BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ATAKISHI v. AZERBAIJAN
(Application
no. 18469/06)
JUDGMENT
STRASBOURG
28
February 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Atakishi v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 7 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18469/06) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national,
Mr Abbas Musa oğlu Atakishi (“the
applicant”), on 5 May 2006.
- The
applicant was represented by Mr M. Mustafayev, a lawyer
practising in Azerbaijan. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç. Asgarov.
- The
applicant alleged, in particular, that his right to stand for
election, as guaranteed by Article 3 of Protocol No. 1 to the
Convention, had been infringed.
- On
3 September 2008 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Baku.
- He
stood in the elections to the National Assembly of 6 November 2005
as an independent candidate. He was registered as a candidate by the
Constituency Electoral Commission (“the ConEC”) for the
single-mandate Shamakhi Electoral Constituency No. 85.
A. Allegations against the applicant and the ConEC’s
decision to request his disqualification
- On
29 October 2005 the ConEC held a meeting in the applicant’s
absence and decided to apply to the Court of Appeal with a request to
cancel the applicant’s registration as a candidate owing to
reports of his engaging in activities incompatible with the
requirements of Articles 88.1-88.4 of the Electoral Code. The ConEC
relied on the following grounds.
- Firstly,
it noted that it had received a written complaint from a voter (H.S.)
claiming that the applicant had given him money (in the amount of 300
US dollars) and asked him to promote the applicant’s candidacy
among the population, offer money to voters in exchange for their
votes, and disrupt his main opponent’s campaign.
- Secondly,
it noted that it had received complaints from a number of voters and
from another candidate (M.I.) that the applicant had regularly
insulted his opponents and the government in his campaign speeches
and publications and physically disrupted his opponents’
meetings with voters. In particular, one of the complaints by voters,
sent to the ConEC by telegram, stated, in its entirety, as follows:
“[The applicant] and his supporters insult the
current government and use offensive language in respect of other
candidates, we ask you to take the necessary measures.”
- Another
telegram by a voter stated, in its relevant part, as follows:
“... during his meeting with voters in our
village, [the applicant], instead of speaking about his election
platform, insulted and spread calumnious rumours about [four other]
candidates; such a candidate should be disqualified from the election
if his actions are contrary to the election law, and what good can
[the applicant] bring to the population, to the State; his candidacy
should be cancelled ...”
- There
were several other hand-written letters or telegrams with a similar
content.
- The
complaint by the candidate M.I. stated that the applicant insulted
him at all his meetings with voters, using offensive language. M.I.
further stated that on 28 October 2005 a large group of the
applicant’s supporters, including his brother, had forcibly
broken into a meeting room where M.I. was holding a campaign meeting
with voters, disrupted the meeting, caused disorder and insulted M.I.
using obscene language.
- Another
complaint was submitted by several highly-ranked members of the local
branch of the Yeni Azerbaijan Party (“the YAP” –
the ruling party, which, it appears, supported candidate M.I. in the
election in question). They noted that the applicant’s
supporters had disrupted M.I.’s meeting and subsequently “made
for the streets and attempted to disrupt the peace and quiet of the
town’s population”.
- According
to the applicant, on 28 October 2005 H.S. wrote a letter to the ConEC
retracting his previous accusations against the applicant and
explaining that he had made those statements owing to a personal
disagreement with one of the applicant’s supporters and under
the influence of emotion in the heat of the moment. In the following
days, H.S. wrote similar letters to various electoral commissions and
courts, retracting his accusations. According to the applicant, he
also attempted to attend the Court of Appeal hearing concerning his
disqualification (see below).
- It
appears that, on 29 October 2005, the Prosecutor’s Office of
the Shamakhi Region commenced a criminal inquiry into allegations
that on 28 October 2005 the applicant’s brother had
resisted a police officer who was trying to restore order at a
meeting of M.I. with voters, which had allegedly been disrupted by
the applicant’s supporters. No information is available about
the outcome of this inquiry.
