 26). As to precinct no. 17, the ConEC determined that there were no grounds for cancellation of its election results (no copy of this decision is available in the case file).

At the same time, on 2 November 2015 the official election representative of the applicant ’ s political party applied to the ConEC with a request to recount votes in all precincts of the constituency (no copy of this request is available in the case file). It appears that on 6 November 2016 the ConEC dismissed the request, with a brief reasoning that it had determined that there was “no need for recounts”. A copy of this decision given to the party ’ s representative contained no date and no decision number.

In the meantime, on 5 and 6 November 2015, on the basis of complaints by a group of several other losing candidates, the ConEC cancelled the election results in three other precincts (nos. 5, 10 and 11) where, according to the applicant, he had officially received higher numbers of votes than A.A. (no copies of those complains and decisions are available in the case file).

After the above-mentioned cancellations of results in several precincts, the new official constituency-wide results showed that the applicant remained in the second place with 5,058 votes, while A.A. had 5,650 votes.

Between 7 and 9 November 2015 the applicant and the election representative of his party lodged three separate appeals with the CEC, challenging all of the above-mentioned ConEC decisions, and seeking in particular the following:

(a) As to the decision concerning precincts nos. 17, 18 and 26, they sought also the cancellation of the election results in precinct no. 17;

(b) As to the decisions cancelling the election results in precincts nos. 5, 10 and 11, they sought that they be quashed, arguing there had been no actual recounts and that the decisions on cancellation had been taken in breach of the relevant procedures and without the knowledge, and in the absence of, the ConEC member representing the applicant ’ s party;

(c) Lastly, they requested that the ConEC decision of 6 November 2015 be quashed and that all votes in the constituency cast in all of the precincts be recounted.

In the above appeals, they argued inter alia that there were significant discrepancies between the election results indicated in the copies of the PEC results records in the applicant ’ s possession and the official results published by the electoral authorities. More specifically, different vote totals were shown in the official results for 15 precincts out of the 22 for which copies of the PEC results records had been given to him, according to which he had received significantly higher numbers of votes than A.A. in those precincts. As to the precincts for which no copies of the results records had been given to him, his observers had made video recordings of the vote ‑ counting showing that the applicant had obtained more votes than his main opponent. Moreover, there were significant discrepancies between the voter turnout numbers indicated in the official results records of precincts nos. 17, 18 and 26 and the voter turnout numbers for those precincts published on the CEC website, which according to the applicant was a sign that, after the voting ended, the voter turnout had been falsely inflated in those precincts in order to attribute more votes to his main opponent. If the results of all three of those precincts had been cancelled, the applicant would have won the election even despite the alleged tampering in most other precincts. Furthermore, the allegedly dubious decisions of 5 and 6 November 2015 to cancel the election results in precincts nos. 5, 10 and 11 had brought the vote totals back in favour of his main opponent.

The CEC examined all the appeals together. On 10 November 2010 it dismissed them, mostly finding that the complaints were unsubstantiated, with brief reasoning. However, referring to some evidence submitted by the applicant, the CEC also cancelled the election results in precinct no. 21, which apparently did not ultimately affect the fact that A.A. was declared as a winning candidate.

The applicant appealed to the Baku Court of Appeal, arguing inter alia that the CEC had not adequately examined the evidence presented by him, that its decision was wholly unsubstantiated and that its conclusions were incorrect. He requested the court (i) to quash the CEC decision and (ii) to instruct the CEC to adopt a number of specified decisions (such as to cancel the election results in precinct no. 17, restore the cancelled election results in precincts nos. 5, 10 and 11, and so on) and to take specific procedural steps (such as new recounts in various specific precincts, and so on).

On 13 November 2015 the Baku Court of Appeal dismissed the applicant ’ s appeal in the part requesting the quashing of the CEC decision, finding that the decision was well-substantiated and lawful, and declared the remainder of the appeal inadmissible.

The applicant appealed to the Supreme Court, reiterating his previous complaints and arguing that the appellate court ’ s judgment was unsubstantiated and legally incorrect. On 18 November 2015 the Supreme Court dismissed the applicant ’ s appeal, finding that there were no grounds for quashing the appellate judgment. This final decision was sent to the applicant on 19 November 2015.

