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FIRST
SECTION
CASE OF KERIMLI AND ALIBEYLI v. AZERBAIJAN
(Applications
nos. 18475/06 and 22444/06)
JUDGMENT
STRASBOURG
10 January
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Kerimli and Alibeyli v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 18475/06 and
22444/06) against the Republic of Azerbaijan lodged with the
Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Azerbaijani nationals, Mr Ali
Amirhuseyn oglu Kerimli (Əli
Əmirhüseyn oğlu Kərimli
– “the first applicant”) and
Mr Gulamhuseyn Surkhan oglu Alibeyli (Qulamhüseyn
Surxan oğlu Əlibəyli –
“the second applicant”), on 28 April and 19 May 2006
respectively.
2. The
applicants were represented by Mr I. Aliyev, a lawyer practising
in Azerbaijan. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç. Asgarov.
3. The
applicants alleged, in particular, that the invalidation by the
Constitutional Court of the parliamentary elections in their
respective electoral constituencies had infringed their electoral
rights under Article 3 of Protocol No. 1 to the Convention.
- On
3 September 2008 (application no. 22444/06) and 21 October 2008
(application no. 18475/06) the President of the First
Section decided to give notice of the applications to the
Government. It was also decided to rule on the
admissibility and merits of the applications at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- Both
applicants live in Baku.
They are well-known opposition politicians. The first applicant
served as a member of parliament until the elections of 2005. Both
applicants stood for the elections to the National Assembly (Milli
Majlis) of 6 November 2005 as candidates of the opposition bloc
Azadliq.
A. Election results in the first applicant’s
electoral constituency
- The
first applicant was registered as a candidate by the Constituency
Electoral Commission (“the ConEC”) for the single mandate
Surakhany Second Electoral Constituency no. 31. There were a total of
twenty-eight polling stations in the constituency.
- On
7 November 2005 representatives of the Azadliq bloc applied to the
Central Election Commission (“the CEC”) with several
complaints claiming that, during election day, there had been
numerous violations of the electoral law to the advantage of the
pro-governmental candidate, and requesting that the election results
for the entire constituency be invalidated.
- On
8 November 2006 the CEC invalidated the election results in ten
polling stations of Surakhany Second Election Constituency no. 31
owing to infringements of electoral law in those polling stations.
The CEC did not invalidate the election results for the entire
constituency.
- Subsequently,
the CEC published, on its official website, the preliminary results
of the elections in Surakhany Second Election Constituency no. 31
based on the results of the vote in the eighteen remaining polling
stations, naming the applicant as the winner with 3,549 votes in
total, his closest contender having obtained 3,515 votes.
B. Election results in the second applicant’s
electoral constituency
- The
second applicant ran for election in the single mandate
Jalilabad-Masalli-Bilesuvar Electoral Constituency no. 69.
- After
an official tabulation of election results by the ConEC on
6 November, the ConEC drew up an official record of election
results (səsvermənin nəticələrinə
dair protokol) which stated that the applicant had received a
total of 4,264 votes in the constituency. His closest contender had
received 3,575 votes. The ConEC record named the applicant as the
winner.
- The
ConEC record of results was submitted to the CEC for approval.
C. The CEC’s final record of election results
- The
CEC’s final record of election results (seçkilərin
ümumi yekunları haqqında protokol)
named the first applicant as the elected candidate in
Surakhany Second Electoral Constituency no. 31 and the second
applicant as the elected candidate in Jalilabad-Masalli-Bilesuvar
Electoral Constituency no. 69.
- As
for the country-wide results, the CEC invalidated the election
results in four electoral constituencies and approved the results in
121 constituencies, including both applicants’
constituencies.
- On
23 November 2005 the CEC record of results, together with the ConEC
record of results and other documents, was submitted to the
Constitutional Court for review and approval.