B. Judicial proceedings concerning the applicant’s
disqualification
- The
Court of Appeal examined the ConEC’s request at a hearing held
on 31 October 2005. According to the applicant, although the hearing
was officially scheduled to commence at 11 a.m., it actually took
place at around 5 p.m. He had not received a written summons and was
informed of the hearing orally only at around 2 p.m. on the same day,
about three hours before the hearing. It was the first time he had
been officially informed of the ConEC’s request of 29 October
2005 and that the Court of Appeal was considering the issue of his
disqualification.
- During
the hearing, the applicant denied all the accusations against him,
arguing that they had not been duly proved and, in any event, could
not be a basis for cancelling his registration as a candidate. He
noted that H.S. had retracted his accusations against him and had
admitted that they had been false. He further noted that he had not
been summoned to the ConEC meeting of 29 October and that the ConEC’s
decision had not been made available to him. Lastly, he denied the
accusation that his supporters had interfered with M.I.’s
meeting with voters.
- Having
examined the written evidence submitted by the ConEC, which consisted
mainly of copies of the above-mentioned written complaints by several
voters, M.I. and local YAP members, the Court of Appeal considered
that that evidence was sufficient to find that the applicant had
breached the requirements of Articles 88.1, 88.2 and 88.4 of the
Electoral Code, and it therefore cancelled his registration as a
candidate.
- The
applicant appealed. Among other things, he complained that he had not
been informed of the ConEC meeting of 29 October 2005 and that
neither the ConEC decision nor any case materials had been officially
made available to him prior to the Court of Appeal’s hearing.
He further noted that it was in any case unclear from the relevant
documents (which had been made available to him subsequently) whether
the said ConEC meeting had taken place on 25 or 29 October, because
the documents were contradictory and “falsified”. He
claimed that all the alleged evidence against him had been fabricated
in one day and that the allegations of his alleged wrongdoings were
false and based on lies. He further complained that the Court of
Appeal had not heard any of the complainants. As to the “complaints
by voters”, the court had not even attempted to verify whether
they had been authored by existing persons. Moreover, despite the
fact that H.S. had sent a retraction of his accusations to the ConEC
and the Court of Appeal and had personally attended the hearing, the
court had refused to hear him.
- On
5 November 2005 the Supreme Court dismissed the applicant’s
appeal and upheld the Court of Appeal’s judgment of 31 October
2005. It found that the Court of Appeal had not committed any
breaches of substantive or procedural law and that the applicant’s
arguments were not supported by the material in the case file.
II. RELEVANT DOMESTIC LAW
A. Electoral Code
- According
to Article 88.1 of the Electoral Code, the election programmes of
candidates, and their pre-election speeches and campaign materials
distributed through the media, must not contain statements inciting
to the capture of State power by force, change to the constitutional
system by force, or violations of the country’s territorial
integrity, or statements insulting the honour and dignity of
citizens.
- Article
88.2 of the Electoral Code prohibits candidates from abusing the
right to campaign in the media by inciting social, racial, ethnic or
religious hatred and hostility.
- Article
88.4 of the Electoral Code of 2003 provides as follows:
“88.4. Candidates ... are prohibited
from gaining the support of voters in the following ways:
88.4.1. giving money, gifts and other
valuable items to voters (except for badges, stickers, posters and
other campaign materials having nominal value), except for the
purposes of organisational work;
88.4.2. giving or promising rewards based on
the voting results to voters who were involved in organisational
work;
88.4.3. selling goods on privileged terms or
providing goods free of charge (except for printed material);
88.4.4. providing services free of charge or
on privileged terms;
88.4.5. influencing the voters during the
pre-election campaign by promising them securities, money or other
material benefits, or providing services that are contrary to the
law.”
- According
to Articles 113.1, 113.2.3 and 113.2.10 of the Electoral Code, the
relevant electoral commission may request a court to cancel the
registration of a candidate who engages in activities prohibited by
Articles 88.2-88.4 of the Code.
- Complaints
concerning decisions of electoral commissions must be examined by the
courts within three days (unless the Electoral Code provides for a
shorter period). The period for lodging an appeal against a court
decision is also three days (Article 112.11).
B. Code of Civil Procedure
- Chapter
25 of the Code of Civil Procedure sets out rules for the examination
of applications concerning the protection of electoral rights (or the
right to participate in a referendum). According to Article 290, such
applications must be submitted directly to the appellate courts in
accordance with the procedure established by the Electoral Code.
