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.