ITEMID: 001-98187
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NAMAT ALIYEV v. AZERBAIJAN
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1966 and lives in Baku.
6. The applicant stood for the elections to the Milli Majlis (Parliament) of 6 November 2005 as a candidate of the opposition bloc Azadliq, a coalition formed for electoral purposes by the Popular Front Party of Azerbaijan, with which the applicant was affiliated, together with a number of other opposition parties. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Barda City Electoral Constituency no. 93.
7. The constituency was divided into forty-two electoral precincts, with one polling station in each precinct. There were a total of eighteen candidates running for election in this constituency. The applicant was the only candidate nominated by Azadliq in that constituency.
8. According to the ConEC protocol drawn up after election day, one of the applicant's opponents, Z.O., a member of the Motherland Party, obtained the highest number of votes cast in the constituency. Specifically, according to the ConEC protocol, Z.O. received 5,816 votes (41.25%), the applicant received 2,001 votes (14.19%), and a third candidate received 1,821 votes (12.92%). The total number of votes cast for each of the remaining candidates was substantially lower.
9. On 7 and 8 November 2005 the applicant submitted identical complaints to the ConEC and the Central Electoral Commission (“the CEC”), in which he claimed, inter alia, that:
(i) the local executive and municipal authorities, as well as heads of statefunded institutions and organisations, interfered in the election process in favour of Z.O. prior to and during election day (in the form of openly campaigning in his favour and coercing voters to vote for him);
(ii) Z.O.'s supporters (mostly State officials of various sorts) intimidated voters and otherwise attempted to influence voter choice in polling stations;
(iii) in several polling stations, observers were harassed or excluded from the voting area by the police;
(iv) some citizens residing in relevant election precincts were unable to exercise their right to vote due to the authorities' failure to include them in relevant voters lists; and
(v) there were instances of multiple voting and ballot-box stuffing in different polling stations.
10. In support of his claims, the applicant submitted to the CEC originals of more than 30 affidavits (akt) of election observers, audio tapes and other evidence documenting specific instances of irregularities complained of. Some examples of the evidence presented are summarised below.
11. The ten-minute audio recording contained interviews with a number of unidentified voters, who stated, inter alia, that prior to election day directors of governmental institutions and public organisations (such as public schools and libraries) located on the territory of the constituency had held staff meetings with the specific purpose of instructing their staff to vote for Z.O., threatening them with salary cuts if Z.O. did not win the election.
12. In an affidavit signed by them, seven observers in Polling Station no. 1 stated, inter alia, that twenty-five voters had voted twice, however the chairman of the Precinct Electoral Commission (“the PEC”) for this polling station had taken no action when this matter was brought to his attention.
13. Seven observers in Polling Station no. 11 noted, inter alia, that the director of a public school where the polling station was located had openly intervened in the election process and interfered with the functions of the PEC without any objection by PEC members. Also, the same school director instructed a police officer to forcibly exclude one of the observers from the polling station.
14. Three observers in Polling Station no. 14 noted, inter alia, that a certain named State official had actively interfered in the election process by openly campaigning in favour of Z.O. on the premises of the polling station, asked voters to vote for him and brought groups of unregistered voters to the polling station to vote for Z.O.
15. Eight observers in Polling Station no. 16 witnessed one incident of ballot-box stuffing by a PEC member.
16. An affidavit signed by six observers and candidates' representatives in Polling Station no. 31 stated that, at 7 p.m., when the vote-counting began, all of the observers had been forced out of the polling station premises by the police on the instruction of the PEC chairman. In the absence of the observers, a few hundred false ballots were illegally added into Z.O.'s total vote count in the polling station. According to a separate affidavit signed by observers from the same polling station, the PEC chairman and representatives of the executive and municipal authorities interfered in the election process and instructed voters to vote for Z.O. According to another affidavit, there were also several irregularities in the voter lists in this polling station.
17. Three observers in Polling Station no. 41 noted, inter alia, that commission members had illegally added several additional ballots during the vote-counting.
18. In their affidavits, observers from Polling Stations nos. 7, 12, 13, 15, 29, 30 and 37 documented similar incidents of alleged illegal campaigning in favour of Z.O., ballot-box stuffing and other forms of tampering with ballots, and irregularities with voter lists. A number of observers also noted that voting booths in some polling stations were of inadequate standard.
19. According to the applicant, neither the ConEC nor the CEC replied to his complaints.
20. According to the Government, the applicant's complaint was examined by the ConEC. As it appears from the documents submitted by the Government, following receipt of the applicant's complaint, the ConEC demanded explanations from the chairmen and members of the relevant PECs in connection with the applicant's allegations. In reply, about twenty PEC chairmen and members submitted brief handwritten statements (some of them as short as one or two sentences), or “explanatory notes” (“izahat”), all signed on 21 November 2005. All these notes stated in general terms that the election process in their respective polling stations had gone smoothly and without any irregularities, undue pressure on voters or any other breaches of the electoral law, and that any allegations by the applicant to the contrary were false.
21. On 23 November 2005 the ConEC rejected the applicant's complaint. Without any elaboration on details of the applicant's specific allegations, it decided that they were unsubstantiated. At the same time, however, the ConEC confirmed that the condition of the voting booths in Polling Station no. 37 and “some other” (unidentified) polling stations had been poor. This finding did not entail any consequences for the official election results in those polling stations or in the constituency as a whole.
22. On the same day, 23 November 2005, the CEC issued its final protocol approving the overall election results in the country (with the exception of a few electoral constituencies) and submitted it, together with relevant documents, to the Constitutional Court for review and approval of the election results. The election results for Barda City Electoral Constituency no. 93 were among those approved by the CEC, confirming Z.O. as the winner in this constituency.
23. According to the country-wide results, the ruling Yeni Azerbaijan Party again won the majority of seats in the Milli Majlis.
24. On 25 November 2005 the applicant lodged an action with the Court of Appeal, asking the court to invalidate the CEC's final protocol in the part relating to the election results in Barda City Electoral Constituency no. 93. In addition to restating all of his complaints made previously to the electoral commissions, he also complained of specific instances of discrepancies and inconsistencies in the PEC protocols which served as a basis for compiling the election results in the constituency as a whole. In particular, he noted a significant discrepancy in the PEC protocol for Polling Station no. 11, in which certain numbers did not add up correctly. As a result, more than 700 blank ballots out of more than 1,000 blank ballots originally issued to the PEC appeared to be “missing” (the protocol indicated that 313 persons had voted in that polling station, but only eleven of the remaining blank ballots were indicated as “unused” and formally “cancelled”, with no explanation as to what happened to the remaining more than 700 blank ballots). The same was the case with the PEC protocol for Polling Station no. 13, where more than 600 blank ballots were unaccounted for. Similar discrepancies were also allegedly found in PEC protocols for five other polling stations. The applicant claimed that these “missing” blank ballots had been sneaked out and illegally used for ballot-box stuffing in favour of Z.O. in various other polling stations.
25. The applicant argued that, due to all these irregularities, it was not possible to determine the true opinion of the voters in his constituency. He also complained that the CEC had failed to examine his complaint of 7 November 2005. In support of his claims, the applicant submitted copies of the same evidence previously submitted to the CEC, including photocopies of the observers' affidavits and copies of audio material.
