CASE OF NAMAT ALIYEV v. AZERBAIJAN
Remainder inadmissible;Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1966 and lives in Baku. 6. The applicant stood for the elections to the Milli Majlis (Parliament) of 6 November 2005 as a candidate of the opposition bloc Azadliq, a coalition formed for electoral purposes by the Popular Front Party of Azerbaijan, with which the applicant was affiliated, together with a number of other opposition parties. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Barda City Electoral Constituency no. 93. 7. The constituency was divided into forty-two electoral precincts, with one polling station in each precinct. There were a total of eighteen candidates running for election in this constituency. The applicant was the only candidate nominated by Azadliq in that constituency. 8. According to the ConEC protocol drawn up after election day, one of the applicant's opponents, Z.O., a member of the Motherland Party, obtained the highest number of votes cast in the constituency. Specifically, according to the ConEC protocol, Z.O. received 5,816 votes (41.25%), the applicant received 2,001 votes (14.19%), and a third candidate received 1,821 votes (12.92%). The total number of votes cast for each of the remaining candidates was substantially lower. 9. On 7 and 8 November 2005 the applicant submitted identical complaints to the ConEC and the Central Electoral Commission (“the CEC”), in which he claimed, inter alia, that: (i) the local executive and municipal authorities, as well as heads of statefunded institutions and organisations, interfered in the election process in favour of Z.O. prior to and during election day (in the form of openly campaigning in his favour and coercing voters to vote for him); (ii) Z.O.'s supporters (mostly State officials of various sorts) intimidated voters and otherwise attempted to influence voter choice in polling stations; (iii) in several polling stations, observers were harassed or excluded from the voting area by the police; (iv) some citizens residing in relevant election precincts were unable to exercise their right to vote due to the authorities' failure to include them in relevant voters lists; and (v) there were instances of multiple voting and ballot-box stuffing in different polling stations. 10. In support of his claims, the applicant submitted to the CEC originals of more than 30 affidavits (akt) of election observers, audio tapes and other evidence documenting specific instances of irregularities complained of. Some examples of the evidence presented are summarised below. 11. The ten-minute audio recording contained interviews with a number of unidentified voters, who stated, inter alia, that prior to election day directors of governmental institutions and public organisations (such as public schools and libraries) located on the territory of the constituency had held staff meetings with the specific purpose of instructing their staff to vote for Z.O., threatening them with salary cuts if Z.O. did not win the election. 12. In an affidavit signed by them, seven observers in Polling Station no. 1 stated, inter alia, that twenty-five voters had voted twice, however the chairman of the Precinct Electoral Commission (“the PEC”) for this polling station had taken no action when this matter was brought to his attention. 13. Seven observers in Polling Station no. 11 noted, inter alia, that the director of a public school where the polling station was located had openly intervened in the election process and interfered with the functions of the PEC without any objection by PEC members. Also, the same school director instructed a police officer to forcibly exclude one of the observers from the polling station. 14. Three observers in Polling Station no. 14 noted, inter alia, that a certain named State official had actively interfered in the election process by openly campaigning in favour of Z.O. on the premises of the polling station, asked voters to vote for him and brought groups of unregistered voters to the polling station to vote for Z.O. 15. Eight observers in Polling Station no. 16 witnessed one incident of ballot-box stuffing by a PEC member. 16. An affidavit signed by six observers and candidates' representatives in Polling Station no. 31 stated that, at 7 p.m., when the vote-counting began, all of the observers had been forced out of the polling station premises by the police on the instruction of the PEC chairman. In the absence of the observers, a few hundred false ballots were illegally added into Z.O.'s total vote count in the polling station. According to a separate affidavit signed by observers from the same polling station, the PEC chairman and representatives of the executive and municipal authorities interfered in the election process and instructed voters to vote for Z.O. According to another affidavit, there were also several irregularities in the voter lists in this polling station. 17. Three observers in Polling Station no. 41 noted, inter alia, that commission members had illegally added several additional ballots during the vote-counting. 18. In their affidavits, observers from Polling Stations nos. 7, 12, 13, 15, 29, 30 and 37 documented similar incidents of alleged illegal campaigning in favour of Z.O., ballot-box stuffing and other forms of tampering with ballots, and irregularities with voter lists. A number of observers also noted that voting booths in some polling stations were of inadequate standard. 