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FIRST
SECTION
CASE OF RAMAZANOVA AND OTHERS v. AZERBAIJAN
(Application
no. 44363/02)
JUDGMENT
STRASBOURG
1 February 2007
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Ramazanova and Others v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Regitrar,
Having
deliberated in private on 11 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44363/02) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by 4 Azerbaijani nationals,
Ms Nabat Ramazanova, Mr Emin Zeynalov, Ms Zarifa Ganbarova and
Mr Eldar Alizadeh (“the applicants”), on 22 November
2002.
- The
applicants were represented by Mr I. Aliyev, a lawyer practising
in Baku. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr C. Asgarov.
- The
applicants alleged that the significant delays in the state
registration of their public association amounted to a violation of
their right to freedom of association, that the domestic courts were
not independent and impartial, and that the domestic remedies were
not effective in lawsuits filed by public associations against the
Ministry of Justice of Azerbaijan.
- On
4 September 2003 the Court decided to give notice of the application
to the Government. On 2 March 2006, under the provisions of Article
29 § 3 of the Convention, it decided to examine the merits of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1947, 1949, 1952 and 1947 respectively and
live in Baku.
- On
4 April 2001 the applicants founded a public association named
“Assistance to the Human Rights Protection of the Homeless and
Vulnerable Residents of Baku” (“Evsiz və Məzlum
Bakılıların İnsan Hüquqlarının
Müdafiəsinə Yardım” İctimai Birliyi).
This was a non-profit organisation aimed at providing aid to the
homeless and protection of their interests.
A. The applicants' requests for state registration and
the original sets of judicial proceedings
- On
9 April 2001 the applicants filed a request for the association's
state registration with the Ministry of Justice (hereinafter also
referred to as the “Ministry”), the government authority
responsible for the state registration of legal entities. According
to the Government, this request was filed on 12 April 2001. Under the
domestic law, a non-governmental organisation acquired the status of
a legal entity only upon its state registration by the Ministry.
- On
18 May 2001 the Ministry returned the registration documents to the
applicants “without taking any action”, i.e. without
issuing a state registration certificate or an official refusal to
register the association. In the cover letter, the Ministry noted
that the association's charter did not comply with Article 6 of the
Law On Non-Governmental Organisations, because it did not
include a provision on the territorial area of the association's
activity.
- The
applicants redrafted the charter in line with the Ministry's comments
and on 4 June 2001 filed the second registration request, submitting
a new version of the charter. On 10 September 2001 the Ministry
responded with another refusal, stating that the charter was once
again not in compliance with the requirements of the Law On
Non-Governmental Organisations. Specifically, it failed to
provide for the terms of office of the association's supervisory
board, as required by Article 25.1 of that Law.
- The
applicants again revised the charter and on 2 October 2001 submitted
their third registration request.
- Having
not received any response to their third registration request for
several months, on 22 May 2002 the applicants applied to the Yasamal
District Court, complaining that the Ministry “evaded”
registering their organisation and asking the court to oblige the
Ministry to register it. They also demanded moral compensation in the
amount of 25,000,000 Azerbaijani manats (AZM).
- On
5 July 2002 the Ministry sent a letter to the court, informing that
the documents were again returned “with no action taken”
by the Ministry. This time the reason for declining the registration
was the applicants' failure to include in the charter the conditions
for membership in the association, as required by Article 10.3 of the
Law On Non-Governmental Organisations.
- On
15 July 2002 the Yasamal District Court dismissed the applicants'
claim, finding nothing unlawful in the actions of the Ministry. The
court found that the association's charter had not been drafted in
accordance with the requirements of the domestic law.
- The
applicants appealed. On 19 September 2002 the Court of Appeal upheld
the district court's judgment. On 20 November 2002 the Supreme Court
upheld the Court of Appeal's decision.
- In
the meantime, the applicants once again re-drafted the organisation's
charter according to the Ministry's latest comments and on 29 July
2002 submitted their fourth registration request. Having not received
a reply within the statutory five-day period, they filed a new
lawsuit with the Yasamal District Court, claiming that the Ministry
committed repeated procedural violations and unlawfully delayed the
examination of their registration request.
- The
representatives of the Ministry argued in the court that the
examination of the applicants' registration request was delayed due
to the heavy workload of the Ministry's Department of State
Registration of Legal Entities.
- On
5 September 2002 the Yasamal District Court issued a procedural
decision (qərardad) on “leaving the claim without
examination”, i.e. declaring the applicant's lawsuit
inadmissible. The court noted that the applicants' registration
request was still pending examination with the Ministry of Justice
and that the applicant had filed the lawsuit without exhausting
extrajudicial resolution of the matter. On 1 November 2002 the Court
of Appeal and on 13 January 2003 the Supreme Court upheld this
decision.