26. On 28 November 2005 the Court of Appeal dismissed the applicant's claims as unsubstantiated. The court did not consider the photocopies of the affidavits as admissible evidence, noting that in accordance with the Code of Civil Procedure (“the CCP”) either the originals or notarised copies of those affidavits should have been submitted. Specifically, most of the reasoning contained in the Court of Appeal's judgment was limited to the following:
“According to Article 14.2 of the CCP ..., the court shall examine and rely on only the evidence submitted by the parties.
According to Article 77.1 of the same Code, each party must prove any allegations which it makes in support of its claims and objections.
Based on the material in the case file and the parties' submissions, [the applicant's] claim against [the CEC] ... cannot be upheld. The alleged incidents concerning Barda City Electoral Constituency no. 93, as described in the claim, did not take place. Documents attached to the claim are photocopies and no originals or notarised copies of documents have been submitted. [As such,] affidavits attached to the claim cannot be admitted as evidence. On the other hand, the alleged omission of a significant number of voters from voting lists has not been proved by the material in the case file.
In such circumstances, the court considers that [the applicant's] claim against [the CEC] ... must be dismissed.”
27. On 30 November 2005 the applicant lodged a further appeal with the Supreme Court, reiterating his claims. He also noted that he had submitted the originals of the documentary evidence to the CEC on 7 November 2005 and argued that the Court of Appeal had failed to take this fact into account.
28. On 1 December 2005 the Supreme Court dismissed the applicant's appeal on the same grounds as the Court of Appeal's judgment of 28 November 2005. As to the originals of the documentary evidence allegedly submitted to the CEC, the Supreme Court noted that the applicant had failed to submit any evidence proving that he had ever applied to the CEC with a complaint. The reasoning in the Supreme Court's decision was as follows:
“According to Article 77.1 of the CCP ..., each party must prove any allegations which it makes in support of its claims and objections.
[The applicant] has not presented any convincing evidence capable of proving the allegations forming the basis of his claim. The photocopies of affidavits attached to his claim were not admitted as convincing evidence by the Court of Appeal in a lawful and justified manner, as they had not been notarised.
Moreover, the case materials contain no documents confirming that the applicant had applied to the electoral commissions under the procedure specified in Article 112 of the Electoral Code.
Although at the oral hearing the applicant claimed that he had submitted the originals of the affidavits to the CEC, he has not submitted to the court any evidence showing that he had [actually] applied to the CEC.
However, according to Articles 89 and 90 of the CCP ..., originals or duly certified copies of evidence should be submitted to courts. The applicant has not complied with this rule.
According to Article 416 of the CCP ..., the court of cassation instance verifies whether the court of appellate instance has correctly applied substantive and procedural law.
The court considers that the Court of Appeal has correctly applied the relevant law and correctly reached the conclusion that the claim was unsubstantiated. There is no ground for quashing the [Court of Appeal's] judgment.”
29. On the same day, 1 December 2005, the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Barda City Electoral Constituency no. 93.
30. The following are the relevant provisions of the Electoral Code as effective at the material time.
31. Elections and referenda are organised and carried out by electoral commissions, which are competent to deal with a wide range of issues relating to the electoral process (Article 17). There are three levels of electoral commissions: (a) the Central Electoral Commission (“the CEC”); (b) constituency electoral commissions (“the ConEC”); and (c) precinct (polling station) electoral commissions (“the PEC”) (Article 18.1).
32. Each electoral commission at every level has a chairperson and two secretaries who are elected by open voting by members of the relevant electoral commission. The chairperson of each electoral commission at every level must be a representative of the political party holding the majority of parliamentary seats in the Milli Majlis. One of the secretaries must be a representative of the political parties holding the minority of parliamentary seats, and the other one a representative of “independent” members of parliament who are not formally affiliated with any political party (hereafter also referred to as “the non-partisan members of parliament”) (Article 19.3).
33. Meetings of electoral commissions at every level are convened either by the chairperson or by at least one third of the relevant commission's members (Article 19.5). A quorum for meetings of any electoral commission is at least two-thirds of its members (Article 19.10). The qualified majority vote of two-thirds of the members who are in attendance is required for adoption of decisions of any commission at any level (Articles 28.2, 34.3 and 39.3).
34. The CEC consists of eighteen members who are elected by the Milli Majlis. Six members of the CEC are directly nominated by and represent the political party holding a majority of seats in the Milli Majlis, six members are nominated by and represent the non-partisan members of parliament, and six members are nominated by and represent all the political parties holding a minority of parliamentary seats. Out of the six nominees representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed by the representatives of the majority party and the other is agreed by the representatives of the minority parties (Article 24).
35. Each ConEC consists of nine members who are appointed by the CEC. Three members of the ConEC are nominated by the CEC members representing the parliamentary majority party, three members are nominated by the CEC members representing the parliamentary minority parties, and three members are nominated by the CEC members representing the nonpartisan members of parliament. Local branches of the relevant political parties may suggest candidates to ConEC membership for nomination by the CEC members representing the relevant parties. Out of the three candidates nominated by the CEC members representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed with the CEC members representing the parliamentary majority party and the other is agreed with the CEC members representing the parliamentary minority parties (Article 30).
36. Each PEC consists of six members appointed by the relevant ConEC. Two members of the PEC are nominated by the ConEC members representing the parliamentary majority party, two members are nominated by the ConEC members representing the parliamentary minority parties, and two members are nominated by the ConEC members representing the nonpartisan members of parliament. Local branches of the relevant political parties may suggest candidates for PEC membership for nomination by the ConEC members representing the relevant parties. As to candidates for PEC membership nominated by the ConEC members representing the nonpartisan members of parliament, these candidates may also be suggested to the relevant ConEC members by voters or voters' initiative groups. These candidates must be citizens of the Republic of Azerbaijan who permanently reside within the territory of the relevant electoral constituency (Article 36).
37. Candidates and other affected persons may complain about decisions or actions (or omissions to act) violating electoral rights of candidates or other affected persons, within three days after publication or receipt of such decisions or occurrence of such actions (or omissions) or within three days after an affected person has become aware of such decisions or actions (or omissions) (Article 112.1).
38. Such complaints can be submitted directly to a higher electoral commission (Article 112.2). If a complaint is first decided by a lower electoral commission, a higher electoral commission may quash its decision or adopt a new decision on the merits of the complaint or remit the complaint for a new examination (Article 112.9). Decisions or actions (or omissions to act) of a ConEC may be appealed to the CEC, and decisions or actions (or omissions to act) of the CEC may be appealed to the appellate court (Article 112.3).
39. If the examination of the complaint reveals a suspicion that a criminal offence has been committed, the relevant prosecuting authority can be informed thereof. The CEC must adopt a reasoned decision in this regard. The relevant prosecution authority must examine this information within a three-day period (Article 112.4).
40. In cases stipulated in the Electoral Code, the courts are empowered to quash decisions of the relevant electoral commissions, including decisions concerning voting results and election results (Article 112.5).
