FIRST SECTION

Application no. 2326/11 Nuraddin MAMMADLI against Azerbaijan lodged on 23 December 2010

STATEMENT OF FACTS

The applicant, Mr Nuraddin Mammadli , is an Azerbaijani national, who was born in 1946 and lives in Gadabay . He is represented befor e the Court by Mr I. Aliyev , a lawyer practising in Azerbaijan.

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

The applicant was a Deputy Chairman of the Popular Front Party of Azerbaijan (PFPA), which was in opposition to the government. He was nominated by the PFPA to stand as one of its candidates in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in the single-mandate Narimanov-Nizami Electoral Constituency No. 18.

As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 6 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC ”) twelve signature lists containing 599 voter signatures in support of his candidacy.

According to the applicant, in the days following his request for registration, the ConEC chairman and members pressured him to withdraw his registration request by offering him a large amount of money and unofficially informing him that, if he did not withdraw, his request would be refused anyway.

A . Refusal to register the applicant as a candidate

By a decision of 12 October 2010, the ConEC refused the applicant ’ s request for registration as a candidate.

On 13 October 2010 the applicant was given a copy of the extracts of the decision 12 October 2010, and a copy of the Results Table of verification by a “working group” established by the ConEC of the signature lists submitted by the applicant ( imza vərəqlərinin işçi qrupu tərəfindən yoxlanmasının nəticəsi barədə cədvəl ; “the Results Table”).

According to the ConEC decision of 12 October 2010, the applicant ’ s registration request was rejected in accordance with Article 60 of the Electoral Code, because only 411 out of the 599 voter signatures submitted by the applicant were found to be valid.

According to the Results Table, 188 out of the 599 signatures were considered invalid for the following reasons: (a) 50 signatures were collected by a signature collector whose identity card number was incorrectly stated in the signature list; (b) 47 signatures were falsified (executed by one person in the name of several other persons); (c) 28 signatures belonged to voters registered outside the constituency; (d) 19 signatures were invalid because there was an inconsistency between the signature date and the date of issue of the relevant person ’ s identity card; (e) 18 signatures belonged to persons whose identity card numbers stated in the signature lists were incorrect; (f) 12 signatures were invalid because corrections were made in their respect in the signature lists, but those corrections were not properly certified; (g) four signatures belonged to voters whose birth date was stated incorrectly; (h) two signatures were invalid because required personal data in respect of the voters was incomplete; and (i) one signature was inv alid because it was not in hand ‑ writing.

B . Decision of the Central Electoral Commission

The applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision of 12 October 2010. He complained, inter alia , that:

(a) the findings of the ConEC “working group” that such a large number of signatures were invalid were factually wrong, unsubstantiated, and arbitrary. In particular, the findings that some signatures belonged to voters residing outside the constituency, that some signatures were falsified, and so on, were simply wrong and could be easily rebutted. There were no specialised hand-writing experts among the members of the ConEC “working group” and, therefore, its findings concerning the authenticity of some signatures were highly subjective and arbitrary;

(b) the ConEC decision to declare the signatures invalid was arbitrary and in breach of the substantive and procedural requirements of the law. Relying on Articles 60.2.2, 60.4 and 58.2 of the Electoral Code, the applicant argued that unintentional and rectifiable errors (or, as the applicant put it, “technical shortcomings”) in the signature lists could not be a basis for declaring a voter signature invalid. If the errors found could be rectified by making relevant corrections, the Electoral Code required the ConEC to notify the relevant candidate of this within 24 hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. However, in the applicant ’ s case, the ConEC declared invalid a large number of signatures on the basis of easily rectifiable errors, without informing him in advance and without giving him an opportunity to rectify them;

(c) the procedure followed by the ConEC also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicant was not informed in advance of the time and place of the examination of the signature lists and his presence was not ensured. Contrary to the requirements of Article 59.13 of the Electoral Code, the applicant was not provided with a copy of the minutes of the examination of the validity of signature lists at least 24 hours prior to the ConEC meeting dealing with the applicant ’ s registration request.

Enclosed with his complaint, the applicant also submitted affidavits by fifteen voters whose signatures were found by the ConEC to have been falsified by another person, in which they confirmed the authenticity of their signatures by stating that they had signed themselves in their own name.

