CASE OF SEYIDZADE v. AZERBAIJAN
Violation of P1-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1949 and lives in Baku. 6. The applicant held positions as head of the education department of the Caucasus Muslims Board (Qafqaz Müsəlmanlar İdarəsi, the official governing body of Muslim religious organisations in Azerbaijan), member of the Qazi (Islamic Judges') Council (Qazılar Şurası) of the Caucasus Muslims Board, and director of the Sumgayit branch of Baku Islamic University. He was also a founder and editor-in-chief of a journal called Kelam, published since 2002 and printing various articles with an Islamic religious content. 7. On an unspecified date, the applicant lodged an application with the Constituency Electoral Commission (“the ConEC”) for the single-seat Massalli Village Electoral Constituency No. 71 for registration as a candidate in the upcoming elections to the Milli Majlis (Parliament) on 6 November 2005. Together with the application, he submitted a written undertaking to terminate any professional activities incompatible with the office of member of parliament. 8. According to the minutes of the joint meeting of the Qazi Council and Religious Science Council of the Caucasus Muslims Board held on 14 July 2005, the applicant's membership of the Qazi Council was terminated on the basis of his own resignation letter. It was noted that the resignation was accepted in view of the applicant's having nominated himself as a candidate for the parliamentary elections. 9. According to an order issued by the chairman of the Caucasus Muslims Board on 15 August 2005, the applicant was relieved of his positions as head of the Board's education department and director of the Sumgayit branch of Baku Islamic University. 10. On 25 August 2005 the ConEC refused to register the applicant as a candidate because he “was continuing his activities as a professional clergyman (peşəkar din xadimi)”, which were incompatible with the requirements of Article 14.2.4 of the Electoral Code. 11. The applicant complained about this decision to the Central Electoral Commission (“the CEC”). On 27 August 2005 the CEC rejected the applicant's complaint. The entire CEC decision consisted of the following: “[The CEC], having examined the complaint of Miraziz Mirasgar oglu Seyidzade, who has nominated himself for election to the Milli Majlis ..., in accordance with Articles 19.4, 19.14, 28.4 and 112.9 of the Electoral Code and Articles 3.5 and 3.6 of the Law of 27 May 2003 on the approval and entry into force of the Electoral Code, decides: To reject the complaint of Miraziz Mirasgar oglu Seyidzade as unsubstantiated.” 12. The applicant lodged an appeal against this decision with the Court of Appeal, complaining that his candidacy had been terminated unlawfully as he had resigned from all positions involving “professional religious activity” and was no longer engaged in any religious activities. On 1 September 2005 the Court of Appeal rejected his appeal, finding that the CEC's decision was lawful. Specifically, the Court of Appeal noted: “According to the materials in the case file, Miraziz Mirasgar oglu Seyidzade, who has nominated himself for election to the Milli Majlis, is a clergyman. According to Article 56 of the Constitution of the Republic of Azerbaijan, the right of clergymen ... to participate in elections may be restricted. According to the requirements of Article 14.2.4 of the Electoral Code of the Republic of Azerbaijan, clergymen may not serve as members of the Milli Majlis while they are engaged in professional religious activity. The applicant's arguments that he had been relieved of his positions with the Caucasus Muslims Board and Baku Islamic University cannot be considered as a ground for upholding his claim. Specifically, the fact that [the applicant] has been relieved of the above-mentioned positions does not rule out his engaging in professional religious activity. On the other hand, according to Article 85 of the Constitution of the Republic of Azerbaijan, a clergyman may not be elected as a member of the Milli Majlis. Accordingly, given that the decision of the Central Electoral Commission was in compliance with the requirements of the Constitution and the Electoral Code of the Republic of Azerbaijan, the arguments advanced in the applicant's appeal cannot be considered as a basis for quashing this decision.” 13. The applicant lodged a cassation appeal against this judgment with the Supreme Court. On 8 September 2005 the Supreme Court dismissed the appeal using the same reasoning. 14. The applicant attempted to have the proceedings reopened and the case reviewed by the Plenum of the Supreme Court, by lodging an additional cassation appeal with the Supreme Court's President. On 20 September 2005 the Supreme Court's President rejected his request, finding no grounds for reopening the proceedings. 