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FIRST
SECTION
CASE OF SEYIDZADE v.
AZERBAIJAN
(Application
no. 37700/05)
JUDGMENT
STRASBOURG
3 December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Seyidzade v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37700/05) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national,
Mr Miraziz Mirasgar oglu Seyidzade (Mirəziz
Mirəsgər oğlu Seyidzadə – “the
applicant”), on 7 October 2005.
- The
applicant, who had been granted legal aid, was represented by
Mr A. Rzayev, a lawyer practising in Baku. The Azerbaijani
Government (“the Government”) were represented by their
Agent, Mr Ç. Asgarov.
- The
applicant alleged, in particular, that his right to stand for
election, as guaranteed by Article 3 of Protocol No. 1 to the
Convention, had been infringed.
- On
11 January 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Baku.
- The
applicant held positions as head of the education department of the
Caucasus Muslims Board (Qafqaz Müsəlmanlar
İdarəsi, the official
governing body of Muslim religious organisations in Azerbaijan),
member of the Qazi (Islamic Judges’) Council (Qazılar
Şurası) of the Caucasus Muslims Board, and director of
the Sumgayit branch of Baku Islamic University. He was also a founder
and editor-in-chief of a journal called Kelam, published since
2002 and printing various articles with an Islamic religious content.
- On
an unspecified date, the applicant lodged an application with the
Constituency Electoral Commission (“the ConEC”) for the
single-seat Massalli Village Electoral Constituency No. 71 for
registration as a candidate in the upcoming elections to the Milli
Majlis (Parliament) on 6 November 2005. Together with the
application, he submitted a written undertaking to terminate any
professional activities incompatible with the office of member of
parliament.
- According
to the minutes of the joint meeting of the Qazi Council and
Religious Science Council of the Caucasus Muslims Board held on 14
July 2005, the applicant’s membership of the Qazi Council
was terminated on the basis of his own resignation letter. It was
noted that the resignation was accepted in view of the applicant’s
having nominated himself as a candidate for the parliamentary
elections.
- According
to an order issued by the chairman of the Caucasus Muslims Board on
15 August 2005, the applicant was relieved of his positions as head
of the Board’s education department and director of the
Sumgayit branch of Baku Islamic University.
- On
25 August 2005 the ConEC refused to register the applicant as a
candidate because he “was continuing his activities as a
professional clergyman (peşəkar din
xadimi)”, which were incompatible with the requirements of
Article 14.2.4 of the Electoral Code.
- The
applicant complained about this decision to the Central Electoral
Commission (“the CEC”). On 27 August 2005 the CEC
rejected the applicant’s complaint. The entire CEC decision
consisted of the following:
“[The CEC], having examined the complaint of
Miraziz Mirasgar oglu Seyidzade, who has nominated himself for
election to the Milli Majlis ..., in accordance with Articles 19.4,
19.14, 28.4 and 112.9 of the Electoral Code and Articles 3.5 and 3.6
of the Law of 27 May 2003 on the approval and entry into force of the
Electoral Code, decides:
To reject the complaint of Miraziz Mirasgar oglu
Seyidzade as unsubstantiated.”
- The
applicant lodged an appeal against this decision with the Court of
Appeal, complaining that his candidacy had been terminated unlawfully
as he had resigned from all positions involving “professional
religious activity” and was no longer engaged in any religious
activities. On 1 September 2005 the Court of Appeal rejected his
appeal, finding that the CEC’s decision was lawful.
Specifically, the Court of Appeal noted:
“According to the materials in the case file,
Miraziz Mirasgar oglu Seyidzade, who has nominated himself for
election to the Milli Majlis, is a clergyman.
According to Article 56 of the Constitution of the
Republic of Azerbaijan, the right of clergymen ... to participate in
elections may be restricted.
According to the requirements of Article 14.2.4 of the
Electoral Code of the Republic of Azerbaijan, clergymen may not serve
as members of the Milli Majlis while they are engaged in professional
religious activity.
The applicant’s arguments that he had been
relieved of his positions with the Caucasus Muslims Board and Baku
Islamic University cannot be considered as a ground for upholding his
claim.
Specifically, the fact that [the applicant] has been
relieved of the above-mentioned positions does not rule out his
engaging in professional religious activity.
On the other hand, according to Article 85 of the
Constitution of the Republic of Azerbaijan, a clergyman may not be
elected as a member of the Milli Majlis.
Accordingly, given that the decision of the Central
Electoral Commission was in compliance with the requirements of the
Constitution and the Electoral Code of the Republic of Azerbaijan,
the arguments advanced in the applicant’s appeal cannot be
considered as a basis for quashing this decision.”
- The
applicant lodged a cassation appeal against this judgment with the
Supreme Court. On 8 September 2005 the Supreme Court dismissed the
appeal using the same reasoning.
- The
applicant attempted to have the proceedings reopened and the case
reviewed by the Plenum of the Supreme Court, by lodging an additional
cassation appeal with the Supreme Court’s President. On
20 September 2005 the Supreme Court’s President rejected
his request, finding no grounds for reopening the proceedings.
