CASE OF ORUJOV v. AZERBAIJAN
Violation of P1-3
Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The applicant was born in 1957 and lives in Baku. 6. The applicant applied for registration as an independent candidate for the forthcoming elections to the Milli Majlis (Parliament) of 6 November 2005. On 19 August 2005 the Constituency Electoral Commission (“the ConEC”) for Nasimi First Election Constituency no. 21, a single-mandate constituency in Baku, registered him as a candidate. 7. On 26 October 2005 Police Office No. 19 of the Nasimi District Police Department informed the ConEC that the applicant was privately funding certain urban improvement works (such as laying new asphalt and repairing public recreation facilities for children) in some public areas of his constituency, allegedly with the purpose of winning over the support and votes of the local residents, in breach of the requirements of the electoral law. To this effect, the police drew up a record, signed by three police officers and two employees (A.A. and V.Q.) of the local housing utilities committee responsible for the residential buildings in question, which stated that the applicant had “laid fresh asphalt in front of the residential buildings indicated on the attached drawing ... and this fact [was] confirmed by the signatures below”. 8. In support of this submission, the police office submitted handwritten statements by several local residents, all of which were addressed directly to the police and expressed gratitude to the applicant for the work he had carried out in their neighbourhood. While some of the statements were dated 26 October 2005, two statements were dated 27 October 2005. 9. In particular, a statement by I.K., dated 26 October 2005 and addressed to Police Office No. 19, read as follows: “I have resided at the above-mentioned address since 1989. During this time, no renovation has been done in the courtyard [of our building]. But in the last month a lot of renovation work has been carried out in the courtyard ... [a description of specific improvements follows]. The above-mentioned works were organised and carried out by our respected neighbour ... Nadir Orujov. He is a person who is willing to share all the problems of the entire neighbourhood and to assist [in resolving these problems]. We wish this person only victory in the upcoming elections”. 10. A statement by G.N., dated 27 October 2005 and addressed to Police Office No. 19, read as follows: “In reply to the questions asked of me, I inform you that Nadir Oruj oglu Orujov, who has nominated himself as a candidate [for the parliamentary elections], has carried out benevolent renovation works in our courtyard in the pre-election period. He has laid fresh asphalt in front of the buildings. I have written this statement myself. I confirm [the authenticity of] my signature”. 11. A statement by S.A., dated 27 October 2005 and addressed to Police Office No. 19, read as follows: “I inform you that Nadir Oruj oglu Orujov, who has nominated himself as a candidate [for the parliamentary elections], is laying fresh asphalt in front of the buildings [in our courtyard]. He is a good person. I have written this statement myself. I confirm [the authenticity of] my signature.” 12. Other statements were of a similar content. 13. According to an extract from the minutes of the ConEC meeting held on 28 October 2005, made available to the applicant and later submitted by him to the Court, the ConEC decided as follows: “1. To take into consideration the statements by voters ... 2. To confirm, based on the statements and other material submitted, breaches of Articles 88.4.4 and 88.4.5 of the Electoral Code by Nadir Oruj oglu Orujov, who is registered as a candidate for the elections to the Milli Majlis. 3. In accordance with Article 113.2.3 of the Electoral Code, to apply to the Court of Appeal with a request for the cancellation of the applicant’s registration as a candidate owing to the breach of the requirements of Articles 88.4.4 and 88.4.5 of the Electoral Code. ...” 14. The full copy of the same minutes of the above ConEC meeting, as submitted by the Government, indicates that this meeting was held on 29 October 2005. 15. By a letter of 28 October 2005, the ConEC submitted the cancellation request to the Court of Appeal. The request stated, inter alia: “[C]andidate Nadir Oruj oglu Orujov has breached the requirements of Article 88 of the Electoral Code and thus violated the rights of other candidates. There have been repeated oral submissions to [the ConEC] concerning his illegal actions. Finally, citizens have applied to Police Office no. 19 of the Nasimi District Police Department and requested [the police] to put an end to his illegal actions. ... It has been proved that [the applicant] conducted [certain renovation works], in breach of Articles 88.4.4 and 88.4.5 of the Electoral Code, with the purpose of buying votes. ...” 16. According to the applicant, he was not informed about the ConEC’s request in a timely manner. 17. The Court of Appeal examined the case the next day, at 11 a.m. on Saturday 29 October 2005. 