19. According to the applicant, neither the ConEC nor the CEC replied to his complaints. 20. According to the Government, the applicant's complaint was examined by the ConEC. As it appears from the documents submitted by the Government, following receipt of the applicant's complaint, the ConEC demanded explanations from the chairmen and members of the relevant PECs in connection with the applicant's allegations. In reply, about twenty PEC chairmen and members submitted brief handwritten statements (some of them as short as one or two sentences), or “explanatory notes” (“izahat”), all signed on 21 November 2005. All these notes stated in general terms that the election process in their respective polling stations had gone smoothly and without any irregularities, undue pressure on voters or any other breaches of the electoral law, and that any allegations by the applicant to the contrary were false. 21. On 23 November 2005 the ConEC rejected the applicant's complaint. Without any elaboration on details of the applicant's specific allegations, it decided that they were unsubstantiated. At the same time, however, the ConEC confirmed that the condition of the voting booths in Polling Station no. 37 and “some other” (unidentified) polling stations had been poor. This finding did not entail any consequences for the official election results in those polling stations or in the constituency as a whole. 22. On the same day, 23 November 2005, the CEC issued its final protocol approving the overall election results in the country (with the exception of a few electoral constituencies) and submitted it, together with relevant documents, to the Constitutional Court for review and approval of the election results. The election results for Barda City Electoral Constituency no. 93 were among those approved by the CEC, confirming Z.O. as the winner in this constituency. 23. According to the country-wide results, the ruling Yeni Azerbaijan Party again won the majority of seats in the Milli Majlis. 24. On 25 November 2005 the applicant lodged an action with the Court of Appeal, asking the court to invalidate the CEC's final protocol in the part relating to the election results in Barda City Electoral Constituency no. 93. In addition to restating all of his complaints made previously to the electoral commissions, he also complained of specific instances of discrepancies and inconsistencies in the PEC protocols which served as a basis for compiling the election results in the constituency as a whole. In particular, he noted a significant discrepancy in the PEC protocol for Polling Station no. 11, in which certain numbers did not add up correctly. As a result, more than 700 blank ballots out of more than 1,000 blank ballots originally issued to the PEC appeared to be “missing” (the protocol indicated that 313 persons had voted in that polling station, but only eleven of the remaining blank ballots were indicated as “unused” and formally “cancelled”, with no explanation as to what happened to the remaining more than 700 blank ballots). The same was the case with the PEC protocol for Polling Station no. 13, where more than 600 blank ballots were unaccounted for. Similar discrepancies were also allegedly found in PEC protocols for five other polling stations. The applicant claimed that these “missing” blank ballots had been sneaked out and illegally used for ballot-box stuffing in favour of Z.O. in various other polling stations. 25. The applicant argued that, due to all these irregularities, it was not possible to determine the true opinion of the voters in his constituency. He also complained that the CEC had failed to examine his complaint of 7 November 2005. In support of his claims, the applicant submitted copies of the same evidence previously submitted to the CEC, including photocopies of the observers' affidavits and copies of audio material. 26. On 28 November 2005 the Court of Appeal dismissed the applicant's claims as unsubstantiated. The court did not consider the photocopies of the affidavits as admissible evidence, noting that in accordance with the Code of Civil Procedure (“the CCP”) either the originals or notarised copies of those affidavits should have been submitted. Specifically, most of the reasoning contained in the Court of Appeal's judgment was limited to the following: “According to Article 14.2 of the CCP ..., the court shall examine and rely on only the evidence submitted by the parties. According to Article 77.1 of the same Code, each party must prove any allegations which it makes in support of its claims and objections. Based on the material in the case file and the parties' submissions, [the applicant's] claim against [the CEC] ... cannot be upheld. The alleged incidents concerning Barda City Electoral Constituency no. 93, as described in the claim, did not take place. Documents attached to the claim are photocopies and no originals or notarised copies of documents have been submitted. [As such,] affidavits attached to the claim cannot be admitted as evidence. On the other hand, the alleged omission of a significant number of voters from voting lists has not been proved by the material in the case file. In such circumstances, the court considers that [the applicant's] claim against [the CEC] ... must be dismissed.” 27. On 30 November 2005 the applicant lodged a further appeal with the Supreme Court, reiterating his claims. He also noted that he had submitted the originals of the documentary evidence to the CEC on 7 November 2005 and argued that the Court of Appeal had failed to take this fact into account. 