D. Invalidation by the Constitutional Court of the
election results for the applicants’ constituencies
- By
a decision of 1 December 2005, the Constitutional Court approved the
election results in 115 electoral constituencies only and invalidated
the results in the remaining six constituencies. The decision stated,
in the relevant part:
“In its letter of 30 November 2005 to the
Constitutional Court, the Prosecutor General’s Office indicated
that it had received, from the [CEC] and relevant [ConECs], a total
of 72 applications concerning breaches of the electoral law of an
allegedly criminal nature during the elections to the National
Assembly. As a result of an examination of these applications, 11
criminal cases have been instituted [against a number of registered
candidates and election officials in a number of constituencies,
including] chairmen and members of 10 polling station electoral
commissions of Surakhany Second Electoral Constituency no. 31 for
falsification of electoral documents [and] 4 members of the [ConEC]
of Jalilabad-Masalli-Bilesuvar Electoral Constituency no. 69 for
abuse of official authority.
Following the examination of the documents submitted by
the [CEC], including additional documents requested by the
Constitutional Court, as well as the opinion of the commissioned
specialists, 115 out of 121 [ConEC] results records [“protokollar”]
which formed the basis for the [CEC results record] should be
considered to be in accordance with the requirements of the Electoral
Code.
As for the remaining 6 (six) constituencies, [including]
Surakhany Second Electoral Constituency no. 31 [and]
Jalilabad-Masalli-Bilesuvar Electoral Constituency no. 69 ..., the
election results in these constituencies should not be approved
because the results records of [the ConECs] of these constituencies
do not meet the requirements of the Electoral Code. ...
... the Plenum of the Constitutional Court decides:
1. To approve the election results in [115
listed constituencies].
2. Not to approve the election results in ...
Surakhany Second Electoral Constituency no. 31,
Jalilabad-Masalli-Bilesuvar Electoral Constituency no. 69 [and four
other constituencies].
3. This decision shall enter into force at
the moment of its delivery. ...”
- The
Constitutional Court ordered repeat elections on 13 May 2006 for all
the constituencies in which the results had been invalidated.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Republic of Azerbaijan
- Article
86 provides as follows:
Article 86. Review and
approval of results of elections to the National
Assembly of the Republic of Azerbaijan
“The accuracy of election
results shall be reviewed and approved by the Constitutional Court of
the Republic of Azerbaijan in the manner specified by law.”
B. Electoral Code
- After
the votes in a polling station have been counted at the end of
election day, the Polling Station Electoral Commission (“the
PEC”) draws up an official record of election results (in three
original copies) documenting the results of the vote in the polling
station (Articles 106.1 106.6). One copy of the PEC record,
together with other relevant documents, is then submitted to the
relevant ConEC within twenty four hours (Article 106.7).
The ConEC verifies whether the PEC record complies with the law and
whether it contains any inconsistencies (Article 107.1). After
submission of all PEC records, the ConEC tabulates, within two days
of election day, the results from the different polling stations and
draws up a record reflecting the aggregate results of the vote in the
constituency (Article 107.2). One copy of the ConEC record of
results, together with other relevant documents, is then submitted to
the CEC within two days of election day (Article 107.4). The CEC
checks whether the ConEC records comply with the law and whether they
contain any inconsistencies (Article 108.1) and draws up its own
final record reflecting the results of voting in all constituencies
(Article 108.2).
- If
within four days of election day the CEC discovers mistakes,
impermissible alterations or inconsistencies in the records of
results (including the accompanying documents) submitted by ConECs,
the CEC may order a recount of the votes in the relevant electoral
constituency (Article 108.4).
- Upon
review of a request to invalidate the outcome of an election, an
electoral commission has a right to hear submissions from citizens
and officials and to obtain the necessary documents and materials
(Article 112.8).
- In
the event of the discovery of irregularities aimed at assisting
candidates who were not ultimately elected, such irregularities
cannot be a basis for the invalidation of the election results
(Article 114.5).
- The
ConEC or CEC may invalidate the election results in an entire
single-mandate constituency if election results in two-fifths of
polling stations, representing more than one-quarter of the
constituency electorate, have been invalidated (Article 170.2.2).
- Pursuant
to Article 86 of the Constitution, the results of elections are
reviewed and approved by the Constitutional Court (Article 171.1).
