Постановление ЕСПЧ от 08.10.2015 “Дело “Гахраманлы и другие (Gahramanli and Others) против Азербайджана” (жалоба N 36503/11) [рус., англ.] Часть 5

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I. Alleged violation
of Article 3 of Protocol No. 1 to the Convention

55. Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicants complained that, in the electoral constituency where they had run for the parliamentary election, there had been a number of serious irregularities and breaches of electoral law which had made it impossible to determine the true opinion of voters and had thus infringed their right to stand as candidates in free elections. The domestic authorities, including the electoral commissions and courts, had failed to properly examine their complaints and to investigate their allegations concerning the aforementioned irregularities and breaches of electoral law. In particular, the examination of their appeal by the Supreme Court had been deprived of all effectiveness because the election results had already been approved by the Constitutional Court. They also argued that the structural composition of the electoral commissions at all levels – dominated by pro-government political forces as they were – had allowed electoral fraud to be committed by commission members to the detriment of opposition candidates and had been one of the reasons for the failure to effectively investigate it.
56. Having regard to the special features of the present case, 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:
“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

57. The Court notes that the 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

58. The Government submitted that the domestic legislation provided for an effective mechanism for the examination by the ConECs, the CEC, an appellate court and the Supreme Court of election-related complaints.
59. As to the structural composition of the electoral commissions, the Government noted that at all three levels the commission members represented the three categories of political forces represented in the parliament: the majority party, the independents and the remaining (minority) parties. As each of these forces is represented equally by one-third of commission members, the existing system ensured that no political force was in a dominant position compared to the other two.
60. The Government argued that the applicants’ electoral complaint had been comprehensively and thoroughly examined by the electoral commissions and the courts in accordance with the requirements of the Electoral Code and other applicable legislation. The complaint had first been examined by a member of the CEC expert group who had produced an opinion before the CEC hearing. The CEC decision had been substantiated. The CEC had received statements from “a great number of observers… representing various political parties, including the applicants’ [own] political parties”, which did not support the applicants’ allegations. On the basis of those statements, the CEC had decided that the applicants’ allegations were groundless.
61. Lastly, the Government noted that applicants had been duly informed of the Baku Court of Appeal hearing and that two of them had attended it and had been heard by the court. Two of the applicants were also present at the Supreme Court hearing. As to the effectiveness of the examination of the appeal by the Supreme Court, the Government noted that the Supreme Court had not merely “mechanically referred” to the Constitutional Court’s decision approving the election results, but had also comprehensively examined all the relevant legal points of the appeal.
62. The applicants argued that the electoral commissions had not been independent but had operated under the influence and control of the Government, with the aim of creating various unfair advantages for the pro-Government candidates. While at first sight it might appear that representatives of the ruling party formally held only one-third of the seats in each electoral commission, in reality the remaining commission members – representing both the independents and the parliamentary-minority parties – were also pro-ruling-party and had followed the instructions of the authorities. Moreover, by law, the chairperson of every electoral commission at each level was nominated by the parliamentary-majority party. Thus, in practice, the system allowed the pro-government forces to effectively dominate in each electoral commission.
63. The applicants claimed that the relevant PECs had not only failed to address on the spot the irregularities that had allegedly taken place, but that the “majority of the violations of the law” had been actively encouraged by them. Despite this, the CEC had referred to statements by chairpersons and members of the relevant PECs – in which the existence of irregularities was denied – as a basis for rejecting the applicants’ complaints. It had also relied chiefly on the statements of observers representing pro-government political parties and “governmental NGOs”. The CEC had not explained why those statements were considered to constitute more reliable evidence than the applicants’ observers’ statements documenting the alleged irregularities. It had not questioned any of the applicants’ observers.
64. According to the applicants, the Baku Court of Appeal’s judgment had lacked reasoning because it had failed to address the applicants’ arguments concerning the alleged irregularities and the unfairness of the CEC’s examination of those arguments.
65. They also claimed that the Supreme Court had examined the applicants’ appeal in a superficial manner and had, moreover, dismissed it partly on the basis of an extraneous reason, namely the fact that the Constitutional Court had already approved the election results. Moreover, the premature approval of the election results by the Constitutional Court, which had taken place before the period for the applicants’ appeal to the Supreme Court had expired, reduced the overall effectiveness of the appeal to the Supreme Court as a remedy.