- While
the second lawsuit was still examined on appeal, the applicants,
having not received any answer from the Ministry by December 2002,
filed another lawsuit, asking the court to provide legal
interpretation as to whether the Ministry had a right under the
domestic law to delay and decline registration multiple times, and to
forward the matter of constitutionality of the Ministry's actions for
the consideration of the Constitutional Court. On 18 December 2002
the Yasamal District Court refused to admit the lawsuit, noting that
the applicants' previous lawsuit was still under consideration on
appeal. It also noted that, under the domestic law applicable at that
time, a petition to forward the case to the Constitutional Court
should be filed with the Supreme Court. By a final decision of 26
September 2003, the Supreme Court upheld this decision.
- In
January 2003, about six months after the filing of the applicants'
fourth registration request in July 2002, the Ministry again refused
registration. It appears that, on a later unspecified date, having
again re drafted the charter, the applicants re-submitted their
registration request for the fifth time.
- At
the same time, the applicants filed a new lawsuit against the
Ministry's latest refusal. On 26 February 2003 the Yasamal District
Court refused to admit this lawsuit, because the applicants' appeals
in earlier lawsuits were still pending before the higher courts. By a
final decision of 3 September 2003, the Supreme Court upheld
this decision.
- Finally,
the applicants filed an additional-cassation appeal with the
President of the Supreme Court, requesting the reopening of the
proceedings and referral of the case to the Plenum of the Supreme
Court. By a letter of 10 November 2003, the Supreme Court's President
rejected the applicants' request, finding no grounds for the
reopening of the proceedings.
B. Decision of the Constitutional Court
- The
applicants filed a constitutional complaint against the domestic
courts' judgments, claiming that a number of their constitutional
rights had been violated. On 23 February 2004 the Constitutional
Court admitted their complaint for examination on the merits.
- By
a decision of 11 May 2004, the Constitutional Court found that all
the judgments and decisions of the Yasamal District Court, the Court
of Appeal and the Supreme Court were in breach of the judicial
guarantees for protection of human rights and freedoms, as guaranteed
by the Constitution. Specifically, the Constitutional Court noted
that, in the first set of judicial proceedings, the domestic courts
failed to examine the applicants' complaint thoroughly and assess the
evidence objectively. In particular, in the first set of civil
proceedings, the courts failed to thoroughly examine the issue of an
alleged violation of the applicants' right to freedom of association
and to determine the factual circumstances of the case relating to
this issue. The Constitutional Court found that, thus, the domestic
courts violated Articles 60 and 70 (I) of the Constitution, providing
for judicial guarantees of individual rights and freedoms, as well as
a number of provisions of the Code of Civil Procedure. It further
found that, in the subsequent judicial proceedings, the domestic
courts likewise violated the same provisions of the Constitution.
- The
Constitutional Court quashed all the domestic judgments and decisions
relating to the applicants' case and remitted the case to the courts
of general jurisdiction for a new examination. It specifically
instructed them to examine the alleged violation of the applicants'
right to freedom of association guaranteed by Article 58 of the
Constitution.
C. State registration of the association and subsequent
judicial proceedings
- On
18 February 2005 the Ministry of Justice, in response to the
applicants' fifth registration request, registered the association
and issued a state registration certificate.
- On
the same day, the Yasamal District Court re-examined the applicants'
complaint concerning the unlawful actions of the Ministry and their
claim of compensation in the amount of AZM 25,000,000 for the alleged
violation of their freedom of association. The court dismissed the
applicants' claims, noting that, by the time of the new examination
of the case, the applicants' association had already been registered
and, therefore, the disputed matter had been solved. The court
further held that the domestic law did not provide for compensation
for moral damages in such situations.
- On
22 July 2005 the Court of Appeal upheld the first-instance courts'
judgment. On 22 December 2005 the Supreme Court upheld the lower
courts' judgments.
- It
appears that, thereafter, the applicants filed a new lawsuit, seeking
acknowledgement of a breach of domestic law by the Ministry of
Justice. On 14 September 2006 the Yasamal District Court rejected
this claim. Following an appeal, on 8 December 2006 the Court of
Appeal found that the repeated delays by the relevant official of the
Ministry of Justice in responding to the applicants' registration
requests had constituted a breach of requirements of Article 9 of the
Law On State Registration of Legal Entities. The court awarded
three of the four applicants in the present case, Ms Ramazanova, Mr
Alizadeh and Ms Ganbarova, collectively, the sum of 800 New
Azerbaijani manats (AZN),
which approximately equals to 705 euros (EUR), as a compensation
for moral damages. This amount was to be paid by the relevant
official of the Ministry of Justice responsible for the delays in the
association's state registration.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Republic of Azerbaijan of 12
November 1995
Article 58. Right to association
“I. Everyone has a right to freedom of
association with others.
