CASE OF KERIMOVA v. AZERBAIJAN
Violation of P1-3;Pecuniary damage and non-pecuniary damage - award
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1941 and lives in Baku. 6. She stood for the elections to the Milli Majlis (Parliament) of 6 November 2005 as a candidate of the opposition bloc Azadliq. She was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the singlemandate Sumgayit Second Electoral Constituency no. 42. 7. The constituency was divided into thirty-seven electoral precincts, with one polling station in each precinct. There were a total of fifteen candidates running for election in this constituency. 8. At the end of election day, the applicant obtained copies of the election protocols drawn up by each of the thirty-seven Precinct Electoral Commissions (“the PEC”). According to the copies of the PEC protocols in the applicant's possession, she received the largest number of votes in the constituency. Specifically, she received a total of 5,566 votes. The second highest number of votes, 3,922 votes in total, was received by a candidate from the ruling Yeni Azerbaijan Party (H.). The applicant received the highest number of votes in thirty polling stations, while H. received the highest number of votes in seven polling stations. 9. According to the ConEC protocol drawn up on 7 November 2005 following an official tabulation of results received from the precincts, the applicant obtained the highest number of votes cast in the constituency. Specifically, according to the ConEC protocol, the applicant received 5,350 votes, H. received 4,091 votes, and a third candidate received 1,532 votes. The total number of votes cast for each of the remaining candidates was substantially lower. The ConEC protocol indicated the applicant as “the elected candidate”. 10. On 8 November 2005 the Central Election Commission (“the CEC”) issued a decision invalidating the election results in Sumgayit Second Electoral Constituency no. 42. The decision, in its entirety, stated as follows: “Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4, 100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of the Law of 27 May 2003 on Approval and Entry into Force of the Electoral Code, the Central Electoral Commission decides: 1. To invalidate the election results in Polling Stations nos. 1, 3, 4, 5, 8, 11, 16, 17, 18, 19, 20, 21, 23, 24, 32, and 36 of Sumgayit Second Electoral Constituency no. 42 due to impermissible alterations [“yolverilməz düzəlişlər”] made in the PEC protocols of these polling stations as well as infringements of law [“qanun pozuntuları”] which made it impossible to determine the will of the voters. 2. To invalidate the election results in Sumgayit Second Electoral Constituency no. 42 due to the fact that the number of polling stations in which the election results have been invalidated constitutes more than two-fifths of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes more than one-quarter of the total number of voters in the constituency. 3. To forward the relevant materials concerning this electoral constituency to the Prosecutor General's Office for investigation.” 11. On 11 November 2005 the applicant lodged an appeal against this decision with the Court of Appeal, arguing that the findings in the CEC decision were wrong. While the CEC decision noted that “impermissible alterations” had been made to the protocols of sixteen PECs, in reality such alterations had been made to the protocols of only five PECs (in Polling Stations nos. 8, 10, 11, 21 and 24). The applicant noted that this conclusion could be arrived at by simply comparing the ConEC protocol with the copies of the PEC protocols in her possession. She further noted that, on each occasion, the alterations had been made to reduce the number of votes cast in her favour and to increase the number of H.'s votes. Even though these falsifications were directed against the applicant, she was still the winner according to the falsified results announced by the ConEC. 12. As to the alterations made in the remaining eleven PEC protocols, the applicant argued that they were of a technical nature and did not affect the number of votes cast for each candidate. Therefore, those alterations could not impede the determination of the will of the voters. 13. The applicant further complained that the CEC had failed to consider the possibility of ordering a recount of the votes as required by Article 108.4 of the Electoral Code and to summon her as the candidate and hear her explanation as required by Article 112.8 of the Electoral Code. 14. Lastly, the applicant noted that the ConEC protocol had been submitted to the CEC on the night of 7 to 8 November 2005 and the issue of invalidation of the election results had been put immediately on the CEC agenda on 8 November. As a result, due to lack of time, some CEC members had received incomplete or misleading information about the matter and had thus made an uninformed decision. 15. During the hearing held on 14 November 2005, the judges of the Court of Appeal refused to independently examine the originals of the PEC and ConEC protocols. The Court of Appeal upheld the CEC decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful. 16. The applicant lodged a cassation appeal. Apart from the arguments advanced in her appeal before the Court of Appeal, she also complained, inter alia, that the Court of Appeal had refused to independently examine the primary evidence (the originals of the relevant election protocols) and had simply taken the CEC's findings as fact. 17. On 25 November 2005 the Supreme Court rejected the applicant's appeal and upheld the Court of Appeal's judgment as lawful. 18. Subsequently, it was decreed to hold repeat elections in all constituencies in which the election results had been invalidated. There were a total of ten such constituencies. It appears that, owing to certain opposition forces' decision to boycott the repeat elections, the applicant did not stand for election in the repeat elections held on 13 May 2006. 19. In the meantime, criminal proceedings were instituted against the ConEC chairman and the chairman of the PEC of Polling Station no. 17, for tampering with the official PEC protocols of a total of nine different polling stations (Polling Stations nos. 1, 5, 8, 11, 17, 19, 20, 21 and 24). 20. On 19 January 2006 the Sumgayit City Court convicted both the defendants under Articles 161.1 (falsification of election documents) and 308.1 (abuse of official power) of the Criminal Code. The first defendant was fined in the amount of 110 new Azerbaijani manats (approximately 100 euros) and was banned from holding office in the electoral administration. The second defendant was sentenced to one year and twenty-eight days' corrective labour, with 15% of his earnings to be withheld in favour of the State. 