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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 25 September 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 39


PROPERTY - In the case of Valle Pierimpiè Società Agricola S.p.a v. Italy the European Court of Human Rights held, unanimously, that the transfer to State ownership, without compensation, of a fishing valley in the Venice lagoon used by a company was in breach of the Convention (violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights.
The case concerned a declaration to the effect that a part of the Venice lagoon known as Valle Pierimpiè, which the applicant company had purchased and had been using for fish farming, belonged to the public maritime domain. The Court held that the transfer of the valley to State ownership constituted manifestly disproportionate interference with the applicant company’s right to the peaceful enjoyment of its possessions. It further held that the State had not struck a fair balance between the public and private interests at stake and that an excessive and impracticable burden had therefore been imposed on the applicant company.

ELECTIONS - In the case of Karimov v. Azerbaijan the Court held, unanimously, that Military polling stations in 2005 parliamentary elections in Azerbaijan breached national law and led to a violation of Article 3 of Protocol No. 1 (right to free elections) of the Convention.  The case concerned allegations by an opposition candidate about irregularities in the 2005 parliamentary elections. The Court concluded that the setting up of special polling stations for military personnel in Mr Karimov’s constituency had been in breach of the relevant national legislation. Having regard to findings of international election observers, the Court moreover considered that there had been a deliberate practice of organising military voting in breach of the relevant legislation.
"2.  The Court’s assessment
34.  Article 3 of Protocol No. 1 enshrines a characteristic principle of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113). This Article would appear at first to differ from the other provisions of the Convention and its Protocols, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections under conditions which will ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (ibid., §§ 46-51).
35.  The Court has consistently highlighted the importance of the democratic principles underlying the interpretation and application of the Convention and emphasised that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005IX). Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States are given a margin of appreciation in this sphere (see Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002II). The margin of appreciation is also wide as regards the choice of electoral system (see Mathieu-Mohin and Clerfayt, cited above, § 54). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (see Hirst (no. 2), cited above, § 61).
36.  It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions imposed on the right to vote and to stand for election do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62).
37.  For the purposes of applying Article 3 of Protocol No. 1, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature” (see Yumak and Sadak v. Turkey [GC], no. 10226/03, § 111, ECHR 2008). Furthermore, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any emerging consensus as to the standards to be achieved (see, mutatis mutandis, Glor v. Switzerland, no. 13444/04, § 75, ECHR 2009).
38.  In the present case, the applicant complained of a number of alleged irregularities in Sabail Electoral Constituency no. 29, where he had stood for election in the 2005 parliamentary elections. The Court will first examine the part of the complaints relating to the “military voting” in Polling Stations nos. 31 and 32, which it considers to be the focal issue of the present case.
39.  At the outset, the Court takes note of the Venice Commission’s Code of Good Practices in Electoral Matters, which stresses that military servicemen should preferably vote in ordinary polling stations and notes that safeguards should be put in place to prevent “the risk of superior officers imposing or ordering certain political choices”. The Court agrees that such a risk cannot be taken lightly. It cannot be ignored in the context of elections in Azerbaijan, which have previously been assessed by reputable international observers as falling short of a number of democratic standards (in this connection, it should be noted that the Court itself has examined various election-related issues in a number of cases; see, among others, Seyidzade v. Azerbaijan, no. 37700/05, 3 December 2009; Namat Aliyev v. Azerbaijan, no. 18705/06, 8 April 2010; Kerimova v. Azerbaijan, no. 20799/06, 30 September 2010; and Orujov v. Azerbaijan, no. 4508/06, 26 July 2011).
40.  In particular, the Court has had regard to the observations made in the Final Report of the OSCE/ODIHR Election Observation Mission regarding the military voting in the 2005 parliamentary elections. The observers noted that special military polling stations had been set up in the absence of the requisite exceptional circumstances. They also noted that the election procedures in those polling stations had lacked transparency because the electoral authorities had delegated responsibility for the organisation and conduct of military voting to the Ministry of Defence. It was also noted in the report that, statistically, the voter turnout and the voting pattern in those special polling stations differed significantly from those in the ordinary polling stations, with both the voter turnout and the number of votes for the winning candidate being much higher (see paragraph 23 above). While not conclusive, those figures strongly suggest that, in those polling stations, the electoral process and the expression by voters of their opinion might not have been free.
41.  Having taken note of the above, the Court will now assess the applicant’s complaint in the present case that Polling Stations nos. 31 and 32 were set up in breach of the requirements of the domestic electoral legislation and that the electoral process in those polling stations was not free and transparent.
42.  As noted above, Article 3 of Protocol No. 1 is phrased differently from the other provisions of the Convention and its Protocols – in terms of the obligation of the High Contracting Parties, rather than guaranteeing a specific right or freedom (see paragraph 34 above). Unlike other provisions of the Convention, such as Article 5, Articles 8 to 11, or Article 1 of Protocol No. 1, the text of this provision does not contain an express reference to the “lawfulness” of any measures taken by the State. However, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention and its Protocols (see, among many other authorities, Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996III). This principle entails a duty on the part of the State to put in place a legislative framework for securing its obligations under the Convention in general and Article 3 of Protocol No. 1 in particular, and to ensure that its public officials charged with executing those obligations do not act outside the law, but exercise their powers in accordance with the applicable legal rules.
