It is a pleasure to introduce a guest post by one of my colleagues, Paulien de Morree, a PhD researcher here at Utrecht University. She has written a short commentary on the judgment of the Court of this week in Gahramanli and others v. Azerbaijan which deals with problems in the electoral process. please find her short commentary below:
Court
reprimands Azerbaijan for continually failing to adequately address complaints about
electoral irregularities
Paulien de Morree
Paulien de Morree
Yesterday, the European Court of Human
Rights issued a judgment concerning the 2010 parliamentary elections in
Azerbaijan in the case of Gahramanli and other v.
Azerbaijan (8 October 2015, appl. no.
36503/11). The applicants, who were all candidates for various opposition
parties, alleged that due to numerous irregularities the elections in their
constituency had not been free and fair. Because of the domestic authorities’
failure to adequately address their complaints, the Court found a violation of
their right to stand for election guaranteed in Article 3 of Protocol No. 1
(para. 89).
The main issue submitted by the
applicants concerns the lack of impartiality of the electoral commissions. One-third
of the members of these commissions at all levels, including the Central
Electoral Commission (CEC), are nominated by or on behalf of the
parliamentary-majority party. In addition, one other member who is formally
unaffiliated with any political party, is appointed “in agreement” with the majority party. Essentially, pro-ruling
forces therefore have a relative majority vis-à-vis
the representatives of other political parties in all electoral commissions (para.
75).
Normally the Court does not go
into an evaluation of the compatibility of a national system of electoral
administration with Convention requirements in a way that goes beyond the case at hand. But here, given the particular context of the issue, the Court found that “the method in question 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” (para. 79).
The Court
referred to observations by the Organisation for Security and Co-operation in
Europe (OSCE) and concerns of the European Commission for Democracy through Law
of the Council of Europe (Venice Commission) regarding the lack of impartiality
of the electoral commissions (see in particular the final report of the OSCE/ODIHR Election
Observation Mission on the parliamentary elections of 7 November 2010). In addition, the Court
recalled that in the past it has found violations of Article 3 of Protocol No.
1 in numerous election-related complaints against Azerbaijan regarding
arbitrary decisions by electoral commissions in relation to opposition
candidates (see for example ECtHR 8 April 2010, Namat Aliyev v. Azerbaijan, appl. no. 18705/06; ECtHR 30 September
2010, Kerimova v. Azerbaijan, appl.
no. 20799/06; ECtHR 10 January 2012, Mammadov
v. Azerbaijan (no. 2), appl. no. 4641/06; ECtHR 10 January 2012, Hajili v. Azerbaijan, appl. no. 6984/06;
ECtHR 21 February 2012, Khanhuseyn Aliyev
v. Azerbaijan, appl. no. 19554/06; 25 September 2014, Karimov v. Azerbaijan, appl. no. 12535/06). Yet, so far the issue continues to not be adequately addressed by the Azerbaijani government. In that
context, the Court strongly encourages the Azerbaijani authorities to reform
the composition of the electoral commissions in order to improve the
effectiveness of the examination of election-related complaints.
The relevance of this call for reform of
the electoral commission is emphasised by the fact that new parliamentary elections
in Azerbaijan will take place on 1 November. In the light of these upcoming
elections, the Parliamentary Assembly of the Council of Europe recently adopted
a Resolution calling on the Azerbaijani authorities “to take the necessary measures to avoid the shortcomings highlighted
during previous elections” (Resolution 2062(2015) The functioning of democratic institutions in Azerbaijan” of 23
June 2015, par. 4). In the build up to the elections, a Needs Assessment
Mission of the OSCE has visited Azerbaijan in August. This Mission yet again
reported concerns about the candidate registration process, the lack of respect
for the fundamental freedoms of members of the opposition, the limited access
to pluralistic views and impartial information and the lack of confidence in
the independence of electoral dispute resolution bodies (Report of the OSCE/ODIHR Needs Assessment
Mission, 31 August 2015, at 2). All in all, these preliminary developments are far from
comforting on whether the 2015 elections will show much democratic improvement.