- Applications
concerning the protection of electoral (referendum) rights must be
examined within three days of receipt, except for applications
submitted on election day or the day after election day, which must
be examined immediately (Article 291.1). The court must hear the case
in the presence of the applicant, a representative of the relevant
electoral commission and any other interested parties. Failure by any
of these parties to attend the hearing after due notification does
not preclude the court from examining and deciding the case (Article
291.2).
- The
appellate court’s decision can be appealed against to the
higher court (the cassation court) within three days. This appeal
must be examined within three days, or immediately if submitted on
election day or the next day. The decision of the cassation court is
final (Article 292).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1
TO THE CONVENTION
- Relying
on Article 3 of Protocol No. 1 to the Convention and Articles 10
and 13 of the Convention, the applicant complained that his
registration as a candidate for the parliamentary elections had been
cancelled arbitrarily. The Court considers that this complaint falls
to be examined only under Article 3 of Protocol No. 1 to the
Convention, which reads as follows:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the aim of Article 88 of the Electoral
Code, which served as the basis for his disqualification, was to
ensure equal and fair campaign conditions for all candidates.
Disqualification of candidates who engaged in various forms of
illegal vote buying and other illegal campaigning methods had
the legitimate aim of protecting the free expression of the opinion
of the people in elections and ensuring that the elections were held
in accordance with democratic standards.
- The
Government maintained that the applicant had been disqualified
because he had attempted to bribe voters and had otherwise conducted
his campaign in an unlawful manner. According to the Government,
these facts had been sufficiently proved by the written statements
made by a number of voters and by another candidate. They maintained
that the ConEC had held a meeting on 29 October 2005 in accordance
with the procedural requirements and taken a substantiated decision
to request the applicant’s disqualification. Furthermore, the
applicant had been afforded an opportunity to fully and effectively
defend his position in the relevant proceedings before the domestic
courts, which had taken their decisions “in full compliance
with the Electoral Code”.
- The
applicant submitted that there existed no proven factual or legal
grounds for his disqualification. He claimed that his arbitrary
disqualification was just one of various unlawful acts by various
officials who had abused their authority in order to interfere with
the electoral process with the aim of creating “favoured
conditions” in order to ensure the election of M.I., the
candidate supported by the Government.
- The
applicant submitted that the decision to disqualify him had been
arbitrary and based on flimsy, insufficient, unreliable and
fabricated evidence. In particular, he noted that H.S.’s
written statement accusing him of the intention of bribing voters had
not been properly registered in the ConEC’s official records of
incoming correspondence and complaints. Although this written
statement had subsequently been used as the evidentiary basis for his
disqualification, the domestic authorities and courts had never heard
H.S. in person and had failed to take into consideration his numerous
subsequent statements retracting his accusations and insisting that
he had no intention of accusing the applicant of any wrongdoing.
- The
applicant further claimed that most of the other written complaints
accusing him of various illegal campaigning methods had been made by
persons whose identity had not been verified and were essentially
“fabricated”. None of these complainants had ever been
heard in person at the domestic hearings. The accusations contained
in those written complaints were either vague or uncorroborated by
any sound evidence and could not constitute proof of any wrongdoing
by the applicant.
- The
applicant further submitted that the manner in which the ConEC
meeting of 29 October 2005 had been conducted was in breach of
several formal requirements of the Electoral Code. He had not been
invited to participate in the meeting and had not been provided with
a copy of the ConEC decision in a timely manner. Moreover, the
examination of the relevant documents gave rise to serious doubts as
to whether such a meeting had ever actually taken place and, even if
it had, whether it had taken place on 29 October 2005. There were
inconsistencies in the minutes of the ConEC meeting as to the date of
the meeting and which specific ConEC members had been present, as
well as how they had voted. He further noted that both the ConEC and
the domestic courts had held unreasonably brief hearings, relied on
extremely unreliable evidence, and completely failed to substantiate
the factual accuracy of the allegations against him.
