The Right to Political Participation

A Study of the Judgments of the European and Inter-American Courts of Human Rights

Gabriella Citroni, Irene Spigno, Palmina Tanzarella, Gabriella Citroni, Irene Spigno, Palmina Tanzarella

• Publisher: Routledge
• Year: 2022
• eBook ISBN: 9781000517972
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

This book provides a comparative analysis of how judgments from the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) affect political participation and electoral justice at the national level.

Looking at specific countries, the work analyses the legal impact the implementation of the ECtHR and the IACtHR judgments has, with a specific focus on cases in which the regional court concerned uses the "democratic argument," that is, an argument related to democracy and political rights. The reasoning is that, although democracy is a much wider concept, judgments concerning violations of political rights and electoral justice provide reliable indicators to assess the status and sustainability of democracy in a State. Moreover, the analysis of the violations of political rights and electoral justice allows an in-depth comparison between the two regional human rights systems. Mindful of the broader scope of the fall-out generated by the non-implementation of judgments, including in socio-economic terms, the book includes a section exploring how judgments issued by the ECtHR and the IACtHR affect voters' participation in the countries under their jurisdiction. To this end, an original dataset including the 47 Member States of the Council of Europe and the 20 countries which recognised the adjudicatory jurisdiction of the IACtHR is built.

Multidisciplinary in aim and scope of analysis, the book will be an invaluable resource for researchers, academics, and policy-makers working in the areas of constitutional law, international human rights law, and political economy.

Part I The European Court of Human Rights

1 The (lack of) impact of the European Court of Human Rights’ judgement on the protection of political rights in Azerbaijan

Palmina Tanzarella^*

DOI: 10.4324/9781003229247-3

* Researcher in Constitutional Law, University of Milano-Bicocca. The author wishes to express her gratitude to Dr. Irene Valotti for preparing the materials about the electoral turnout and the separation of power in Azerbaijan, which have proven very useful for the drafting of the present paper.

Introduction and context

Among those Council of Europe Member States that are part of the European Convention of Human Rights (hereinafter ECHR), Azerbaijan is the State which has been most frequently held responsible for the violation of the right to vote (Art. 3 of Protocol 1 ECHR).

The country faces significant challenges with respect to the exercise of fundamental freedoms – such as the freedom of assembly and association and the freedom of expression – pointing to systematic harassment and criminal prosecution of those who express views that are critical towards the government, and to a practice of intimidation and harassment of voters.

Since the entry into force of the Convention in 2002, the Court has made 170 judgments, of which 169 represent at least 1 violation of the ECHR. In particular, 25 judgments exclusively relate to the violation of the right to vote.

This quantity may not stand out if read in conjunction with the total violations registered about the Freedom of Assembly and Association (34 out of 169), the Freedom of Expression (6 out of 169) and the Right to a Fair Trial (66 out of 169),¹ but it clearly shows that the issue of sustainability of the democratic rules in Azerbaijan is rather problematic and far from being fulfilled.²

1 For a pretty complete analysis about the violation of the Right to a Fair Trial and the Freedom of Association, see Hajiyev K., “The directions of influence of the case law of the European Court of Human Rights in Azerbaijan,” in Motoc I., Ziemele I. (eds.), The impact of the ECHR on democratic change in Central and Eastern Europe. Judicial Perspectives, Cambridge University Press, Cambridge, 2016, 57–79, at 64–73. 2 See the Official Statistics published on the European Court of Human Rights website. www.echr.coe.int/Pages/home.aspx?p=reports&c=. Last access 10 September 2020.

In this regard, the European Court of Human Rights (hereinafter ECtHR) does everything in its power. It is not a coincidence that the first infringement procedure ex Art. 46, para, 4 under the Convention was stated against Azerbaijan, seeking to ensure the execution of its previous judgments. According to this article, the Committee of Ministers – by decision adopted by a majority vote of two-thirds of the representatives entitled to sit in the Committee – have the possibility to refer to the Court the question as to whether a State party has failed to abide by the final judgment of the Court.

In this respect, since Azerbaijan disregarded the Committee of Ministers’ measures, the Grand Chamber ordered that Azerbaijan release Ilgar Mammadov – an opposition candidate for the presidential election of 2013 – who was illegitimately placed in pre-trial detention, as the Court itself stated in its judgment of May 2014.³

3 See ECtHR, Mammadov v. Azerbaijan, 22 May 2014. Regarding the Infringement procedure, see Grand Chamber, Proceedings under Art. 46 § 4 in the Case of Ilgar Mammadov v. Azerbaijan, 29 May 2019. In the literature, Çali B., No Going Nuclear in Strasbourg. The Infringement Decision in Ilgar Mammadov v. Azerbaijan by the European Court of Human Rights, in Verfassungblog, May 30 2019; Dzehtsiarou K., How many judgments does one need to enforce a judgment? The first ever infringement proceedings at the European Court of Human Rights, in Strasbourg Observer Blog, 4 June 2019; Buyse A., First Infringement Proceedings Judgment of the European Court: Ilgar Mammadov v Azerbaijan, in ECHR Blog, 31 May 2019; Tanzarella P., Mammadov c. Azerbaijan: la prima procedura d’infrazione. Un’occasione mancata?, in Quaderni costituzionali, 3, 2019, 713–715.