43.  While the Court is not required under Article 3 of Protocol No. 1 to verify whether every particular alleged irregularity amounted to a breach of domestic electoral law (see I.Z. v. Greece, no. 18997/91, Commission decision of 28 February 1994, Decisions and Reports 76-B, p. 65, at p. 68), its task is nevertheless to satisfy itself, from a more general standpoint, that the respondent State has complied with its obligation to hold elections under free and fair conditions and ensured that individual electoral rights were exercised effectively (see Namat Aliyev, cited above, § 77). In this connection, the Court considers that in cases where it is alleged that the breach of the domestic legal rules was such that it seriously undermined the legitimacy of the election as a whole, Article 3 of Protocol No. 1 requires it to assess whether such a breach has taken place and has resulted in a failure to hold free and fair elections. In doing so, the Court may have regard to whether an assessment in this respect has been made by the domestic courts; if it has been made, the Court may confine its own review to whether or not the domestic courts’ finding was arbitrary (see, mutatis mutandis, I.Z. v. Greece, cited above, and Babenko v. Ukraine (dec.), no. 43476/98, 4 May 1999). In the present case, however, the Court has to proceed without having the benefit of being able to review the domestic courts’ assessment, as no such assessment has been made (see more on this in paragraph 49 below).
44.  The Court observes that according to the rule established by Article 35.5 of the Electoral Code, military personnel were to vote in ordinary polling stations, set up within the relevant electoral precincts in accordance with Article 35.2 of the Code. There were only two exceptions to that rule, where the creation of special polling stations for military servicemen was allowed. Those exceptions were provided for in the third and fifth sentences of Article 35.5 (see paragraph 21 above). It is undisputed by the parties that the second exception – established in the fifth sentence of Article 35.5 of the Electoral Code, concerning military personnel serving in frontier units, zones of military conflict and in special-regime conditions – did not apply to the military units in the present case. However, the Government argued that the military units in question fell within the first exception, because there were more than a thousand military servicemen in each unit.
45.  In this connection, the Court notes that, in order for the first exception to apply, the following conditions were required by Article 35.5 of the Electoral Code: (i) the unit had to be located outside a populated settlement; (ii) the travel time by public transport to the closest ordinary polling station had to exceed one hour; and (iii) the total number of servicemen in the unit had to exceed fifty. It is clear from the wording of Article 35.5 that all of the above conditions had to be met for the exception to apply; in other words, those three conditions were cumulative and not alternative. The Court notes that the Government have not submitted any domestic court decisions interpreting this provision otherwise. In any event, the Court does not see how this provision could be interpreted differently, as that would essentially defeat the purpose of the general rule established in the first sentence of Article 35.5.
46.  In the present case, the total number of personnel serving in each of the two military units in question exceeded fifty. However, it is undisputed that both units in question were located within a populated settlement (in the Bayil and Badamdar suburbs of Baku) and within a short walking distance from the established ordinary polling stations. It follows that, in relation to the military personnel serving in both of these units, two of the three cumulative conditions required by the first exception stipulated by Article 35.5 of the Electoral Code were not satisfied.
47.  Having regard to the above, the Court cannot but conclude that the creation of special polling stations for military voting in the applicant’s electoral constituency, namely Polling Stations nos. 31 and 32, was in breach of Article 35.5 of the Electoral Code, which required that, in the absence of exceptional circumstances, military servicemen should vote in ordinary polling stations. Accordingly, the entire election process in Polling Stations nos. 31 and 32, including the creation of the PECs, the electoral rolls and the voting, did not comply with the requirements of the Electoral Code on the organisation of the election process at precinct level. It follows that the elections in Polling Stations nos. 31 and 32 were conducted outside the applicable legal framework and were therefore illegitimate.
48.  The fact that the “voting results” from those polling stations were then taken into account by the electoral authorities and aggregated with the legitimate votes cast in other polling stations, with a significant impact on the overall election result, was in breach of the integrity of the entire election process in the applicant’s constituency.
49.  Furthermore, there is no doubt that this situation was not the result of a mistake made somewhere along the way by the electoral authorities. The circumstances of the case and the observations made in the OSCE/ODIHR report show that there was a deliberate practice of organising military voting in breach of the requirements of the Electoral Code. The existence of such a practice was further demonstrated by the manner in which the applicant’s complaints were handled by the domestic electoral authorities and courts in the present case. The CEC’s approach was to ignore the applicant’s complaint that Polling Stations nos. 31 and 32 had been created unlawfully, while the domestic courts rejected his complaint without examining its substance and by stating merely that the applicant had failed to present “reliable evidence” in support of it. Having regard to the nature of the matter complained of, such a response by the domestic courts can only be assessed as contrived and designed to avoid upholding the law and stating the obvious: that the electoral authorities had conducted the elections in breach of the procedure prescribed by the Electoral Code. The applicant’s complaint aptly disclosed the apparent breach of the requirements of Article 35.5 of the Electoral Code by merely pointing to the existing and undisputed facts; the Court finds it impossible to see what other “reliable evidence” he could have been expected to submit to show that there were no lawful grounds for creating special polling stations for military voting. Having regard to the foregoing, the Court considers that the conduct of the electoral commissions and courts in the present case and their respective decisions revealed an apparent lack of genuine concern for upholding the rule of law and protecting the integrity of the election (compare Namat Aliyev, cited above, § 90).
50.  The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to hold the election in the applicant’s constituency in accordance with the requirements of Article 3 of Protocol No. 1 to the Convention.
51.  This finding makes it unnecessary to further examine the applicant’s complaints about various specific aspects of the election process in Polling Stations nos. 31 and 32, in particular challenging the authenticity of the minutes of the ConEC meeting of 29 September 2005 submitted by the Government, the procedure for the formation of the electoral commissions in those two military units, the composition of those commissions, the lack of transparency in their functioning, and their alleged subordination to the Ministry of Defence. Moreover, in view of the above finding, the Court also considers it unnecessary to examine the applicant’s further complaints of irregularities in Polling Station no. 30 and other alleged irregularities in his electoral constituency.
52.  There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention."
Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.


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