The Azerbaijani courts ignore violations of the AR voters’ rights
Analysis of violation of law during Samad Rahimli’s judicial proceedings
The Baku Court of Appeal, Chamber of Administrative offences
Case № 2-3(103)-47/20
22 February 2020
Presiding judge: Jahangir Yusifov
Plaintiff: Samad Rahimli
Respondent: The Central Election Commission of the Azerbaijan Republic
Defendant’s representative: Ramiz Ibrahimov
Samad Rahimli, a practicing lawyer, has submitted his candidacy for the parliamentary elections (Azerb. Milli Majlis) of the Azerbaijan Republic (AR) from the 34th Khatai District of Baku city, which were scheduled on 9 February 2020. Having collected a lot of facts demonstrating violation of electoral rights of the Azerbaijan Republic citizens on the day of the elections, Samad Rahimli appealed to the Central Election Commission (CEC) of the AR with a complaint and demand to annul the results of the 34th Khatai District and request the CEC to hold re-election.
The complaint was justified by massive falsifications and frauds discovered during the electoral campaign. According to the independent observers’ data, the attendance at the 34th electoral district was only 7.5%. Yet, the CEC results showed a participation rate of 37.5% in that district. In a mean time, the CEC hasn’t justified that substantial difference. In his complaint, Samad Rahimli indicated that because of the low voters’ attendance, it was organized the “carousels ” in favour of the pro-government candidate. The polling station was visited by the citizens who were not registered in that district. It was intentionally created all those circumstances to falsify the elections. Independent observers were able to take photos and video footage of the falsifications.
As an example, according to the video and photo shooting taken at the polling station #15, it was extracted and counted 109 ballot papers from the ballot box, while according to the CEC it was counted 519 ballot papers. At the 19th polling station, it was counted 123 ballots removed from the ballot box whereas according to the CEC data, it was collected and counted 482 ballots. The same phenomenon took place at the 21, 22, 23, 24 and 34 polling stations.
A pile of ballots in favor of the pro-governmental candidate Mikhail Zabelin was found at the 5th polling station. At the majority of polling stations, the members of the election commission refused to fill in and issue protocols to the observers.
At the 19th polling station, there was not either the chairman or secretary of the election commission, there were no any protocols and ballots, and the seal was lost. On the pretext of losing the seal the officials of the commission refused to draw up protocols and issue them to the observers.
The observers’ comments were not taken into account, and the members of the commission tried to put pressure on them. The observers drew up numerous acts at the polling stations, indicating violations of the Electoral code. At the 22nd polling station, the chairman of the election commission prohibited the observers to take video and photo shots.
There were differences in 8 protocols presented by S. Rahimli from those published on the CEC website. Discrepancies between the protocols presented by the observers and those published on the CEC website were found at the 8th polling station, differing votes in favour of Mikhail Zabelin. At the 24th polling station, the chairperson and members of the commission did not invalidate the unused ballots, did not announce the results of the counted ballots, and they were indifferent to the observers’ remarks on the matter, while violating the continuity of the ballots counting process and leaving the polling station on the pretext of “drinking tea”. At 2 a.m., at the 24th polling station, the protocols were not filled in. At the 23rd polling station the left corner of the unused ballots was cut off not individually as required but all at once. The secretary of the election commission working at the 19th polling station let three un-registered citizens to the polling station. At the 15th polling station, the ballots and protocols were kept in the school headmaster’s room. At the 21st polling station, the commission members got out from the polling room leaving the ballots unattended.
