CASE OF ANNAGI HAJIBEYLI v. AZERBAIJAN
Preliminary objection dismissed (Article 37-1 - Striking out applications);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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
5. The applicant was born in 1955 and lives in Baku. 6. The applicant was nominated by the coalition of the Popular Front and Musavat parties to stand as a candidate in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in the singlemandate Saatli Electoral Constituency No. 62. 7. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 5 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC”) fourteen signature sheets containing 675 voter signatures collected in support of his candidacy. 8. Before the ConEC’s decision on the question of the applicant’s registration as a candidate, the accuracy of the signature sheets and other registration documents submitted by the applicant were to be first examined by a special working group (işçi qrupu) established by the ConEC. Although the applicant had requested to be present during the process of the examination by the working group, this took place without him. 9. By a decision of 11 October 2010 the ConEC refused the applicant’s request for registration as a candidate. The ConEC found that, according to the opinion of the working group, a number of submitted supporting signatures were invalid, and that the remaining valid signatures numbered fewer than 450. In particular, 597 of the 675 signatures had been examined, and it was found that 257 of those signatures were invalid. 10. The following reasons were given in the ConEC working group’s examination record dated 10 October 2010: (a) three signatures were “repeat signatures”; (b) seven signatures were invalid because there were uncertified corrections of them on the signature sheets; (c) twelve signatures were invalid owing to incorrect personal information provided concerning those voters; (d) one signature was invalid because it was on the wrong line; (e) 201 signatures were not authentic because they had been made repeatedly by the same individuals who had already signed the signature sheets; and (f) thirty-three signatures were invalid for “other” (unspecified) reasons. 11. On 13 October 2010 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision to refuse registration. He complained, inter alia, of the following: (a) 257 signatures were deemed invalid on the basis of a mere visual examination, without any additional adequate investigation; (b) the members of the ConEC working group were not real experts. The head of the working group was a school gym teacher, while two other members were an employee of a statistics committee and an employee of the passports department of a local police office; (c) there was no explanation as to what constituted “other” reasons for declaring thirty-three of the signatures invalid; (d) contrary to the requirements of Article 59.3 of the Electoral Code, the applicant had not been invited to participate in the process of examination of the signature sheets by the ConEC working group, and thus had been deprived of the right to give the necessary explanations to the experts; (e) contrary to the requirements of Article 59.13 of the Electoral Code, he had not been provided with a copy of the results of the examination of the signature sheets at least twenty-four hours prior to the ConEC meeting to decide on the applicant’s registration; (f) the applicant’s presence at the ConEC meeting of 11 October 2010 had not been ensured. 12. Enclosed with his complaint to the CEC, the applicant submitted written statements by over 400 voters whose signatures had been declared invalid, affirming the authenticity of their signatures. However, according to the applicant, those statements were not taken into consideration by the CEC. 13. The CEC conducted another examination of the signature sheets using members of its own working group. The applicant was not invited to participate in this process. According to the working group’s findings, a total of 238 signatures were considered to be invalid. It appears that 233 of those were considered inauthentic because they had allegedly been made repeatedly by the same persons in the name of other persons, and the remaining five were found to be invalid owing to the voters’ incorrect personal information. 14. The applicant was not invited to the CEC meeting dealing with his complaint against the ConEC decision of 11 October 2010. 15. By a decision of 16 October 2010 the CEC dismissed the applicant’s complaint and upheld the ConEC decision of 11 October 2010. It found that, on the basis of the findings of the CEC’s own working group, 238 out of 675 signatures submitted by the applicant were invalid and that the remaining 437 valid signatures were below the minimum number required by law. 16. The applicant was given copies of the CEC decision and the working group opinion on 17 October 2010. 17. On 19 October 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Appeal. He reiterated his complaints made before the CEC concerning the ConEC decision and procedures. Moreover, he raised, inter alia, the following complaints: (a) contrary to the requirements of the electoral law, the CEC had failed to notify him of its meetings and to ensure his presence during the examination of the signature sheets and the examination of his complaint; (b) the CEC had ignored the written statements by over 400 voters confirming the authenticity of their signatures and had failed to take them into account; and (c) the CEC had failed to provide any reasoning and had not addressed any of the applicant’s arguments in its decision. 18. By a judgment of 22 October 2010 the Baku Court of Appeal dismissed the applicant’s appeal. The court dismissed the applicant’s arguments as irrelevant or unsubstantiated, and found that there were no grounds for quashing the CEC’s decision. 19. On 25 October 2010 the applicant lodged a further appeal with the Supreme Court, reiterating his previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the case and had delivered an unreasoned judgment. 20. On 28 October 2010 the Supreme Court dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail and finding no grounds for doubting the findings of the electoral commissions and the Court of Appeal. 21. In addition to the applicant in the present case, at the material time the applicant’s 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 has also lodged an application on his own behalf in a case relating to the 2010 elections (application no. 66684/12). 22. 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. 23. 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 ...” 24. 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). 25. 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 file relating to the present case, which, it appears, included copies of all the documents and correspondence between the Court and the parties, was also seized in its 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. 26. 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. 27. 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 applicant 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. 28. 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”.