21. The factual findings in the Sumgayit City Court's judgment, based on the defendant's own confessions and several witness statements, revealed that the majority of falsifications in the PEC protocols had been made at the ConEC level by its chairman, after the submission of the protocols to the ConEC. These falsifications were made in favour of either H. or other candidates, but not the applicant. 22. In particular, during the hearings, the first defendant, the ConEC chairman, confessed that he had tampered with the PEC protocols for eight polling stations. In particular, he altered the figures representing the total vote count of various candidates in each polling station by inserting additional numbers or changing the existing numbers. In this manner, he increased the number of votes for at least five candidates other than the applicant (including H., to whose vote count he added 100 more “votes”), and reduced the number of votes received by the applicant (by 100 “votes”). 23. The second defendant, the PEC chairman, confessed to having tampered with the PEC protocol for his polling station in a similar manner, with the aim of increasing the total vote counts of three candidates who were the applicant's opponents. 24. After the count of votes in a polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the vote in the polling station (Articles 106.1106.6). One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within 24 hours (Article 106.7). The ConEC verifies whether the PEC protocol complies with the law and whether it contains any inconsistencies (Article 107.1). After submission of all PEC protocols, the ConEC tabulates, within two days of election day, the results from the different polling stations and draws up a protocol reflecting the aggregate results of the vote in the constituency (Article 107.2). One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC checks whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2). 25. If within four days of election day the CEC discovers mistakes, impermissible alterations or inconsistencies in protocols (including the accompanying documents) submitted by ConECs, the CEC may order a recount of the votes in the relevant electoral constituency (Article 108.4). 26. Upon review of a request to invalidate the election win by a registered candidate, an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials (Article 112.8). 27. In case of discovery of irregularities aimed at assisting candidates who have not ultimately been elected, such irregularities cannot be a basis for invalidation of election results (Article 114.5). 28. The ConEC or CEC may invalidate the election results in an entire single-mandate constituency if election results in two-fifths of polling stations, representing more than one-quarter of the constituency electorate, have been invalidated (Article 170.2.2). 29. According to former Article 106.3.6 of the Electoral Code in force at the material time, during the initial vote-counting at a polling station at the end of election day, upon discovery in the ballot-box of a voting ballot which had not been properly placed in the corresponding envelope, the vote on that ballot was considered to be invalid. Article 106.3.6 was subsequently repealed on 2 June 2008. 30. The relevant excerpts from the report read as follows: “Although constituency aggregate results were made available within the legal deadline, detailed results by polling station were only released on 10 November, four days after the election, despite the computer networking of all ConECs with the CEC. This made it difficult for candidates and observers to check that results had been reported accurately. Protocols from two constituencies, 9 and 42, were never posted publicly. ... The CEC invalidated the results of four constituencies [including Sumgayit Second Electoral Constituency No. 42] under Article 170.2 of the Election Code, which states that if a ConEC or the CEC cancels more than 2/5 of PECs representing more than 1/4 of the total electorate in a constituency, then the entire constituency result is considered invalid. ... At least ... two ConEC chairpersons [ConECs 9 and 42] were dismissed after election day for involvement in electoral malfeasance. The two ConEC chairpersons were arrested and charged with forging election documents. ... The CEC forwarded materials on possible criminal violations to the Prosecutor General's Office regarding 29 PECs. ... The process of invalidation of aggregated results in four constituencies by the CEC did not have sufficient legal grounds or an evidentiary basis, nor was the process transparent. The CEC decisions on the invalidation of the election results in the four constituencies concluded that there were “unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters” but did not provide any factual basis to support this conclusion. ... Furthermore, when it invalidated results, the CEC did not make the required initial factual inquiry [as required by Article 170.2 of the Election Code], and ignored Article 108.4 of the Election Code, which authorizes the CEC to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “mistakes, inadmissible corrections and inconsistencies.” Protocols of ConECs and PECs were not examined or reviewed at CEC sessions. Invalidation of results in a polling station was premised solely on the conclusion of an individual CEC member as to whether a protocol should be invalidated. The judgment of a single CEC member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved. Accordingly, there was no factual basis presented publicly for invalidating results in any of the four constituencies, which is particularly troubling since the CEC registered few complaints that alleged violations in these constituencies. ... The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. ... In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court. Opposition candidates appealed the CEC's invalidation of results in constituencies 9, 42 and 110. The Court of Appeal upheld the three CEC decisions without any investigation or review of the primary documents and evidence, such as the PEC protocols. In constituency 9, the appellant petitioned the Court of Appeal to examine the protocols, which had been forwarded to the Prosecutor General's office by the CEC. This petition was denied. In constituency 42, the appellant made an identical request and the court again denied the petition, ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline. The CEC was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation. ... Proceedings in the Supreme Court did not correct the shortcomings noted above. The Supreme Court upheld each CEC decision.”