41. While examining requests to invalidate the election of a specific candidate, the relevant electoral commission has a right to hear submissions of citizens and officials as well as obtain required documents and materials (Article 112.8).
42. The relevant electoral commission shall adopt a decision on any complaint submitted during the election period and deliver it to the complainant within three days of receipt of the complaint, except for complaints submitted on election day or the day after election day, which shall be examined immediately (Article 112.10).
43. Complaints concerning decisions of electoral commissions shall be examined by courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11).
44. Persons illegally interfering with the election process and otherwise violating electoral rights of voters and candidates may bear criminal, civil or administrative responsibility under the Criminal Code, the Civil Code or the Code of Administrative Offences (Article 115).
45. After the count of votes in a polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the voting in the polling station (Articles 106.1106.6). One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within twentyfour hours (Article 106.7). The ConEC verifies whether each PEC protocol and documents attached to it comply with the law and whether there are any inconsistencies (Article 107.1). After submission of all PEC protocols, the ConEC tabulates, within two days of election day, the results from different polling stations and draws up a protocol (in three original copies) reflecting the aggregate results of the vote in the constituency (Articles 107.2 -107.7). One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC verifies whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2).
46. The Constitutional Court reviews and approves the results of the elections (Article 171.1). For this purpose, the CEC reviews the ConEC protocols, together with other relevant documents, during a period of no more than twenty days after election day, and then submits them to the Constitutional Court within forty-eight hours (Article 171.2).
47. Within ten days of receipt of the above documents, the Constitutional Court reviews, with the assistance of experts, whether they are in accordance with the requirements of the Electoral Code. If necessary, this ten-day period may be extended (Article 171.3).
48. A civil court examines and relies only on evidence submitted by the parties (Article 14.2).
49. Each party to the civil proceedings must submit evidence proving the facts forming the basis of their claims and objections (Article 77.1). In disputes concerning invalidation of acts of the State, administrative and other authorities, the burden of proving the facts forming the basis of such acts falls upon the relevant authority (Article 77.2). In the event that the examination of the case on the basis of the evidence available in the case file is impossible, the court may request the parties to submit additional evidence (Article 77.3).
50. Written evidence must be submitted to courts either in original or in duly certified copies. If only a part of a document is relevant to the case under examination, a certified extract must be submitted (Article 89.3).
51. Chapter 25 of the CCP sets out rules for examination of applications concerning the protection of electoral rights (or a right to participate in a referendum). According to Article 290, such applications shall be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code.
52. Applications concerning the protection of electoral (referendum) rights shall be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which shall be examined immediately (Article 291.1). The court shall hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification shall not preclude the court from examining and deciding the case (Article 291.2).
53. The appellate court's decision can be appealed to the higher court (the court of cassation) within three days. This appeal shall be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292).
54. The relevant excerpts from the Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (5-6 July and 1819 October 2002), read as follows:
“GUIDELINES ON ELECTIONS
...
3. Procedural guarantees
3.1. Organisation of elections by an impartial body
a. An impartial body must be in charge of applying electoral law.
b. Where there is no longstanding tradition of administrative authorities' independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level.
c. The central electoral commission must be permanent in nature.
d. It should include:
i. at least one member of the judiciary;
ii. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters.
It may include:
iii. a representative of the Ministry of the Interior;
iv. representatives of national minorities.
e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis...
...
h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus.
...
3.3. An effective system of appeal
a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible.
b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals.
...
d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections.
e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned.
f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. ...
g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance).
h. The applicant's right to a hearing involving both parties must be protected.
i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions.
...
EXPLANATORY REPORT
...
3.1. Organisation of elections by an impartial body
68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results.
69. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior.
70. However, in states with little experience of organising pluralist elections, there is too great a risk of government's pushing the administrative authorities to do what it wants. This applies both to central and local government - even when the latter is controlled by the national opposition.
71. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity.
...
3.3. An effective system of appeal
92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.
93. There are two possible solutions:
- appeals may be heard by the ordinary courts, a special court or the constitutional court;
- appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second.
...
95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.
96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.
...
99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.
100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.
101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated.
102. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”
55. The following are the relevant excerpts from this report, published in Warsaw, Poland on 1 February 2006:
“III. POLITICAL BACKGROUND
...
The 6 November 2005 elections to the Milli Majlis of Azerbaijan were the third parliamentary elections held in Azerbaijan since independence in 1991, but the first conducted after the adoption of the 2002 constitutional amendments, which eliminated the proportional list component of parliamentary elections. All 125 members of Parliament are now elected in single seat constituencies, in a single round of voting.
The CEC registered 48 political parties and blocs for the 6 November elections. The New Azerbaijan Party (YAP), currently chaired by President Ilham Aliyev, has held a dominant position in government since 1993. On the opposition side there were two main blocs: 'New Politics' (YeS), formed by the Movement for National Unity, the National Independence Party of Azerbaijan, the Civil Forum for the Sake of Azerbaijan, the Azerbaijan Social Democratic Party as well as other political parties and NGOs, and 'Azadliq' ('Freedom'), which was formed by the parties Musavat, the Popular Front of Azerbaijan (APFP) and the Azerbaijan Democratic Party (ADP). Another party, which fielded candidates in over 60 constituencies, was the opposition Liberal Party of Azerbaijan.
...
V. ELECTION ADMINISTRATION
The election was administered by a three-tiered system of election commissions ... There are 125 constituency election commissions and 5,137 polling station election commissions. All election commissions have a 2/3 requirement for quorum and for adopting decisions.
The transitional method of composition of election commissions continued to be problematic, as it favored the incumbent authorities and undermined confidence in the independence of the election administration. Election commissions are formed according to a complex formula, and in essence, pro-government parties have a majority in all election commissions sufficient to make all decisions. Moreover, the chairpersons of all election commissions were nominated by the parliamentary majority.
The CEC held regular meetings open to media and observers, and most decisions were published and available on its website. The CEC met most deadlines of the Election Code regarding technical preparations for the elections. An extensive voter education effort was conducted through the media.
A number of aspects of the CEC's performance were problematic, however, including processing of complaints and appeals, ensuring the uniform implementation of the Election Code by ConECs and PECs, and organization of military voting. Observers reported uncertainty and confusion on the interpretation and application of some legal and procedural issues by ConECs and PECs.
A number of election commissions operated in a transparent and collegial manner, and a few issued warnings to candidates or officials for violating the law. However, during the pre-election period, commission members nominated by opposition parties in some constituencies claimed that they were in a number of instances not informed of ConEC meetings, denied access to key documents and had little influence on the decision-making process. The OSCE/ODIHR EOM [Election Observation Mission] was able to verify some of these claims.
...
VII. CAMPAIGN
...
The general campaign environment was characterized by the fact that the ruling YAP party dominated government and most district administrations, including the election commissions.
...
The campaign was undermined by numerous cases of interference of local executive authorities in the election process, with widespread evidence that such interference either favored candidates associated with the incumbents or disadvantaged opposition candidates. ... [M]any candidates and campaign staff were harassed during the course of their campaign activities, for example, while meeting with voters, displaying posters or distributing leaflets.