According to the Results Table of the CEC “working group” of 16 October 2010 and the accompanying opinions of the CEC experts, 49 groups of signatures comprising a total of 244 signatures “appeared” to have been executed by same persons in the name of other persons ( “ ehtimal ki , eyni şəxs tərəfindən icra olunmuşdur ” ). Out of these 244 signatures, 49 were considered valid (as the first signature within a group) and the remaining 195 invalid. A further seven signatures were considered invalid because of the incorrect information concerning their identity documents, bringing the total of invalid signatures to 202. It is unclear when these documents were made available to the applicant.

On 19 October 2010 an expert of the CEC “working group” issued an opinion finding that 202 out of 599 signatures submitted by the applicant were invalid.

On the same day, 19 October 2010, the CEC rejected the applicant ’ s appeal, relying on the opinion of the CEC “working group” and finding that the ConEC ’ s decision to refuse registration was correct.

Copies of the above-mentioned opinion of 19 October 2010 and the CEC decision of 19 October 2010 were made available to the applicant on 20 October 2010.

C . Appeals lodged with the domestic courts

On 21 October 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Appeal. He reiterated his complaints made before the CEC concerning the ConEC decision and procedures. Moreover, he complained that the CEC likewise failed to ensure his presence at the CEC meetings, and that the CEC had arbitrarily “raised” the number of allegedly invalid signatures from 188 (as originally determined by the ConEC ) to 202. He also complained that the CEC had not taken into consideration the affidavits by a number of voters confirming the authenticity of their signatures. Relying on a number of provisions of the domestic law and on Article 3 of Protocol No. 1 to the Convention, the applicant claimed that his right to stand for election was breached.

On 26 October 2010 the Baku Court of Appeal ordered a forensic handwriting analysis of the applicant ’ s signature lists.

A forensic handwriting expert of the Forensic Expert Centre of the Ministry of Justice received this decision and accompanying documents on 27 October 2010. According to the expert ’ s opinion issued on the same date (27 October 2010), a total of 245 signatures were executed by one person in the name of others (consisting of 49 separate groups containing up to 30 signatures each, where each group was executed by the same person).

By a judgment of 28 October 2010, the Baku Court of Appeal rejected the applicant ’ s appeal, finding that the signature lists had been examined by the electoral commissions in accordance with the procedure specified by law and that the applicant ’ s complaints about the unlawfulness and arbitrariness of the procedure and the electoral commissions ’ decisions were ill-founded. It further ruled that the fact that the applicant had not been present at the meetings of the electoral commissions ’ “working groups” could not be a ground for a finding that their decisions were unsubstantiated.

On 30 October 2010 the applicant lodged an appeal with the Supreme Court. He reiterated his complaints made before the electoral commissions and the Baku Court of Appeal. He also questioned the reliability of the forensic expert report of 27 October 2010, noting that the expert issued her opinion within one day. In his opinion, it was a grossly inadequate amount of time for conducting a proper handwriting analysis of 599 signatures.

By a decision of 3 November 2010, the Supreme Court rejected the applicant ’ s appeal, reiterating the Baku Court of Appeal ’ s reasoning. It also found that, although the applicant ’ s rights under Articles 59.3 and 59.13 of the Electoral Code (to be present at electoral commissions ’ meetings and to receive copies of relevant documents in a timely manner) were breached and although those breaches “affected his right to free election, to a certain degree”, the applicant ’ s arguments concerning these breaches could not be a basis for quashing the judgment of the Baku Court of Appeal. Lastly, it found that the applicant ’ s argument concerning a violation of Article 3 of Protocol No. 1 to the Convention was unsubstantiated.

COMPLAINTS

Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicant complains that his right to stand as a candidate in free elections and his right to an effective remedy were breached, because he was arbitrarily disqualified from running for election. In particular, the procedures for verification of voter signatures in support of his candidacy and for examination of his 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 .

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 candidates ’ eligibility contain sufficient safeguards to prevent arbitrary decisions?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of Protoco l No. 1, as required by Article 13 of the Convention?

3. The parties are requested to submit detailed factual information concerning the methods of composition and functioning of the “working groups” at various electoral-commission levels (including the constituency electoral commission in the applicant ’ s constituency), the manner of selection and appointment of their members, as well as information as to whether their membership included any qualified experts and/or specialists ( mütəxəssis ) possessing expertise relevant to the tasks they were charged with. The parties are requested to inform the Court whether members of electoral commissions ’ “working groups” had received any specialised training before their appointment and, if so, describe the types of trainings received.