- Lastly,
the applicant lodged a constitutional complaint. By an
inadmissibility decision of 26 October 2005, the Constitutional Court
refused to admit the complaint for examination on the merits, finding
that the applicant had essentially disputed the factual findings of
the courts of general jurisdiction (specifically, on the question
whether the applicant was actually engaged in any “professional
religious activity”). The Constitutional Court noted that it
had no competence to review the correctness of the established
factual circumstances of the case. It also stated the following with
regard to the restriction of clergymen’s right to stand for
election in general:
“According to Article 7 (I) of the Constitution,
the Republic of Azerbaijan is a democratic, secular, unitary republic
governed by the rule of law. Article 18 (I) of the Constitution
provides that religion shall be separate from the State. In this
context, the above provisions must inevitably be taken into account
in the constitutional rules on formation of the supreme elected
government body.
The restriction on the election of clergymen to
government bodies, which is based on the demands of the public
interest, has the primary aim of separating religion from the State.
The restriction serves the purposes of removing matters inherent in
the State’s functioning from the sphere of influence of
religious communities, clerics and religious figures, and keeping
such influence to a minimum.
Another aim of the restriction is to separate religious
voters from the clergy in the context of the election process, as a
means to ensure that voters form their opinions and make their choice
free from any undue interference.
It must be noted that the legal systems of a number of
other States also provide for restrictions on the right of clergymen
to stand for election. ...
Article 14.2.4 of the Electoral Code provides that
clergymen cannot be members of the Milli Majlis, President of the
Republic, or members of municipalities while they are engaged in
professional religious activity. As such, the legislator applied the
“religious-based eligibility requirement” restricting
clergymen’s right to serve as members of parliament only to
periods when the latter are engaged in professional religious
activity.”
II. RELEVANT DOMESTIC LAW
A. Constitution of the Republic of Azerbaijan of 1995
- At
the material time, the relevant provisions of the Constitution
provided as follows:
Article 7 Azerbaijani State
“I. The Azerbaijani State is a
democratic, secular, unitary republic governed by the rule of law.
...”
Article 18 Religion and State
“I. Religion is separated from the
State in the Republic of Azerbaijan. All religious faiths shall be
equal before the law.
II. The spreading and proselytising of
religions which undermine human dignity and contradict the principles
of humanism shall be prohibited.
III. The State education system shall be
secular.”
Article 56 Electoral rights
“I. Citizens of the Republic of
Azerbaijan shall have the right to elect and be elected to the
institutions of government, and to participate in referendums.
II. Persons whose legal incapacity has been
determined by a court decision shall not have the right to
participate in elections and referendums.
III. Members of the armed forces, judges,
State officials, clergymen (din xadimləri), persons
imprisoned pursuant to a final court judgment, and other persons
specified in this Constitution and in legislation may be subject by
law to restrictions on their right to participate in elections.”
Article 85 Requirements for candidates for
election to the Milli Majlis of the Republic of Azerbaijan
“I. Every citizen of the Republic of
Azerbaijan not younger than 25 years of age may be elected as a
member of the Milli Majlis ... in a manner stipulated by law.
II. Persons who have dual citizenship, those
who have obligations vis-à-vis other States, those who
work within the system of the executive or judicial power and those
who carry out any other types of remunerated activity except
scientific, pedagogical or creative activities, clergymen (din
xadimləri), persons whose legal incapacity has been
determined by a court decision, those who have been convicted of
serious crimes and those who are serving prison sentences pursuant to
a conviction under a final judgment, cannot be elected as members of
the Milli Majlis ...”
B. Electoral Code of the Republic of Azerbaijan of 2003
17. At
the material time, the relevant provisions of the Electoral Code
provided as follows:
Article 13 Passive electoral rights
“13.1. Except for the cases stipulated
in Article 56 of the Constitution of the Republic of Azerbaijan and
in this Code, every citizen who has active electoral rights shall
also have passive electoral rights, that is, he or she shall have the
right to form a referendum campaign group and to be elected as a
member of the Milli Majlis, as President or as a member of a
municipality, provided he or she meets the candidacy requirements
laid down by the Constitution of the Republic of Azerbaijan for these
offices.
13.2. Restrictions on passive electoral
rights shall be established by Articles 56, 85, and 100 of the
Constitution of the Republic of Azerbaijan and by this Code.
13.3. Pursuant to Articles 56 (III), 85 and
100 of the Constitution of the Republic of Azerbaijan, the following
persons shall not have passive electoral rights, that is, they shall
not have the right to be elected as a member of the Milli Majlis, as
President or as a member of a municipality:
13.3.1. persons serving prison sentences
pursuant to a conviction under a final judgment;
13.3.2. persons convicted of the crimes under
Articles 15.4-15.5 of the Criminal Code of the Republic of
Azerbaijan;
13.3.3. citizens of the Republic of
Azerbaijan with dual citizenship (until their second citizenship
expires); and
13.3.4. citizens of the Republic of
Azerbaijan who have obligations vis-à-vis foreign
States (until such obligations are terminated) ...”
Article 14 Incompatibility of positions
(Vəzifələrin uzlaşmaması)
“14.1. Cases of incompatibility of
positions shall be established by Articles 56, 85 and 100 of the
Constitution and by this Code.