...
The EOM received a number of reports from citizens, particularly from the regions, regarding heads of schools, hospitals and State-owned companies who collected signatures that allegedly obliged staff to vote for selected candidates. The OSCE/ODIHR EOM also received reports of intimidation and coercion of school staff, students and parents to attend campaign events, predominantly in favor of YAP candidates.
The 11 May and 25 October presidential decrees acknowledged many such issues and provided instructions to state and local executive bodies, with a view to ensuring that the parliamentary elections be conducted in full compliance with the Election Code. While the decrees addressed some of the shortcomings observed by the OSCE/ODIHR EOM, the overall lack of meaningful implementation undermined their objectives.
...
IX. COMPLAINTS AND APPEALS PRIOR TO ELECTION DAY
In its 2003 Final Report, OSCE/ODIHR recommended that the CEC enact clear regulations governing the consideration of complaints and appeals. Similarly, it was recommended that safeguards be instituted to ensure that local executive authorities do not interfere in the electoral process or direct the work of the election commissions. These recommendations were not implemented and this had a significant and detrimental effect on the election complaints process.
The Election Code envisages most complaints being filed with election commissions, but the law also allows complaints to be lodged with the superior election commission, with decisions in all cases to be made within a three-day deadline. In a large number of cases, candidates lodged complaints directly with the CEC, by-passing the respective ConEC even where the ConEC had not yet brought a decision on the respective complaint. This indicated a lack of confidence in the neutrality of the constituency commissions. The CEC formally registered all such complaints, but in the vast majority of cases merely returned them to the relevant ConEC for its decision, even where the ConEC had already made a prior decision.
In many cases, ConECs did not decide complaints within the three-day deadline or issue an interim decision. Although some ConECs did try to adjudicate complaints in a transparent way, a number of ConECs addressed complaints belatedly and superficially. There were cases in which ConECs claimed not to have received complaints, when it was clear they had done so, did not sanction PEC officials who had discriminated against candidates, failed to notify candidates or observers when complaints were discussed or simply ignored complaints. ... In numerous cases, commission chairpersons were clearly biased in favor of YAP or pro-government candidates, and complaints from opposition or independent candidates in these constituencies did not receive impartial adjudication.
Overall, the failure of election commissions, and subsequently in some instances the prosecutors, to address or rectify serious violations by local executive authorities and candidates had a marked and negative impact on the election process. Although some ConECs did issue written warnings to candidates and local executive officials, most violations during the campaign were allowed to take place without effective sanction. This further reduced confidence of candidates in the fairness of the process.
...
XIII. ELECTION DAY
A. Voting
For the election on 6 November, 5,053 polling stations were established to serve voters across Azerbaijan. IEOM observers visited over 2,600 polling stations throughout the country. Voter turnout as reported by the CEC was 42.2 per cent, which is significantly lower than in previous general elections. Most IEOM observer teams reported that polling stations generally opened without delay. However, serious deviations from correct opening procedures, including failure to establish and announce the total amount of ballots and invalidate de-registration cards, took place in a number of polling stations. The opening was assessed as 'bad' or 'very bad' in 14 per cent of polling stations visited.
Overall, IEOM observers assessed voting positively in 87 per cent of polling stations visited, while voting was assessed negatively in a considerable 13 per cent of polling stations visited, indicating systemic problems and/or irregularities. Voting was conducted in a generally calm atmosphere, although tension was reported at 14 per cent of polling stations visited. Serious violations of procedures included the presence of unauthorized persons, mainly representatives of local executive authorities, in 9 per cent of polling stations visited. Some of these persons were observed interfering in the work of the election commission or attempting to influence voter choice. The IEOM observed intimidation and attempts to influence voter choices in 6 per cent of polling stations visited. Other serious problems included cases of ballot box stuffing and inconsistent application of voter card rules, which was observed in one third of polling stations visited. Group or family voting remained an issue, as it was observed in 19 per cent of visits. Although relatively few people voted by mobile voting procedures, IEOM observers noted some cases in which more votes were cast than there were applications for ballots.
Inking procedures, in particular the checking of voters' fingers for ink, were not properly followed in 11 per cent of polling stations visited, with several PECs not applying the inking procedure at all. ...
Candidate representatives and non-partisan domestic observers were present in nearly all polling stations visited (97 per cent). However, there were observations of candidate representatives and PEC members being expelled or dismissed from polling stations in some cases. The IEOM observed local executive officials and observers of YAP candidates interfering in or directing the process, or otherwise attempting to influence voters.
...
B. Counting
IEOM observer teams were present at the count in 231 polling stations. The conduct of the election day process deteriorated sharply during the count. IEOM observers assessed the ballot counting process as bad or very bad in 41 per cent of counts observed.
IEOM observers noted a wide range of serious violations during the count, including tampering with results protocols (12 per cent), result protocols not completed with ink (14 per cent), intimidation of observers (16 per cent) and unauthorized persons directing the process (14 per cent). Key procedures were not followed by more than one third of PECs. In some polling stations, the IEOM observed attempts by PEC members to inflate the vote for a selected candidate by swapping ballot papers from one stack to another. Candidate representatives or opposition-nominated PEC members were expelled from the count in a number of cases. In some cases, the count was interrupted and the process significantly delayed, in breach of the law. In several cases, protocols were not completed in the presence of observers, were left blank, or were not taken directly to the ConEC. The results protocols were not posted as required by law in 55 per cent of the counts observed. Observers reported that entitled persons received the signed and stamped copies of the protocol in only 83 per cent of the polling stations observed.
C. Tabulation of Results
The tabulation of results at constituency level was, overall, assessed as bad or very bad in 34 per cent of the 90 ConECs visited. Tabulation procedures were not followed consistently, and the organization of the work was assessed as poor or very poor in 21 per cent of cases observed. Several ConECs accepted empty or only partly completed protocols (including protocols completed with pencil) and did not take action against PEC chairs or members completing or changing protocols at the ConEC. ...
On and after election day, the CEC received and registered more than 1,000 complaints but did not address most of these complaints. Complaints that did receive attention were not considered transparently or in accordance with the law.
Although the law requires the CEC to decide on all complaints , the CEC failed to fully meet this legal obligation. ...
The CEC did not inform complainants on consideration of their complaints at the CEC session, and complainants were not granted the right to give explanations or present new evidence. Moreover, the CEC did not conduct a formal investigation or review of complaints at its sessions. Instead an individual commission member, as a rule a member representing the voting majority, investigated the complaint and reported on his or her findings. These reports did not give other CEC members complete information on the complaint. Notwithstanding the large number of complaints, the CEC met infrequently and completed its final protocol without considering all pending complaints. ...
...
The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. In total, the Court of Appeal received 71 appeals and complaints in the post-election period. The Supreme Court received nine appeals during the post-election period until 23 November. The OSCE/ODIHR EOM observed eight hearings in the Court of Appeal and seven hearings in the Supreme Court. In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court. ...”


ITEMID: 001-78629
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KARAN v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: John Hedigan
TEXT: The applicant, Mr Željko Karan, is a Croatian national who was born in 1954 and lives in Nedelišče. He was represented before the Court by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 November 1997 the applicant was injured in an accident at work and broke his elbow. The applicant’s employer had taken out insurance with the insurance company ZT.