28. On 1 December 2005 the Supreme Court dismissed the applicant's appeal on the same grounds as the Court of Appeal's judgment of 28 November 2005. As to the originals of the documentary evidence allegedly submitted to the CEC, the Supreme Court noted that the applicant had failed to submit any evidence proving that he had ever applied to the CEC with a complaint. The reasoning in the Supreme Court's decision was as follows: “According to Article 77.1 of the CCP ..., each party must prove any allegations which it makes in support of its claims and objections. [The applicant] has not presented any convincing evidence capable of proving the allegations forming the basis of his claim. The photocopies of affidavits attached to his claim were not admitted as convincing evidence by the Court of Appeal in a lawful and justified manner, as they had not been notarised. Moreover, the case materials contain no documents confirming that the applicant had applied to the electoral commissions under the procedure specified in Article 112 of the Electoral Code. Although at the oral hearing the applicant claimed that he had submitted the originals of the affidavits to the CEC, he has not submitted to the court any evidence showing that he had [actually] applied to the CEC. However, according to Articles 89 and 90 of the CCP ..., originals or duly certified copies of evidence should be submitted to courts. The applicant has not complied with this rule. According to Article 416 of the CCP ..., the court of cassation instance verifies whether the court of appellate instance has correctly applied substantive and procedural law. The court considers that the Court of Appeal has correctly applied the relevant law and correctly reached the conclusion that the claim was unsubstantiated. There is no ground for quashing the [Court of Appeal's] judgment.” 29. On the same day, 1 December 2005, the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Barda City Electoral Constituency no. 93. 30. The following are the relevant provisions of the Electoral Code as effective at the material time. 31. Elections and referenda are organised and carried out by electoral commissions, which are competent to deal with a wide range of issues relating to the electoral process (Article 17). There are three levels of electoral commissions: (a) the Central Electoral Commission (“the CEC”); (b) constituency electoral commissions (“the ConEC”); and (c) precinct (polling station) electoral commissions (“the PEC”) (Article 18.1). 32. Each electoral commission at every level has a chairperson and two secretaries who are elected by open voting by members of the relevant electoral commission. The chairperson of each electoral commission at every level must be a representative of the political party holding the majority of parliamentary seats in the Milli Majlis. One of the secretaries must be a representative of the political parties holding the minority of parliamentary seats, and the other one a representative of “independent” members of parliament who are not formally affiliated with any political party (hereafter also referred to as “the non-partisan members of parliament”) (Article 19.3). 33. Meetings of electoral commissions at every level are convened either by the chairperson or by at least one third of the relevant commission's members (Article 19.5). A quorum for meetings of any electoral commission is at least two-thirds of its members (Article 19.10). The qualified majority vote of two-thirds of the members who are in attendance is required for adoption of decisions of any commission at any level (Articles 28.2, 34.3 and 39.3). 34. The CEC consists of eighteen members who are elected by the Milli Majlis. Six members of the CEC are directly nominated by and represent the political party holding a majority of seats in the Milli Majlis, six members are nominated by and represent the non-partisan members of parliament, and six members are nominated by and represent all the political parties holding a minority of parliamentary seats. Out of the six nominees representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed by the representatives of the majority party and the other is agreed by the representatives of the minority parties (Article 24). 35. Each ConEC consists of nine members who are appointed by the CEC. Three members of the ConEC are nominated by the CEC members representing the parliamentary majority party, three members are nominated by the CEC members representing the parliamentary minority parties, and three members are nominated by the CEC members representing the nonpartisan members of parliament. Local branches of the relevant political parties may suggest candidates to ConEC membership for nomination by the CEC members representing the relevant parties. Out of the three candidates nominated by the CEC members representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed with the CEC members representing the parliamentary majority party and the other is agreed with the CEC members representing the parliamentary minority parties (Article 30). 