The CEC reviews the relevant ConEC records of results (together with
the relevant documents) within a period of up to twenty days of
election day, and then forwards them to the Constitutional Court
within forty-eight hours (Article 171.2). Within ten days of receipt
of these documents, the Constitutional Court, with the involvement of
relevant specialists (mütəxəssislər),
verifies their conformity to the requirements of the Electoral Code.
The ten-day examination period may be extended if the process so
requires (Article 171.3). If the ConEC records conform to the
requirements of the Electoral Code, the Constitutional Court approves
the results of the elections. This decision is final (Article 171.4).
C. Law on the Constitutional Court
- Article
42 provides, in the relevant part:
Article 42. Interested Persons
in Special Constitutional Proceedings
“42.1. Interested persons in
special constitutional proceedings shall be the bodies which have
submitted a relevant inquiry or request to the Constitutional Court
or bodies or persons whose interests are affected by such inquiries
or requests made in connection with the circumstances provided for by
Article 86 ... of the Constitution of the Republic of Azerbaijan.
42.2. The interested persons may be
represented by their legal representatives in the special
constitutional proceedings.”
- According
to Article 43, the parties and interested persons in special
constitutional proceedings have the following rights, inter
alia: (a) to participate and speak at
the sessions of the Constitutional Court; (b) to present evidence and
other material; (c) to file motions and proposals concerning the
examination of the case; (d) to answer questions; (e) to raise
objections against judges; (f) to ask for witnesses and experts to be
called upon; and so on.
- Article
54 provides, in the relevant part:
Article 54. Particularities of the
review and approval of the results of the elections to the National
Assembly of the Republic of Azerbaijan
“54.1. In accordance with
Article 86 of the Constitution of the Republic of Azerbaijan, the
Constitutional Court shall review and approve the accuracy of the
results of elections to the National Assembly of the Republic of
Azerbaijan. The procedure for review and approval of the accuracy of
the results of elections to the National Assembly shall be determined
by the Electoral Code of the Republic of Azerbaijan.
...
54.5. The
Chairman and members of the Central Electoral Commission, as well as
other persons summoned by the Constitutional Court, may participate
at the session of the Plenum of the Constitutional Court concerning
the review and approval of the accuracy of the results of elections
to the National Assembly of the Republic of Azerbaijan. ...”
THE LAW
I. JOINDER OF THE APPLICATIONS
- Pursuant
to Rule 42 § 1 of the Rules of the Court, the Court decides to
join the applications given their similar factual and legal
background.
II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1
TO THE CONVENTION
- The
applicants complained under Article 3 of Protocol No. 1 to the
Convention and Article 13 of the Convention that the invalidation of
the election results for their constituencies due to the alleged
incompatibility of the ConEC records of results with the requirements
of the Electoral Code had been arbitrary and unlawful. The
Constitutional Court’s decision to invalidate the election
results lacked any factual basis, was contrary to the domestic law
and breached the principles of a fair trial. In particular, the
Constitutional Court’s decision contained no indication as to
which specific documents had been examined, what specific
requirements of the Electoral Code had not been met and what the
specific nature of the shortcomings found in the ConEC records had
been. As the Constitutional Court’s decision was final, there
was no remedy available in respect of the alleged violation.
- The
Court considers that this complaint falls to be examined only under
Article 3 of Protocol No. 1 to the Convention and that no separate
examination is necessary under Article 13. Article 3 of Protocol No.
1 reads as follows:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants submitted that the decision of the
Constitutional Court had “no legal grounds” and was
merely the result of a “political order”. They submitted
that their rights as “interested persons” in the
proceedings had not been respected, as they had not been allowed to
participate in the hearing or to exercise any of the procedural
rights provided for by Articles 42 and 43 of the Law on the
Constitutional Court. The applicants further argued that the
Constitutional Court had reviewed the election results in a very
short time and, given the amount of material to be examined, such
review could not have been comprehensive. According to the
Constitutional Court’s decision, it had been taken with the
assistance of some unnamed and unspecified “specialists”
(mütəxəssis),
whereas by law the court should have called upon “experts”
(ekspert), because
only the latter were liable under domestic law for providing false
opinions. Lastly, the applicants reiterated their complaint that the
decision itself was completely unsubstantiated and did not provide
any details as to what specifically served as a basis for a finding
that the election results in their electoral constituencies and the
relevant ConEC records did not comply with the requirements of the
Electoral Code.