2. The Court’s assessment

(a) General principles
66. Article 3 of Protocol No. 1 enshrines a principle that is characteristic of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113). This Article would appear at first to differ from the other provisions of the Convention and its Protocols, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections under conditions 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 (ibid., §§ 46 – 51).
67. 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 (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005-IX). Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States are given a margin of appreciation in this sphere (see Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-I). However, in the last resort it is for the Court to determine whether or not the requirements of Article 3 of Protocol No. 1 have been complied with. It must satisfy itself that the conditions imposed on the rights to vote and to stand for election do not curtail those rights 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). In particular, any conditions imposed 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).
68. 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 of Judgments and Decisions 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 be merely 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, cited above, § 35). This principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see, mutatis mutandis, Kovach v. Ukraine, no. 39424/02, § 55, ECHR 2008).
69. The Court has established that the existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process and constitutes an important device at the State’s disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to hold democratic elections. Indeed, the State’s solemn undertaking under Article 3 of Protocol No. 1 and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections are not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter (see Namat Aliyev v. Azerbaijan, no. 18705/06, § 81, 8 April 2010).
70. The Court has also 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 Georgian Labour Party v. Georgia, no. 9103/04, § 101, ECHR 2008) and for their decisions to be sufficiently well reasoned (see Namat Aliyev, cited above, §§ 81 – 90).
(b) Application of those principles to the present case
71. In the present case, the Court notes that the applicants complained of numerous instances of irregularities and breaches of electoral law which had allegedly taken place during election day in various polling stations in their electoral constituency. They maintained that, due to the irregularities themselves as well as the domestic authorities’ failure to address them adequately, the election in their constituency had not been free and democratic and the official election results had not reflected the real opinion of the voters.
72. As for the applicants’ claims concerning the specific instances of alleged irregularities, the Court is not in a position to assume a fact-finding role by attempting to determine whether all or some of these alleged irregularities had taken place and, if so, whether they had amounted to irregularities capable of thwarting the free expression of the people’s opinion. Owing to the subsidiary nature of its role, the Court needs to be wary in assuming the function of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. The Court’s task under Article 3 of Protocol No. 1 is rather to satisfy itself, from a more general standpoint, that the respondent State has complied with its obligation to hold elections under free and fair conditions and has ensured that individual electoral rights were exercised effectively (see Namat Aliyev, cited above, § 77).
73. That said, the Court considers that the applicants have put forward a very serious and “arguable” claim disclosing an apparent failure to hold free and fair elections in their constituency. In particular, they complained, inter alia, of unlawful interference in the election process by electoral commission members, undue influence on voter choice, obstruction of observers, and numerous instances of ballot-box stuffing. The Court considers that these types of irregularities, if duly confirmed as having taken place, were indeed potentially capable of thwarting the democratic nature of the elections. The Court further notes that the applicants’ allegations were based on relevant evidence, consisting mainly of statements written and signed by observers who gave first-hand accounts of the alleged irregularities witnessed by them. The Court is also cognisant of the OSCE Report (see paragraph 53 above), which indirectly corroborates the applicants’ claims. While this report did not contain any details relating specifically to the applicants’ constituency, it gave a general account of the most frequent problems identified during the election process, which were similar to those alleged by the applicants.
74. Since such a serious and arguable claim has been lodged by the applicants, the respondent State is under an obligation to provide a system for undertaking an effective examination of the applicants’ complaints. Azerbaijani law did indeed provide for a system consisting of electoral commissions at different levels, whose decisions could subsequently be appealed against to the Court of Appeal and then further to the Supreme Court. The applicants duly made use of this system and it remains to be seen whether, in practice, the examination of the applicants’ claims was effective and devoid of arbitrariness.
75. As for the examination of the applicants’ complaint by the CEC, the Court takes due note, at the outset, of the applicants’ argument that the electoral commissions, in general, lacked impartiality owing to their structural composition. In particular, one-third of the members of each commission at all levels, including the CEC, were nominated by or on behalf of the parliamentary-majority party. In addition, another member, nominally representing independent members of parliament formally unaffiliated with any political party, was appointed “in agreement” with the majority party. Thus, seven out of eighteen CEC members, four out of nine members of each ConEC, and three out of six members of each PEC were either directly or indirectly appointed by the ruling party. In addition, chairmen of all commissions at all levels were appointed from among the members nominated by the ruling party. Pro-ruling-party forces thus had a relative majority the representatives of any other political force in electoral commissions at every level, including the CEC which examined the applicants’ complaint in the present case. While, at least at CEC level, this majority was not sufficient to automatically secure the qualified majority of at least two-thirds of the attendant members’ votes required for a decision (see paragraph 35 above), the Court takes note of the reports that commission members appointed by theoretically “independent” sections of the parliament or some small parties tended, in reality, to vote in line with the governing party (see paragraph 54 above).
76. Both the OSCE/ODIHR and the Venice Commission have opined that the above-mentioned structural composition of electoral commissions gave rise, in practice, to the domination of the election administration by pro-government forces and gave them a decisive majority in all commissions. Both the OSCE/ODIHR and the Venice Commission repeatedly recommended that the existing formula be revised in a manner which would eliminate such domination by pro-government forces; however, this recommendation has not so far been addressed.
77. The above assessment and recommendations must be taken seriously in the context of elections in Azerbaijan, which have previously been assessed by reputable international observers as falling short of a number of democratic standards. In this connection, it should be noted that the Court itself has examined various election-related issues in a number of cases against Azerbaijan that have involved arbitrary decisions by electoral commissions in relation to opposition-oriented candidates (see, among others, Namat Aliyev, cited above; Kerimova v. Azerbaijan, no. 20799/06, 30 September 2010; Mammadov v. Azerbaijan (no. 2), no. 4641/06, 10 January 2012; Hajili v. Azerbaijan, no. 6984/06, 10 January 2012; Khanhuseyn Aliyev v. Azerbaijan, no. 19554/06, 21 February 2012; and Karimov v. Azerbaijan, no. 12535/06, 25 September 2014).