II. Everyone has the right to form any
association, including political parties, trade unions or other
public associations, or join existing associations. Free functioning
of all associations shall be guaranteed. ...”
Article 60. Judicial guarantees of human
rights and freedoms
“I. Judicial protection of every
person's rights and freedoms shall be guaranteed.
II. Every person shall have a right to
complain in the court about decisions and actions (or omission to
act) of state authorities, political parties, trade unions and other
public associations, as well as public officials.”
Article 71. Guarantees for human and civic
rights and freedoms
“I. The executive, legislative and
judicial powers shall have the duty to guarantee and protect human
rights and freedoms fixed in the Constitution. ...”
B. Civil Code of the Republic of Azerbaijan of 2000
Article 47. Charter of a legal entity
“47.1. The charter of a legal entity
approved by its founders is the legal entity's foundation document.
...
47.2. The charter of a legal entity shall
define the name, address, procedure for management of activities and
procedure for liquidation of the legal entity. The charter
of a non-commercial legal entity shall define the object and purpose
of its activities. ...”
Article 48. State registration of legal
entities
“48.1. A legal entity shall be subject
to state registration by the relevant executive authority. ...
48.2. A violation of the procedure of a legal
entity's establishment or non-compliance of its charter with Article
47 of the present Code shall be the grounds for refusal to register
the legal entity. ...”
C. Law “On State Registration of Legal Entities”
of 6 February 1996
Article 9. Review of the application [for
state registration]
“Upon receipt of an application for state
registration from a legal entity or a branch or representative office
of a foreign legal entity, the authority responsible for state
registration shall:
- accept the documents for review;
- within ten days, issue to the applicant a state
registration certificate or a written notification of the refusal to
register; or
- review the documents resubmitted after
rectification of the breaches previously existing therein and, within
five days, take a decision on state registration.”
D. Law “On Non-Governmental Organisations (Public
Associations and Funds)” of 13 June 2000
Article 6. [Territorial] area of
activities of non-governmental organisations
“6.1. Non-governmental organisations
may be established and carry out their activities with the
all-Azerbaijani, regional, and local status. The area of activities
of a non-governmental organisation shall be determined independently
by the organisation.
6.2. Activities of all-Azerbaijani
non-governmental organisations shall apply to the whole territory of
the Azerbaijan Republic. Activities of regional non-governmental
organisations shall cover two or more administrative-territorial
units of the Republic of Azerbaijan. Local non-government
organisations shall operate within one administrative-territorial
unit. ...”
Article 10. Members of public associations
“3. The issue of acquiring and
termination of membership in a public association shall be determined
by its charter. Charter of a public association shall guarantee the
right to lodge a complaint, within the association and in court,
regarding termination of membership. ...”
Article 16. State registration of
non-governmental organisations
“16.1. The state registration of
non-governmental organisations shall be carried out by the relevant
executive authority in accordance with the laws of the Republic of
Azerbaijan on state registration of legal entities.
16.2. Non-governmental organisations shall
acquire the status of a legal entity only after passing the state
registration.”
Article 17. Refusal of state registration
“17.1. Non-governmental organisations
can be refused registration only if there is another organisation
existing under the same name, or if the documents submitted for
registration contradict the Constitution of the Republic of
Azerbaijan, this law and other laws of the Republic of Azerbaijan, or
contain false information.
17.2. Decision on refusal of state
registration shall be presented in writing to the representative of
the non-governmental organisation, with indication of the grounds for
refusal as well as the provisions and articles of the legislation
breached upon preparation of the foundation documents.
17.3. Refusal of registration shall not
prevent the organisation from resubmitting its registration documents
after rectification of the breaches.
17.4. The decision on refusal of state
registration may be challenged in court.”
Article 25. Principles of management of
public associations
“25.1. The charter of a public
association shall, in accordance with this law and other laws, define
the structure and composition of the public association; the
competence, formation procedure and term of office of its managing
bodies; as well as the procedure for decision-making and
representation of the public association. ...”