- The
Government argued that the domestic law did not require the
applicants’ participation in the hearing of the Constitutional
Court, because Articles 42 and 43 of the Law on the Constitutional
Court were “general provisions”, while Article 54 of the
same Law, being a “special provision”, only required the
participation of the chairman and members of the CEC in this type of
proceedings. The Government further noted that the Constitutional
Court had not had any “predetermined opinion” on the
possible outcome of the review and, given that there had been more
than 2,000 candidates in all the electoral constituencies under
review, inviting all those candidates to participate in the
proceedings as “interested persons” would have rendered
the proceedings “impossible and meaningless”. The
Government further argued that the participation of “specialists”
(mütəxəssis)
had been lawful, as Article 171.3 of the Electoral Code provided so.
Lastly, the Government disagreed with the applicants’
contention that “the Constitutional Court’s
decision contained no indication as to which specific documents had
been examined, what specific requirements of the Electoral Code had
not been met and what the specific nature of the shortcomings found
in the ConEC records had been”. In this regard, the Government
maintained that the Constitutional Court referred in its decision to
“specialists’ opinions”, which in turn indicated
the provisions of the Electoral Code that had been breached by the
relevant ConEC records of election results.
2. The Court’s assessment
34.
Article 3 of Protocol No. 1 appears at first sight to differ from the
other rights guaranteed in the Convention and Protocols, as it is
phrased in terms of the obligation of the High Contracting Party to
hold elections which ensure the free expression of the opinion of the
people rather than in terms of a particular right or freedom.
However, the Court has established that it guarantees individual
rights, including the right to vote and to stand for election (see
Mathieu-Mohin and Clerfayt v. Belgium,
2 March 1987, §§ 46-51, Series A no. 113). The Court
has consistently highlighted the importance of the democratic
principles underlying the interpretation and application of the
Convention and has emphasised that the rights guaranteed under
Article 3 of Protocol No. 1 are crucial to establishing and
maintaining the foundations of an effective and meaningful democracy
governed by the rule of law (ibid., § 47; see also Hirst
v. the United Kingdom (no. 2) [GC], no.
74025/01, § 58, ECHR 2005-IX).
35. The
rights bestowed by Article 3 of Protocol No. 1 are not absolute.
There is room for “implied limitations” and Contracting
States have a wide margin of appreciation in the sphere of elections
(see Mathieu-Mohin and Clerfayt, cited above, § 52;
Matthews v. the United Kingdom [GC], no. 24833/94, §
63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95,
§ 201, ECHR 2000-IV). It is, however, for the Court to
determine in the last resort whether the requirements of Article 3 of
Protocol No. 1 have been complied with. In particular, it has to
satisfy itself that the conditions do not curtail the rights in
question to such an extent as to impair their very essence and
deprive them of their effectiveness; that they are imposed in pursuit
of a legitimate aim; and that the means employed are not
disproportionate (see Mathieu-Mohin and Clerfayt, cited above,
§ 52, and Gitonas and Others v. Greece, 1 July 1997,
§ 39, Reports of Judgments and Decisions 1997-IV). Such
conditions must not thwart the free expression of the people in the
choice of the legislature – in other words, they must reflect,
or not run counter to, the concern to maintain the integrity and
effectiveness of an electoral procedure aimed at identifying the will
of the people through universal suffrage (see Hirst (no. 2),
cited above, § 62).
- Furthermore,
the object and purpose of the Convention, which is an instrument for
the protection of human rights, requires its provisions to be
interpreted and applied in such a way as to make their stipulations
not theoretical or illusory but practical and effective (see, among
many other authorities, United Communist Party of Turkey and
Others v. Turkey, 30 January 1998, § 33, Reports
1998-I; Chassagnou and Others v. France [GC], nos.