2. The Court’s assessment
- The
Court notes that the summary of its case-law on the right to
effectively stand for election, as guaranteed by Article 3 of
Protocol No. 1 to the Convention, can be found in, among many other
judgments, Orujov v. Azerbaijan (no. 4508/06,
§§ 40-42, 26 July 2011). On a more specific note, the Court
also reiterates that, while the Contracting States enjoy a
wide margin of appreciation in imposing conditions on the right to
vote and to stand for election, it is for the Court to determine in
the last resort whether the requirements of Article 3 of
Protocol No. 1 have been complied with; it has to satisfy itself that
the conditions do not curtail the rights in question to such an
extent as to impair their very essence and deprive them of their
effectiveness; that they are imposed in pursuit of a legitimate aim;
and that the means employed are not disproportionate or arbitrary
(see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §
52, Series A no. 113; Gitonas and Others v. Greece, 1 July
1997, § 39, Reports of Judgments and Decisions
1997-IV; and Yumak and Sadak v. Turkey [GC], no.
10226/03, § 109 (iii), 8 July 2008).
- The
Court notes that in the present case the applicant was disqualified
as a candidate in accordance with Articles 88.1, 88.2, 88.4 and 113
of the Electoral Code, which provide for the possibility of
disqualification of candidates who resort to unfair and illegal means
of conducting an electoral campaign and gaining voter support. Given
that Article 3 of Protocol No. 1 does not contain a list of
“legitimate aims” capable of justifying restrictions on
the exercise of the rights it guarantees and does not refer to those
enumerated in Articles 8 to 11 of the Convention, the Contracting
States are free to rely on an aim not mentioned in those Articles,
provided that it is compatible with the principle of the rule of law
and the general objectives of the Convention (see, for example,
Zdanoka v. Latvia [GC], no. 58278/00, § 115, ECHR
2006-IV). The Court accepts the Government’s argument that the
conditions set out in the above mentioned provisions of the
Electoral Code pursued the legitimate aim of ensuring equal and fair
conditions for all candidates in the electoral campaign and ensuring
that the elections were held in accordance with democratic standards.
- It
remains to be determined whether there was arbitrariness or a lack of
proportionality in the authorities’ decisions.
- The
Court reiterates that its competence to verify compliance with
domestic law is limited and that it is not its task to take the place
of the domestic courts in such matters as assessment of evidence or
interpretation of the domestic law. Nevertheless, for the purpose of
supervision of the compatibility of an interference with the
requirements of Article 3 of Protocol No. 1, the Court must
scrutinise the relevant domestic procedures and decisions in detail
in order to determine whether sufficient safeguards against
arbitrariness were afforded to the applicant and whether the relevant
decisions were sufficiently reasoned (see, mutatis mutandis,
Melnychenko v. Ukraine, no. 17707/02, § 60,
ECHR 2004-X).
- Furthermore,
the Court notes that a finding that a candidate has engaged in unfair
or illegal campaigning methods could entail serious consequences for
the candidate concerned, in that he or she could be disqualified from
running for the election. As the Convention guarantees the effective
exercise of individual electoral rights, the Court considers that, in
order to prevent arbitrary disqualification of candidates, the
relevant domestic procedures should contain sufficient safeguards
protecting the candidates from abusive and unsubstantiated
allegations of electoral misconduct, and that decisions on
disqualification should be based on sound, relevant and sufficient
proof of such misconduct (see Orujov, cited above, § 46).
- In
the present case, the applicant was disqualified on two grounds,
namely, that he had intended to bribe voters, and that he had
insulted his opponent and disrupted his campaign meeting.
- As
to the first ground, the only evidence available was a written
statement by H.S. where he noted that the applicant had given him
money in exchange for his services as an intermediary in bribing
voters. However, the Court notes that H.S. was never heard in person
either by the ConEC or the domestic courts, despite the fact that,
according to the applicant, he was physically present in the Court of
Appeal building during the hearing of 31 October 2005. Moreover,
it appears from the material in the case file that, from 28 October
2005, H.S. sent several statements to the relevant courts and other
authorities whereby he repeatedly retracted any statements that could
be construed as accusations against the applicant. However, these
subsequent statements were not taken into account by the domestic
courts. The Court considers that hearing H.S. in person and an
adequate examination of his subsequent statements were crucial for
the assessment of the truthfulness of H.S.’s original written
statement. Furthermore, there was no other evidence corroborating the
allegation that the applicant had engaged in bribing voters. In such
circumstances, the Court considers that the evidence relied on by the
courts was insufficient and, in any event, was not assessed in a
manner that would remove legitimate doubts as to its reliability.