15. Lastly, the applicant lodged a constitutional complaint. By an inadmissibility decision of 26 October 2005, the Constitutional Court refused to admit the complaint for examination on the merits, finding that the applicant had essentially disputed the factual findings of the courts of general jurisdiction (specifically, on the question whether the applicant was actually engaged in any “professional religious activity”). The Constitutional Court noted that it had no competence to review the correctness of the It also stated the following with regard to the restriction of clergymen's right to stand for election in general: “According to Article 7 (I) of the Constitution, the Republic of Azerbaijan is a democratic, secular, unitary republic governed by the rule of law. Article 18 (I) of the Constitution provides that religion shall be separate from the State. In this context, the above provisions must inevitably be taken into account in the constitutional rules on formation of the supreme elected government body. The restriction on the election of clergymen to government bodies, which is based on the demands of the public interest, has the primary aim of separating religion from the State. The restriction serves the purposes of removing matters inherent in the State's functioning from the sphere of influence of religious communities, clerics and religious figures, and keeping such influence to a minimum. Another aim of the restriction is to separate religious voters from the clergy in the context of the election process, as a means to ensure that voters form their opinions and make their choice free from any undue interference. It must be noted that the legal systems of a number of other States also provide for restrictions on the right of clergymen to stand for election. ... Article 14.2.4 of the Electoral Code provides that clergymen cannot be members of the Milli Majlis, President of the Republic, or members of municipalities while they are engaged in professional religious activity. As such, the legislator applied the “religious-based eligibility requirement” restricting clergymen's right to serve as members of parliament only to periods when the latter are engaged in professional religious activity.” 16. At the material time, the relevant provisions of the Constitution provided as follows: “I. The Azerbaijani State is a democratic, secular, unitary republic governed by the rule of law. ...” “I. Religion is separated from the State in the Republic of Azerbaijan. All religious faiths shall be equal before the law. II. The spreading and proselytising of religions which undermine human dignity and contradict the principles of humanism shall be prohibited. III. The State education system shall be secular.” “I. Citizens of the Republic of Azerbaijan shall have the right to elect and be elected to the institutions of government, and to participate in referendums. II. Persons whose legal incapacity has been determined by a court decision shall not have the right to participate in elections and referendums. III. Members of the armed forces, judges, State officials, clergymen (din xadimləri), persons imprisoned pursuant to a final court judgment, and other persons specified in this Constitution and in legislation may be subject by law to restrictions on their right to participate in elections.” “I. Every citizen of the Republic of Azerbaijan not younger than 25 years of age may be elected as a member of the Milli Majlis ... in a manner stipulated by law. II. Persons who have dual citizenship, those who have obligations vis-à-vis other States, those who work within the system of the executive or judicial power and those who carry out any other types of remunerated activity except scientific, pedagogical or creative activities, clergymen (din xadimləri), persons whose legal incapacity has been determined by a court decision, those who have been convicted of serious crimes and those who are serving prison sentences pursuant to a conviction under a final judgment, cannot be elected as members of the Milli Majlis ...” 17. At the material time, the relevant provisions of the Electoral Code provided as follows: “13.1. Except for the cases stipulated in Article 56 of the Constitution of the Republic of Azerbaijan and in this Code, every citizen who has active electoral rights shall also have passive electoral rights, that is, he or she shall have the right to form a referendum campaign group and to be elected as a member of the Milli Majlis, as President or as a member of a municipality, provided he or she meets the candidacy requirements laid down by the Constitution of the Republic of Azerbaijan for these offices. 13.2. Restrictions on passive electoral rights shall be established by Articles 56, 85, and 100 of the Constitution of the Republic of Azerbaijan and by this Code. 13.3. Pursuant to Articles 56 (III), 85 and 100 of the Constitution of the Republic of Azerbaijan, the following persons shall not have passive electoral rights, that is, they shall not have the right to be elected as a member of the Milli Majlis, as President or as a member of a municipality: 13.3.1. persons serving prison sentences pursuant to a conviction under a final judgment; 13.3.2. persons convicted of the crimes under Articles 15.4-15.5 of the Criminal Code of the Republic of Azerbaijan; 13.3.3. citizens of the Republic of Azerbaijan with dual citizenship (until their second citizenship expires); and 13.3.4. citizens of the Republic of