25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III; and
Lykourezos v. Greece, no. 33554/03, § 56, ECHR
2006-VIII). The right to stand as a candidate in an election, which
is guaranteed by Article 3 of Protocol No. 1 and is inherent in
the concept of a truly democratic regime, would only be illusory if
one could be arbitrarily deprived of it at any moment. Consequently,
while it is true that States have a wide margin of appreciation when
establishing eligibility conditions in the abstract, the principle
that rights must be effective requires that the eligibility procedure
contain sufficient safeguards to prevent arbitrary decisions (see
Podkolzina v. Latvia, no. 46726/99, § 35, ECHR
2002-II). Although originally stated in connection with the
conditions on eligibility to stand for election, the principle
requiring prevention of arbitrariness is equally relevant in other
situations where the effectiveness of individual electoral rights is
at stake (see Namat Aliyev v. Azerbaijan, no. 18705/06, §
72, 8 April 2010), including the manner of review of the outcome
of elections and invalidation of election results (see Kovach v.
Ukraine, no. 39424/02, § 55 et seq., ECHR 2008-...).
- The
Court has emphasised that it is important for the authorities in
charge of electoral administration to function in a transparent
manner and to maintain impartiality and independence from political
manipulation (see The Georgian Labour Party v. Georgia,
no. 9103/04, § 101, 8 July 2008), that the proceedings
conducted by them be accompanied by minimum safeguards against
arbitrariness and that their decisions are sufficiently reasoned
(see, mutatis mutandis, Namat Aliyev, cited above, §§
81-90, and Kovach, cited above, §§ 59-60). Moreover,
considerations of expediency and the necessity for tight time-limits
designed to avoid delaying the electoral process, although often
justified, may nevertheless not serve as a pretext for undermining
the effectiveness of electoral procedures (see, mutatis mutandis,
Namat Aliyev, cited above, § 90).
- Turning
to the present case, the Court notes that the Constitutional Court’s
decision gives rise to serious issues concerning its factual and
legal substantiation. Specifically, the only factual detail referred
to in the decision was that the Constitutional Court had received a
letter from the Prosecutor General’s Office informing it that
criminal proceedings had been instituted against the chairmen and
members of ten polling stations in the first applicant’s
constituency for “falsification of electoral documents”,
and against four members of the ConEC of the second applicant’s
constituency for “abuse of official authority”. However,
the Court considers that, in the absence of any further detailed
elaboration, the mere fact that criminal proceedings were instituted
in connection with some alleged and vaguely described abuses does
not, in itself, constitute sufficient and relevant enough a reason to
annul the elections in any given constituency as a whole. In
particular, the Constitutional Court failed to establish whether the
fact that these abuses had actually taken place had been proved and,
if so, whether they had been serious enough to impact on the results
of the election to such an extent as to render impossible the
determination of the electorate’s opinion in each constituency
affected. Moreover, with regard to the first applicant’s
constituency, the Court notes that the election results in ten
polling stations had already been invalidated by the CEC, which had
further determined that the overall constituency results had not been
affected by those abuses to a degree requiring the annulment of the
election. Accordingly, in so far as the alleged abuses in those ten
polling stations were concerned, the matter had already been
addressed by the CEC. In such circumstances, it is difficult to
understand why the same alleged abuses in what appears to be the same
polling stations were repeatedly brought up in the review by the
Constitutional Court.
- In
any event, and most importantly, the Constitutional Court’s
decision failed to specify what the shortcomings in the relevant
ConEC records were, which specific provisions of the electoral law
had been breached and in what manner, how these breaches affected the
vote count, and whether they had been so serious as to render the
determination of the voters’ choice impossible. Moreover, it
did not specify what the “additional documents” requested
and examined by the Constitutional Court were, who the invited
“specialists” were and exactly what they had provided
opinions on, whether in the light of the above information the strict
procedural requirements of the Electoral Code concerning the
invalidation of election results (see paragraphs 20-23 above) had
been met, and so on. All of these crucial questions either remained
unanswered or were ignored. In such circumstances, the Court cannot
but conclude that the impugned decision was unsubstantiated in
respect of both factual grounds and legal reasoning.