On 7 September 1998 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 4,017,650 Slovenian tolars (approximately 16,750 euros) for the injuries sustained.
On 5 January and 4 October 2000 the applicant requested that a date be set for a hearing.
On 8 November 2000 the applicant lodged preliminary written submissions and adduced evidence.
On 23 November 2000 the court held a hearing and decided to appoint a medical expert.
On 19 January 2001 the court appointed a medical expert to deliver an opinion concerning the applicant’s injuries.
On 16 July 2001 the applicant lodged preliminary written submissions and requested that a date be set for a hearing.
On 2 October 2001 the court held a hearing and decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 4 December 2001.
On 19 December 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 23 May 2002 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 8 July 2002.
On 26 July 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) and sought a recusal of one of the judges.
On 13 January 2003 the president of the Supreme Court dismissed the request for a recusal.
On 28 August 2003 the court allowed the appeal on points of law in part and increased the amount of the damages awarded. The judgment was served on the applicant on 9 October 2003.
On 5 November 2003 the applicant requested a correction of the judgment, seeking reimbursement of some costs. The court dismissed the request on 3 December 2003. This decision was served on the applicant on 15 January 2004.


ITEMID: 001-80364
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOÇAK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Nicolas Bratza
TEXT: 11. The applicant was born in 1965 and lives in Istanbul.
12. On 12 December 1993 the applicant and five other persons were arrested by police officers from the anti-terror branch of the Istanbul Security Directorate in the house of one of the arrestees, M.O., in the course of a police operation carried out against the PKK.
13. Between 12 and 27 December 1993 the applicant was detained in the Istanbul Security Directorate. The applicant alleges that, while there, he was blindfolded and forced to listen to the cries of other detainees being tortured. He was threatened with torture and forced to admit that he was a member of the PKK. When he refused to do so, he was stripped naked, immersed in cold water and beaten with a truncheon on various parts of his body, including the soles of his feet. He was then forced to walk on a salt-strewn floor. His hands were tied with a blanket, he was strung up by his arms and subjected to a form of torture known as “Palestinian hanging”. In this position, electric shocks were administered to his genitals, his fingers and feet. He was subsequently coerced into signing a statement, of which he only signed the first two pages. During his detention in police custody the applicant was kept in a cell, deprived of food and water and prevented from sleeping.
14. On 27 December 1993 the applicant was examined by a medical expert from the Istanbul branch of the Forensic Medicine Institute who observed two ecchymosises of 2-3 cm in diameter on both sides of the applicant's hips and an allergic dermatitis on his right hand. The doctor concluded that the applicant's life was not endangered and that the injuries rendered him unfit for work for one day.
15. On the same day the applicant was brought before the public prosecutor and a single judge at the Istanbul State Security Court. On both occasions the applicant denied the accuracy of the statements that had been taken from him by the police. He contended that he had signed the statements under duress. The judge at the Istanbul State Security Court ordered the applicant's detention on remand. The applicant was then transferred to Sağmalcılar prison.
16. On 30 December 1993 the applicant filed a petition with the Istanbul State Security Court. In his petition, the applicant reiterated that he had been tortured while in police custody and that his statements had been taken under duress. He finally requested to be released.
17. On 14 January 1994 the applicant was examined by the director of the Eyüp branch of the Forensic Medicine Institute. The medical expert observed the following:
“... presence of pain in the shoulders, the armpits and the neck, a yellow ecchymosis on the right armpit, an ecchymosis of 3x2 cm on the upper part of the right arm, widespread ecchymotic area and abrasions on both arms and wrists, hyperaemic lesions of 3x2 cm and 2x1 cm on the upper part of the right hand and on the left hand, widespread pain in the hands, widespread ecchymotic area of yellow colour on both gluteal regions on the back, ecchymotic area on the groin, pain in the testicles, pain during defecation, swollen area on the right leg and foot, a yellow ecchymosis and swollen area on the sole of the right foot, pain in the left leg, a yellow ecchymosis on the malleolar region, a yellow ecchymosis and swollen area on the sole of the left foot, several old wounds on both wrists and ankles...”
The medical expert considered that the applicant's life was not endangered and that the injuries rendered him unfit for work for seven days.
18. On 11 July 1994 and 27 March 1995 the applicant filed further petitions with the Istanbul public prosecutor's office alleging that he had been subjected to illtreatment while in police custody.
19. On an unspecified date the Istanbul public prosecutor initiated an investigation into the applicant's allegations of ill-treatment.
20. On 5 June 1995 the public prosecutor issued a decision of nonprosecution with regard to R.A., the director of the anti-terror branch of the Istanbul Security Directorate, holding that there was insufficient evidence to bring criminal proceedings against him. The public prosecutor further noted that criminal proceedings had been brought against Ö.D. and Ü.K., police officers from the anti-terror branch of the Istanbul Security Directorate, under Article 243 of the Criminal Code. The police officers were accused of torturing the applicant in order to obtain a confession from him.
21. On 29 June 1995 the applicant filed an objection against the decision of 5 June 1995.
22. On 4 August 1995 the Beyoğlu Assize Court dismissed the applicant's objection.
23. On 20 December 1995 the Istanbul Assize Court acquitted the accused police officers, holding that there was insufficient evidence to conclude that the accused had ill-treated the applicant while in police custody.
24. The judgment of 20 December 1995 became final as the public prosecutor did not lodge an appeal against it.
25. Following his arrest, the applicant surrendered a 7.65 mm calibre pistol and seven bullets to the police officers. Furthermore, according to the official documents, several weapons and organisational documents were found and seized in the course of the police operation.
26. On 4 February 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, along with twenty-nine other persons. The public prosecutor charged the applicant under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713 with membership of the PKK.
27. On 26 November 1996 the Istanbul State Security Court convicted the applicant as charged and sentenced him to twelve years and six months' imprisonment.
28. In its judgment, the first-instance court noted that the applicant had been arrested in the house of M.O., along with other suspects and that he had subsequently surrendered a 7.65 mm calibre pistol and seven bullets to the police. The court further stated that one of the applicant's co-accused, M.D., had maintained before the public prosecutor that he had been involved in PKK activities together with the applicant. The court also took into account the statements of three other accused, who had contended before the public prosecutor that the applicant had collected money on behalf of the PKK. The Istanbul State Security Court finally noted that the applicant had maintained during the hearings that he supported the ideology of the PKK and believed that the PKK was the legitimate representative of Kurdistan. Basing its judgment on the aforementioned elements, the Istanbul State Security Court concluded that the applicant was a member of the PKK.
29. The judgment of 26 November 1996 became final in respect of the applicant since he did not appeal against it.
30. On 26 April 2003 the applicant was conditionally released from prison.
31. A description of the relevant domestic law at the material time can be found in Sakık and Others v. Turkey (judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, § 1828), Elçi and Others v. Turkey (nos. 23145/93 and 25091/94, §§ 573 and 575, 13 November 2003) and Kolu v. Turkey (no. 35811/97, §§ 42-44, 2 August 2005).