E. Law “On Grant” of 17 April 1998
Article 1. Grant
“1. A grant is an assistance rendered
pursuant to this law in order to develop and implement humanitarian,
social and ecological projects, works on rehabilitation of destroyed
objects of industrial and social purpose, of infrastructure in the
territories damaged as a result of the war and disaster, programs in
the field of education, health, culture, legal advice, information,
publishing, sport, scientific research and design programs as well as
other programs of importance for the state and public. A grant shall
only be provided for a specific purpose (or purposes).
2. A grant shall be provided in the financial
and/or in any other material form. The grant shall be rendered gratis
and its repayment in any form may not be requested. ...”
Article 3. Recipient
“1. A grant beneficiary is a recipient
in respect of a donor.
2. The following may be a recipient:
- The Azerbaijani State in the person of the relevant
executive authority;
- Municipal authorities;
- Resident and non-resident legal entities, their
branches, representative offices and departments carrying out
activity in the Republic of Azerbaijan, whose main objective,
according to their articles of association, is charitable activities
or implementation of projects and programs that may be a subject of a
grant, and which are not aimed at direct generation of profit
resulting from the grant; and
- Individuals in the Republic of Azerbaijan. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicants complained that the failure by the
Ministry of Justice to register their organisation in a timely manner
constituted an interference with their freedom of association. As the
Ministry evaded registering the organisation by significantly
delaying the examination of their registration requests and breaching
the statutory time-limits for the official response, their
association could not acquire legal status. This allegedly
constituted a violation of their right to freedom of association, as
provided in Article 11 of the Convention, which reads as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
A. Admissibility
1. Compatibility ratione
temporis
- The
Court observes that part of the events giving rise to the applicants'
complaint relate to the period before 15 April 2002, the date of the
Convention's entry into force with respect to Azerbaijan. The Court
notes that it is only competent to examine complaints of violations
of the Convention arising from events that have occurred after the
Convention had entered into force with respect to the High
Contracting Party concerned (see e.g. Kazimova v. Azerbaijan
(dec.), no. 40368/02, 6 March 2003).
- Accordingly,
the Court's competence is limited to the part of the complaint
relating to the events that occurred after 15 April 2002, whereas the
events relating to the applicants' first and second registration
requests as well as part of the events relating to the third
registration request fall outside of its competence ratione
temporis. Nevertheless, where necessary, the Court shall take
into account the state of affairs as it existed at the beginning of
the period under consideration.
2. The applicants' victim status
- Referring
to the fact that the Ministry of Justice registered the association
on 18 February 2005, the Government submitted that the matter had
been resolved and requested the Court to strike the application out
of the list of cases. The Court considers that, in substance, this
request amounted to an assertion that the applicants were no longer
victims of the alleged violation of the Convention.
- The
applicants disagreed. They noted that the domestic authorities did
not acknowledge the violation of their right to freedom of
association and did not afford redress for this violation.
- The Court recalls that the word “victim”
denotes the person directly affected by the act or omission which is
in issue (see e.g. Marckx v. Belgium, judgment of 13 June
1979, Series A no. 31, p. 13, § 27). In the present case
the applicants, all of whom were the original founders of the public
association, complained about arbitrary delays in the state
registration of the association, as a result of which the association
could not obtain a legal entity status and function properly. This
directly affected its founders' right to freedom of association,
depriving them of a possibility to jointly or individually pursue the
aims they had laid down in the association's charter and, thus, to
exercise the right in question (see, mutatis mutandis,
Sidiropoulos and Others v. Greece, judgment of 10 July 1998,
Reports of Judgments and Decisions 1998 IV, p. 1612,
§ 31; see also paragraphs 54-60 below).
- The
Court further recalls that a decision or measure favourable to an
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Amuur v. France,
judgment of 25 June 1996, Reports 1996 III, p. 846, §
36; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR
1999-VI). Only when these conditions are satisfied does the
subsidiary nature of the protective mechanism of the Convention
preclude examination of an application.
- The
Court observes that the mere fact that the authorities finally
registered the association after a significant delay cannot be viewed
in this case as automatically depriving the applicants of their
victim status under the Convention.
- The
Court notes that, up to December 2006, neither the domestic courts
nor any other domestic authorities have expressly acknowledged that
there was an interference with the applicants' Convention rights.
Although the Constitutional Court quashed the earlier judgments and
decisions of the courts of general jurisdiction, the Constitutional
Court itself did not find a violation of the applicants' right to
freedom of association. It merely ordered a new examination of the
issue of whether this right of the applicants had been
violated. Finally, on 6 December 2006, the Court of Appeal
acknowledged a breach of the domestic procedural requirements by the
relevant official of the State Registration Department of the
Ministry of Justice and ordered him to pay moral compensation to the
applicants. Arguably, this constituted an acknowledgement of a
violation of the applicants' right to freedom of association by the
State. However, the Court does not consider it necessary to determine
this issue for the following reason.
