ECHR Article 3 of Protocol No. 1
Stand for election
Arbitrary refusal to register independent candidate in parliamentary elections: violation
Facts – The applicant wished to stand as an independent candidate in the parliamentary elections of November 2010. As required by the Electoral Code, he collected more than 450 voter signatures in support of his candidacy and submitted them to the Constituency Electoral Commission (‘the ConEC’). In October 2010 his candidacy was refused by the ConEC since, according to an expert working group established by the commission, a number of signatures were invalid, either because they had been executed by the same person or because information relating to the voter’s address was incomplete.
The applicant lodged a complaint with the Central Electoral Commission (‘the CEC’) arguing that in accordance with the Electoral Code he should have been invited to participate in the process of examining the signatures. He further alleged that the finding that 172 signatures had been ‘executed by the same person’ had been based on expert evidence as to probability without any further factual verification and that he should have been given the opportunity to rectify any incomplete addresses. In support of his complaint, he submitted written statements by 91 voters whose signatures had been declared invalid affirming the authenticity of their signatures.
The CEC dismissed the applicant’s complaint after its own working group found that 178 out of the 600 signatures he had submitted were invalid. The applicant was not invited to participate in that process either. The domestic courts dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail.
Law – Article 37 – 1: Various types of alleged violations of the rights protected under Article 3 of Protocol No. 1 to the Convention had been the subject of recurrent and relatively numerous complaints to the Court in cases against Azerbaijan after each parliamentary election. This appeared to disclose the existence of systemic or structural issues which called for adequate general measures by the authorities. No such measures were mentioned in the unilateral declaration that had been submitted by the respondent Government in the instant case. The declaration thus did not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols did not require the Court to continue its examination of the case.
Conclusion: Government’s request to strike the application out of the list dismissed (unanimously).
Article 3 of Protocol No. 1: The requirement of collecting 450 supporting signatures for nomination as a candidate had pursued the legitimate aim of reducing the number of fringe candidates.
The Court went on to examine whether the procedure laid down by the Azerbaijani Electoral Code for verifying compliance with that eligibility condition had been conducted in a manner which provided sufficient safeguards against arbitrariness. In that connection, it noted that an OSCE report concerning the Parliamentary Elections of 7 November 2010 in Azerbaijan had expressed concerns about the impartiality of ConEC, the transparency of the registration process and the refusals of registration based on minor technical mistakes. According to the report, most of the complaints received by the CEC challenging refusals had been dismissed without proper examination. Indeed, after the 2010 elections, the European Court itself had received around 30 applications, including the applicant’s, by candidates who had been refused registration owing to the invalidation of supporting signatures. While the refusal to register the applicant’s candidacy – as well as that of many other candidates – had resulted from the alleged inauthenticity of supporting signatures, the Government had not provided specific information about the qualifications and credentials of the working-group experts who had examined the applicant’s signature sheets. In the Court’s view, the lack of clear and sufficient information about the professional qualifications and the criteria for the selection and appointment of working-group experts charged with the task of examining signature sheets was a factor that could seriously undermine overall confidence in the fairness of the procedure of candidate registration and of the elections in general. In any event, the experts had found that there was only a probability that a number of signatures were not authentic, without even specifying how high that probability was. They had not requested any further investigation, although the CEC regulations on electoral commissions’ working groups had provided for possible additional steps in order to clarify the situation.
The applicant’s right to stand for election should not hinge on probabilities and vague opinions, but should be defined by clearly established criteria for compliance with the eligibility conditions. The electoral commissions’ conclusions had therefore been arbitrary. Moreover, none of the procedural guarantees against arbitrariness provided for by the Electoral Code – such as the candidate’s right to be present during the examination of signature sheets or to receive the examination report 24 hours before the relevant electoral commission’s meeting – had been respected. The applicant had therefore been deprived of the opportunity to provide relevant explanations, correct any shortcomings in the signature sheets and to challenge the findings of the working groups throughout the process, a situation which, according to the OSCE report, seemed to be of a systemic nature.
Furthermore, neither the CEC nor the domestic courts had addressed any of the well-founded arguments put forward by the applicant or provided proper reasoning in their judgments. Moreover, contrary to the requirements of the electoral law, the CEC had failed to ensure the applicant’s presence at its meeting. The conduct of the electoral commissions and courts had revealed an apparent lack of genuine concern for upholding the rule of law and protecting the integrity of the election. The applicant had thus not been provided with sufficient safeguards to prevent an arbitrary decision refusing his registration as a candidate.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.
31953/11 – Legal Summary, [2015] ECHR 648
Bailii
European Convention on Human Rights
Human Rights
Updated: 12 October 2021; Ref: scu.549953 br>