14.2. Pursuant to Article 56 (III) of the
Constitution of the Republic of Azerbaijan, the following persons
shall not have the right to serve as members of the Milli Majlis, as
President or as members of municipalities, by virtue of the positions
they occupy:
14.2.1. Members of the armed forces (while in
military service);
14.2.2. Judges (while in office);
14.2.3. Civil servants (while in State
service); and
14.2.4. Clergymen (din xadimləri)
(while engaged in professional religious activity (peşəkar
dini fəaliyyət ilə məsğul olduqları
müddətdə)).”
Article 53 Nomination of candidates on
their own initiative or directly by voters
“...
53.3. An application containing a written
undertaking by the candidate to terminate any activities incompatible
with a post in an elected State or municipal body shall be submitted
together with the notification mentioned in Article 53.2 of the Code.
This application shall contain information on the candidate
([including] his or her official workplace (or type of activity, if
not working) ...”
Article 69 Equality of registered
candidates and referendum campaign groups
“69.1. All the registered candidates
and referendum campaign groups shall have equal rights and
responsibilities, taking into account their status.
69.2. Registered candidates and authorised
representatives of referendum campaign groups who are in State or
municipal service or who work in the mass media under an employment
or civil contract shall be released from performing their official
duties during the period of their participation in the election
(referendum) campaign (this rule shall not apply to the [current]
President of the Republic of Azerbaijan, [current] members of the
Milli Majlis or [current] members of municipalities). The approved
copy of the relevant order [on release from performing official
duties] shall be submitted to the electoral commission registering
the above-mentioned candidates or authorised representatives within 3
days, at the latest, from the day of registration. Such candidates or
authorised representatives shall not abuse their official authority
or positions in order to gain privileges or advantages.”
Article 143 Principles governing elections
to the Milli Majlis
“125 members shall be elected to the Milli Majlis
from single-seat constituencies (one member per constituency).”
Article 144 Right of the citizens of the
Republic of Azerbaijan to be elected to the Milli Majlis
“The citizens of the Republic of Azerbaijan
indicated in Article 85 of the Constitution of the Republic of
Azerbaijan may be elected as members of the Milli Majlis ...”
C. Law on Freedom of Religion of 1992
- At
the material time, the Law on Freedom of Religion provided as
follows:
Article 5 State and religious institutions
“In the Republic of Azerbaijan, religion and
religious institutions (dini qurumlar) shall be separate from
the State.
The State shall not delegate any of its functions to
religious institutions and shall not interfere with their activities.
All religions and religious institutions shall be equal
before the law. ...
Religious institutions shall not participate in the
activities of political parties and shall not provide them with
financial assistance.
In the event of the election or appointment of clergymen
(din xadimləri) to positions in the institutions of
government, their activities as clergymen (onların din xadimi
kimi fəaliyyəti) shall be suspended for the period
during which they occupy the relevant position.”
D. Relevant domestic practice concerning the
eligibility of civil servants to stand for election
- The
case of Agayev v. Azerbaijan (no. 7607/06, declared
inadmissible by the Court in a Committee decision of 9 September
2009) contained the following facts relevant to the present case
regarding the eligibility requirements laid down by Article 14 of the
Electoral Code. The applicant in that case was a candidate in the
elections of 6 November 2005 for the single-seat
Saatli-Sabirabad-Kurdamir Electoral Constituency No. 65. One of
his opponents, G.A., was the Head of the Saatli Regional Executive
Authority (“the SREA”). Heads of regional executive
authorities were appointed and removed from their posts by the
President of the Republic. Following his formal registration as a
candidate, G.A. was temporarily relieved of his official duties,
without pay, until 16 November 2005, pursuant to an SREA decision of
5 September 2005 signed by G.A. himself. This decision was duly
notified to the electoral authorities and the President’s
Office. G.A. also submitted an undertaking to terminate any
activities incompatible with the office of member of parliament, if
elected as such. The applicant challenged the lawfulness of the
election process in the constituency before the domestic authorities,
arguing that G.A. should have been definitively removed from his post
by a presidential order prior to his formal registration as a
candidate. The electoral authorities and courts dismissed the
applicant’s claims, noting that G.A. had been temporarily
relieved of his duties in full compliance with Article 69.2 of the
Electoral Code and that, therefore, he was not in a position to
unduly influence the electoral process in his capacity as a
high-ranking civil servant. For these reasons, G.A. was allowed to
stand as a candidate. Subsequently, G.A. won the election in the
constituency. On 2 December 2005 G.A. was definitively removed from
his post by a presidential order.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained that, although he had resigned from all
positions which could be construed as involving “professional
religious activity”, his nomination as a candidate for the
parliamentary elections had been rejected arbitrarily, in breach of
Article 3 of Protocol No. 1 to the Convention, which reads as
follows:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government argued that the disqualification of clergymen, while they
were engaged in professional religious activity, from serving as
members of parliament was within the State’s margin of
appreciation in imposing conditions on the rights to vote and stand
for election. This restriction was provided for by law and was not
disproportionate and thus liable to thwart the free expression of the
opinion of the people in the choice of legislature.