- Moreover,
it appears that the affected parties, including each applicant as a
winning candidate, were excluded from the proceedings. In particular,
they had never been given access to any documentary material or the
“specialists’ opinions” allegedly relied on by the
Constitutional Court as a basis for its decision or provided with any
other information as to the grounds for this decision. Neither had
they been given an opportunity to participate in the hearing or to
otherwise defend their interests, either in writing or orally. In the
Court’s opinion, whereas the decision of the Constitutional
Court was final and at the same time had a severe impact on the
effective exercise by both the candidates and thousands of voters in
the relevant constituencies of their respective electoral rights, the
failure to afford the affected parties any procedural safeguards was
especially serious as no appeals were available to remedy the
situation. The Court disagrees with the Government’s argument
that inviting all the affected parties to participate in the
proceedings would render the proceedings “impossible and
meaningless”. Firstly, it was obviously unnecessary to ensure
the participation of all candidates from all electoral
constituencies, because the great majority of them were not affected.
Secondly, the mere fact that the Constitutional Court might have
commenced the proceedings without a “predetermined opinion on
the possible outcome of the review” could not have reasonably
prevented it from subsequently ensuring the participation of the
relevant affected parties once it became clear, at any point during
the examination, that there were certain problems in respect of
specific constituencies.
- Having
regard to the above, the Court concludes that the Constitutional
Court’s decision annulling the elections in the applicants’
electoral constituencies was not based on any relevant or sufficient
reasons, did not afford any procedural safeguards to the affected
parties, and lacked any degree of transparency. In essence, the
impugned decision arbitrarily deprived the applicants of the benefit
of having been elected to Parliament. As such, it ran counter to the
concern to maintain the integrity and effectiveness of an electoral
procedure aimed at identifying the will of the people through
universal suffrage.
- There
has accordingly been a violation of Article 3 of Protocol No. 1 to
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- In
conjunction with the above complaint, the applicants complained that
despite clearly winning the election they had been arbitrarily
deprived of their seats in Parliament owing to their political
affiliation with an opposition party. They relied on Article 14,
which provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- However,
having regard to its above finding in relation to Article 3 of
Protocol No. 1, the Court considers that it is not necessary to
examine whether in this case there has been a violation of Article
14.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 6 of the Convention
- The
applicants complained that the proceedings at the Constitutional
Court had breached their right to a fair trial guaranteed by Article
6 of the Convention, which provides as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The Court notes that the proceedings in question
involved the determination of the applicants’ right to stand as
candidates in the parliamentary elections. The dispute in issue
therefore concerned the applicants’ political rights and did
not have any bearing on their “civil rights and obligations”
within the meaning of Article 6 § 1 of the Convention (see
Pierre-Bloch v. France, 21 October 1997, § 50, Reports
1997-VI; Cherepkov v. Russia (dec.), no. 51501/99, ECHR
2000-I; Zdanoka v. Latvia (dec.), no. 58278/00, 6 March
2003; and Mutalibov v. Azerbaijan (dec.), no. 31799/03,
19 February 2004). Accordingly, this Convention provision does not
apply to the proceedings complained of.
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected in accordance with
Article 35 § 4.
B. Other complaints
- Relying
on Article 13 of the Convention, the applicants complained generally
about various difficulties faced by opposition candidates upon
examination by the domestic authorities of their election-related
complaints and about the alleged practical ineffectiveness of
remedies in cases involving opposition candidates. Moreover, the
applicants complained under Article 1 of Protocol No. 1 to the
Convention that, owing to the violation of their electoral rights,
they had been deprived of all the useful effect of the funds spent on
their election campaigns.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that these complaints are manifestly ill-founded and must be rejected
in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
(a) The first applicant
- The
first applicant claimed 122,880 Azerbaijani manats (AZN) for loss of
the earnings he would have received in the form of a parliamentary
member’s salary if elected to the National Assembly had the
results of elections in his constituency not been invalidated. He
also claimed AZN 14,054 for loss of the useful effect of the funds
spent on his election campaign.