On 11 February 2020, Samad Rahimli filed a complaint with the District Election Commission (DEC), enclosing all the acts, photos and videos showing that the voting results had been falsified. He asked the DEC to invalidate the election results in that district and annul them. Samad Rahimli also filed a petition to inspect the video surveillance cameras installed at the district polling stations. However, the DEC did not thoroughly and independently investigate the facts submitted by the candidate for deputies. On 13 February 2020, the District Election Commission issued a decision to reject Samad Rahimli’s complaint. The DEC did not ensure Samad’s participation in the investigation process, and a copy of the decision was provided only after the demands for the decision to be issued. Moreover, a copy of that decision was issued to S. Rahimli without any signature and seal. Samad Rahimli, not accepting the DEC decision, filed a complaint against the DEC decision on 13 February 2020, with the CEC of Azerbaijan Republic on 14 February 2020. On 17 February 2020, the CEC of Azerbaijan Republic made a decision to partially satisfy the complaint of Samad Rahimli. The election results at 7 polling stations were declared null and voided. The CEC justified their decision due to the fact that there were significant differences between the protocols submitted directly from the Precinct Election Commissions (one by one) to the CEC and those received at once by the CEC from the same Commissions. The decision of the CEC was presented to Samad Rahimli on 18 February 2020.
Not having agreed with the decision of CEC AR, S. Rahimli filed a claim to the Baku Court of Appeal. In his lawsuit, he asked to annul the election results of the entire 34th electoral district from which he had run.
On 22 February 2020, the Baku Court of Appeal issued a decision to deny the claims of Samad Rahimli, a candidate for deputy. The Court of Appeal grounded its decision on the fact that the copies of acts accompanying the statement of claim should not be regarded as irrefutable evidence. Besides, the Court indicated that those acts had not been submitted within 3 days as it was stipulated in the Article 42.5 of the Election Code of the Azerbaijan Republic. The court also indicated that the electronic media enclosed to the application had not been submitted to the District Election Commission in a period of 3 days as it was defined in the Article 112.1 of the Election Code of the Azerbaijan Republic. Only the protocol drawn up at the 20th polling station was considered null and void by the court.
Commentary by expert lawyer:
A court decision is illegal and unjustified. According to the Article 17.1 of the Electoral Code of the Azerbaijan Republic, the elections and referendums in Azerbaijan are organized and conducted by the election (referendum) commissions. There are commissions on three levels: Central Election Commission, District Election Commission and Precinct Election Commission.
According to the Article 19.3 of the Azerbaijan Republic Electoral Code, the chairman (of the Central Election Commission) as well as his deputy and two secretaries are to be elected at the first meeting of the Election commission by means of open voting. Prior to the election of the Electoral Commission chairperson, the oldest member of the Commission shall preside at the first Commission session in case of the chairperson’s absence. The Chairperson of the Election Commission is a representative of a political party that constitutes the majority of deputies in the Milli Majlis, each of the secretaries represents a party that constitutes the minority of deputies and independent deputies in the Milli Majlis.
The Article 19.5 of the Azerbaijan Republic Election Code states that the meeting of the election commission is summoned by the Chairman, as well as at the request of at least 1/3 of the commission members with voting rights.
According to the Article 19.10 of the Azerbaijan Republic Election Code the election commission meeting is considered to be authorized with the participation of 2/3 of the commission members with the voting right.
In the Articles 28.2., 34.3. and 39.3. of the Azerbaijan Republic Election Code, it is specified that any level of the election commission decisions are taken by 2/3 of the commission members participating in the meeting.
The Central Election Commission consists of 18 members, of which 6 members are deputies from the ruling “Yeni Azerbaijan” (“New Azerbaijan”) party or their representatives, 6 members are non-affiliated with any party or their representatives, and another 6 members are representatives of the minority parties in parliament or again their representatives. Each District Election Commission has 9 members. There are 6 members in each District Election Commission.
According to the Article 112.1 of the Electoral Code of the Azerbaijan Republic, voters, candidates, registered candidates, political parties, blocs of political parties, referendum campaign groups, agents of registered candidates, political parties, blocs of political parties, referendum campaign groups, observers, and election commissions may file complaints about decisions and actions (lack of actions) which violate citizens’ right to vote within 3 days of the date the decision is published or made, or the date actions (lack of actions) occurred, or the interested person is informed about it.
The persons indicated in Article 112.1 of this Code may submit their complaints to the relevant superior election commission (Article 112.2). The superior election commission shall have the right to cancel the decision of a subordinate election commission, to make a decision regarding the substance of the matter or order reexamination of the issue (Article 112.9).