- The
Government noted that the Masally Region, where the applicant had
intended to run as a candidate, was under the constant influence of
the Islamic religious community and clergy. In this area, members of
the clergy had an exceptional degree of authority among local
inhabitants, which could be used as a source of undue influence on
voters. As an active religious figure, the applicant would have had
an unfair advantage over other candidates from the same electoral
constituency.
- The
Government maintained that, despite the applicant’s claim that
he had resigned from all positions involving religious activity, he
had continued to fulfil his professional duties as a clergyman,
according to the information obtained by the electoral commissions.
The Government also noted that the applicant had continued to hold
the position of editor-in-chief of Kelam during and after the
election period.
- The
applicant noted that there was no precise legal definition of the
term “clergyman” or “professional religious
activity” in domestic law. Therefore, describing him as a
“clergyman” and, on this basis, restricting his right to
stand for election had not been prescribed by law. In any event,
Article 14.2.4 of the Electoral Code specified only that clergymen
could not serve as members of parliament. Therefore, the law did not
preclude them from standing for election and from being elected, and
simply required that clergymen cease their religious activity if and
when elected to the Milli Majlis, and not at the time of their
nomination for election. Therefore, the electoral authorities should
have registered his candidacy based on a written undertaking that he
would cease any “professional religious activity” if
elected. Nevertheless, to be on the safe side, the applicant had
taken precautionary measures and resigned from all positions which
could be construed as involving “professional religious
activity”.
- The
applicant further argued that the domestic authorities’ finding
and the Government’s submission that, in practice, he had
continued to engage in professional religious activity had been
incorrect. No evidence had been presented in support of this finding.
As to his continued performance of duties as editor-in-chief of
Kelam, the applicant argued, firstly, that this job qualified
merely as journalistic (and not religious) activity and, secondly,
that in any event he had stopped performing his functions as the
journal’s editor-in-chief at the time of his nomination for
election.
2. The Court’s assessment
(a) General principles
- Article 3 of Protocol No. 1 enshrines a fundamental
principle for 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).
The Court has established that this provision guarantees individual
rights, including the rights to vote and to stand for election. As
important as those rights are, they are not, however, absolute. Since
Article 3 recognises them without setting them out in express terms,
let alone defining them, there is room for “implied
limitations”, and contracting States have a wide margin of
appreciation in this sphere. In their internal legal orders they may
make the rights to vote and to stand for election subject to
conditions which are not in principle precluded under Article 3
(ibid., §§ 51-52; Matthews v. the United Kingdom
[GC], no. 24833/94, § 63, ECHR 1999 I; and Labita
v. Italy [GC], no. 26772/95, § 201, ECHR 2000 IV).
The concept of “implied limitations” is of major
importance for the determination of the relevance of the aims pursued
by the restrictions on the rights guaranteed by this provision. Given
that Article 3 of Protocol No. 1 is not limited by a specific list of
“legitimate aims” such as those enumerated in Articles
8-11, the States are therefore free to rely on an aim not contained
in that list to justify a restriction, provided that this aim is
compatible with the principle of the rule of law and the general
objectives of the Convention. Moreover, in examining compliance with
Article 3 of Protocol No. 1, the Court does not apply the tests of
“necessity” or “pressing social need”;
instead, it has focused mainly on two criteria: whether there has
been arbitrariness or a lack of proportionality, and whether the
restriction has interfered with the free expression of the opinion of
the people (see Yumak and Sadak v. Turkey [GC], no. 10226/03,
§ 109 (iii), 8 July 2008).
- While
the Contracting States enjoy a wide margin of
appreciation in imposing conditions on the right to vote and to stand
for election, it is 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 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, and Gitonas and Others
v. Greece, 1 July 1997, § 39, Reports of Judgments and
Decisions 1997 IV). 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 v.
the United Kingdom (no. 2) [GC], no. 74025/01, § 62,
ECHR 2005 IX). The Court also reiterates its approach in
recent cases where, in the context of its examination of the
compliance of statutory restrictions on electoral rights with the
requirements of Article 3 of Protocol No. 1, it also had regard to
the importance of the notion of “lawfulness” inherent in
the Convention (see Ādamsons v. Latvia, no. 3669/03,
§§ 116 19, 24 June 2008, where the Court, at the
outset of its analysis, assessed the lawfulness of a legislative
restriction on passive electoral rights; see also, mutatis
mutandis, Yumak and Sadak, cited above, § 118, where
the Court, at the outset of its analysis, noted that the issue of the
foreseeability of the legislative measure complained of was not in
dispute in that particular case).
- Stricter
requirements may be imposed on the eligibility to stand for election
to parliament, as distinguished from voting eligibility (see
Melnychenko v. Ukraine, no. 17707/02, § 57, ECHR 2004 X).
States have broad latitude to establish constitutional rules on the
status of members of parliament, including criteria for declaring
them ineligible. These criteria vary according to the historical and
political factors specific to each State. For the purposes of
applying Article 3, 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 (see Mathieu-Mohin and
Clerfayt, cited above, § 54; Podkolzina v. Latvia,
no. 46726/99, § 33, ECHR 2002 II; and Melnychenko,
cited above, § 55). While it is true that States have a wide
margin of appreciation when establishing eligibility conditions in
abstract, the principle that rights must be effective requires that
the eligibility procedure contain sufficient safeguards to prevent
arbitrary decisions (see Podkolzina, cited above, § 35,
and Russian Conservative Party of Entrepreneurs and Others v.