- Even
assuming that the authorities have acknowledged a violation of the
applicants' Convention rights, the Court notes that the moral
compensation was finally awarded in the latest set of judicial
proceedings only to three of the four applicants in the present case,
despite the fact that all four of the applicants demanded such
compensation in all previous proceedings. Moreover, having regard to
the fact that the state registration of the association had been
delayed for a period of almost four years and that the applicants had
to defend their rights at numerous court hearings in several sets of
judicial proceedings, the Court finds that the amount of EUR 705
awarded collectively to three applicants cannot be considered as a
full redress for the breach of the applicants' Convention rights. In
such circumstances, the Court finds that the state registration of
the association, which clearly constituted a measure favourable to
the applicants, was nevertheless insufficient to deprive them of
their “victim” status.
- Accordingly,
the Court rejects the Government's objection as to the applicants'
loss of victim status.
3. Domestic remedies
- The
Government submitted that, at the time of lodging of their
application with the Court, the applicants had not exhausted the
available domestic remedies. In particular, they had not filed an
additional cassation complaint with the Plenum of the Supreme Court.
Moreover, the Government contended that the applicants complained to
the domestic courts only about the allegedly unlawful actions of the
Ministry of Justice, and did not specifically raise a complaint that
these actions amounted to a violation of their right to freedom of
association.
- The
applicants submitted that they were not required to file an
additional cassation complaint before lodging the present application
with the Court, because the Plenum of the Supreme Court was not an
effective remedy. They also maintained that their complaint about the
Ministry's unlawful “evading the registration of the
non-governmental organisation” constituted a substantive
complaint about a violation of their freedom of association.
- The
Court recalls that, where an applicant continues to exhaust the
domestic remedies after the lodging of his application but before the
decision on its admissibility is reached, the Court examines the
question of exhaustion of domestic remedies as of the time it is
called upon to decide on the admissibility of the complaint, and not
as of the time of lodging of the application (see e.g. Yolcu v.
Turkey (dec.), no. 34684/97, 3 May 2001).
- The
Court further recalls its previous finding that the additional
cassation procedure in the Plenum of the Supreme Court of the
Republic of Azerbaijan did not constitute an ordinary and effective
remedy which the applicants were required to exhaust within the
meaning of Article 35 § 1 of the Convention (see Babayev v.
Azerbaijan (dec.), no. 36454/03, 27 May 2004). However,
the Court observes that, in any event, after lodging the present
application with the Court, the applicants actually filed an
additional cassation complaint, which was rejected by the President
of the Supreme Court. Further, their constitutional complaint was
declared admissible and examined on the merits by the Constitutional
Court, which quashed the previous judgments and decisions and ordered
a new examination of the case. Thereafter, the applicants once again
exhausted all the ordinary remedies available to them under the
domestic law.
- As
for the Government's argument that the applicants did not expressly
complain before the domestic authorities about a violation of their
right to freedom of association, the Court considers that their
lawsuit against the Ministry of Justice and demand for moral
compensation constituted such a complaint in substance. This is
confirmed by the decision of the Constitutional Court, which found
that, under the domestic law, the subject matter of the domestic
litigation in the courts of general jurisdiction was the alleged
violation of the applicants' right to freedom of association.
- For
these reasons, the Court rejects the Government's objection as to
exhaustion of domestic remedies.
4. Conclusion
- Having
regard to the above conclusions, the Court further notes that the
complaint is not inadmissible on any other grounds and that it is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It must therefore be declared admissible in the part
relating to the events that took place after 15 April 2002.
B. Merits
1. The parties' submissions
- The
Government argued that there was no interference with the applicants'
freedom of association. Firstly, the Government noted that the
Ministry did not refuse to register the association. Instead, it
merely returned the association's foundation documents to the
founders so that the latter could rectify the shortcomings and ensure
that they complied with the requirements of the domestic law. The
Government contended that, although “a refusal to register a
public association might be regarded as a violation of the right to
freedom of association, the delayed response to [an application for
state registration] is not a violation of this right.”
- Secondly,
the Government argued that the delay in registration only resulted in
the association's temporary inability to acquire the status of a
legal entity. However, under the domestic law, lack of the status of
a legal entity did not prevent the association from continuing its
activities and entering into various contracts, such as the lease of
premises, opening a bank account, and other activities.