36. Each PEC consists of six members appointed by the relevant ConEC. Two members of the PEC are nominated by the ConEC members representing the parliamentary majority party, two members are nominated by the ConEC members representing the parliamentary minority parties, and two members are nominated by the ConEC members representing the nonpartisan members of parliament. Local branches of the relevant political parties may suggest candidates for PEC membership for nomination by the ConEC members representing the relevant parties. As to candidates for PEC membership nominated by the ConEC members representing the nonpartisan members of parliament, these candidates may also be suggested to the relevant ConEC members by voters or voters' initiative groups. These candidates must be citizens of the Republic of Azerbaijan who permanently reside within the territory of the relevant electoral constituency (Article 36). 37. Candidates and other affected persons may complain about decisions or actions (or omissions to act) violating electoral rights of candidates or other affected persons, within three days after publication or receipt of such decisions or occurrence of such actions (or omissions) or within three days after an affected person has become aware of such decisions or actions (or omissions) (Article 112.1). 38. Such complaints can be submitted directly to a higher electoral commission (Article 112.2). If a complaint is first decided by a lower electoral commission, a higher electoral commission may quash its decision or adopt a new decision on the merits of the complaint or remit the complaint for a new examination (Article 112.9). Decisions or actions (or omissions to act) of a ConEC may be appealed to the CEC, and decisions or actions (or omissions to act) of the CEC may be appealed to the appellate court (Article 112.3). 39. If the examination of the complaint reveals a suspicion that a criminal offence has been committed, the relevant prosecuting authority can be informed thereof. The CEC must adopt a reasoned decision in this regard. The relevant prosecution authority must examine this information within a three-day period (Article 112.4). 40. In cases stipulated in the Electoral Code, the courts are empowered to quash decisions of the relevant electoral commissions, including decisions concerning voting results and election results (Article 112.5). 41. While examining requests to invalidate the election of a specific candidate, the relevant electoral commission has a right to hear submissions of citizens and officials as well as obtain required documents and materials (Article 112.8). 42. The relevant electoral commission shall adopt a decision on any complaint submitted during the election period and deliver it to the complainant within three days of receipt of the complaint, except for complaints submitted on election day or the day after election day, which shall be examined immediately (Article 112.10). 43. Complaints concerning decisions of electoral commissions shall be examined by courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11). 44. Persons illegally interfering with the election process and otherwise violating electoral rights of voters and candidates may bear criminal, civil or administrative responsibility under the Criminal Code, the Civil Code or the Code of Administrative Offences (Article 115). 45. After the count of votes in a polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the voting in the polling station (Articles 106.1106.6). One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within twentyfour hours (Article 106.7). The ConEC verifies whether each PEC protocol and documents attached to it comply with the law and whether there are any inconsistencies (Article 107.1). After submission of all PEC protocols, the ConEC tabulates, within two days of election day, the results from different polling stations and draws up a protocol (in three original copies) reflecting the aggregate results of the vote in the constituency (Articles 107.2 -107.7). One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC verifies whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2). 46. The Constitutional Court reviews and approves the results of the elections (Article 171.1). For this purpose, the CEC reviews the ConEC protocols, together with other relevant documents, during a period of no more than twenty days after election day, and then submits them to the Constitutional Court within forty-eight hours (Article 171.2). 47. Within ten days of receipt of the above documents, the Constitutional Court reviews, with the assistance of experts, whether they are in accordance with the requirements of the Electoral Code. If necessary, this ten-day period may be extended (Article 171.3). 48. A civil court examines and relies only on evidence submitted by the parties (Article 14.2). 49. Each party to the civil proceedings must submit evidence proving the facts forming the basis of their claims and objections (Article 77.1). In disputes concerning invalidation of acts of the State, administrative and other authorities, the burden of proving the facts forming the basis of such acts falls upon the relevant authority (Article 77.2). In the event that the examination of the case on the basis of the evidence available in the case file is impossible, the court may request the parties to submit additional evidence (Article 77.3). 50. Written evidence must be submitted to courts either in original or in duly certified copies. If only a part of a document is relevant to the case under examination, a certified extract must be submitted (Article 89.3). 