18. According to the record of the court hearing, the court examined the documents submitted by the ConEC and heard a number of witnesses. In particular, two police officers, F. Zamanov and R. Samadov, testified that, according to “residents of the buildings” in question, the applicant had carried out unauthorised urban improvement works in the constituency. 19. The court also heard six local residents. It appears that three of them (G.N., R.I. and V.Q.) had submitted handwritten statements to the police earlier. These three witnesses told the court that they did not know the applicant personally and had not known who had carried out the renovation works, that on 26 October 2005 police officer F. Zamanov had approached each of them individually on the street, engaged them in conversation and informed them that the works had been carried out by the applicant, and that F. Zamanov had then asked them to write a “thank-you note” expressing their gratitude to the applicant for his efforts on behalf of the community. The witnesses said that they had not been told that their statements would be used against the applicant later. 20. Of the remaining three local residents, one stated that she did not know who had carried out the urban improvement works near her home, and two stated that the works had been carried out by the local residents themselves at their own expense. 21. In its judgment of 29 October 2005, consisting of one and a half typed pages, the Court of Appeal summarised the above-mentioned witness statements as follows: “... witnesses F. Zamanov and R. Samadov confirmed that [the renovation works] at [the location in question] had been carried out under the instructions and with the assistance of the candidate for the elections to the Milli Majlis, N.O. Orujov. This circumstance was also confirmed by witnesses [R.I. and G.N.] when questioned at the court hearing. ... Witnesses [V.Q. and M.M.], when questioned at the court hearing, stated that they did not know who had laid the fresh asphalt and carried out the renovation works, while witnesses [Q.H. and G.V.] stated that these renovation works had been carried out by the local residents themselves”. 22. The court then directly proceeded to a finding that the applicant, by carrying out renovation works in public areas “with the aim of winning over voters” and “promising to provide assistance to voters in return for their votes”, had attempted to influence the voters’ opinion in a manner prohibited by Article 88.4 of the Electoral Code. The court therefore decided to cancel the applicant’s registration as a candidate. 23. On 31 October 2005 the applicant enquired as to the identity of the local residents who had testified against him. He discovered that two of the persons (S.A. and T.T.) who had complained about him to the police did not actually live in his constituency and had used false addresses in their written submissions. 24. Three other witnesses (I.K., G.N. and V.Q.) made notarised affidavits addressed to the Supreme Court in which they retracted their previous handwritten submissions to the police, claiming that, in fact, none of them had known whether the renovation works had actually been carried out by the applicant, and that they had been either pressured or tricked by the police into making these statements, without being informed that the police intended to use them against the applicant. 25. The applicant lodged a cassation appeal with the Supreme Court, arguing that the evidence used against him had been fabricated, that the Court of Appeal had made manifest errors in examining the evidence and had based its decision on unproven allegations, and that therefore his registration had been cancelled arbitrarily. With his cassation appeal, he also enclosed the witness affidavits mentioned above. 26. On 3 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 29 October 2005. It refused to admit the new evidence submitted by the applicant challenging the reliability of the original evidence used against him (including the witnesses’ 27. Article 88.4 of the Electoral Code of 2003 provides as follows: “88.4. Candidates ... are prohibited from gaining the support of voters in the following ways: 88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work; 88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work; 88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material); 88.4.4. providing services free of charge or on privileged terms; 88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.” 28. According to Articles 113.1 and 113.2.3 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4 of the Code. 29. Complaints concerning decisions of electoral commissions must be examined by the 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). 30. Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code. 31. Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must 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 does not preclude the court from examining and deciding the case (Article 291.2). 32. The appellate court’s decision can be appealed against to the higher court (the court of cassation) within three days. This appeal must 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).