Information Note on the Court’s case-law 189

October 2015

Gahramanli and Others v. Azerbaijan - 36503/11

Judgment 8.10.2015 [Section I]

Article 3 of Protocol No. 1

Stand for election

Lack of effective examination of the applicants’ complaints concerning election irregularities: violation

Facts – The applicants stood as candidates for the opposition parties in the parliamentary elections of 2010. They complained of the unlawful interference with the election process by electoral commission members, undue influence on voter choice, obstruction of observers and ballot-box stuffing. Their complaints were dismissed by the Central Electoral Commission (CEC) and by the domestic courts as unsubstantiated.

Law – Article 3 of Protocol No. 1: The applicants had put forward a very serious and arguable claim disclosing an apparent failure to hold free and fair elections in their constituency. Therefore the alleged irregularit ies, if duly confirmed as having taken place, were indeed potentially capable of thwarting the democratic nature of the elections. The applicants’ allegations were based on the statements by observers. The OSCE/ODI HR * Observation Mission Final Report on the Parliamentary Elections of 7 November 2010, which gave a general account of the most frequent problems identified during the election process, indirectly corroborated the applicant’s claims. The respondent state was therefore under an obligation to provide a system for undertaking an effective examination of the applicant’s complaints.

However, the assessment of evidence carried out by the CEC had not been adequate and comprehensive. First, despite the requirement s of the Electoral Code, the applicants’ presence at the CEC hearing had not been ensured, depriving them of the possibility of arguing their position. The CEC might not even have held a genuine hearing since in practice it adopted an expert group member’s opinion unquestioningly, without discussing the substance of the complaints. Nor had the CEC given adequate consideration to the observers’ statements concerning the alleged irregularities that had been submitted by the applicants as evidence in support o f their complaint. None of those observers had been called to be questioned and no further investigation had been carried out in respect of their allegations. The CEC had referred, on the other hand, in general terms, to statements collected from some othe r observers denying any irregularities, without making them available for the applicants and without a convincing explanation as to why these statements had been given more weight than the observers’ statements presented by the applicants.

The domestic cou rts had not remedied these shortcomings and upheld the CEC’s findings, without conducting an independent examination of the arguments raised or addressing the applicants’ complaints about the shortcomings in the CEC procedure.

Moreover, the Constitutional Court had prematurely confirmed the country-wide election results as lawful, while the applicants were still in the process of seeking redress for alleged breaches of their electoral rights in their constituency through the existing appeal system and while the period afforded by law for lodging an appeal with the Supreme Court was still pending. The Supreme Court had thus been no longer able to take any decision affecting the election results in the applicant’s constituency. The Constitutional Court’s decis ion had therefore deprived the remedy available to the applicants of all prospect of success and rendered the entire system for examining individual election related complaints futile and illusory in the applicants’ case.

The conduct of the electoral commi ssions and courts and their respective decisions had revealed an apparent lack of any genuine concern for combatting the alleged instances of electoral fraud and protecting the applicants’ right to stand for election.

Furthermore the proportion of pro-ruli ng-party members in all electoral commissions, including the CEC, was particularly high. That was one of the systemic factors contributing to the ineffectiveness of the examination by the CEC of the applicants’ election-related complaint. It fell to the Co mmittee of Ministers to supervise, in the light of the information provided by the respondent State, the execution of the Court’s judgment and to follow up on the implementation of general measures and evolution of the system of electoral administration in line with the Convention. An effort by the respondent State envisioning a reform of the structural composition of the electoral commissions should therefore be encouraged with the aim of improving the effectiveness of examination of individual election re lated complaints.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 to each applicant in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.

* Organization for Security and Co-operation in Europe/Office for Democratic Institutions and Human Rights.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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