VIOLATED_ARTICLES: 3


ITEMID: 001-88754
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GRIGORAS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicants were born in 1956 and live in Bad Neuenahr.
5. On 28 September 1989 Apartment 14, 108 Turda Street, Bucharest, the applicants’ property, was seized by the State under Decree no. 223/1974, with payment of compensation, following their decision to leave the country. In appears from the file that the applicants received 131,538 Romanian Lei in compensation.
6. On 14 November 1996 the R.V. company, a State-owned company responsible for the management of property belonging to the State, sold the flat to the then tenants, under Law no. 112/1995.
7. On 29 November 1996 the Bucharest Regional Court, by a final decision, allowed an action by the applicants, annulled the seizure as being unlawful and ordered restitutio in integrum.
8. On 5 September 1997 the Bucharest Town Council ordered restitutio in integrum of the apartment and on 15 September 1997 informed the R.V. company of this.
9. On 14 May 2001 the Bucharest Court of Appeal, by a final decision, dismissed the action lodged by the Town Council and joined by the applicants against both the R.V. company and the former tenants of the apartment, to have the sale declared null and void. The court considered that the sale had complied with the provisions of Law no. 112/1995 and had been made in good faith. It also stated that the applicants would receive compensation under Law no. 10/2001.
10. On 25 July and 14 November 2001 the applicants claimed restitution in kind of the apartment under the Law no. 10/2001 governing immovable property wrongfully seized by the State. So far they have not received any answer.
11. On 27 February 2003 the Supreme Court of Justice dismissed an application (recurs în anulare) by the Procurator-General, acting at the instance of the applicants, to have the judgment of 14 May 2001 quashed on the grounds that it was contrary to the provisions of Article 1 of Protocol No. 1 of the Convention and to the principle of legal certainty. The court considered that the sale had been made in good faith and observed that the principle of legal certainty had not been infringed, as the sale had preceded the final judgment which ordered restitutio in integrum and, moreover, the former tenants had not been parties in that set of proceedings, therefore the final judgment was not opposable by them.
12. The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-22343
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ARONICA v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lucius Caflisch
TEXT: The applicant, Mr Mario Aronica, is an Italian national, who was born in 1962 and is currently detained in a prison in Saarbrücken (Germany) pending extradition to Italy. He is represented before the Court by Mrs Marianne Louise Neu, Mr Raoul Muhm and Mr Adelmo Manna, lawyers practising in Saarbrücken, Munich and Rome respectively.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is living in Germany with his wife and three children since 1994.
On 10 February 2001 the Palermo Prosecutor’s Office issued a warrant of arrest against the applicant who was wanted in particular for serving the remainder of a prison sentence of five years, five months and 24 days by virtue of a judgment given by the Palermo Court of Appeal on 28 October 1999. The applicant was found guilty of having dealt, as a leading member of a criminal association, in stolen cars during the period from 1993 to 1995.
On 10 April 2001 the applicant was arrested in Saarlouis for extradition purposes following a report included in the Schengen Information System at the request of the Palermo Prosecutor’s Office. Having been interrogated by a judge on 11 April 2001, the applicant was transferred to the Saarbrücken prison. On 18 April 2001 the Saarland Court of Appeal (Saarländisches Oberlandesgericht) ordered the applicant’s provisional detention pending extradition and on 17 May 2001 his detention pending extradition.
On 31 May 2001 the Italian authorities submitted in addition to their request for the applicant’s extradition a decision of the Palermo Prosecutor’s Office of 27 April 2001 fixing the applicant’s global sentence in the light of previous convictions at seven years’, one month’s and seven days’ imprisonment and of six months’ imprisonment.
On 27 June 2001 the Saarland Court of Appeal authorised the applicant’s extradition to Italy. It found that there was no obstacle to extradition and that the extradition request of the Italian authorities complied with the requirements of Article 2 § 1 of the European Convention on Extradition.
On 5 July 2001 the applicant who claimed to be unfit for detention and travel, applied to be examined by a psychiatrist of his choice.
On 9 July 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court (Bundesverfassungsgericht). He submitted in particular that his extradition based on convictions for property offences appeared disproportionate in relation to his right to respect for his family life. He further submitted that the conditions of detention in Italian prisons constituted inhuman and degrading treatment and that he was unfit for detention and travel.
On 10 July 2001 the applicant applied for an interim injunction (einstweilige Anordnung) staying the extradition proceedings pending the proceedings before the Federal Constitutional Court. He alleged in this respect that the proceedings before the Italian courts had been unfair.
On 10 July 2001 the applicant also applied to the Saarland Court of Appeal to grant him another hearing in accordance with the law, to revoke its decision of 27 June 2001 and to declare the extradition inadmissible, respectively to suspend the execution of the warrant of arrest pending extradition. He submitted that he was unfit for detention and travel and that his extradition would destroy his family life. He further stated that the disastrous conditions of detention in Italian prisons were contrary to the international and German ordre public.
The applicant obtained opinions from his psychiatrist as to the likely effect of being kept in detention and extradited to Italy. In reports dated 10 and 12 July 2001, Pr Dr Dr S. stated that the applicant suffered from depressions and anxiety, needed medical treatment and was unfit for detention. Moreover he suffered from claustrophobia which severely compromised his ability to travel. He was also at a very serious risk of suicide if he were to be extradited to Italy.
In an opinion dated 10 July 2001 sought by the Saarbrücken Prosecutor’s Office, the doctor of the Saarbrücken prison certified the applicant as being fit for travel.
On 11 July 2001 the Saarland Court of Appeal rejected the applicant’s request for judicial review of the decision of 27 June 2001 authorising his extradition. However, having regard to the contradictory medical opinions, the Court of Appeal ordered that an official examination be conducted by the health authorities as regards the applicant’s ability to be detained and to travel.
In an opinion dated 18 July 2001 Dr D., a senior psychiatrist at the Sonnenberg Psychiatric Clinic in Saarbrücken, reported that the applicant showed signs of depression and anxiety, but was fit for detention and travel. In a further opinion the doctor of the Saarbrücken prison stated that the applicant suffered from a chronic liver disease and recurrent lumbar sciatica, but also confirmed that he was fit for detention and travel.
On 19 July 2001 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication.
In the light of the medical reports submitted with regard to the applicant’s state of health, the Saarbrücken Health Authorities (Gesundheitsamt) considered on 23 July 2001 the applicant as being fit for detention and travel.
The applicant submitted also opinions concerning the medical condition of his wife and his son Davide. Two psychiatric reports dated 27 July 2001 concluded that the applicant’s wife who had been hospitalised from 9 to 10 July 2001 for drug intoxication, was the victim of a depressive development connected with an emotional dysfunction and misuse of drugs. A risk of her attempting to commit suicide could not be excluded in case of a separation from her husband. In a further opinion dated 19 July 2001, a logopedic reported that the applicant’s son Davide, born in 1984, suffered from stuttering, that the separation from his father was likely to be an attributable factor to this symptom and that a stable family situation would be necessary to reduce this problem.