According to the Article 112.3 of the Electoral Code of the Azerbaijan Republic, if complaints of the persons indicated in Article 112.1 are initially not considered by a superior election commission, such persons may consequently file complaints on the decision or the action (inaction) of the constituency election commission to the Central Election Commission, and on the decision or the action (inaction) of the Central Election Commission to the Court of Appeal.
In the Article 112.4 of the Electoral Code of the Azerbaijan Republic states: “If the infringement described in the complaint can be considered a criminal action according to the Criminal Code of the Republic of Azerbaijan, the relevant election commission can apply to relevant public prosecutor’s bodies and make decisions regarding elimination of the shortcomings or infringements indicated in the complaint. The Central Election Commission must make a grounded decision on consideration of each complaint. If the investigation of the complaint indicates the likelihood of a crime, the prosecuting body should be informed about it. The relevant prosecuting body must consider the complaint within 3 days.
Despite the utter violations recorded during the electoral process at the polling stations, the respective superior commissions not only failed to take into account the tremendous violations, but also failed to report the existence of criminal elements in the activities of commission members.
According to the Article 112.8 of the Electoral Code of the Azerbaijan Republic, the election commission shall have the right to receive citizens’ and officials’ information and to require necessary documents and materials.
The courts shall within 3 days (if the Electoral Code does not specify a shorter period), or within 2 days (but not later than the voting day) if less than 30 days left till the voting day, and on the voting day and after that day, promptly consider complaints concerning the election commissions’ decisions. An appeal against a court decision can be submitted within 3 days to a superior court (the Article 112.11 of the Electoral Code of the Azerbaijan Republic).
When voting ends, the Precinct Election Commission chairperson shall announce loudly that: “only the voters who have already received ballot papers and those in the voting room may vote.” In this case, voting of only the voters in line in the voting room prior to the announcement shall be ensured. Before opening the ballot box, Precinct Election Commission members shall count and cancel unused ballot papers in the presence of observers in the polling station. The number of unused ballot papers shall be announced and recorded in the final protocol of voting results. The number of signatures of voters who have received ballot papers and envelopes shall be recorded in the final protocol on results of voting. At the same time, the number of voters voting with a de-registration card and those voting outside the voting room using mobile boxes, shall be recorded in the final protocol. Then, the Precinct Election Commission chairperson shall examine the stamps and seals of the ballot boxes, show them to the Precinct Election Commission members and observers, and open the ballot boxes (the Article 106.1 of the Electoral Code of the Azerbaijan Republic).
According to the Article 106.2 of the Electoral Code of the Azerbaijan Republic, Ballot boxes shall be opened one by one: first the mobile ballot box, then the immovable ballot box. Ballot papers in the mobile ballot box shall be counted first. Their number should not exceed the number of requests. When counting ballots from the mobile ballot box, if the total number of ballot papers is more than the number of requests (total number of voters who were issued ballot papers), then all votes in the mobile ballot box shall be considered invalid by decision of the Precinct Election Commission. An act on this, which includes a list of the surnames of the commission members that accompanied the mobile ballot box, shall be attached to the final protocol. The number of voters who have voted with a voting card shall be added to the number of voters who appear on the Voter List of the precinct.
According to the Article 106.4 of the Electoral Code of the Azerbaijan Republic, if there are doubts on the validity of a vote, the Precinct Election Commission shall vote to determine if the vote is considered valid. If a decision is made to consider the vote invalid, the reasons for the decision shall be recorded on the reverse side of the ballot paper. Such a record should be approved by the signatures of the chairperson and secretary of the Precinct Election Commission. Invalid votes shall be packed separately.
According to the Article 106.5 of the Electoral Code of the Azerbaijan Republic, the counting of votes shall be conducted by the Chairman of the Precinct Election Commission with the involvement of all members of the Precinct Election Commission without interruption until all the results of the voting are summed up. At this time each used bulletin is stamped. All members of the Precinct Election Commission and observers shall be informed about the voting results.