- Furthermore,
the Government noted that it was the obligation of the association's
founders to ensure that the association's foundation documents
complied with the legal requirements, which was a pre-requisite for
the state registration by the Ministry of Justice. The applicants,
however, “continuously refused to bring their constituent
documents in conformity with the existing legislation, and were
seeking to obtain ... registration on the basis [of] documents [which
contradicted] the law. It was not the obligation of the Ministry of
Justice to rectify the errors, but to advise the applicants to do
this.”
- As
to the Ministry's breaches of the statutory ten- and five-day
registration periods, the Government argued that it was merely a
result of the Ministry's heavy workload.
- The
applicants argued that the delays in responding to their registration
requests, which were significantly beyond the time-limits set by the
domestic law, constituted an interference with, and a violation of,
their right to freedom of association. The applicants maintained that
such delays were in breach of the domestic law. Moreover, the
applicants noted that the Ministry cited a new, different deficiency
in the association's foundation documents each time it returned the
documents to the founders. However, under the domestic law, the
Ministry was obliged to identify all the deficiencies after the first
registration request, and after these deficiencies had been rectified
by the founders upon their second registration request, the Ministry
was obliged to issue a final decision, i.e. either register the
association or issue an official refusal to register it.
- The
applicants also noted that, without acquiring a status of a legal
entity, the association was unable to function properly and to engage
in its primary activities. Specifically, under the domestic law, only
duly registered legal entities could be “grant”
recipients. Taking into consideration that “grants” were
the main (and in most cases, the only) financial source for
non-governmental organisations' activities, the association could not
properly function without a status of a legal entity. Moreover, only
state registered non-governmental organisations could enjoy tax
preferences under the taxation law and engage in a number of
financial and other activities.
- Finally,
the applicants disagreed with the Government's submission that they
were not diligent in rectifying the deficiencies in the association's
foundation documents. They contended that their prompt compliance
with each of the Ministry's remarks and the number of registration
requests showed their diligence in trying to bring the documents into
conformity with the existing legislation.
2. The Court's assessment
(a) Whether there has been an interference
- The Court reiterates that the right to form an
association is an inherent part of the right set forth in Article 11.
That citizens should be able to form a legal entity in order to act
collectively in a field of mutual interest is one of the most
important aspects of the right to freedom of association, without
which that right would be deprived of any meaning. The way in which
national legislation enshrines this freedom and its practical
application by the authorities reveal the state of democracy in the
country concerned. Certainly States have a right to satisfy
themselves that an association's aim and activities are in conformity
with the rules laid down in legislation, but they must do so in a
manner compatible with their obligations under the Convention and
subject to review by the Convention institutions (see Sidiropoulos
and Others, cited above, p. 1614, § 40).
- The ability to establish a legal entity in order to
act collectively in a field of mutual interest is one of the most
important aspects of freedom of association, without which that right
would be deprived of any meaning. The Court has consistently held the
view that a refusal by the domestic authorities to grant legal entity
status to an association of individuals amounts to an interference
with the applicants' exercise of their right to freedom of
association (see e.g. Gorzelik and Others v. Poland [GC], no.
44158/98, § 52, 17 February 2004; Sidiropoulos,
cited above, p. 1612, § 31; and APEH Üldözötteinek
Szövetsége and Others v. Hungary (dec.),
no. 32367/96, 31 August 1999).
- The
Court takes note of the Government's argument that, under the
domestic law applicable at that time, the return of foundation
documents for rectification of deficiencies did not constitute a
formal and final refusal to register the association or a total ban
on its activities. However, the Court observes that, in the present
case, the registration procedure was substantially delayed due to the
Ministry of Justice's continuous failure to respond to the
applicants' registration requests within the time-limits set by the
domestic law on state registration. More specifically, since the date
of the lodging of the applicants' first registration request on 9
April 2001, almost four years passed until the applicants'
association was finally registered on 18 February 2005. Almost three
years of that total period fall within the period after Azerbaijan's
ratification of the Convention on 15 April 2002.
- Having
regard to the facts of the case, the Court observes that, each time
the registration documents were returned to the applicants, they
rectified the deficiencies noted in the Ministry's letters and
re-submitted a new registration request in a prompt manner (usually
within less than one month after receiving the Ministry's comments).
On the other hand, the Ministry delayed the response to each of the
applicants' registration requests for several months. Accordingly, it
cannot be disputed that the delay of almost four years in the
association's registration is to a large extent attributable to the
Ministry's failure to respond in a timely manner.
