MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-8

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights H46-8 Namat Aliyev group v. Azerbaijan (Application No. 18705/06) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1161, DH-DD(2019)1330, CM/Del/Dec(2020)1369/H46-4

Application	Case	Judgment of	Final on	Indicator for the classification
18705/06	NAMAT ALIYEV	08/04/2010	08/07/2010	Complex problem
16511/06	ABIL	21/02/2012	21/05/2012
18469/06	ATAKISHI	28/02/2012	28/05/2012
6984/06	HAJILI	10/01/2012	10/04/2012
18475/06+	KERIMLI AND ALIBEYLI	10/01/2012	04/06/2012
20799/06	KERIMOVA	30/09/2010	30/12/2010
4508/06	ORUJOV	26/07/2011	26/10/2011
19554/06	KHANHUSEYN ALIYEV	21/02/2012	21/05/2012
4641/06	MAMMADOV No. 2	10/01/2012	10/04/2012
12535/06	KARIMOV	25/09/2014	25/12/2014
31953/11	TAHIROV	11/06/2015	11/09/2015
17356/11+	BAGIROV AND OTHERS	17/12/2015	17/12/2015
25330/11+	GASIMLI AND OTHERS	17/12/2015	17/12/2015
24853/11+	VUGAR ALIYEV AND OTHERS	17/12/2015	17/12/2015
2204/11	ANNAGI HAJIBEYLI	22/10/2015	22/01/2016
36503/11	GAHRAMANLI AND OTHERS	08/10/2015	08/01/2016
37700/05	SEYIDZADE	03/12/2009	03/03/2010
29781/11+	GAYA ALIYEV AND OTHERS	16/06/2016	16/06/2016
2326/11+	MAMMADLI AND OTHERS	30/06/2016	30/06/2016
30362/11+	SOLTANOV AND OTHERS	16/06/2016	16/06/2016
37614/11	SHUKUROV	27/10/2016	27/01/2017
20411/11+	ASLAN ISMAYILOV AND OTHERS	13/04/2017	13/04/2017
36821/11+	SAMADBAYLI AND OTHERS	13/04/2017	13/04/2017
28508/11	ABDALOV AND OTHERS	11/07/2019	11/10/2019
8513/11	ABIL (No. 2)	05/12/2019	05/03/2020

Case description

The cases in this group concern violations of the right to free elections (Article 3 of Protocol No. 1) owing to the failure to provide an effective procedure for the examination of the applicants’ complaints concerning alleged serious breaches of electoral law during the parliamentary elections of 2005 and 2010.

The applicants were members of opposition parties or independent candidates who made serious allegations of irregularities at polling stations and breaches of electoral law. The Court concluded that the proceedings before the electoral commissions and courts revealed an apparent lack of any genuine concern for combatting the alleged instances of electoral fraud and protecting the applicants’ right to stand for election. The applicants’ serious and arguable complaints concerning election irregularities were not effectively addressed at domestic level (Gahramanli and Others § 87).

In particular, the Court found that the electoral commissions had dismissed the applicants’ complaints without evidence or on the basis of evidence untested for credibility; without independent examination and reasoning; and without allowing the applicants to participate in the hearings.

It noted that the appointments procedure allowed that the majority of the members of the electoral commissions at all levels were directly or indirectly appointed by the ruling party and that this was one of the systemic factors contributing to the ineffectiveness of the examination by the Central Election Commission (CEC) of the applicants’ election-related complaint (Gahramanli and Others § 79).

It found that the domestic courts rejected the applicants’ appeals without properly examining the evidence or clarifying outstanding issues, due to excessive formalism stemming from the civil procedure rules; in an expedited procedure, without allowing sufficient time to the applicants to prepare their cases; through erroneous application of election law; and without adequate reasoning.

In Gahramanli and Others, the Court further found that the Constitutional Court approved the country-wide election results while the applicants’ appeal before the Supreme Court was pending. This decision deprived the remedy available to the applicants of all prospects of success and rendered the entire electoral complaints system futile and illusory (§ 86).

In six cases, the Court also found violations of the right of individual petition on account of the seizure, in August 2014, from the office of the applicants’ legal representative of the entire case file relating to the applicants’ pending cases before the Court, together with all his other case files (violations of Article 34).[1]

Status of execution

Individual measures:

The just satisfaction was fully paid in all cases except two, where payment was partially made (Abdalov and Others and Samadbayli and Others). The case files seized from the office of the applicants’ representative have been returned.