Russia, nos. 55066/00 and 55638/00, § 50, ECHR 2007 I).
- The
Court has held that Article 3 of Protocol No. 1 does not prevent, in
principle, Contracting States from introducing general policy schemes
by way of legislative measures whereby a certain category of
individuals is treated differently from others, provided that the
interference with the rights of the statutory category as a whole can
be justified under the Convention. Where the domestic legislation in
issue is sufficiently clear and precise as to the definition of the
categories of persons affected and as to the scope of application of
the impugned statutory restriction, it is necessary only to determine
that the statute’s underlying purpose is compatible with the
proportionality requirements of the Convention. As long as the
statutory distinction itself is proportionate, the task of the
domestic authorities may be limited to establishing whether a
particular individual belongs to the impugned statutory category (see
Zdanoka v. Latvia [GC], no. 58278/00, §§ 112-14
and 125, ECHR 2006 IV, with further reference to Rekvényi
v. Hungary [GC], no. 25390/94, §§ 34-50 and 58-62,
ECHR 1999 III). In such cases, the Court’s remaining role
is simply to assess whether the procedures applied in the applicant’s
individual case, or the conclusions reached by the domestic
authorities in applying the relevant domestic legislation, could be
considered arbitrary (see Zdanoka, cited above, § 127).
Where the definition of the impugned statutory category is wide or
imprecise, it may be necessary to take an “individualised”
approach in restricting the electoral rights of a person belonging to
that category and to assess whether, in the specific individual case,
his or her personal political involvement represented a possible
danger to the democratic order (see, mutatis mutandis,
Ādamsons v. Latvia, no. 3669/03, §§ 125, 24
June 2008).
(b) Application to the present case
- In
the present case, the applicant’s request for registration as a
candidate was refused on the basis of Article 85 (II) of the
Constitution, which banned “clergymen” from being elected
to parliament, and Article 14.2.4 of the Electoral Code, which
made “clergymen” ineligible to serve as members of
parliament while they were engaged in “professional religious
activity”.
- The
Court notes that the primary issue in dispute in the present case is
the alleged unforeseeability and arbitrariness of the measure taken.
In this context the applicant argued, firstly, that the relevant law
was ambiguous in respect of the scope of the restriction imposed and,
secondly, that it did not provide a precise definition of the
categories of persons whose rights were restricted. Accordingly, the
main thrust of the applicant’s complaint concerns the quality
of the law on which this restriction was based. In particular, the
foreseeability of the restriction is in dispute in the present case
(contrast Yumak and Sadak, cited above, § 118).
- In
previous cases where the lawful basis and foreseeability of various
measures complained of under Article 3 of Protocol No. 1 was not in
dispute, the Court, as a general rule, limited its assessment of
those measures solely to the questions of their compatibility with
the requirements of legitimacy of aim and proportionality. The Court
reiterates, however, that conditions imposed on the individual rights
guaranteed by Article 3 of Protocol No. 1 may not curtail the rights
in question to such an extent as to impair their very essence and
deprive them of their effectiveness (see paragraph 28 above). In the
light of this principle, as well as the general Convention
requirement that rights must be effective and not illusory, the Court
considers that where, as in the present case, restrictions on
eligibility to stand for election are provided for by law, such law
should satisfy certain minimum requirements as to its quality, such
as the requirement of foreseeability. In this connection, the Court
reiterates that a rule is “foreseeable” if it is
formulated with sufficient precision to enable any individual –
if need be with appropriate advice – to regulate his conduct
(see, mutatis mutandis, Rotaru v. Romania [GC], no.
28341/95, § 55, ECHR 2000 V).
- At
the outset, the Court takes note of the applicant’s first
argument concerning the scope of the restriction, namely that the
Electoral Code did not preclude clergymen from standing for election
and from being elected, but simply required that they cease their
religious activity if and when elected to the Milli Majlis and not at
the time of nomination for election. The Court notes that, indeed,
regard being had to the literal wording of the various relevant
provisions of domestic law, the latter may appear to be mutually
inconsistent on the point whether clergymen were deprived of their
passive electoral rights (that is, the right to stand as a candidate
for elections), or whether they were only subject to disqualification
due to simultaneously holding incompatible positions (that is,
combining “professional religious activity” with the
office of member of parliament, if elected). In particular, Article
85 (II) of the Constitution and Articles 13 and 144 of the
Electoral Code stated that clergymen could not “be elected”
as members of parliament (“deputat seçilə
bilməzlər”). On the other hand, Article 14.2.4 of
the Electoral Code and Article 5 of the Law on Freedom of Religion
provided that, during the period when they were engaged in
“professional religious activity”, clergymen could not
“be [serve as] a member” of the Milli Majlis (“Milli
Məclisin deputatı ... ola
bilməzlər”) and
that clergymen’s religious activities were to be “suspended”
for the period during which they occupied elected government office.