78. Although there can be no ideal or uniform system guaranteeing checks and balances between the different State powers or political forces within a body of electoral administration, the Court shares the view that the proportion of pro-ruling-party members in all electoral commissions in Azerbaijan, including the CEC, is currently particularly high (compare, mutatis mutandis, Georgian Labour Party, cited above, § 106). The Court reiterates that, ultimately, the raison of an electoral commission is to ensure the effective administration of free and fair voting in an impartial manner, which is achievable by virtue of a structural composition that guarantees its independence and impartiality but which would become impossible to achieve if the commission were to become another forum for political struggle between various political forces (ibid., § 108).
79. However, the Court considers that the present case, in isolation, does not require it to determine whether or not the method actually implemented for the structuring of the Azerbaijani electoral commissions – and in particular the CEC – was in itself compatible with the respondent State’s undertaking under Article 3 of Protocol No. 1. Nevertheless, having regard to the above considerations in the context of electoral complaints lodged by opposition candidates in general, the Court finds that the method in question was one of the systemic factors contributing to the ineffectiveness of the examination by the CEC of the applicants’ election-related complaint in the present case. It falls to the Committee 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 requirements. In this connection, the Court considers that an effort by the respondent State envisioning a reform of the structural composition of the electoral commissions should be encouraged with the aim of improving the effectiveness of examination of individual election-related complaints.
80. Turning to the manner in which the applicants’ particular case was examined, the Court finds, for the following reasons, that the material in the case file and the Government’s submissions do not demonstrate that an adequate and comprehensive assessment of evidence was carried out by the CEC or that any genuine effort was made to determine the validity of the applicants’ claims.
81. In particular, the Court observes that, despite the requirement of Article 112-1.7 of the Electoral Code (see paragraph 45 above) and the applicants’ express request to this effect, the applicants’ presence at the CEC hearing was not ensured, thus depriving them of the possibility of arguing their position and challenging the opinion of the CEC expert group member, R.I. In fact, it appears that the CEC may not even have held a genuine hearing, as in practice it routinely adopted an expert group member’s opinion unquestioningly, without discussing the substance of the complaints (see, in this respect, the OSCE Report at paragraph 53 above).
82. It does not appear that the CEC gave adequate consideration to the observers’ statements concerning the alleged irregularities that were submitted by the applicants as evidence in support of their complaint. None of those observers was called to be questioned and no further investigation was carried out in respect of their allegations. In particular, many of the observers claimed that there had been serious discrepancies between the numbers of voters attending various polling stations and the numbers of ballots found inside the ballot boxes. However, it has not been shown that the CEC expert group took any steps to actually investigate this matter. One obvious step would have been to review the attendance lists in the affected polling stations and examine whether the relevant numbers were consistent. Instead, the CEC presented somewhat dubious reasons for discrediting those statements. For example, the Court notes that the CEC described the statement made by three observers in Polling Station no. 25 as their “subjective opinions” (see paragraph 24 above), when it was clear that the statement in question did not contain any opinions but was rather a first-hand observation including specific factual information requiring further investigation as to its veracity (see paragraph 17 above).
83. The CEC referred, in general terms, to statements collected from some other observers denying any irregularities and argued that those statements refuted the applicants’ allegations. However, these purported statements were described by the CEC in a very vague manner and none was made available to the applicants or produced by the Government before the Court. No reasonable or convincing explanation was given by the CEC as to why the statements by those “other observers” were given more weight or considered more reliable than the evidence of a similar type presented by the applicants, which also consisted of observers’ statements.
84. Moreover, the CEC referred to some explanations by unnamed PEC members denying any irregularities (see paragraph 25 above). Given that confirmation of the applicants’ allegations could potentially entail responsibility on the part of the PEC officials in question for election irregularities, it is not surprising that they would deny any wrongdoing. For this reason, the Court is not convinced that in the present case those explanations could be particularly helpful in determining the factual accuracy of the applicants’ claims (compare Namat Aliyev, cited above, § 83).
85. The above shortcomings were not remedied by the domestic courts either. The Baku Court of Appeal merely reiterated and upheld the CEC’s findings, and copied its reasoning, without conducting an independent examination of the arguments raised or addressing the applicants’ complaints about the shortcomings in the CEC procedure.
86. As for the appeal before the Supreme Court, it was deprived of all effectiveness by the action of the Constitutional Court in approving the country-wide election results while the period afforded by law to the applicants for lodging an appeal with the Supreme Court was still pending. By the Supreme Court’s own admission, it was no longer able to take any decision affecting the election results in the applicant’s constituency because they had already been approved as final by the Constitutional Court. The upshot of this situation was that the domestic legal system allowed the Constitutional Court to finalise the entire election process, including the election results, 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 – which was specifically designed for dealing with electoral disputes. The Constitutional Court’s decision 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. Moreover, despite knowing of a number of pending individual complaints challenging the fairness of the election procedure and the lawfulness of the election results in particular constituencies, the Constitutional Court prematurely confirmed the country-wide election results as lawful, as if the outcomes of the pending proceedings were not important for the comprehensive assessment of the parliamentary elections as a whole.
87. Based on the above, the Court finds that the conduct of the electoral commissions and courts – including the Constitutional Court – in the present case, and their respective decisions, reveal an apparent lack of any genuine concern for combatting the alleged instances of electoral fraud and protecting the applicants’ right to stand for election. The applicants’ serious and arguable complaints concerning election irregularities were not effectively addressed at domestic level. The avenue of redress available to and pursued by the applicants was rendered futile by the Constitutional Court’s premature confirmation of the election results as final while the applicants’ appeal was still pending.
88. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.