51. Chapter 25 of the CCP sets out rules for examination of applications concerning the protection of electoral rights (or a right to participate in a referendum). According to Article 290, such applications shall be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code. 52. Applications concerning the protection of electoral (referendum) rights shall be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which shall be examined immediately (Article 291.1). The court shall hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification shall not preclude the court from examining and deciding the case (Article 291.2). 53. The appellate court's decision can be appealed to the higher court (the court of cassation) within three days. This appeal shall be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292). 54. The relevant excerpts from the Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (5-6 July and 1819 October 2002), read as follows: “GUIDELINES ON ELECTIONS ... 3. Procedural guarantees 3.1. Organisation of elections by an impartial body a. An impartial body must be in charge of applying electoral law. b. Where there is no longstanding tradition of administrative authorities' independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level. c. The central electoral commission must be permanent in nature. d. It should include: i. at least one member of the judiciary; ii. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters. It may include: iii. a representative of the Ministry of the Interior; iv. representatives of national minorities. e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis... ... h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus. ... 3.3. An effective system of appeal a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible. b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals. ... d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections. e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned. f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. ... g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance). h. The applicant's right to a hearing involving both parties must be protected. i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions. ... EXPLANATORY REPORT ... 3.1. Organisation of elections by an impartial body 68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results. 69. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior. 70. However, in states with little experience of organising pluralist elections, there is too great a risk of government's pushing the administrative authorities to do what it wants. This applies both to central and local government - even when the latter is controlled by the national opposition. 71. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity. ... 3.3. An effective system of appeal 92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding. 93. There are two possible solutions: - appeals may be heard by the ordinary courts, a special court or the constitutional court; - appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second. ... 95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings. 96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases. ... 99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections. 100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded. 101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated. 102. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.” 55. The following are the relevant excerpts from this report, published in Warsaw, Poland on 1 February 2006: “III. POLITICAL BACKGROUND ... The 6 November 2005 elections to the Milli Majlis of Azerbaijan were the third parliamentary elections held in Azerbaijan since independence in 1991, but the first conducted after the adoption of the 2002 constitutional amendments, which eliminated the proportional list component of parliamentary elections. All 125 members of Parliament are now elected in single seat constituencies, in a single round of voting. The CEC registered 48 political parties and blocs for the 6 November elections. The New Azerbaijan Party (YAP), currently chaired by President Ilham Aliyev, has held a dominant position in government since 1993. On the opposition side there were two main blocs: 'New Politics' (YeS), formed by the Movement for National Unity, the National Independence Party of Azerbaijan, the Civil Forum for the Sake of Azerbaijan, the Azerbaijan Social Democratic Party as well as other political parties and NGOs, and 'Azadliq' ('Freedom'), which was formed by the parties Musavat, the Popular Front of Azerbaijan (APFP) and the Azerbaijan Democratic Party (ADP). Another party, which fielded candidates in over 60 constituencies, was the opposition Liberal Party of Azerbaijan. ... V. ELECTION ADMINISTRATION The election was administered by a three-tiered system of election commissions ... There are 125 constituency election commissions and 5,137 polling station election commissions. All election commissions have a 2/3 requirement for quorum and for adopting decisions. The transitional method of composition of election commissions continued to be problematic, as it favored the incumbent authorities and undermined confidence in the independence of the election administration. Election commissions are formed according to a complex formula, and in essence, pro-government parties have a majority in all election commissions sufficient to make all decisions. Moreover, the chairpersons of all election commissions were nominated by the parliamentary majority. The CEC held regular meetings open to media and observers, and most decisions were published and available on