26
NAMAT ALIYEV v. AZERBAIJAN JUDGMENT
regard to the Final Report of the OSCE/ODIHR Election Observation
Mission concerning the elections of 6 November 2005 (see paragraph 55
above), which indirectly corroborates the applicant's claims. While this
report did not contain any information relating exclusively to the applicant's
constituency, it gave a general account of the most frequent problems
identified during the election process. The problems identified were similar
to almost all of the applicant's specific allegations and, while not observed
in most of the constituencies, appeared nonetheless to have been quite
common.
79. In the light of the above considerations, and having regard to the
material in the case file, the Court considers that the applicant has put
forward a very serious and arguable claim disclosing an appearance of a
failure to hold free and fair elections in his constituency.
80. The Court reiterates the approach taken by it in the Babenko case
(cited above) where, having satisfied itself that there had been no
arbitrariness in the conclusions reached by a domestic court which had
examined the applicant's specific claims concerning breaches of electoral
law and established that they had not prejudiced the elections, the Court
accepted and relied on the domestic court's conclusions in its analysis of the
applicant's complaint under Article 3 of Protocol No. 1. It was emphasised
in that case that, where complaints of election irregularities had been
addressed at the domestic level, the Court's examination should be limited
to verifying whether any arbitrariness could be detected in the domestic
court procedure and decisions.
81. In this connection, having regard to the principles developed by its
case-law on Article 3 of Protocol No. 1 (see paragraphs 70-73 above), the
Court considers that the existence of a domestic system for effective
examination of individual complaints and appeals in matters concerning
electoral rights is one of the essential guarantees of free and fair elections.
Such a system ensures an effective exercise of individual rights to vote and
to stand for election, maintains general confidence in the State's
administration of the electoral process and constitutes an important device at
the State's disposal in achieving the fulfilment of its positive duty under
Article 3 of Protocol No. 1 to hold democratic elections. Indeed, the State's
solemn undertaking under Article 3 of Protocol No. 1 and the individual
rights guaranteed by that provision would be illusory if, throughout the
electoral process, specific instances indicative of failure to ensure
democratic elections are not open to challenge by individuals before a
competent domestic body capable of effectively dealing with the matter.
82. The Azerbaijani law provided for a system of examination of
individual election-related complaints and appeals, consisting of electoral
commissions of different levels, whose decisions could be appealed
subsequently to the Court of Appeal and further to the Supreme Court. The
applicant made use of this system. It remains to be seen whether the
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