II. Alleged violation of Article 14 of the Convention

89. In conjunction with the above complaint, the applicants complained that candidates nominated by opposition parties, like themselves, had been discriminated against – by various means – by all the State executive authorities, electoral commissions, courts and Government-controlled media throughout the entire electoral process.
They relied on Article 14, which provides:
“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.”
90. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
91. 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.

III. Application of Article 41 of the Convention

92. 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

93. The applicants claimed 30,000 euros (EUR) each in respect of various expenses related to their electoral campaign.
94. The Government argued that there was no causal link between the alleged violation and the damage claimed.
95. The Court notes that the applicants’ claims are not itemised and are not supported by any evidence. In any event, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

2. Non-pecuniary damage

96. The applicants claimed EUR 100,000 each in respect of non-pecuniary damage caused by the infringement of their electoral rights.
97. The Government argued that the amounts claimed were excessive and pointed out that in earlier comparable cases against Azerbaijan, awards in respect of non-pecuniary damage had not exceeded EUR 7,500.
98. Ruling on an equitable basis, the Court awards each applicant the sum of EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

99. The applicants also claimed, jointly, EUR 2,000 for legal fees incurred in the domestic proceedings and the proceedings before the Court. In support of this claim, they submitted their contract with Mr H. Hasanov, their lawyer.
100. The Government noted that, even though the above-mentioned contract stipulated legal fees for representation in the domestic proceedings, Mr H. Hasanov had not in fact represented the applicants in the domestic proceedings but only before the Court. The Government therefore asked the Court to reject that part of the claim relating to the legal fees incurred in the domestic proceedings.
101. 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. In the present case, the Court notes that it has not been demonstrated that Mr H. Hasanov represented the applicants in the domestic proceedings. Having regard to the documents in its possession, the Court rejects the part of the claim relating to costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 850 to all three applicants jointly for the proceedings before the Court.

C. Default interest

102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.


1. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention;
3. Holds that there is no need to examine the complaint under Article 14 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants, 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 new manats at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;
(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicants, to all three 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;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Deputy Registrar

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