Further individual measures in respect of the applicants’ rights to participate in free elections are closely linked to the question of general measures.

General measures:

The Committee has been regularly examining this group of cases at its DH meetings since December 2013, inviting the authorities to implement comprehensive reforms to address the problems revealed by the Court’s judgments. At its last examination of this group in March 2020,[2] following the parliamentary elections on 9 February 2020, the Committee expressed regret that the electoral system and relevant legal framework had not seen any fundamental change, despite the findings of the Court, previous decisions of the Committee and recommendations of the Venice Commission (see H/EXEC(2024)14). It also underscored the need to take adequate reforms, including by ensuring an effective domestic system to examine individual complaints and appeals in electoral disputes.

A detailed action plan, dated 14 October 2024, was provided by the authorities, listing a number of measures, summarised below, and inviting the Committee to close the supervision of the execution of the cases in this group. The authorities maintain that the judgments are old and that no systemic issues identified in them currently exist (for details see DH-DD(2024)1161).

Proceedings before Election Commissions: the procedures relating to electoral disputes are regulated by the Election Code adopted in 2003 and the “Instruction on the Procedure for Submitting and Considering Complaints and Appeals Related to Violations of Electoral Rights to the Central Election Commission (CEC) and Constituency Election Commissions (ConECs) of the Republic of Azerbaijan” adopted in 2008.

These documents were developed based on the recommendations of, and in co-operation with international organisations, including experts from the Venice Commission. The authorities did not specify which specific recommendations of the international organisations these legal acts incorporated. At the same time, they indicated that the current legal framework provides that:

·         complaints and appeals are thoroughly, promptly, and impartially investigated, to fully guarantee an effective realisation of electoral rights;

·         to ensure such impartial, comprehensive, and prompt examination of complaints and appeals, expert groups were established under the CEC and the ConECs; they consist of nine members at the CEC level and three members at the ConEC level; when forming these groups, particular emphasis is placed on including specialists with legal education and specific expertise in the relevant field;

·         upon submission of a complaint, members of the expert group carry out a thorough investigation, gathering, verifying and assessing all the necessary evidence, and they submit their conclusions to the CEC;

·         following the examination of the case, the CEC adopts a decision and delivers a reasoned judgment;

·         participation of plaintiffs in both the investigation and the CEC’s hearings is duly ensured;

·         activities of the expert group are always open to applicants, international observers, media representatives and interested parties; and to guarantee the transparency of the proceedings, all complaints and appeals are promptly published on the Commission's official website.

The authorities also provided information regarding the training on how to deal with electoral complaints and appeals, which has become a key component of the CEC's comprehensive awareness-raising programme, and they are regularly and successfully implemented in all elections. Since 2019, the CEC has been organising regional seminars and consultations in collaboration with the Supreme Court and appellate courts. They aim to enhance the knowledge of ConECs regarding the judicial adjudication of electoral disputes and the protection of electoral rights.

Judicial administrative proceedings: following the adoption of the Code of Administrative Procedure (CAP) in 2011, complaints against the acts, omissions or decisions of the election commissions are lodged with the appellate courts of administrative and economic jurisdiction instead of civil jurisdiction. The CAP places the burden of proof on the administrative body to prove the legality of acts. It also requires a duty judge to assist the parties in gathering information and submitting evidence. On 20 April 2012 a chapter called “Proceedings Related to the Protection of Electoral (Referendum Participation) Rights” was added to the CAP, which regulates proceedings regarding alleged electoral violations. The legislative provisions establish clear deadlines and procedures for complaints regarding alleged breaches of electoral rights.[3]

In its decision at the September 2014 DH meeting, the Committee noted with interest that that these legislative reforms appeared to respond to a series of problems raised by the Court in this group of cases as regards the excessive formalism of the courts when examining appeals.[4]

Proceedings before the Constitutional Court: the Constitutional Court has reviewed the case of Gahramanli and Others and changed its practice. During the parliamentary elections of 2024, the Constitutional Court delivered its final decision and approved the election results only after it had received all review decisions from the appeal courts, the Supreme Court, and the General Prosecutor's Office.