- The
association was in fact deprived of a legal entity status for the
entire duration of this delayed registration procedure. Although the
return of documents for rectification of deficiencies may not be
regarded as a formal and final refusal to register the association
under the domestic law, the Court, leaving aside the domestic
interpretations of “formal refusal”, considers that the
repeated failures by the Ministry of Justice to issue a definitive
decision on state registration of the association amounted to
de facto refusals to register the association.
- Moreover,
the Court notes that, even assuming that theoretically the
association had a right to exist pending the state registration, the
domestic law effectively restricted the association's ability to
function properly without the legal entity status. It could not,
inter alia, receive any “grants” or financial
donations which constituted one of the main sources of financing of
non-governmental organisations in Azerbaijan (see Article 3 of the
Law On Grant). Without proper financing, the association was
not able to engage in charitable activities which constituted the
main purpose of its existence. It is therefore apparent that, lacking
the status of a legal entity, the association's legal capacity was
not identical to that of state-registered non-governmental
organisations.
- The
Court considers that, whereas the applicants were the founders of the
association, the significant delays in its state registration, which
resulted in its prolonged inability to acquire the status of a legal
entity, amounted to an interference by the authorities with the
applicants' exercise of their right to freedom of association.
(b) Whether the interference was justified
- Such
interference will not be justified under the terms of Article 11 of
the Convention unless it was “prescribed by law”, pursued
one or more of the legitimate aims set out in paragraph 2 of that
Article and was “necessary in a democratic society” for
the achievement of that aim or aims (see e.g. Chassagnou and
Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95,
§ 104, ECHR 1999 III).
- The
Court recalls that the expression “prescribed by law”
requires that the impugned measure should have some basis in domestic
law and refers to the quality of the law in question. The law should
be accessible to the persons concerned and formulated with sufficient
precision to enable them – if need be, with appropriate advice
– to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail (see
e.g. Maestri v. Italy [GC], no. 39748/98, § 30, ECHR
2004 I; Adalı v. Turkey, no. 38187/97, § 272,
31 March 2005; and Rekvényi v. Hungary [GC], no.
25390/94, § 34, ECHR 1999-III). For domestic law to meet
these requirements, it must afford a measure of legal protection
against arbitrary interferences by public authorities with the rights
guaranteed by the Convention. In matters affecting fundamental rights
it would be contrary to the rule of law, one of the basic principles
of a democratic society enshrined in the Convention, for a legal
discretion granted to the executive to be expressed in terms of an
unfettered power. Consequently, the law must indicate with sufficient
clarity the scope of any such discretion and the manner of its
exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96,
§ 84, ECHR 2000-XI; and Maestri, cited above, § 30).
- The Court is aware of the fact that, since the time of
the events giving rise to the present complaint, certain amendments
have been made to the Azerbaijani legislation on state registration
of legal entities. However, for the purposes of this complaint, the
Court will have regard to the domestic law as it was applicable at
the relevant time.
- The
Court observes that Article 9 of the Law On State Registration of
Legal Entities of 6 February 1996 set a ten-day time-limit for
the Ministry to issue a decision on the state registration of a legal
entity or refusal to register it. In the event the legal entity's
foundation documents contained rectifiable deficiencies, the Ministry
could return the documents to the founders within the same ten-day
time-limit with the instructions to rectify those deficiencies. After
the registration request was re-submitted following such
rectification, the law provided for a five-day time-limit for
official response. However, in the present case, the Ministry delayed
its response to each registration request by several months. In
particular, the response to the applicants' third registration
request of 2 October 2001 was delayed by more than nine months,
whereas the law clearly required it to be issued within 5 days. The
response to the fourth registration request was delayed by
approximately six months. In such circumstances, the Court cannot but
conclude that the Ministry violated the procedural time-limits.
- It
follows that there was no basis in the domestic law for such
significant delays. The Government's argument that the delays were
caused by the Ministry's heavy workload cannot extenuate the
undisputable fact that, by delaying the examination of the
registration requests for unreasonably long periods, the Ministry
breached the procedural requirements of the domestic law. It is the
duty of the Contracting State to organise its domestic
state-registration system and take necessary remedial measures so as
to allow the relevant authorities to comply with the time limits
imposed by its own law and to avoid any unreasonable delays in this
respect (see, by analogy, Martins Moreira v. Portugal,
judgment of 26 October 1988, Series A no. 143, p. 19, §§ 53-54;
Unión Alimentaria Sanders S.A. v. Spain, judgment of 7
July 1989, Series A no. 157, p. 15, § 40; and
Zimmermann and Steiner v. Switzerland, judgment of 13 July
1983, Series A no. 66, pp. 12-13, § 29). In the present
case, there is no evidence as to whether any measures have ever been
undertaken by the State authorities to remedy the situation at the
material time. The Court therefore considers that the Ministry's
alleged heavy workload was not a good excuse for such unreasonable
delays as in the present case.