- As
to the second ground for the applicant’s disqualification, the
Court notes that part of the evidence presented by the ConEC in this
regard consisted of several short statements and telegrams by various
persons accusing the applicant, in general terms, of using insults
and offensive language in respect of his opponents (see paragraphs
9-11 above). The Court notes, however, that none of these complaints
provided any specific details of inappropriate or illegal behaviour
by the applicant (such as examples of any “insulting”
statements, descriptions of any other specific unlawful behaviour, or
the date and time of the alleged misconduct). Rather, they were all
very vaguely worded and essentially contained unsubstantiated
allegations. The courts failed to verify the identities of the
authors of these complaints, to seek more detailed information from
them as to the specific alleged misconduct by the applicant, to
corroborate that information with any additional evidence, or to hear
any of the complainants in person and thus give the applicant an
opportunity to defend himself against their allegations. Thus, these
written statements, in themselves, could not be considered as proving
any factual circumstance, let alone any illegal conduct by the
applicant. In such circumstances, the Court considers that the
written complaints and telegrams cannot be considered to be relevant,
sufficient or adequately assessed proof of any misconduct on the
applicant’s part.
- The
other part of the evidence presented by the ConEC consisted of
written complaints by M.I. and a group of YAP members
(see paragraphs 12-13 above) accusing the applicant of
being responsible for disrupting M.I.’s meeting with voters on
28 October 2005. The Court notes that these accusations emanated from
the applicant’s main opponent in the election and his political
supporters and, therefore, called for exceptional scrutiny by the
courts charged with the task of assessing their truthfulness.
However, none of the authors of these complaints was summoned and
heard by the courts. Moreover, as the applicant was accused of
disrupting M.I.’s campaign meeting in an unlawful manner, it is
reasonable to assume that a large number of participants in that
meeting and other persons would have witnessed the alleged incident.
However, the courts failed to identify and seek to hear any witnesses
of the alleged incident in order to verify the statements of M.I. and
the YAP members and to determine whether the applicant’s
alleged actions indeed qualified as a breach of the relevant
provisions of the Electoral Code.
- Furthermore,
as regards the legal basis for the applicant’s disqualification
on the second ground, the Court notes that the domestic courts relied
on Articles 88.1 and 88.2 of the Electoral Code. However, they failed
to provide any legal reasoning for their decision to class the
alleged misconduct by the applicant as falling within the ambit of
those provisions. In particular, the Court notes that, while all the
complainants accused the applicant either of “insulting”
his opponents or disrupting M.I.’s meeting, the Court finds it
difficult to understand how such actions, even if they had taken
place, could be considered an “abuse of the right to campaign
in the media by inciting social, racial, ethnic or religious hatred
and hostility”, as prohibited by Article 88.2 of the Electoral
Code. While it is not the Court’s task to substitute itself for
the national courts in matters of interpretation of the domestic law,
it nevertheless observes that Article 88.2 of the Electoral Code, if
read literally, appears to be irrelevant to the types of misconduct
that the applicant was accused of. In such circumstances, the Court
considers that the failure by the domestic courts to provide any
legal reasons for application of the above-mentioned provisions of
the Electoral Code contributed to the apparent arbitrariness of their
decisions.
- For
the reasons outlined above, the Court considers that the applicant’s
disqualification was based on irrelevant, insufficient and
inadequately examined evidence and that the domestic decisions lacked
sufficient legal reasoning.
- Furthermore,
the Court notes that the applicant was not afforded sufficient
procedural safeguards against arbitrariness. In particular, the
ConEC did not inform the applicant about its hearing of 29 October
2005, thus depriving him of the opportunity to defend his position
before the ConEC, and it took the decision to request his
disqualification without hearing the complainants or otherwise
attempting to carry out a comprehensive assessment of the situation.
