FIRST SECTION

Application no. 20411/11 Aslan Ziyaddin Oglu ISMAYILOV against Azerbaijan lodged on 17 March 2011

STATEMENT OF FACTS

The applicant, Mr Aslan Ismayilov, is an Azerbaijani national, who was born in 1958 and lives in Baku. He is rep resented before the Court by Mr A. A lizad e , a lawyer practising in Azerbaijan .

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

The applicant was an independent candidate in the parliamentary elections of 7 November 2010 in the single-mandate Narimanov Second Electoral Constituency No. 20.

According to the applicant, starting from 15 October 2010, the first day of official electoral campaigning period, people affiliated with one of his opponents in the election (A.A.) committed a number of unlawful actions against him. In particular, they deliberately removed or damaged his election posters displayed in public places, interfered with his meetings with voters by intimidating voters or otherwise preventing them from attending those meetings and, on one occasion, even attacked the applicant ’ s election campaign headquarters.

In connection with the above, the applicant lodged a complaint with, inter alia , the local police department, which initially responded by arresting one person in connection with the above-mentioned incidents, but later released him.

According to the applicant, he also informed the Constituency Electoral Commission (“the ConEC ”) and the Central Electoral Commission (“the CEC”) about those incidents, but received no reply.

According to the applicant, he also lodged formal complaints with both the ConEC and CEC concerning the breaches of electoral law committed against him during the period prior to election day ( copies of these complaints are not available in the case file ). However, neither electoral commission examined those complaints.

During election day , on 7 November 2010, the applicant lodged several separate complaints with the ConEC concerning a number of breaches of electoral law allegedly committed throughout the day, including inter alia the following:

(a) there were instances where observers appointed by the applicant were subjected to physical force, or were escorted out of polling stations by the police, or otherwise were not allowed to observe the voting process closely, allegedly with the purpose of concealing various irregularities committed by members of polling station electoral commissions ( “ PEC s” );

(b) there were instances of “carousel” voting in various polling stations;

(c) there were instances where, contrary to the legal requirements, some voters ’ fingers were not marked with ink; and

(d) there were instances of ballot-stuffing committed in favour of A.A., as well as illegal campaigning on A.A. ’ s behalf on election day.

Enclosed with the complaints, the applicant submitted affidavits signed by his observers and representatives in various polling stations, as well as a number of video recordings and photographs documenting the alleged irregularities.

According to the applicant, the ConEC did not examine the above complaints on the same day (under the Electoral Code, complaints lodged on election day must be examined immediately).

After the closure of polling stations and vote counts, in the evening of 7 November 2010 the ConEC issued an election results record indicating that the applicant received 3,933 votes and lost the election to A.A. who received 10,656 votes.

On 9 November 2010 the applicant lodged a complaint with the CEC, requesting the latter to invalidate the election results in the entire constituency due to numerous irregularities committed in various polling stations during election day . In support of this request, he described, in detail, the alleged irregularities and breaches of electoral law committed during both the campaigning period and election day and mentioned in his earlier complaints. He also complained that the ConEC had failed to examine his complaints lodged on election day . Enclosed with his complaint to the CEC, the applicant submitted more than a hundred affidavits signed by his observers and other documents, video recordings and photographs documenting the alleged irregularities.

According to the applicant, he was not invited to the CEC meeting concerning the examination of his complaint and, despite his efforts to attend it anyway, was not allowed to enter the CEC building.

By a decision of 21 November 2010, the CEC rejected the applicant ’ s complaint, finding that his allegations were unsubstantiated. It noted at the outset that the applicant had been informed about the time of the CEC meeting in advance by telephone and given an opportunity to attend it, but that he had failed to attend. As to the merits of the complaint, the CEC found that, because the applicant lodged his complaint directly with the CEC instead of complaining about each alleged irregularity immediately to the relevant PEC, it was now more difficult to establish facts. Nevertheless, the CEC noted that it examined the allegations before it and found them unsubstantiated. Having obtained “explanatory statements” from a number of chairmen and members of various PECs and some observers, all of whom noted that there had been no serious breaches of electoral law in their respective polling stations, the CEC found that the allegations made by the applicant concerning various irregularities were not “confirmed” to be true. As to the alleged failure by the ConEC to examine the applicant ’ s complaints, the CEC also found that the ConEC had examined the applicant ’ s complaints made on election day and rejected them as unsubstantiated by a decision of 7 November 2010.

