1 Ju ly 2008

FIR ST SECTION

Application no. 16511/06 by Baybala ABIL against Azerbaijan lodged on 15 April 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Baybala Abil , is an Azerbaijani national who was born in 1952 and lives in Baku . He is represented before the Court by Mr I. Aliyev , a lawyer practising in Azerbaijan .

A. The circumstances of the case

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

The applicant was an independent candidate for the forthcoming elections to the Milli Majlis (Parliament) of 6 November 2005. He was registered as a candidate by the Constituency Election Commission (“the ConEC ”) for the single-mandate Garadagh Election Constituency No. 11.

1. Cancellation of the applicant’s registration as a candidate

On 28 October 2005 the ConEC , during a meeting held in the applicant’s absence, decided to apply to the Court of Appeal with a request to cancel the applicant’s registration as a candidate for the elections due to the reports of his engaging in activities incompatible with the requirements of the Election Code. The ConEC noted that it had received a number of written statements from voters claiming that the applicant had promised them money in exchange for their promise to vote for him. A total of seventeen such statements were submitted to the court.

On 29 October 2005 the applicant and his lawyer attempted to get a copy of the case file from the Court of Appeal, but were not allowed to do so.

On 31 October 2005 the Court of Appeal examined the case and cancelled the applicant’s registration as a candidate.

During the hearing, the applicant submitted that he had not been informed of the ConEC meeting of 28 October 2005 in advance and, therefore, had not been able to attend it. He denied all the accusations against him and argued that they had been fabricated. The court heard oral testimonies of only eight persons out of seventeen persons who had submitted written statements to the ConEC accusing the applicant of bribing. Seven of them testified that they had been approached by some unknown people who had offered them money if they agreed to vote for the applicant. One of the witnesses (“H”) .H testified that the applicant had personally offered him money. The Court of Appeal considered this evidence sufficient to find that the applicant had offered money to voters in exchange for their votes in his favour, thus breaching Article 88.4 of the Election Code.

After the delivery of the Court of Appeal’s judgment, the applicant inquired about the identity of the persons who had testified against him. He found out that four out of eight persons who had testified against him were not actually registered as voters in his constituency. Moreover, the witness H was not registered and did not actually reside at the address which, according to his submissions to the court, was his address of primary residence located in the applicant’s constituency.

The applicant lodged a cassation appeal with the Supreme Court, arguing that the Court of Appeal’s judgment was arbitrary, that the evidence used against him had been fabricated, that the persons who had testified against him were false witnesses and that all of these persons were relatives of various officials of the local executive authorities.

On 3 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 31 October 2005. It found that the Court of Appeal had duly established the factual circumstances of the case.

2. The applicant’s complaints concerning the alleged irregularities in the election process

In the meantime, in September-October 2008 the applicant lodged several complaints with the ConEC and the Central Election Commission (“the CEC”) concerning various alleged irregularities in the election process in his constituency. In particular, he complained about alleged unlawfulness of creating separate polling stations for the military personnel inside military barracks, alleged falsifications and inaccuracies in official voters’ lists, allegedly unlawful composition of polling station election commissions, and alleged undue interference of local executive authorities with the election process. However, according to the applicant, he did not receive any replies to his complaints.

The applicant lodged an action with the Court of Appeal, complaining about the above-mentioned irregularities and asking the court to hold the Chairman of the CEC liable for the alleged failure to respond to his complaints.

On 2 November 2005 the Court of Appeal dismissed the applicant’s claims as unsubstantiated. On 7 November 2005 the Supreme Court upheld this judgment.

B. Rele vant domestic law

Article 88.4 of the Election Code prohibits the candidates from, inter alia , influencing the voters by promising or offering them money or gifts, or providing free or discounted services to them.

Under Article 113.2.3 of the Election Code, the relevant election commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4.

COMPLAINTS

1. The applicant complain ed under Article 3 of Protocol No. 1 to the Convention that his registration as a candidate for the parliamentary elections had been cancelled arbitrarily and, as a result, his right to stand for election had been violated . In particular, he complained that the decision on the cancellation of his candidacy had been based on fabricated evidence and that the allegations against him had not been duly proven.

2. The applicant complained, again relying on Article 3 of Protocol No. 1 to the Convention, that there had been a number of serious irregularities during the election process in his constituency, which had been designed to give unfair advantage to a pro-presidential candidate, and that the election authorities had failed to duly examine his complaints concerning these irregularities.

3. Relying on Article 13 of the Convention in conjunction with both of the above complaints, the applicant argued that the domestic remedies in his case had been ineffective.

4. Relying on Article 14 of the Convention in conjunction with his second complaint under Article 3 of Protocol No. 1, the applicant complained that, although the entire composition of the parliament was elected from 125 single-mandate constituencies under a “ majoritarian ” system, candidates representing major political parties and blocs had been given an unfair advantage over independent candidates. In particular, under domestic election laws, major political parties and blocs (which had fielded their candidates in 60 or more constituencies) were granted, inter alia , free air time on state television for campaign advertisement, while independent candidates which did not represent any party had been deprived of any state aid for their election campaigns.

QUESTIONS TO THE PARTIES

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? Was the applicant afforded a possibility to effectively defend his position in the proceedings concerning the cancellation of his registration as a candidate?