Rule 9 communications

In a recent communication, Free Voices Collective (DH-DD(2024)1240)[5] complained that the types of violation of electoral rights which took place during the 2005 and 2010 parliamentary elections have persisted in all subsequent elections. In particular, the compositions of the election commissions and proceedings before those commissions remained unchanged and they lack independence and impartiality. Also, the expert groups assisting CEC in adjudication of electoral complaints were not composed of independent experts, but consisted entirely of CEC members and representatives of the CEC Secretariat, which made their functioning illusory. They concluded that the irregularities of proceedings before the election commissions highlighted by the Court persisted, and the situation even worsened in subsequent elections. As regards judicial proceedings, the NGO noted that the domestic courts do not carry any meaningful investigation, including hearing important witnesses and deliver unreasoned decisions.

Analysis of the Secretariat

Individual measures

Just satisfaction has been paid in all cases of this group, except two, where information remains awaited. Payment in these cases should be completed.

The remaining individual measures, to enable the applicants effectively exercise their rights to stand in free elections, are closely linked to the general measures.

General measures

Over the last ten years, the Committee has repeatedly called on the authorities to implement comprehensive reforms to resolve the long-standing problems revealed by the Court’s judgments.

The detailed information submitted in time for this examination, setting out the measures taken by the authorities, is noted.

The information concerning the Constitutional Court’s practice adopted in relation to the parliamentary elections of 2024, when it waited until all related proceedings were concluded before approving the results of the elections, can be noted with interest. However, since, as underlined by the European Court, there is nothing in the domestic legislation to prevent the Constitutional Court from approving the election results while the election disputes are pending before the courts of general jurisdiction, as occurred in 2010, the authorities could be encouraged to codify this change of practice in legislation.

The authorities have not informed the Committee of any other new measures taken in respect of the electoral commissions and domestic courts.[6] It is recalled, in relation to the procedure before electoral commissions and the setting-up of expert groups, that the Committee did not consider these measures sufficient to resolve the problems revealed by the Court’s judgments as regards the independence, transparency and legal quality of the procedure before these commissions.^[7] In this connection it can further be recalled that the Court in the Gahramanli and Others judgment in 2015 (§ 79), found that the appointment procedure to electoral commissions, which allowed for a majority of members to be directly or indirectly appointed by the ruling party, had contributed to the ineffectiveness of the complaints procedure before the CEC by an opposition politician. The Court then noted that:

“It falls to the Committee of Ministers to supervise, in the light of the information provided by the respondent State, the execution of the Court’s judgment and to follow up on the implementation of general measures and evolution of the system of electoral administration in line with the Convention requirements. In this connection, the Court considers that an effort by the respondent State envisioning a reform of the structural composition of the electoral commissions should be encouraged with the aim of improving the effectiveness of examination of individual election‑related complaints.”

Against this background, the Committee has repeatedly called on the authorities to take adequate reforms to ensure an effective domestic system to examine individual complaints and appeals in electoral disputes, including by taking into account the recommendations of the Venice Commission and OSCE/ODIHR on the electoral system of Azerbaijan (see H/EXEC(2024)14), as well as the 2002 Venice Commission’s Code of Good Practice in Electoral Matters.[8]

Bearing in mind the fundamental importance of the rights enshrined in Article 3 of Protocol No. 1, which are crucial to establishing and maintaining an effective and meaningful democracy governed by the rule of law, and keeping in mind the Reykjavík Principles for Democracy, the Committee may wish to urge the authorities to take further, decisive action to fully address these long-standing problems without further delay.

Lastly, concerning the measures required for the non-repetition of the violations of the right of individual petition (on account of the seizure of the applicants’ legal representative’s case file), it is recalled that similar violations also took place in the cases under Gafgaz Mammadov group. During its latest examination of that group, the Committee decided to continue the supervision of the general measures under Article 34 in the context of the present (Namat Aliyev) group of cases. Therefore, information is awaited on the measures taken with regard to the outstanding issues concerning the arbitrary seizure of the case files covered by legal professional privilege.

The Committee could resume examination of the present group at its December2025 (DH) meeting at the latest, and to consider taking new action in the event that a detailed action plan setting out measures adequate to respond to the Court’s findings and the Committee’s decisions is not submitted by then.

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