CASE OF KARIMOV v. AZERBAIJAN
Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1954 and lives in Baku. 6. The applicant was deputy chairman of the Popular Front Party. He stood in the elections to the National Assembly of 6 November 2005 as a candidate of the opposition bloc Azadliq. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the singlemandate Sabail Electoral Constituency no. 29. 7. There were a total of thirty-two polling stations in the constituency, twenty-nine of which were ordinary polling stations. Polling Station no. 30 was set up on the premises of a temporary detention centre so that persons detained there could vote. Polling Stations nos. 31 and 32 were set up shortly before the elections exclusively for military servicemen belonging to two military units stationed within the constituency. Those military units were permanently stationed in the Bayil and Badamdar suburbs of Baku. 8. According to the minutes of the ConEC meeting of 29 September 2005, a copy of which was submitted by the Government, on that date the ConEC decided, inter alia, to appoint members to the precinct (polling station) electoral commissions (“the PEC”) for Polling Stations nos. 31 and 32. It appears from the minutes that five out of six members of each PEC in question were military officers or personnel of those military units, with the exception of one member nominated to each PEC by an opposition party. In each PEC, three of the five “military members” were nominated by the ruling party. According to the applicant, prior to the proceedings before the Court, he had never been provided with the full text of the minutes of the ConEC meeting of 29 September 2005. 9. The official election results in the constituency showed that the applicant had received an overall total of 3,454 votes and finished in second place. Of those votes, 3,301 had been cast in Polling Stations nos. 1 to 29 and 153 had been cast in Polling Stations nos. 30, 31 and 32. 10. The winning candidate (M.) received an overall total of 3,661 votes. Almost half of those, a total of 1,816 votes, had been cast in Polling Stations nos. 30, 31 and 32. Of those, 1,369 votes, which constituted over a third of his total vote count, had been cast in the polling stations (nos. 31 and 32) created exclusively for military voting (779 and 590 votes respectively). 11. On 8 November 2005 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) alleging a number of violations of electoral law in his constituency. He requested that the election results in Polling Stations nos. 30, 31 and 32 be invalidated. He complained, inter alia, of the following: (a) that the setting up of Polling Stations nos. 31 and 32 exclusively for military voting was in breach of Article 35.5 of the Electoral Code, which required that military servicemen should vote in ordinary polling stations and which stipulated that special military polling stations should be set up only in exceptional circumstances. In this case, there were no such exceptional circumstances and the personnel of each military unit in question should have voted in one or more of the several ordinary polling stations already located within very short walking distances of their barracks; (b) that the PECs of Polling Stations nos. 31 and 32, consisting mostly of military officers, had acted as if they were accountable to the Ministry of Defence and not the superior electoral commissions, and that two of the duly appointed PEC members, nominated by the opposition, had been denied access to the polling stations; (c) that in the three “closed” polling stations (nos. 30, 31 and 32) the elections had been unfair, and military servicemen and detainees had voted under coercion. It was noted by observers in Polling Stations nos. 31 and 32 that high-ranking military officers had pressured military servicemen to vote for M. Similarly, undue pressure had been put on detainees in Polling Station no. 30. As a result, M. received about as many votes in those three “closed” polling stations as in all twenty-nine of the other (ordinary) polling stations of the constituency (where he had clearly lost to the applicant by a large margin), which allowed him to pull slightly ahead in the overall vote count. The results of the voting in the three “closed” polling stations and their effect on the election clearly showed that the election had been rigged in favour of the candidate supported by the ruling party. 12. In support of the above complaints, the applicant submitted copies of written observations made by several observers at those polling stations. 13. On 21 November 2005 the CEC issued a decision invalidating the election results in Polling Stations nos. 20 and 21 of Sabail Electoral Constituency no. 29, having found that the electoral law had been breached in those polling stations. It did not provide any details as to the exact nature of those breaches. That decision did not affect the overall election results in the constituency. The CEC’s decision did not mention the applicant’s complaints concerning Polling Stations nos. 30, 31 and 32. 14. On 24 November 2005 the applicant lodged an appeal against the CEC decision, reiterating the complaints that he had made before the CEC. During the Court of Appeal hearing, a representative of the CEC argued generally, without addressing any of the applicant’s factual arguments in detail, that the elections in Polling Stations nos. 30, 31 and 32 had been lawful and that there were no grounds for invalidating the votes cast in those polling stations. 15. On 26 November 2005 the Court of Appeal dismissed the applicant’s complaint, finding that he had failed to substantiate his allegations. In particular, the judgment read as follows: “Under Article 14.2 of the CCP, the court may examine, and rely on, only the evidence submitted by the parties. Despite the requirement of the above-mentioned Article, the claimant, H.H. Karimov, and his counsel, [S.T.], have not been able to produce before the court any reliable evidence in support of the allegations made in the claim. Under Article 77.1 of the CCP, each party must prove the facts to which it refers as a basis for its claims and objections. Under Article 217.4 of the same Code, the court may rely in its judgment only on the evidence examined at the court hearing. Having regard to the above, the court does not find any grounds for upholding the claim and rejects as unsubstantiated [the applicant’s] claim against [the CEC] requesting the invalidation of the election results in Polling Stations nos. 30, 31 and 32 of Sabail Electoral Constituency no. 29 ...” 16. The applicant appealed to the Supreme Court, reiterating his complaints. 17. On 30 November 2005 the Supreme Court dismissed the appeal, essentially on the same grounds as the Court of Appeal. 18. On 1 December 2005 the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Sabail Electoral Constituency no. 29.