Subsequently, upon the examination of the ConEC request by the Court
of Appeal, the applicant was not afforded sufficient time to examine
the material in the case file and to prepare arguments in his
defence, as he had been notified of the forthcoming judicial hearing
only a very short time before it began. The Court reiterates that
considerations of expediency and the necessity for tight time-limits
designed to avoid delaying the electoral process, although often
justified, may nevertheless not serve as a pretext to undermine the
effectiveness of electoral procedures (see, mutatis mutandis,
Namat Aliyev v. Azerbaijan, no. 18705/06, § 90,
8 April 2010) or to deprive the persons concerned by those
procedures of the opportunity to effectively contest any accusations
of electoral misconduct made against them (see Orujov,
cited above, § 56). In the present case, it appears that the
examination of the issue of the applicant’s disqualification
took place without reasonable advance notice, and as such caught him
by surprise and left him unprepared for the hearing. Lastly, the
domestic courts failed to take into account, and provide any reasoned
response to, the applicant’s objections and submissions made
during the judicial hearings and in his appeals.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the interference with the applicant’s electoral
rights fell foul of the standards required by Article 3 of
Protocol No. 1. In particular, the applicant’s disqualification
from running for election was not based on sufficient and relevant
evidence; the procedures of the electoral commission and the domestic
courts did not afford the applicant sufficient guarantees against
arbitrariness; and the domestic authorities’ decisions lacked
sufficient reasoning and were arbitrary.
- There
has accordingly been a violation of Article 3 of Protocol No. 1 to
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
domestic judicial proceedings had been unfair and arbitrary. Article
6 of the Convention provides as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The Court notes that the proceedings in question
involved the determination of the applicant’s right to stand as
a candidate in the parliamentary elections. The dispute in issue
therefore concerned his political rights and did not have any bearing
on his “civil rights and obligations” within the meaning
of Article 6 § 1 of the Convention (see Pierre-Bloch v.
France, 21 October 1997, § 50, Reports 1997-VI;
Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000-I; Zdanoka
v. Latvia (dec.), no. 58278/00, 6 March 2003; and Mutalibov
v. Azerbaijan (dec.), no. 31799/03, 19
February 2004). Accordingly, this Convention provision does not apply
to the proceedings complained of.
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected in accordance with
Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicant claimed 101,346 Azerbaijani manats (AZN) in respect of
pecuniary damage, including damage caused by loss of the earnings he
would have received in the form of a parliamentary member’s
salary if elected to the National Assembly, as well as loss of the
useful effect of the funds spent on his election campaign.
- The
Government contested these claims and submitted that they were
unsupported by sufficient documentary evidence.
- As
to the claim in respect of loss of earnings, the Court notes that the
present application concerns the applicant’s right to stand for
election. It cannot be assumed that, had the applicant’s
registration as a candidate not been cancelled, he would have
necessarily won the election in his constituency and become a member
of parliament. It is therefore impossible for the Court to speculate
as to whether the applicant would have received a salary as a
parliamentarian. Accordingly, no causal link has been established
between the alleged pecuniary loss and the violation found
(see Seyidzade v. Azerbaijan, no. 37700/05, §
50, 3 December 2009).
- Likewise,
as to the claim in respect of expenses borne during the election
campaign, the Court does not discern any causal link between the
violation found and the pecuniary damage alleged.
- For
the above reasons, the Court rejects the claim in respect of
pecuniary damage.
2. Non-pecuniary damage
- The
applicant claimed 21,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered that the amount claimed was excessive.
- The
Court considers that the applicant suffered non-pecuniary damage
which cannot be compensated solely by the finding of a violation of
Article 3 of Protocol No. 1. Ruling on an equitable basis, the Court
awards him the sum of EUR 7,500 in respect of non-pecuniary damage,
plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed AZN 3,500 for the costs and expenses incurred
before the Court, including AZN 1,500 paid by him to his lawyer for
legal services and other expenses, and AZN 2,000 as the outstanding
amount due to his lawyer.
- The
Government argued that the amount claimed was excessive and
unreasonable and had not been actually incurred.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the sum
of EUR 1,385 covering costs under all heads, plus any tax that may be
chargeable to the applicant on that sum.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 3 of
Protocol No. 1 to the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of Protocol No. 1 to the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Azerbaijani
manats at the rate applicable on the date of settlement:
(i) EUR
7,500 (seven thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage; and
(ii) EUR
1,385 (one thousand three hundred and eighty-five euros), plus any
tax that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