In this connection, the Court also notes that the same legal
provisions, and in particular Article 14.2 of the Electoral
Code, provided for restrictions of electoral rights not only of the
“clergymen”, but also other categories of persons such as
civil servants, under essentially the same wording. However, having
regard to the relevant domestic practice (see paragraph 19 above),
the Court notes that there have been cases where civil servants were
actually registered as candidates for the same parliamentary
elections in 2005 where they had submitted an undertaking to resign
from the State service if elected (in accordance with Article 53.3 of
the Electoral Code) and had been temporarily released from their
official functions during the election period (in accordance with
Article 69.2 of the Electoral Code). Therefore, in so far as the
scope of the restriction is concerned, there appears to be a possible
lack of consistency in applying the relevant legal provisions to
different categories of persons listed therein.
- The
Court notes that the Government have not submitted any examples of
domestic practice or judicial rulings showing the existence of a
comprehensive and consistent interpretation of the scope of the
above mentioned domestic legal provisions in respect of
“clergymen”. It is not the Court’s task to
substitute its own interpretation for that of the national
authorities, and notably the courts, as it is primarily for the
latter to interpret and apply domestic law (see, among many other
authorities, Kruslin v. France, 24 April 1990, § 29,
Series A no. 176 A). The Court observes that, in this particular
case, by deciding to refuse the applicant’s request for
registration as a candidate on the basis of the relevant legal
provisions, the domestic authorities implicitly held that those
provisions restricted the very right of “clergymen” to
stand as a candidate for election. Therefore, for the purposes of the
present case, the Court will proceed with its further analysis on the
basis of the above approach taken by the authorities.
- However,
turning to the applicant’s argument as to the category of
persons affected by the restriction, the Court finds that, indeed,
the relevant domestic law was not sufficiently clear and precise to
prevent arbitrary decisions by the electoral authorities in
determining whether a particular individual belonged to the category
whose rights were restricted. In particular, the domestic law did not
provide for any definition of who qualified as “clergymen”
and what constituted “professional religious activity”.
The existence of a large variety of religious denominations which
organise themselves internally in different ways may potentially
result in different views as to who can be considered as a
“clergyman” in respect of a specific religion, faith or
belief. Moreover, since the term “religious activity” is
rather ambiguous and lends itself to quite a broad interpretation, it
is not clear whether this term included only the primary activities
of persons occupying ordained or otherwise formalised clerical
positions (such as, inter alia, imams, priests or rabbi) or,
as may have been implied in the Government’s submissions (see
paragraph 24 above), whether it also extended to a range of other
activities connected with religion which could not be described as
clerical or involving direct links with the mass of religious
followers (such as, for example, activities of publicists writing on
religious topics or pedagogical activity focusing on religious
subjects). The connotations of the term “professional” as
used with the term “religious activity” are also unclear.
In particular, it is not clear if this meant an official position or
formal employment involving the provision of remunerated religious
services, or some other form of full-time or part-time activity which
did not necessarily constitute remunerated employment in its ordinary
meaning. While it could be argued that the drafters of the
Constitution and the Electoral Code might have deliberately left the
issue open to some extent to further judicial interpretation and
clarification, the Court notes that the Government have not argued
that there existed any domestic judicial decisions defining and
clarifying the above terms and have not submitted any examples of
such decisions. The domestic courts in the present case have not
provided any definition or clarification either (see paragraph 38
below).
- In
such circumstances, the Court finds that the domestic legislation
providing for the impugned restriction was not foreseeable as to its
effects and left considerable room for speculation as to the
definition of the categories of persons affected by it. The relevant
legal provisions were not sufficiently precise to enable the
applicant to regulate his conduct and foresee which specific types of
activities would entail a restriction of his passive electoral
rights. The lack of any definition of the terms “clergyman”
and “professional religious activity” allowed an
excessively wide discretion to the electoral authorities and left
much room for arbitrariness in applying the restriction based on
Article 85 (II) of the Constitution and Article 14.2.4 of the
Electoral Code. This is precisely what happened in the present case
as, despite the applicant’s resignation from all the positions
that could be construed as “professional religious activity”,
the domestic authorities arbitrarily refused his request for
registration without even specifying any factual grounds for their
finding that he was still a “clergyman” engaging in
“professional religious activity”.
- More
specifically, the Court observes that the applicant held a number of
positions with the Caucasus Muslims Board and Baku Islamic University
which could be construed as involving “professional religious
activity”. He in fact resigned from all the above positions,
believing that this would make him eligible to stand for election.
However, his resignation from these positions was not deemed
sufficient by the electoral commissions, who considered that he was
still a professional clergyman. In finding that the applicant “was
continuing his activities as a professional clergyman”, the
ConEC failed to explain what activities were meant specifically.
Likewise, the CEC summarily rejected the applicant’s arguments
to the contrary without providing any substantiation or explanation.
Upon reviewing the electoral commissions’ decisions, the
domestic courts merely noted that the fact that the applicant had
resigned from the positions in question “[did] not rule out his
engaging in professional religious activity”. The courts, like
the electoral commissions, failed to offer any explanation as to what
other specific activity conducted by the applicant precluded him from
standing for election and on the basis of what definition and
evidence he was still considered to be a “clergyman”
within the meaning of Article 85 of the Constitution and Article
14.2.4 of the Electoral Code. As to the Government’s argument
that the applicant continued to fulfil the function of
editor-in-chief of a religious journal, the Court notes that neither
the electoral authorities nor the domestic courts ever explicitly
referred to this specific function in finding that the applicant
continued to engage in “religious activity”. In sum, it
appears that no legal reasoning was offered as to why the applicant
was considered to fall into that category.