- Furthermore,
as to the quality of the law in question, the Court considers that
the law did not establish with sufficient precision the consequences
of the Ministry's failure to take action within the statutory
time-limits. In particular, the law did not provide for an automatic
registration of a legal entity or any other legal consequences in the
event the Ministry failed to take any action in a timely manner, thus
effectively defeating the very object of the procedural deadlines.
Moreover, the law did not specify a limit on the number of times the
Ministry could return documents to the founders “with no action
taken”, thus enabling it, in addition to arbitrary delays in
the examination of each separate registration request, to arbitrarily
prolong the whole registration procedure without issuing a final
decision by continuously finding new deficiencies in the registration
documents and returning them to the founders for rectification.
Accordingly, the law did not afford the applicants sufficient legal
protection against the arbitrary actions of the Ministry of Justice.
- Having
found that the Ministry of Justice breached the statutory time-limits
for the association's state registration and that the domestic law
did not afford sufficient protection against such delays, the Court
concludes that the interference was not “prescribed by law”
within the meaning of Article 11 § 2 of the Convention.
- Having
reached that conclusion, the Court does not need to satisfy itself
that the other requirements of Article 11 § 2
(legitimate aim and necessity of the interference) have been complied
with.
- There
has accordingly been a violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND
13 OF THE CONVENTION
- The
applicants complained that, contrary to Article 6 § 1
of the Convention, the domestic courts had not been independent and
impartial. They noted that, in accordance with the law applicable at
the time of the events in question, the selection of candidates to
judicial positions in Azerbaijan was performed by the Judicial Legal
Council under the President of the Republic of Azerbaijan, presided
over by the Minister of Justice. The applicants alleged that, in such
circumstances, the judges of the domestic courts could not be
independent and impartial in the proceedings against the Ministry of
Justice, because their subsequent re-appointment to the courts would
depend on the discretion of the Minister of Justice as the Chairman
of the Judicial Legal Council. Furthermore, in conjunction with
Article 6 § 1, the applicants complained under Article 13 of the
Convention that the domestic courts could not be considered as an
effective remedy because they had never ruled against the Ministry of
Justice in cases concerning the delays in registration of
non-governmental organisations.
- The
Court notes that these complaints are essentially the same as those
raised before the Court in the case of Asadov and Others v.
Azerbaijan ((dec.), no. 138/03, 12 January 2006). In that
case, the Court found that the complaints were manifestly
ill-founded. In the absence of any substantially new arguments or
evidence submitted in the present case, the Court does not find any
reason to deviate from its reasoning in the Asadov and Others
case.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicants claimed EUR 25,000 in respect of pecuniary damage. They
argued that, as a result of the Ministry's failure to register the
association for almost four years, they could not secure any
financial resources for the association's activity during the period
of 2001-2005.
- No
observations were made in this respect by the Government.
- The
Court notes that the applicants have not submitted any documentary
evidence or any other justification for their claim. In such
circumstances, the Court cannot speculate whether the applicants
would indeed be able to secure any funding for their association if
it had been registered in a timely manner, and if so, in what amount.
The Court, therefore, rejects the applicants' claim in respect of
pecuniary damage.
2. Non-pecuniary damage
- The
applicants claimed EUR 10,000 each, making a total of EUR 40,000,
in respect of non-pecuniary damage.
- The
Government argued that this amount was unjustified and excessive.
- In
the Court's view, the arbitrary delay in the state registration of
the association must have been highly frustrating for the applicants
as its founders. Nevertheless, the amount claimed is excessive.
Making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court awards the applicants, collectively,
the sum of EUR 4,000 in respect of moral damage, plus any tax
that may be chargeable on this amount.
B. Costs and expenses
- The
applicants also claimed EUR 5,200 for the costs and expenses incurred
before the domestic courts and EUR 199 for those incurred before the
Court (including the translation, postal and photocopy expenses, but
not including any legal fees).
- The
Government noted that the applicants did not submit any proof of
expenses and that they should not be awarded any compensation for
costs and expenses in the domestic proceedings.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,000 covering costs under all
heads, plus any tax that may be chargeable on this amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicants' right to freedom of association admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, a total of EUR
4,000 (four thousand euros) in respect of non-pecuniary damage and a
total of EUR 2,000 (two thousand euros) in respect of costs and
expenses, to be converted into New Azerbaijani manats at the rate
applicable on the date of settlement, plus any tax that may be
chargeable on these amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 1 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