Final protocols on the voting results are drawn up by the Precinct Election Commission under the supervision of the candidate, his authorized representative, trustees of political parties and blocs of political parties.
The first copy of the protocol, accompanied by the Chairman and 2 members of the Precinct Election Commission representing different political parties and observers, shall be sent immediately on the day of voting, and not later than 24 hours after it. It should be sent to the District Election Commission along with attached complaints (applications) that had been describing violations of the Election Code as well as the decisions made by the Precinct Election Commission on such violations. Also it should be attached the following: an act on receipt of ballots by the Precinct Election Commission, an act on annulment of unused ballots (specifying the number of such ballots); an act on issuance of voting certificates and annulment of unused voting certificates (specifying the number of such certificates); an act on the number of ripped left corners of ballots; an act on the number of unused ballots, mentioned in the Article 104.15 of the Election Code, that must be bound and sealed in envelopes. Also, the act mentioned in the Article 105.3 of the Election Code that should include a list of voters in each district (attaching personal document of each voter). The mentioned acts are to be signed by the chairpersons and secretaries of the Precinct Election Commission. The certified copies of complaints (applications), decisions of the Precinct Election Commission and the acts shall be signed and attached to the 2nd copy of the protocol.
The second copy of the protocol plus the cut-off left corners of these ballots, scraps of invalid ballots as well as the lists of those who observed the voting and counted the votes specified in the Articles 40.2 and 40.4 of the Electoral Code shall be kept with the secretary of the Precinct Election Commission until the end of the commission’s activity (the Article 106.8 of the Electoral Code of the Azerbaijan Republic).
According to the Article 170.2 of the Electoral Code of the Azerbaijan Republic, “The District Election Commission or the Central Election Commission considers the elections in a single-mandate constituency invalid in the case (Article 170.2.1) of the violations of law committed in the constituency during the voting or determination of the voting results fails to establish the will of the voters”.
Besides the above-mentioned norms of the Electoral Law, the norms of the Constitutional Law were infringed. Thus, under the Article 56 (I) of the Azerbaijan Republic Constitution, Azerbaijani citizens have the right to elect and be elected to the state bodies and also participate in the referendum.
According to the Universal Declaration of Human Rights, the Article 21(1), everyone has the right to take part in the governance of their own country, directly or through freely chosen representatives. The Article 21 (3) of the Universal Declaration of Human Rights states that: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.
In the Paragraph 3 of the Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms said, the High Contracting Parties undertake to hold free elections on a basis of secret ballot at reasonable intervals under conditions that will ensure the citizens’ free expression of will electing their legislative bodies.
According to the Article 13 of the European Convention on Human Rights, everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
The European Court of Human Rights (ECHR) points out that at first sight the right provided in the Paragraph 3 of the Protocol No. 1 differs from the other rights provided in the European Convention and its Protocols, as this paragraph refers more to the obligation of the High Contracting Parties to ensure the free will of the people than to specific rights or freedoms. However, the Court found that it ensured individual rights, including the right to elect and be elected (Paragraphs 46-51 of the judgment of the European Court of Human Rights in the case of Mathieu-Mohin and Clerfayt v. Belgium on March 2, 1987).
These rights are not of an absolute nature. Since they are recognized in the Paragraph 3 of the European Convention, but are not specified, much less defined, there is a possibility for implicit restrictions (the Paragraph 52 of the above decision).
The OSCE and the Venice Commission have indicated that the organisation of election commissions, as it is stipulated in the National law, in practice leads to the management of the electoral process by pro-government administration forces and to the adoption of important decisions by them. Both the OSCE and the Venice Commission have repeatedly recommended to adopt such a formula, which would exclude the advantage of pro-Government forces in organizing the election commissions; however, these recommendations were not followed during the elections.
Thus, violations of the Norms of National and International Laws, the precedents of the European Court of Human Rights, as well as the recommendations of the international structures working in the field of Electoral System have resulted in violations of the rights of voters and independent candidates running the Parliamentary election.