HAJILI v. AZERBAIJAN JUDGMENT
11
43. As for the Government’s argument concerning the alleged
impossibility of a recount of the votes, the applicant noted that the
Government’s reference to former Article 106.3.6 of the Electoral Code was
wrong, because that provision concerned only the original count of the votes
in polling stations at the end of election day, when the envelopes containing
the ballots were first taken out of the ballot boxes, and did not concern any
subsequent recount of votes in the presence of the CEC members. In any
event, the applicant considered that on the facts of the cases there was
no need for a recount, for the simple reason that his victory in the election
could be established beyond any doubt from the documentary material
available.
44. The applicant submitted that there were no legitimate grounds for an
outright invalidation of the election results for the entire electoral
constituency. Such a decision in the present case meant in essence that the
domestic electoral system allowed one or a few random individuals to
frustrate the opinion of tens of thousands of voters simply by making minor
alterations to official records of election results. This in turn gave the
current Government the opportunity to prevent opposition candidates from
becoming members of parliament by simply having an electoral official
tamper with a results record in order to render the results of the election null
and void, and subsequently escape with a very lenient penalty for doing this.
2. The Court’s assessment
45. Article 3 of Protocol No. 1 appears at first sight to differ from the
other rights guaranteed in the Convention and Protocols, as it is phrased in
terms of the obligation of the High Contracting Party to hold elections
which ensure the free expression of the opinion of the people rather than in
terms of a particular right or freedom. However, the Court has established
that it guarantees individual rights, including the right to vote and to stand
for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987,
§§ 46-51, Series A no. 113). The Court has consistently highlighted the
importance of the democratic principles underlying the interpretation and
application of the Convention and has emphasised that the rights guaranteed
under Article 3 of Protocol No. 1 are crucial to establishing and maintaining
the foundations of an effective and meaningful democracy governed by the
rule of law (ibid., § 47; see also Hirst v. the United Kingdom (no. 2) [GC],
no. 74025/01, § 58, ECHR 2005-IX).
46. The rights bestowed by Article 3 of Protocol No. 1 are not absolute.
There is room for “implied limitations” and Contracting States have a wide
margin of appreciation in the sphere of elections (see Mathieu-Mohin and
Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC],
no. 24833/94, § 63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95,
§ 201, ECHR 2000-IV). It is, however, for the Court to determine in the last
resort whether the requirements of Article 3 of Protocol No. 1 have been
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