Why does Azerbaijan try to ignore its European obligations? Legally the Azerbaijan constitutional system appears to be in line with the international standard of the democratic rules. Indeed, after the collapse of the former Soviet Union and having obtained independence in 1991, with the approval of the Democratic Constitution of 1995 Azerbaijan was on the road to reforms. The Constitution itself includes clauses that, at least formally, are typical of a pluralistic and egalitarian regime. It assures fundamental rights (both individual and social ones), the separation of powers, and embraces a secular perspective. In order to be more in line with the Western tradition in 2002, the country ratified the European Convention, thereby accepting the Strasbourg jurisdiction. As a matter of fact, even before the ratification, the ECHR and its jurisprudence were seen almost as a lighthouse by the national judges, providing them with assistance in interpreting some difficult cases during the transition period towards democracy. Moreover, during the preparation of the new civil, criminal, and procedural reforms, adopted before the ratification of the Convention, the European specialists helped the local authorities with the preparation of those texts, in particular the Venice Commission.⁴

4 For a complete list of the Venice Commission’ opinions, see www.venice.coe.int/webforms/documents/default.aspx?country=41&year=all&other=true.

Even more impressive is the position that the Convention and the wider international clauses occupy in the source of law system. The General Principles of the Constitution clearly establish that in terms of foreign policy the Azerbaijan Republic is limited by provisions resulting from international agreements, wherein the Azerbaijan Republic is one of the parties.⁵ Subsequently, in the part covering the sources of law of the entire legislative system, it is explicitly proclaimed that the international conventions, to which Azerbaijan is party, are an integral part of the Azerbaijani legislation.⁶ Moreover, Art. 151 of the Constitution stipulates that in case of contradictions between the normative acts of the country’s legislative system – with the exception of the Constitution – and the acts adopted by a referendum and international documents to which Azerbaijan is party, the international document shall prevail.⁷

5 See Art. 7 of the Azerbaijan Constitution. 6 See Art. 148 of the Azerbaijan Constitution. 7 Abdullahzade, C., The status of international treaties in the legal system of Azerbaijan, in Review of Central and East European Law, 32, 2, 2007, 233–256.

The juridical landscape just described shows how the country under scrutiny is well equipped to guarantee the protection of freedoms, additionally thanks to the course plotted by the ECtHR jurisprudence. In relation to the human rights defence, specifically, the Constitution seems to grant to the ECHR and to the ECtHR a sort of constitutional authority.⁸ Nevertheless, as discussed below, Azerbaijan gives off a strong sign of resistance.

8 In this regard, see Art. 71, according to which the “Rights and liberties of a human being and citizen may be partially and temporarily restricted [only] on announcement of war, martial law and state of emergency, and also mobilization, taking into consideration international obligations of the Azerbaijan Republic. Population of the Republic shall be notified in advance about restrictions as regards their rights and liberties”; see also Art. 12, according to which the “Rights and liberties of a person and citizen listed in the present Constitution are implemented in accordance with international treaties wherein the Azerbaijan Republic is one of the parties.” In the literature, see Martin C.H., Comparative human rights jurisprudence in Azerbaijan: Theory, practice and prospects, in Journal of Transnational Law & Policy, 14, 2, 2005, 215–252.

Undoubtedly, there are historical and political explanations behind this. In the past, it had never experienced the democratic categories, as it had always been dominated by the Soviet Union, except for a short period of independence (1918–1920). The population seems to underestimate the culture of rights and liberties, preferring to put more attention on economic wealth.

Consequently, Azerbaijan is ranked 146 out of 167 in the Democracy Index of 2019, which shows that the levels of political participation, the political culture, and the electoral process are seriously insufficient.⁹

9 The Democracy index is available at www.eiu.com/public/topical_report.aspx?campaignid=democracyindex2019.

Let us now consider the ECtHR judgments, condemning Azerbaijan for the violation of the right to vote, ex Art. 3 of Prot. 1, and the level of the implementation of the judgments. In the final part, we will draw some general conclusions on the role that the European Court of Strasbourg plays in the building of democracy in the country.

The violations of electoral rights in the ECtHR judgments

A general overview about electoral rights in Azerbaijan

Before examining a selection of the ECtHR cases law regarding electoral rights, it is important to provide a preliminary outline about the electoral context that will help to shed light on some systemic challenges.

Azerbaijan has a strong presidential system, with wide powers vested in the Presidency.

The President – the head of the executive power – appoints and chairs the Cabinet of Ministers and appoints all exec...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• List of contributors
• Foreword: The Right of Rights
• Acknowledgements
• List of acronyms and abbreviations
• The Role of International Human Rights Courts in ensuring the right to political participation and promoting sustainable democracy and the methodology behind the research
• PART I The European Court of Human Rights
• PART II The Inter-American Court of Human Rights
• PART III An empirical assessment based on political economy
• Index