In the night from 9 to 10 December 2001 the applicant attempted to commit suicide in the Saarbrücken prison while being placed under a 15 minute watch. He slit his wrists and took sleeping pills.
His requests to be transferred to a hospital in Merzig for psychiatric treatment were refused.


ITEMID: 001-110242
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CASE OF PANFILE v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Ionel Panfile, is a Romanian national who was born in 1957 and lives in Mihail Kogǎlniceanu, Constanţa District.
3. On an unspecified date the applicant applied for early retirement, after having worked for the Ministry of National Defence. His monthly pension amounted to 2,880 Romanian lei. The legislation in force at the time, namely Law no. 164/2001 on State military pensions, allowed early retirees from the armed forces to apply for jobs in both the public and private sector, the status of retiree and that of employee being compatible.
On 4 June 2007 the applicant was appointed by the mayor of Mihail Kogǎlniceanu, a small town in Constanţa District, to work as a head of department within the Municipal Police Service. His monthly salary amounted to 986 lei, to which an additional allowance of 25% of his basic salary was paid on a monthly basis.
4. In November 2010, following the entry into force of Law no. 329/2009 on rationalisation of public expenditure, which introduced certain conditions for the concurrent receipt of a pension and of a State-paid salary (see paragraph 9 below), the applicant was notified by his employer that in view of the fact that his pension exceeded the national average gross salary of 1,836 lei (see also paragraph 6 below), he was obliged to choose within 15 days between having his pension suspended for the duration of his employment contract, or having the employment contract terminated.
The applicant refused to make such a choice, allegedly considering that the legal provisions preventing him from receiving concomitantly a pension and a salary were unconstitutional and in breach of European legislation and of the human rights treaties.
Consequently, on 9 December 2009 the mayor issued a decision confirming that from 10 December 2009 onwards the applicant’s appointment as head of department was revoked, pursuant to section 20 of Law no. 329/2009.
5. On 18 January 2010 the applicant contested the mayor’s decision before the Constanţa District Court. He asked to be reinstated in his previous post and to be paid the corresponding salaries, retroactively, for the period since 10 December 2009. The applicant mainly claimed that the provisions of Law no. 329/2009 were in breach of the Romanian Constitution and of the European Convention of Human Rights, as they infringed his right to work and to have his possessions, namely monthly income, protected.
6. The Constanţa District Court dismissed the applicant’s action on 25 May 2010. It noted that the applicant did receive both a pension and a salary from a public institution, even though his pension exceeded the level of the national average gross salary, which was 1,836 lei for the year 2010. Therefore, it held that section 17-22 of Law no 329/2009, which had already been declared constitutional by the Constitutional Court, was relevant to his situation and justified the termination of his employment in a public institution.
Concerning the alleged breach of the applicant’s right to work, the court held that he was still entitled to receive a salary if he were employed in the private sector; furthermore, the contested measure was not discriminatory, since it applied equally to all persons that were in the same situation as that described in the legal instrument.
7. The applicant lodged an appeal on points of law against this judgment, invoking also a breach of his rights under Article 1 of Protocol No. 1 to the Convention, Article 14 of the Convention, Article 1 of Protocol No. 12 to the Convention and Article 15 paragraph 1 of the Charter of Fundamental Rights of the European Union.
8. His appeal was dismissed on 14 October 2010 by the Constanţa Court of Appeal. The court reiterated that the provisions of the disputed law had been declared constitutional by the Constitutional Court, its decision being final and binding. In so far as the applicant’s criticism of the law coincided with the arguments already assessed and taken into consideration by the Constitutional Court in its reasoning, the court was bound to follow the Constitutional Court’s approach. It followed that the mayor’s decision to terminate the applicant’s employment was lawful and in compliance with the Constitution.
9. Law no 329/2009, concerning the reorganising of public authorities and institutions, rationalisation of public expenditure, provision of support for the business field and compliance with the agreements signed with the European Commission and the International Monetary Fund, came into force on 12 November 2009. Its chapter IV was dedicated to “Measures regulating concurrent pension and salary entitlements, aimed at reducing public expenditure”.
1 – Anyone entitled to receive a pension, under either the State pension scheme or another pension scheme, who is also entitled to receive a salary pursuant to an employment contract or act of appointment within a public institution, whether national or local ..., shall be allowed to combine the pension with the salary if the pension received is lower than the national average gross salary, as validated by the Budget Act.
2 – The provisions of paragraph 1 shall be applicable to persons who:
(a) at the time of the entry into force of this chapter, are retired and enjoy concurrent pension and salary entitlements (pensionari cumularzi);
(b) after the entry into force of this chapter, begin to enjoy concurrent pension and salary entitlements.
1 – Persons who are retired and fall under the provisions of section 17(2) (b) and who practise a profession pursuant to an employment contract or an act of appointment shall have an obligation, within 15 days following the entry into force of this chapter, to express in writing their choice between having the payment of their pension suspended while they practise that profession or having their employment/appointment terminated, in the event that the amount of their net pension exceeds the national average gross salary, as validated by the Budget Act ...
Refusal to comply with the obligation to express a choice within the deadline set out in section 18 ... shall constitute justification for the termination of employment, whether it was based on a contract or on an act of appointment.
If the choice is expressed within the time-limit set out in section 18 ..., the payment of the pension shall be suspended from the following month onwards.
Any payments received unduly shall be recovered from the retiree, in compliance with the general rules on the statute of limitations/negative prescription.
10. The above-mentioned provisions of Law no. 329/2009 have been subjected to the scrutiny of the Constitutional Court, both before its promulgation (pre-legislative review) and after its entry into force (postlegislative review), as follows.
11. On 23 September 2009 more than one hundred Romanian MPs seised the Constitutional Court of a request for pre-legislative review of constitutionality concerning sections 17-22 of Law no. 329/2009. The Constitutional Court gave its decision on 4 November 2009, finding that the impugned legal texts were in compliance with the Romanian Constitution.
While stating from the outset that the provisions of the impugned law could not apply to persons whose mandates were provided for by the Constitution (for example, high-ranking officials), the court mainly stated, on the issue of concurrent pension and salary entitlements, that no constitutional provision prevented the legislature from prohibiting the concurrent receipt of both pension and salary, provided that such a measure was applied in an equal manner for all citizens, and that any potential differences in treatment were proved to have a legitimate aim. At the same time, the context in which the impugned measure was taken was an exceptional one, having regard to the global crisis on a financial and economic level.
The Constitutional Court further stated that the legislation allowed, as a rule, the concurrent receipt of pension and salary, if the pension was lower than a certain level; the level taken into account was expressly prescribed by law, and was thus predictable and determinable, while at the same time reasonable. The exception to the rule of combining both incomes was justified by the exceptional economic circumstances and applied only to those who were employed or appointed in the public sector, for the purpose of rationalising public expenditure, while also securing a certain level of income – estimated as reasonable – for everyone. In so far as the measure applied equally to all those concerned by the legal instrument, it could not be regarded as discriminatory.
In conclusion, the court held that the legislature had full discretionary power to institute such measures as imposing a certain level of secured income, in so far as they were reasonable, proportionate and justified by a public interest.