COMPLAINTS

The applicant complains under Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention that his electoral rights were breached owing to significant falsifications and irregularities in various electoral procedures, including vote-counting, tabulation of election results, vote recounts, cancellations of the elections results in some precincts, as well as owing to the subsequent ineffective examination of his complaints and appeals by the electoral commissions and courts.

QUESTIONS TO THE PARTIES

1. Has there been a breach of the applicant ’ s right under Article 3 of Protocol No. 1 to participate in free elections which ensure the free expression of the opinion of the people in the choice of legislature? In particular, have there been instances of irregularities in, and tampering with, vote-counting, recounts, drawing up of election results records ( protokol ) and tabulation of results at both the precinct and constituency levels? Were the decisions to cancel election results in some precincts and to refuse requests for a recount in some other precincts well-founded and devoid of arbitrariness? Did the procedures of examination by the electoral commissions and courts of the applicants ’ and his electoral representative ’ s complaints offer sufficient safeguards against arbitrariness? Was such examination by the commissions and courts effective and did it comply with the requirements of Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention?

2. What were the reasons for the alleged differences between the figures contained in the copies of the results records received by the applicant ’ s electoral representatives from a number of precinct electoral commissions (PEC) at the end of voting day, and the official results published and approved by the constituency electoral commission ( ConEC ) and the Central Electoral Commission? What were the reasons for the alleged failure to provide copies of the results records of 11 PECs to the applicant ’ s representatives at the end of voting day?

3. The Government are invited to submit copies of the “official” results records for each of the 33 precincts of the constituency (those which were in possession of the ConEC and used by it to calculate the aggregate results of the elections in the constituency), including the original and any new results records drawn up before and after the recounts in respect of the precincts concerned by those recounts, as well as the official final results record of the ConEC and all other official information concerning the election results in Khatai Third Electoral Constituency no. 35 published by the ConEC and the CEC, both before and after the cancellations of election results in several precincts.

4. What were the precinct-specific grounds for each ConEC decision to order (or to refuse to order) vote recounts? Did the manner in which the recounts were conducted comply with the substantive and procedural requirements of the domestic electoral law? What were the results of each recount and what were the reasons that lead the ConEC to cancel the election results (as opposed to, for example, using the recount results as valid results) or not to cancel them? The Government are requested to provide copies of all records documenting the recount procedures and results in respect of each precinct concerned.

5. Were there actual recounts of votes cast in precincts nos. 5, 10 and 11 and did the ConEC hold formal meetings ordering recounts and cancelling election results in those precincts? Were those meetings held in compliance with the procedural requirements of the domestic electoral law? The Government are requested to submit copies of all documents and decisions concerning those ConEC meetings, in addition to the documents concerning the recounts in respect of the above-mentioned precincts.

6. Did the electoral authorities and courts examine and address all the essential issues raised by the applicant and his electoral representative in their complaints? Did they examine all the evidence submitted in support of those complaints? The parties are requested to submit copies of all the evidence presented by the applicant and/or his electoral representative before the domestic authorities which is not currently available in the case file, if there was any such evidence.

7. The parties, and in particular the Government, are invited to produce copies of all relevant documents which are not available in the case file, including ( i ) the ConEC decision of 7 November 2015 concerning precincts nos. 17, 18 and 26, together with any and all related documents; (ii) the complaint (request) of 2 November 2015 addressed to the ConEC by the official electoral representative of the Umid party; (iii) the ConEC decisions of 5 and 6 November 2015 concerning precincts nos. 5, 10 and 11, together with any and all related documents; (iv) the complaints by a group of several other candidates which had resulted in the decisions of 5 and 6 November 2015 mentioned above; and (v) any other decisions taken and any other documents (expert opinions, results records, charts, tables, and so on) drawn up by the electoral authorities of all levels concerning the 2015 elections in Khatai Third Electoral Constituency no. 35.

8. As regards any statistical information the parties may wish to submit as part of their submissions, they are encouraged to also summarise it in the form of charts, graphs and tables, with references and explanatory notes where necessary.