On 22 November 2010 the CEC issued a final record on the general election results, confirming the final results of elections in all constituencies. In accordance with electoral law, this results record was sent to the Constitutional Court for approval.

On 24 November 2010 the applicant lodged an appeal against the CEC decision of 21 November 2010 with the Baku Court of Appeal, reiterating his complaints about the irregularities and requesting the court to quash the CEC decision and to invalidate the election results in his constituency. In his appeal, the applicant also submitted that, contrary to what was stated in the CEC decision, he had not been allowed to attend the CEC meeting. As to the remark by the CEC that he should have lodged his complaints with various PECs, he noted that there was no such requirement in the Electoral Code and that in any event he had actually complained to PECs and ConEC but that they had either refused to accept those complaints or ignored them. He further noted that, in order to rebut his allegations, the CEC examined “explanatory statements” from various PEC chairmen and members who were themselves responsible for the alleged irregularities and who obviously would deny any wrongdoing. The same applied to the “explanatory statements” of some observers who were not impartial. No reasoning was provided why the CEC considered those “explanatory statements” as more reliable than the affidavits and other evidence submitted by the applicant.

By a judgment of 26 November 2010, the Baku Court of Appeal rejected the applicant ’ s appeal, finding that the CEC decision was lawful. In the end of the judgment, the court remarked that the CEC had already issued a final results record on 22 November 2010, finalising all election results in all constituencies, and that the results were subject to verification and approval by the Constitutional Court. No explanation was provided by the Court of Appeal as to the reasons for including this remark in the judgment.

In the meantime, on 29 November 2010 the Plenum of the Constitutional Court examined the CEC ’ s final results record of 22 November 2010 and approved the election results in all constituencies. This decision was final and entered into force immediately.

On 30 November 2010 the applicant lodged an appeal with the Supreme Court against the Baku Court of Appeal ’ s judgment of 26 November 2010, reiterating his previous complaints and requesting the court to quash the impugned judgment and to invalidate the election results in his constituency. He also complained that, instead of providing any adequate reasoning for its decision, the Baku Court of Appeal simply copied the text of the challenged CEC decision, in its entirety, into the text of its judgment.

By a decision of 2 December 2010 the Supreme Court rejected the applicant ’ s appeal. The court found that the applicant ’ s claims were unsubstantiated and that his complaints had been properly examined by the Baku Court of Appeal. The court also noted that, on 29 November 2010, the Constitutional Court had reviewed and approved the election results. As the Constitutional Court ’ s decision was the final act concluding the entire election process and, as such, could not be quashed, amended or reinterpreted by any other authority or court, the Supreme Court found that in any event it was no longer possible to grant the applicant ’ s appeal challenging the election results in his constituency and seeking their invalidation.

COMPLAINTS

1. The applicant complain s 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 elect oral 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 elect oral commissions and courts, had failed to duly and effectively examine his complaints and to investigate such irregularities.

2. The applicant complains under Article 13, in conjunction with the above complaint, that he was deprived of his right to an effective remedy before the Supreme Court because the Constitutional Court approved the country-wide election results despite the fact that his individual appeal, challenging the election results in his constituency and lodged within the time-limits specified by law, was still pending before the Supreme Court.

3. The applicant complains under Article 14 of the Convention, in conjunction with the above complaints, that candidates nominated by opposition parties and independent candidates critical of the Government, like himself, were discriminated against, by various means, by all State executive authorities, electoral commissions, courts and Government-controlled media throughout the entire electoral process.

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? Did the process of examination by the domestic authorities of the applicant ’ s complaints offer sufficient safeguards against arbitrariness? Did such examination comply with the requirements of Article 3 of Protocol No. 1? Moreover, given that the Constitutional Court had approved the results of elections while the applicant ’ s individual appeal before the Supreme Court was pending, was the applicant ’ s right to challenge the election results before the Supreme Court, as a final remedy guaranteed by domestic electoral law, effective in practice?

2 . Did the applicant have at his disposal an effective domestic remedy before the electoral commissions and domestic courts (and, in particular, the Supreme Court) for his Convention complaints, as required by Article 13 of the Convention?

3. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his political affiliation, contrary to Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1?