12. Subsequently, the Constitutional Court was seised of several other complaints regarding the alleged unconstitutionality of sections 17-22 of Law no. 229/2009. In its decisions of 1 and 22 March 2011, 7 and 12 April 2011, 17 May 2011 and 12 July 2011, the Constitutional Court upheld its previous reasoning and confirmed that the law was in compliance with the Constitution. At the same time, the court reiterated that the measure could not be regarded as discriminatory, in so far as the employees in the public sector were not in a similar situation to those working for private employers, essentially owing to the fact that their incomes were dependent on the State budget.


ITEMID: 001-22713
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: JEFTIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Milan Jeftić, is a citizen of Bosnia and Herzegovina, who was born in 1947 and lives in Derventa, Bosnia and Herzegovina. The respondent Government are represented by their Agent Ms Lidija Lukina-Krajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was an employee of the Croatian company “Graditelj”, in Grubišno Polje, Croatia. On 25 May 1989 he had an accident at his workplace and suffered injuries. Since then he has mostly been on sick-leave. On 28 August 1991 the applicant obtained a certificate from the Kutina Health Insurance Fund (Republički fond zdravstvene zaštite Kutina) that the Croatian Health Insurance Fund covered sick-leave allowance regardless of the applicants’ place of living. The applicant left Croatia some time in the autumn of 1991 and went to live in Bosnia and Herzegovina.
On 13 January 1992 the company sent him a letter informing him that they had terminated his contract of employment as of 30 September 1991 since the Croatian Health Insurance Fund had refused to pay his sick-leave allowance.
On 22 January 1992 the applicant claimed a sick-leave allowance as from 1 October 1990 before the Croatian Health Insurance Fund, Grubišno Polje Office (Republički fond zdravstvenog osiguranja i zdravstva Hrvatske - Ispostava Grubišno Polje). He relied on the Kutina Health Insurance Fund’s certificate.
This request was rejected on 10 March 1992 by the Croatian Health Insurance Fund in Grubišno Polje. It was found that the applicant received sick-leave allowance for the period from 29 May 1991 until 30 September 1991. The last time he had attended an examination before a medical experts’ commission in charge of grating sick-leave was on 10 September 1991. After that he had left for Bosnia and Herzegovina. The Fund did not accept medical certificates from Bosnia and Herzegovina because, according to Croatian laws, the applicant had to present himself in person before a medical experts’ commission in Croatia in order to have his sick-leave prolonged.
On 16 March 1992 the applicant appealed against that decision to the Appellate Commission of the Croatian Health Insurance Fund (Direkcija republičkog fonda zdravstvenog osiguranja i zdravstva Hrvatske).
According to the applicant, on 18 November 1997 and 19 February 1999, respectively, he lodged requests with the Appellate Commission for speeding up the proceedings. He received no reply.
As the above Commission failed to decide upon the applicant’s appeal, on 3 June 1999 he instituted administrative proceedings in the Administrative Court (Upravni Sud Republike Hrvatske) asking it to decide the matter. On 9 December 1999 he lodged a request for speeding up the proceedings, but received no reply. It appears that the proceedings are still pending before that court.
According to the Government on 17 June 1992 the Appellate Commission of the Croatian Health Insurance Fund rejected the applicant’s appeal of 16 March 1992. Since the postal services with Bosnia and Herzegovina at that time were interrupted, the decision was placed on the Fund’s public notice-board.
As regards the applicant’s claim before the Administrative Court, the Government submit that on 21 November 2001 the court invited the applicant to inform it whether he wished to extend his claim against the second instance decision.
Section 26 (1) of the Administrative Disputes Act (Zakon o upravnim sporovima) allows an applicant to lodge a claim in the Administrative Court if an appellate body does not issue a decision upon his appeal within 60 days followed by an additional period of seven days upon the applicant’s repeated request.
Section 42 of the same Act provides that the Administrative Court must either instruct the lower bodies on how to resolve the case or resolve the case itself.
Section 26 of the Constitutional Act on the Changes of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 29 of 22 March 2002 - hereinafter “The Act of 15 March 2002” - Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske) introduced a new Section 59 (a), which subsequently became Section 63 of the 2002 Constitutional Act on the Constitutional Court. The relevant parts of that Section read as follows:
(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.


ITEMID: 001-79741
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ULJAR AND OTHERS v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1951, 1947, 1970 and 1971 respectively and live in Rijeka.
5. The applicants are heirs of the late A.B. who died on 14 December 1995. The first and the second applicant are his children, and the third and the fourth applicants are his grandchildren (children of his other daughter).
6. In the context of inheritance proceedings following A.B.'s death, on 16 August 1996 his former wife, M.K., brought a civil action against the applicants in the Krk Municipal Court (Općinski sud u Krku). M.K. sought her share in co-ownership of a house on the account of certain investments she had made while living in common law marriage (izvanbračna zajednica) with the deceased.
7. In the period between the entry into force of the Convention in respect of Croatia and the rendering of the first-instance judgment, the Krk Municipal Court held nine hearings.
8. At the hearing held on 17 March 1998 the applicants moved for evidence to be taken in order to prove that A.B. had not lived in a common law marriage with the plaintiff and that he had reconstructed his house independently with his own means. On 22 April and 3 August 1998 the court heard two and six witnesses respectively.
9. The Krk Municipal Court then requested certain witnesses to be heard before other courts. In reply, it received minutes of the witness testimonies from the Zadar Municipal Court and the Split Municipal Court.
10. On 11 August 1999 the applicants filed a counterclaim seeking a declaration that there had been no common law marriage between the plaintiff and the late A.B.
11. The next hearing was held on 12 August 1999 at which the court heard nine witnesses.
12. At the next hearing held on 25 April 2000 the court heard the second and the third applicant and adjourned the hearing for 10 August 2000, when the first applicant again sought for a number of witnesses to be heard.
13. At the next hearings held on 5 June and 13 August 2001 the court heard yet more witnesses and on 3 December 2001 it closed the main hearing.
14. On 3 December 2001 the court gave judgment dismissing both M.K.'s action and the applicants' counterclaim. On appeal, on 1 October 2003 the Rijeka County Court (Županijski sud u Rijeci) quashed the first-instance judgment and remitted the case finding that it was necessary to establish the plaintiff's citizenship.
15. In 2003 the first and the second applicant filed a constitutional complaint concerning the length of the proceedings. On 16 January 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared their complaint inadmissible because the County Court had in the meantime, on 1 October 2003, quashed the first-instance judgment and remitted the case.
16. In the resumed proceedings, on 4 November 2003 the President of the Krk Municipal Court accepted the applicants' request for withdrawal of the first-instance judge and assigned another judge to hear the case.
17. The court held hearings on 12 February 2004 and 17 June 2004.
18. On 26 October 2004 the court adopted a decision declaring the plaintiff's action inadmissible, because as a foreign national, she had not obtained the necessary permissions for acquisition of property in line with the domestic legislation. At the same time, the Krk Municipal Court concluded that the applicants' counterclaim had been withdrawn. M.K. appealed against that decision but on 9 March 2006 the Rijeka County Court dismissed her appeal.
19. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1