HAJILI v. AZERBAIJAN JUDGMENT
13
However, it observes that, unlike the Kerimova judgment, where it was
apparent from the established facts that the applicant would have won the
election had the election results not been invalidated arbitrarily
(ibid., §§ 9 and 47), in the present case it is not possible to establish with
certainty that the applicant would have won the election in his electoral
constituency. Specifically, while the applicant claimed that he had received
the highest number of votes based on the copies of PEC results records in
his possession, no similar aggregated vote count showing him as the winner
has ever been officially produced by the relevant ConECs or CEC (unlike in
the Kerimova case). In this respect, the Court notes that, unless it is
rendered unavoidable by the circumstances of the case, it is not the Court’s
task to substitute itself for domestic electoral authorities or to take on the
function of a first-instance tribunal of fact by attempting to determine the
exact vote counts on the basis of records of election results issued by
electoral commissions of the lowest level or to determine who should have
won the elections in the applicant’s constituency (see, mutatis mutandis,
Namat Aliyev, cited above, § 77). Nevertheless, it is sufficiently clear from
the facts of the case that the applicant was one of the frontrunners among
other candidates in his electoral constituency and that the authorities’
decision to annul the election results affected the applicant’s chances of
being elected to the National Assembly. In this connection, the Court also
reiterates that Article 3 of Protocol No. 1 guarantees not a right to win the
election per se, but a right to stand for election in fair and democratic
conditions (ibid., § 75).
50. Moreover, it is true that in the present case, prior to the CEC
decision on the annulment of the election, the applicant had complained to
the CEC about alleged irregularities perpetrated against him in three polling
stations of the constituency. It could therefore be argued that the CEC
decision followed a relevant request by the applicant. However, the CEC
decision went manifestly beyond what had been requested of it by the
applicant and invalidated the election results in a greater number of polling
stations of the constituency, resulting in an invalidation of the election
results in the constituency as a whole.
51. Having regard to the above considerations, the Court considers that
the CEC decision to annul the elections constituted an interference with the
applicant’s effective exercise of his right to stand for election. It remains to
be determined whether this interference was compatible with the
requirements of Article 3 of Protocol No. 1 to the Convention.
52. The Government contended that the impugned decision on the
invalidation of election results had been aimed at protecting the free
expression of the voters’ opinion from illegal interference and ensuring that
only the rightfully elected candidates represented the voters in parliament.
However, the Court has doubts as to whether a practice of discounting all
votes cast in an entire electoral constituency owing merely to the fact that
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