- In
conclusion, the Court notes that the legal definition of the category
of persons affected by the impugned restriction was too wide and
imprecise. In addition, the application of the law in respect of the
applicant resulted in a situation where the very essence of the
rights guaranteed by Article 3 of Protocol No. 1 was impaired.
- It
follows that there has been a violation of Article 3 of Protocol
No. 1 to the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 14 of the Convention
- In
conjunction with the above complaint, the applicant complained that
he had been discriminated against on the ground of his former
occupation involving religious activity. He noted that the electoral
authorities had actually registered as candidates a number of other
persons who had previously held, but resigned from, positions
incompatible with the office of parliamentarian. Unlike the
applicant, those candidates had held positions within the executive
and judicial branches of government. Article 14 of the
Convention provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- However,
having regard to its above finding in relation to Article 3 of
Protocol No. 1, the Court considers that it is not necessary to
examine whether in this case there has been a violation of Article
14.
B. Article 6 of the Convention
- The
applicant complained under Article 6 of the Convention that the
domestic proceedings had been unfair, as the domestic courts had
upheld the arbitrary decisions of the electoral commissions, without
giving a reasoned judgment. Article 6 of the Convention provides, in
its relevant part, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Court notes that the proceedings in question involved the
determination of the applicant’s right to stand as a candidate
in the parliamentary elections. The dispute in issue therefore
concerned the applicant’s political rights and did not have any
bearing on his “civil rights and obligations” within the
meaning of Article 6 § 1 of the Convention (see Pierre-Bloch
v. France, 21 October 1997, § 50, Reports 1997 VI;
Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000 I;
Zdanoka v. Latvia (dec.), no. 58278/00, 6 March 2003;
and Mutalibov v. Azerbaijan (dec.), no. 31799/03, 19
February 2004). Accordingly, this Convention provision does not apply
to the proceedings complained of.
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicant claimed 83,209 euros (EUR) for loss of the earnings he
would have received in the form of a parliamentary member’s
salary if elected to the Milli Majlis, had his right to stand for
election not been breached.
- The
Government considered that there was no causal link between the
applicant’s claim and the alleged violation.
- The
Court notes that the present application was about the applicant’s
right to stand for election. It cannot be assumed that, had the
applicant’s registration as a candidate not been refused, he
would have necessarily won the election in his constituency and
become a member of parliament. It is therefore impossible for the
Court to speculate as to whether the applicant would have received a
salary as a parliamentarian (see, mutatis mutandis, The
Georgian Labour Party v. Georgia, no. 9103/04, § 150, 8
July 2008). The Court therefore considers, like the Government, that
no causal link has been established between the alleged pecuniary
loss and the violation found (ibid., § 151; see also
Melnychenko, cited above, §§ 73-75). Accordingly, it
dismisses the applicant’s claim under this head.
2. Non-pecuniary damage
- The
applicant claimed EUR 100,000 in respect of non-pecuniary damage,
arguing that the refusal to register him as a candidate had caused
him distress and damaged his reputation.
- The
Government considered that the claim was exorbitant and aimed at
unjustified enrichment, and requested the Court to award a reasonable
amount on an equitable basis.
- The
Court acknowledges that the applicant suffered non-pecuniary damage
as a result of being prevented from standing as a candidate in the
parliamentary elections. Ruling on an equitable basis and having
regard to all the circumstances of the case, it awards him the sum of
EUR 7,500 in respect of non-pecuniary damage, plus any tax that
may be chargeable.
B. Costs and expenses
- The
applicant claimed EUR 2,000 for the costs and expenses incurred
before the domestic courts and EUR 1,000 for those incurred before
the Court. In support of his claims, he submitted only a copy of the
contract for legal services provided by Mr A. Rzayev in the
proceedings before the Court.
- The
Government argued that the claim should be rejected because it was
unsupported by the necessary documentary evidence and did not reflect
the actual cost of the legal services rendered.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the applicant has not submitted any documents supporting his claim
for costs and expenses in the domestic proceedings. Therefore, the
Court rejects this part of the claim. Furthermore, regard being had
to the information in its possession and the above criteria, the
Court considers it reasonable to award the applicant the sum of EUR
1,000 for the proceedings before the Court, less the sum of EUR 850
received in legal aid from the Council of Europe, plus any tax that
may be chargeable to the applicant on that sum.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3 of
Protocol No. 1 to the Convention and Article 14 of the Convention
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine
separately the complaint under Article 14 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into New Azerbaijani manats at the rate applicable at the
date of settlement:
(i) EUR
7,500 (seven thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), less EUR 850 (eight hundred and fifty
euros) granted by way of legal aid, plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, a concurring opinion of Judge
Malinverni, joined by Judges Vajić and Kovler, is annexed to
this judgment:
N.A.V
S.N.