- The
Government contested the applicant’s claims.
- As
to the claim in respect of expenses borne during the election
campaign, the Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this part of the claim.
- As
to the loss of earnings, the Court notes that a similar claim was
examined in Kerimova v. Azerbaijan (no. 20799/06,
§§ 60-64, 30 September 2010, with further references).
Specifically, when examining such claims, it should be taken into
account that the sums claimed would have to be set off against
other income which the applicant may have been receiving during the
period in question and which he would have had to forego if elected
(see Lykourezos, cited above, § 64, and Kovach,
cited above, § 66). Unlike the applicant in the Kerimova
case, the applicant in the present case has not submitted any
information about any other income which he had been receiving during
the relevant period and what his “net loss” would have
been, making any exact calculations of such “net loss”
impossible. However, in the particular circumstances of the case,
given that the applicant had served as a member of parliament until
the elections of 2005 and was deprived of the benefit of being
re-elected in the 2005 elections as a result of a violation found in
the present judgment, the Court considers that he must have suffered
a loss of earnings and should be awarded compensation for pecuniary
damage. In this respect, the Court considers that, while the
applicant suffered certain pecuniary damage because he could have
been expected to serve at least part of his tenure and receive a
certain income from his service, this damage cannot be technically
quantified in terms of monthly salaries for the entire term of
service of a member of parliament (see Kerimova, cited above,
§ 64). Therefore, having regard to the inherent uncertainty
in any attempt to estimate the real losses sustained by the applicant
and making its assessment on an equitable basis, the Court decides to
award him EUR 20,000 under this head.
(b) The second applicant
56. The
second applicant claimed AZN 9,500 in respect of various expenses
related to his election campaign.
57. The
Government contested the claim and noted that the applicant had
failed to submit any supporting documents.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects the claim.
2. Non-pecuniary damage
- The
first applicant claimed EUR 20,000 and the second applicant claimed
AZN 18,000 in respect of non-pecuniary damage.
- The
Government argued that the amounts claimed were excessive and
considered that the finding of a violation of the Convention would
constitute sufficient just satisfaction in itself.
- The
Court considers that the applicants suffered non-pecuniary damage
which cannot be compensated solely by the finding of a violation of
Article 3 of Protocol No. 1. Ruling on an equitable basis, the Court
awards each applicant the sum of 7,500 euros (EUR) in respect of
non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
first applicant claimed EUR 5,900 for costs and
expenses, including legal fees, translation expenses and postal
expenses. The second applicant claimed AZN 4,850
for costs and expenses, including legal fees, translation expenses
and postal expenses.
- The
Government contested these claims.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
65. In
the present case, the Court notes that the applicants were
represented by the same lawyer, that the complaints and legal
arguments in both cases were either the same or similar, and that
substantial parts of the lawyer’s submissions in both cases
were very similar. Likewise, significant parts of the translated text
were also the same in each case. Lastly, the Court notes that not all
of the claimed costs and expenses were supported with relevant
documents. Regard being had to the above, as well as to the documents
in the Court’s possession and the criteria
mentioned in the above paragraph, the Court awards both
applicants jointly the total sum of EUR 3,000 in respect of
costs and expenses, plus any tax that may be chargeable to the
applicants on that sum.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaints under Article 3 of
Protocol No. 1 to the Convention and Article 14 of the Convention
admissible and the remainder of the applications inadmissible;
- Holds that there has been a violation of Article
3 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine
separately the complaint under Article 14 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the
following amounts, to be converted into Azerbaijani manats at the
rate applicable at the date of settlement:
(i) EUR
20,000 (twenty thousand euros) to the first applicant, Mr Ali
Kerimli, in respect of pecuniary damage;
(ii) EUR
7,500 (seven thousand five hundred euros), plus any tax that may be
chargeable, to each applicant in respect of non pecuniary
damage;
(iii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicants, to the applicants jointly in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić Registrar President
