ECHR Article 3 of Protocol No. 1
Free expression of opinion of people
Use of special polling stations for the military in circumstances not permitted by domestic law: violation
Facts – Under the Azerbaijan Electoral Code, military personnel were required to vote in ordinary polling stations. However, where this was not practical, arrangements could be made for them to vote in military polling stations provided three conditions were fulfilled: that the unit was located outside a populated area, it would take more than an hour to get to the nearest ordinary polling station by public transport and the total number of servicemen concerned exceeded 50. The applicant, a candidate in the 2005 parliamentary elections, complained to the Electoral Commission and the domestic courts that special polling stations had been created in his constituency for military personnel even though the statutory conditions had not been met since the units concerned were located in a populated area within a short walking distance of the ordinary polling stations. His complaint and subsequent appeals to the domestic courts were rejected.
Law – Article 3 of Protocol No. 1: Although Article 3 of Protocol No. 1 did not contain an express reference to the ‘lawfulness’ of any measures taken by the State, the rule of law was inherent in all the Articles of the Convention and its Protocols. That principle entailed a duty on the part of the State to put in place a legislative framework for securing its obligations under the Convention in general and Article 3 of Protocol No. 1 in particular, and to ensure that its public officials charged with executing those obligations did not act outside the law, but exercised their powers in accordance with the applicable legal rules.
While the Court was not required under Article 3 of Protocol No. 1 to verify whether every particular alleged irregularity amounted to a breach of domestic electoral law, its task was nevertheless to satisfy itself, from a more general standpoint, that the respondent State had complied with its obligation to hold elections under free and fair conditions and ensured that individual electoral rights were exercised effectively. In cases where it was alleged that the breach of the domestic legal rules was such as to seriously undermine the legitimacy of the election as a whole, Article 3 of Protocol No. 1 required the Court to assess whether such a breach had taken place and resulted in a failure to hold free and fair elections. In so doing, the Court could have regard to whether an assessment in this respect had been made by the domestic courts. If it had, the Court could then confine its own review to whether or not the domestic courts’ finding was arbitrary. In the applicant’s case, however, no such assessment had been made.
It was clear that the elections in the two polling stations concerned had been conducted outside the applicable legal framework and were illegitimate. The fact that the results from those polling stations were then taken into account by the electoral authorities and aggregated with the legitimate votes cast in other polling stations, with a significant impact on the overall election result, had undermined the integrity of the entire election process in the applicant’s constituency.
The circumstances of the case and the observations of the OSCE/ODIHR in its final report on the 2005 elections* showed that this situation was the result not of a mistake but of a deliberate practice of organising military voting in breach of the requirements of the Electoral Code, as was further demonstrated by the manner in which the applicant’s complaints had been ignored by the Electoral Commission and summarily rejected by the domestic courts without any examination of the substance. Such conduct on the part of the electoral commissions and courts revealed an apparent lack of genuine concern for upholding the rule of law and protecting the integrity of the election.
These considerations were sufficient for the Court to conclude that the national authorities had failed to hold the election in the applicant’s constituency in accordance with the requirements of Article 3 of Protocol No. 1.
Conclusion: violation (unanimously).
12535/06 – Legal Summary, [2014] ECHR 1107
Bailii
European Convention on Human Rights
Human Rights
Updated: 22 December 2021; Ref: scu.537959
