The importance of free and fair elections
Gahramanli and Others v Azerbaijan (European Court of Human Rights, Chamber, Application No 36503/11, 8 October 2015)
The European Court of Human Rights has recently confirmed that Azerbaijan, in its 2010 parliamentary elections, failed to comply with its European Convention on Human Rights obligations to hold elections under free and fair conditions, and to ensure that individual electoral rights can be exercised effectively. This was not due to a factual finding that there had been electoral irregularities, but rather due to the failure of Azerbaijani authorities to adequately address the applicants’ ‘serious and arguable’ complaints of irregularities.
Facts
On 7 November 2010, elections were held for the National Assembly of Azerbaijan. The three applicants (all nationals of Azerbaijan) stood as candidates for various opposition parties in a single electoral constituency. The official election results declared that the constituency was won by the candidate nominated by the ruling New Azerbaijan Party.
On 10 November 2010, the applicants lodged complaints with the Central Electoral Commission (CEC). The complaints requested annulment of the constituency election results on the basis of numerous instances of electoral irregularities and fraud. The applicants lodged over 100 signed witness statements documenting specific instances of these irregularities. In particular, it was alleged that members of the precinct electoral commission (PEC) had obstructed observers, stuffed ballot boxes, allowed unregistered persons to vote, exercised undue influence over voters’ choices, and failed to comply with procedures required by the domestic electoral laws.
On 21 November 2010, the CEC issued a decision dismissing the complaints. The CEC noted that the applicants should first have taken their complaints to the PECs on election day, and only then to the CEC. The CEC then dismissed the substance of the complaints, noting that the witness statements were based solely on “subjective opinions”, not fact. It preferred the witness statements from other observers (largely pro-government but also including some representing opposition parties) who did not report any irregularities.
On 25 November 2010, the complainants appealed to the Baku Court of Appeal, re-stating their previous complaints. They also alleged that the CEC had not ensured their presence at the CEC hearing (contrary to the domestic electoral law) and that the CEC had deliberately not investigated their serious allegations.
The Court of Appeal dismissed the appeal the following day, largely adopting the same reasons as the CEC. The complainants then appealed to the Supreme Court on 1 December 2010, arguing that the CEC and Court of Appeal had given no reasons for preferring the statements of pro-government electoral observers, and that in any event those statements had been fabricated by the CEC. The applicants also noted that lodging complaints with PEC members on the day would have had no effect because those members were in large part responsible for the irregularities.
The Supreme Court dismissed the appeal for essentially the same reasons. It also noted that the Constitutional Court had already approved the electoral results, and that that decision could not be subject to any quashing or amendment.
Submissions
The applicants’ submissions emphasised the electoral commissions’ lack of impartiality, particularly the CEC, which oversees electoral processes at a national level and whose 18 members are appointed by the National Assembly. Six are directly nominated by the majority party, 6 are nominated by those members of parliament who are not affiliated with any political party (ie, independents) and 6 are nominated by the minority parties. Of the independents’ nominees, one is agreed by the majority party and one by the minority parties. The chairperson is, by law, a representative of the majority party. A similar structure is followed at the Constituency Electoral Commission (ConEC) and PEC levels.
In practice, this means that pro-government representatives have a relative majority via-a-vis other representatives in all electoral commissions. The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) and the Venice Commission have each previously reported that the “independent” representatives tended, in reality, to vote in line with the governing party. Those organisations had previously issued repeated recommendations that this formula be revised to ensure that commissions are not dominated by pro-government representatives.
Decision
Article 3 of Protocol 1 to the European Convention on Human Rights provides:
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure that free expression of the opinion of the people in the choice of the legislature.
The Court emphasised that it was not in a position to assume a fact-finding role, in order to determine whether any of the alleged irregularities had in fact taken place or, if they had, whether they were capable of thwarting the free expression of the people’s opinion. (It did however express the view that the allegations were, if true, capable of undermining the democratic nature of the elections.)
Instead, the Court concluded that the applicants had put forward a “very serious and arguable claim” that had not been adequately addressed by Azerbaijani authorities. The Court re-stated its previously expressed view that Article 3 obliges signatories to provide an effective system for examining electoral complaints.
The Court noted that Azerbaijani law did in fact provide for such a system (consisting of the various electoral commissions, the Court of Appeal and the Supreme Court) which the applicants used. However, the Court ultimately concluded that the examination of their claims was not effective, nor was it devoid of arbitrariness – and that therefore Azerbaijan had failed to comply with Article 3.
The Court concluded that, on the evidence, the CEC did not carry out an adequate and comprehensive assessment of the evidence before it, and did not make any genuine effort to determine the validity of the applicants’ claims. There was no evidence to show that the CEC (or the CEC expert) took any steps to actually investigate the alleged irregularities (for example, by comparing the number of ballots in the box with the number of voters registered for that precinct). Instead, the CEC had presented “dubious reasons” for dismissing witness statements and had relied on statements of PEC members which denied any irregularities, without explaining why those statements should be preferred. The Court noted that such denials were “not surprising” given that the allegations were directed against PEC members themselves.
Equally, the Court noted that these shortcomings were not remedied by the domestic courts’ review of the complaints. The Court of Appeal failed to conduct any independent inquiry into the applicants’ arguments, and merely restated the CEC decision. Further, the Constitutional Court’s decision to approve the results and finalise the election process, despite ongoing legal proceedings regarding the complaints, “rendered the entire system for examining individual election-related complaints futile and illusory”.
The Court does not usually evaluate the compatibility of a domestic electoral administration system with the requirements of the Convention, and it noted in this case that “there can be no ideal or uniform system guaranteeing checks and balances between the different State powers or political forces”. Further, the Court did not need to decide whether the formula used to structure the CEC (and other electoral commissions) was necessarily incompatible with Article 3. However, the Court concluded that this formula was “one of the systemic factors contributing to the ineffectiveness of the examination by the CEC of the applicants’ election-related complaint in the present case”.
Commentary
This decision was handed down just weeks before further parliamentary elections were held in Azerbaijan earlier in November 2015. These elections resulted in a further victory for the ruling New Azerbaijan Party.
The election was boycotted by significant opposition parties, and was only contested by small parties and candidates known to be loyal to the ruling party. Opposition parties reported that in the year leading up to the election, Azerbaijani authorities had suppressed critical voices including opposition party members, journalists, and activists. The OSCE/ODIHR also refused to attend the 2015 elections due to attempts by the Azerbaijani authorities to impose restrictions on observers.
Importantly, the Court took the opportunity to call on the Council of Ministers to follow up the Azerbaijani Government to modify the structure of the electoral administration system, in order to improve the effectiveness of investigations into election-related complaints. It remains to be seen how the Council will respond to this recommendation.
Rebecca Williams is a solicitor at King & Wood Mallesons.