its website. The CEC met most deadlines of the Election Code regarding technical preparations for the elections. An extensive voter education effort was conducted through the media. A number of aspects of the CEC's performance were problematic, however, including processing of complaints and appeals, ensuring the uniform implementation of the Election Code by ConECs and PECs, and organization of military voting. Observers reported uncertainty and confusion on the interpretation and application of some legal and procedural issues by ConECs and PECs. A number of election commissions operated in a transparent and collegial manner, and a few issued warnings to candidates or officials for violating the law. However, during the pre-election period, commission members nominated by opposition parties in some constituencies claimed that they were in a number of instances not informed of ConEC meetings, denied access to key documents and had little influence on the decision-making process. The OSCE/ODIHR EOM [Election Observation Mission] was able to verify some of these claims. ... VII. CAMPAIGN ... The general campaign environment was characterized by the fact that the ruling YAP party dominated government and most district administrations, including the election commissions. ... The campaign was undermined by numerous cases of interference of local executive authorities in the election process, with widespread evidence that such interference either favored candidates associated with the incumbents or disadvantaged opposition candidates. ... [M]any candidates and campaign staff were harassed during the course of their campaign activities, for example, while meeting with voters, displaying posters or distributing leaflets. ... The EOM received a number of reports from citizens, particularly from the regions, regarding heads of schools, hospitals and State-owned companies who collected signatures that allegedly obliged staff to vote for selected candidates. The OSCE/ODIHR EOM also received reports of intimidation and coercion of school staff, students and parents to attend campaign events, predominantly in favor of YAP candidates. The 11 May and 25 October presidential decrees acknowledged many such issues and provided instructions to state and local executive bodies, with a view to ensuring that the parliamentary elections be conducted in full compliance with the Election Code. While the decrees addressed some of the shortcomings observed by the OSCE/ODIHR EOM, the overall lack of meaningful implementation undermined their objectives. ... IX. COMPLAINTS AND APPEALS PRIOR TO ELECTION DAY In its 2003 Final Report, OSCE/ODIHR recommended that the CEC enact clear regulations governing the consideration of complaints and appeals. Similarly, it was recommended that safeguards be instituted to ensure that local executive authorities do not interfere in the electoral process or direct the work of the election commissions. These recommendations were not implemented and this had a significant and detrimental effect on the election complaints process. The Election Code envisages most complaints being filed with election commissions, but the law also allows complaints to be lodged with the superior election commission, with decisions in all cases to be made within a three-day deadline. In a large number of cases, candidates lodged complaints directly with the CEC, by-passing the respective ConEC even where the ConEC had not yet brought a decision on the respective complaint. This indicated a lack of confidence in the neutrality of the constituency commissions. The CEC formally registered all such complaints, but in the vast majority of cases merely returned them to the relevant ConEC for its decision, even where the ConEC had already made a prior decision. In many cases, ConECs did not decide complaints within the three-day deadline or issue an interim decision. Although some ConECs did try to adjudicate complaints in a transparent way, a number of ConECs addressed complaints belatedly and superficially. There were cases in which ConECs claimed not to have received complaints, when it was clear they had done so, did not sanction PEC officials who had discriminated against candidates, failed to notify candidates or observers when complaints were discussed or simply ignored complaints. ... In numerous cases, commission chairpersons were clearly biased in favor of YAP or pro-government candidates, and complaints from opposition or independent candidates in these constituencies did not receive impartial adjudication. Overall, the failure of election commissions, and subsequently in some instances the prosecutors, to address or rectify serious violations by local executive authorities and candidates had a marked and negative impact on the election process. Although some ConECs did issue written warnings to candidates and local executive officials, most violations during the campaign were allowed to take place without effective sanction. This further reduced confidence of candidates in the fairness of the process. ... XIII. ELECTION DAY A. Voting For the election on 6 November, 5,053 polling stations were established to serve voters across Azerbaijan. IEOM observers visited over 2,600 polling stations throughout the country. Voter turnout as reported by the CEC was 42.2 per cent, which is significantly lower than in previous general elections. Most IEOM observer teams reported that polling stations generally opened without delay. However, serious