Azerbaijan who have obligations vis-à-vis foreign States (until such obligations are terminated) ...” “14.1. Cases of incompatibility of positions shall be established by Articles 56, 85 and 100 of the Constitution and by this Code. 14.2. Pursuant to Article 56 (III) of the Constitution of the Republic of Azerbaijan, the following persons shall not have the right to serve as members of the Milli Majlis, as President or as members of municipalities, by virtue of the positions they occupy: 14.2.1. Members of the armed forces (while in military service); 14.2.2. Judges (while in office); 14.2.3. Civil servants (while in State service); and 14.2.4. Clergymen (din xadimləri) (while engaged in professional religious activity (peşəkar dini fəaliyyət ilə məsğul olduqları müddətdə)).” “... 53.3. An application containing a written undertaking by the candidate to terminate any activities incompatible with a post in an elected State or municipal body shall be submitted together with the notification mentioned in Article 53.2 of the Code. This application shall contain information on the candidate ([including] his or her official workplace (or type of activity, if not working) ...” “69.1. All the registered candidates and referendum campaign groups shall have equal rights and responsibilities, taking into account their status. 69.2. Registered candidates and authorised representatives of referendum campaign groups who are in State or municipal service or who work in the mass media under an employment or civil contract shall be released from performing their official duties during the period of their participation in the election (referendum) campaign (this rule shall not apply to the [current] President of the Republic of Azerbaijan, [current] members of the Milli Majlis or [current] members of municipalities). The approved copy of the relevant order [on release from performing official duties] shall be submitted to the electoral commission registering the above-mentioned candidates or authorised representatives within 3 days, at the latest, from the day of registration. Such candidates or authorised representatives shall not abuse their official authority or positions in order to gain privileges or advantages.” “125 members shall be elected to the Milli Majlis from single-seat constituencies (one member per constituency).” “The citizens of the Republic of Azerbaijan indicated in Article 85 of the Constitution of the Republic of Azerbaijan may be elected as members of the Milli Majlis ...” 18. At the material time, the Law on Freedom of Religion provided as follows: “In the Republic of Azerbaijan, religion and religious institutions (dini qurumlar) shall be separate from the State. The State shall not delegate any of its functions to religious institutions and shall not interfere with their activities. All religions and religious institutions shall be equal before the law. ... Religious institutions shall not participate in the activities of political parties and shall not provide them with financial assistance. In the event of the election or appointment of clergymen (din xadimləri) to positions in the institutions of government, their activities as clergymen (onların din xadimi kimi fəaliyyəti) shall be suspended for the period during which they occupy the relevant position.” 19. The case of Agayev v. Azerbaijan (no. 7607/06, declared inadmissible by the Court in a Committee decision of 9 September 2009) contained the following facts relevant to the present case regarding the eligibility requirements laid down by Article 14 of the Electoral Code. The applicant in that case was a candidate in the elections of 6 November 2005 for the single-seat Saatli-Sabirabad-Kurdamir Electoral Constituency No. 65. One of his opponents, G.A., was the Head of the Saatli Regional Executive Authority (“the SREA”). Heads of regional executive authorities were appointed and removed from their posts by the President of the Republic. Following his formal registration as a candidate, G.A. was temporarily relieved of his official duties, without pay, until 16 November 2005, pursuant to an SREA decision of 5 September 2005 signed by G.A. himself. This decision was duly notified to the electoral authorities and the President's Office. G.A. also submitted an undertaking to terminate any activities incompatible with the office of member of parliament, if elected as such. The applicant challenged the lawfulness of the election process in the constituency before the domestic authorities, arguing that G.A. should have been definitively removed from his post by a presidential order prior to his formal registration as a candidate. The electoral authorities and courts dismissed the applicant's claims, noting that G.A. had been temporarily relieved of his duties in full compliance with Article 69.2 of the Electoral Code and that, therefore, he was not in a position to unduly influence the electoral process in his capacity as a high-ranking civil servant. For these reasons, G.A. was allowed to stand as a candidate. Subsequently, G.A. won the election in the constituency. On 2 December 2005 G.A. was definitively removed from his post by a presidential order.