CASE OF SOLTANOV AND OTHERS v. AZERBAIJAN
Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Carlo Ranzoni;Khanlar Hajiyev
4. The applicants’ dates of birth and places of residence are given in the Appendix. 5. The applicants stood as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single–mandate electoral constituencies (see Appendix). They were either self-nominated or nominated by various political parties (see Appendix). 6. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”). 7. Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups. 8. The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) signatures claimed to have been obtained “by deceptive means”; and (g) unspecified “other grounds”. 9. None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of the results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal. 10. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decisions. They made some or all of the following complaints: (a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary; (b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twentyfour hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make the necessary corrections; (c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position; (d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on those grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired. Likewise, it had been unlawful to invalidate signatures on unspecified and unexplained “other grounds”, because the Electoral Code provided for an exhaustive list of clear grounds for declaring signatures invalid and did not give electoral commissions any discretionary power to introduce any other grounds for that purpose; (e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”. 11. Enclosed with their complaints to the CEC, some of the applicants submitted statements by a number of voters affirming the authenticity of their signatures. However, those statements were not taken into consideration by the CEC. 12. The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law. 13. In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with the differences often being significant. Furthermore, in almost every case, the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”). 14. On various dates, the CEC also rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings. 15. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures: (a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints; (b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions; (c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts; (d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account. 16. Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed. 17. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC. 18. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments. 19. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal. 20. In addition to the applicants in applications nos. 30362/11, 30581/11, 30728/11 and 30799/11, at the material time their representative Mr Intigam Aliyev was representing twentyseven other applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court. Mr Aliyev himself is the applicant in application no. 66684/12. 21. In August 2014 the prosecution authorities launched an investigation into the activities of a number of NGOs, including the Legal Education Society, an NGO headed by Mr Aliyev. 22. On 7 August 2014 the Nasimi District Court issued a search warrant authorising the search of Mr Aliyev’s office in the Legal Education Society and seizure of “legal, financial, accounting and banking documents, letters and contracts, reports on execution of grant contracts and tax documents relating to [the organisation’s] establishment, structure, functioning, membership registration, receipt of grants and other financial aid, and allocation of granted funds, as well as computers, disks, USB keys and other electronic devices storing relevant information ...” 23. On 8 August 2014 Mr Intigam Aliyev was arrested after questioning by an investigator of the Prosecutor General’s Office in connection with the criminal proceedings instituted against him under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. On the same day, the Nasimi District Court ordered his detention pending trial. He remains in detention while the criminal proceedings against him are pending. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14). 24. On 8 and 9 August 2014 the investigation authorities conducted a search of Mr Aliyev’s home and office pursuant to the Nasimi District Court’s search warrant of 7 August 2014, seizing, inter alia, a large number of documents from his office, including all the case files relating to the pending proceedings before the Court, which were in Mr Aliyev’s possession and which concerned over 100 applications in total. The files relating to the present cases, which, it appears, included copies of all the documents and correspondence between the Court and the parties, were also seized in their entirety. No adequate inventory of the seized document files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014. 25. On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He complained that the investigator had failed to register each seized document as required by the relevant law and had taken the documents without making an inventory. He further complained about the seizure of the documents and files relating to the ongoing court proceedings before the Court and the domestic courts. 26. On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicants at this stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014. 27. On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the file relating to the present case, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it has been established that among documents seized on 8 and 9 August 2014 there were files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which have no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] have been delivered to [Mr Aliyev’s lawyer] Mr Javad Javadov”.