deviations from correct opening procedures, including failure to establish and announce the total amount of ballots and invalidate de-registration cards, took place in a number of polling stations. The opening was assessed as 'bad' or 'very bad' in 14 per cent of polling stations visited. Overall, IEOM observers assessed voting positively in 87 per cent of polling stations visited, while voting was assessed negatively in a considerable 13 per cent of polling stations visited, indicating systemic problems and/or irregularities. Voting was conducted in a generally calm atmosphere, although tension was reported at 14 per cent of polling stations visited. Serious violations of procedures included the presence of unauthorized persons, mainly representatives of local executive authorities, in 9 per cent of polling stations visited. Some of these persons were observed interfering in the work of the election commission or attempting to influence voter choice. The IEOM observed intimidation and attempts to influence voter choices in 6 per cent of polling stations visited. Other serious problems included cases of ballot box stuffing and inconsistent application of voter card rules, which was observed in one third of polling stations visited. Group or family voting remained an issue, as it was observed in 19 per cent of visits. Although relatively few people voted by mobile voting procedures, IEOM observers noted some cases in which more votes were cast than there were applications for ballots. Inking procedures, in particular the checking of voters' fingers for ink, were not properly followed in 11 per cent of polling stations visited, with several PECs not applying the inking procedure at all. ... Candidate representatives and non-partisan domestic observers were present in nearly all polling stations visited (97 per cent). However, there were observations of candidate representatives and PEC members being expelled or dismissed from polling stations in some cases. The IEOM observed local executive officials and observers of YAP candidates interfering in or directing the process, or otherwise attempting to influence voters. ... B. Counting IEOM observer teams were present at the count in 231 polling stations. The conduct of the election day process deteriorated sharply during the count. IEOM observers assessed the ballot counting process as bad or very bad in 41 per cent of counts observed. IEOM observers noted a wide range of serious violations during the count, including tampering with results protocols (12 per cent), result protocols not completed with ink (14 per cent), intimidation of observers (16 per cent) and unauthorized persons directing the process (14 per cent). Key procedures were not followed by more than one third of PECs. In some polling stations, the IEOM observed attempts by PEC members to inflate the vote for a selected candidate by swapping ballot papers from one stack to another. Candidate representatives or opposition-nominated PEC members were expelled from the count in a number of cases. In some cases, the count was interrupted and the process significantly delayed, in breach of the law. In several cases, protocols were not completed in the presence of observers, were left blank, or were not taken directly to the ConEC. The results protocols were not posted as required by law in 55 per cent of the counts observed. Observers reported that entitled persons received the signed and stamped copies of the protocol in only 83 per cent of the polling stations observed. C. Tabulation of Results The tabulation of results at constituency level was, overall, assessed as bad or very bad in 34 per cent of the 90 ConECs visited. Tabulation procedures were not followed consistently, and the organization of the work was assessed as poor or very poor in 21 per cent of cases observed. Several ConECs accepted empty or only partly completed protocols (including protocols completed with pencil) and did not take action against PEC chairs or members completing or changing protocols at the ConEC. ... On and after election day, the CEC received and registered more than 1,000 complaints but did not address most of these complaints. Complaints that did receive attention were not considered transparently or in accordance with the law. Although the law requires the CEC to decide on all complaints , the CEC failed to fully meet this legal obligation. ... The CEC did not inform complainants on consideration of their complaints at the CEC session, and complainants were not granted the right to give explanations or present new evidence. Moreover, the CEC did not conduct a formal investigation or review of complaints at its sessions. Instead an individual commission member, as a rule a member representing the voting majority, investigated the complaint and reported on his or her findings. These reports did not give other CEC members complete information on the complaint. Notwithstanding the large number of complaints, the CEC met infrequently and completed its final protocol without considering all pending complaints. ... ... The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. In total, the Court of Appeal received 71 appeals and complaints in the post-election period. The Supreme Court received nine appeals during the post-election period until 23 November. The OSCE/ODIHR EOM observed eight hearings in the Court of Appeal and seven hearings in the Supreme Court. In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court. ...”