CONCURRING OPINION OF JUDGE MALINVERNI,
JOINED BY
JUDGES VAJIĆ AND KOVLER
(Translation)
- Like
my colleagues, I voted in favour of finding a violation of Article 3
of Protocol No. 1 to the Convention. However, my reasons differ from
theirs.
- In
the present case the applicant’s request for registration as a
candidate was refused on the basis of Article 85 (II) of the
Constitution, which banned “clergymen” from being elected
to parliament, and Article 14.2.4 of the Electoral Code, which
made “clergymen” ineligible to serve as members of
parliament while they were engaged in “professional religious
activity”.
- The
judgment lays considerable emphasis on the fact that “the
relevant law was ambiguous in respect of the scope of the restriction
imposed and ... did not provide a precise definition of the
categories of persons whose rights were restricted” and that,
“[a]ccordingly, the main thrust of the applicant’s
complaint concern[ed] the quality of the law on which this
restriction was based [and] in particular the foreseeability of the
restriction” (see paragraphs 32 and 33).
- I
have difficulty agreeing with these assertions and with the arguments
articulated in paragraphs 34 et seq. of the judgment, particularly
when the Court states that “regard being had to the literal
wording of the various relevant provisions of domestic law, the
latter may appear to be mutually inconsistent on the point whether
clergymen were deprived of their passive electoral rights (that is,
the right to stand as a candidate for elections) or whether they were
only subject to disqualification due to simultaneously holding
incompatible positions” (paragraph 34), that “the term
‘religious activity’ is ... ambiguous” (paragraph
36) and that “the connotations of the term ‘professional’
as used with the term ‘religious activity’ are also
unclear” (idem). A piece of legislation, whatever its nature
and whatever sphere it governs and is intended to regulate, is of
necessity an abstract and general instrument. It cannot enter into
every detail and contemplate all possible scenarios, nor can it
define all the terms which it employs. The Court has observed this
fact on a number of occasions.
- In
Azerbaijan, the legislation in question was in my opinion perfectly
satisfactory. While the 1995 Constitution stated in general terms
that “... clergymen ... may be subject by law to restrictions
on their right to participate in elections” (Article 56 (III))
and that “... clergymen ... cannot be elected as members of the
Milli Majlis ...” (Article 85 (II)), the 2003 Electoral Code
identified very clearly two different situations giving rise to
ineligibility. Firstly, Article 13, entitled “Passive electoral
rights”, excluded certain categories of persons from
eligibility for election in any circumstances, specifying that such
persons “shall not have the right to be elected as a member of
the Milli Majlis” (Article 13.3). The categories included
“persons serving prison sentences”, “persons
convicted of the crimes under Articles 15.4-15.5 of the Criminal
Code” and “citizens with dual citizenship”, but not
“clergymen”.
Article
14 of the same Code, entitled “Incompatibility of positions”,
on the other hand, stipulated that the position of member of
parliament could not be occupied at the same time as, or parallel to,
certain other positions. This provision thus took pains to make clear
that the incompatibility existed only while the persons concerned
continued to exercise another activity. It referred to “members
of the armed forces, while in military service”, judges,
while in office”, civil servants, while in State
service” and, finally, “clergymen, while engaged
in professional religious activity”.
- In
order to be allowed to stand as a candidate, the applicant had given
a written undertaking to cease his professional religious activities
(see paragraph 7). Hence, according to the minutes of the joint
meeting of the Qazi Council and Religious Science Council of the
Caucasus Muslims Board held on 14 July 2005, the applicant’s
membership of the Qazi Council was terminated on the basis of his own
resignation letter (paragraph 8); and, following an order issued by
the chairman of the Caucasus Muslims Board on 15 August 2005, he was
relieved of his positions as head of the Board’s education
department and director of the Sumgayit branch of Baku Islamic
University (paragraph 9).
- Despite
that, the Constituency Electoral Commission (the ConEC) refused to
register the applicant as a candidate on the ground that he “was
continuing his activities as a professional clergyman”;
however, it failed to furnish the slightest evidence in support of
this claim (paragraph 10).
The
Central Electoral Commission (the CEC) subsequently rejected a
complaint by the applicant without giving any reasons beyond stating
that it was “unsubstantiated” (paragraph 11).
In
their turn, the Court of Appeal and then the Court of Cassation
dismissed the appeals lodged by the applicant in decisions giving
wholly inadequate reasons (paragraphs 12 and 13), stating in
particular that “the fact that [the applicant] has been
relieved of the above-mentioned positions does not rule out his
engaging in professional religious activity”.
Lastly,
the Constitutional Court, while referring to Article 14.2.4 of the
Electoral Code, merely reaffirmed that this provision restricted
“clergymen’s right to serve as members of parliament only
to periods when the latter [were] engaged in professional religious
activity” (paragraph 15 in fine), but said nothing about
the applicant’s case, in particular whether the decision to
refuse his candidacy had been correct.
- My
conclusion is that the legislation in force in Azerbaijan at the
material time was satisfactory, being sufficiently clear and
foreseeable, but was applied in an arbitrary manner by all the
authorities which ruled on the applicant’s various
applications. It is therefore not the legislation as such which
should be criticised in the present case but the way in which it was
applied by the courts. The fault lay not with the legislature, but
with the courts and with them alone.
