FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 138/03
by Etimad ASADOV and Others
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 12 January 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 19 November 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Messrs Etimad Asadov, Firudin Mamedov, Asaf Aliyev, Bahruz Jamalov, and Oqtay Mehdiyev, are Azerbaijani nationals who were born in 1963, 1970, 1965, 1962 and 1968 respectively and live in Baku. They were represented before the Court by Messrs I. Aliyev and A. Guliyev, lawyers practising in Azerbaijan. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 December 2001 the applicants founded a public association named “Karabakh Warriors” (“Qarabağ Qaziləri” İctimai Birliyi). This was a non-profit organisation aimed at providing aid to the Karabakh war invalids and protection of their interests.
After the founders’ meeting, the applicants filed an application for the association’s state registration with the Ministry of Justice, the government authority responsible for the state registration of legal entities. In accordance with the domestic law, a non-governmental organisation acquired the status of a legal entity only upon its state registration by the Ministry of Justice. While the applicants claimed that they had filed the application in late December 2001, the Government submitted that it had been officially received by the Ministry on 8 February 2002.
On 15 February 2002 the Ministry of Justice 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 in general terms that the association’s charter did not comply with Article 13.1 of the Law On Non-Governmental Organisations, which set out general requirements for the contents of a charter.
The applicants redrafted the charter in line with the Ministry’s comments and on 12 April 2002 re-applied for the state registration submitting a new version of the charter. Although the applicants expected to receive a response from the Ministry within the statutorily required five-day period after the re-submission of the registration documents, they did not receive anything from the Ministry for the following three months.
In July 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. In the meantime, on 19 July 2002 the Ministry sent a letter to the applicants, informing them 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 list in the charter the terms of service of the association’s governing bodies, as required by Article 25.1 of the Law On Non-Governmental Organisations. More specifically, the Ministry noted that the charter did not specify the term of office of the association’s Deputy President. The applicants alleged that they had never seen this letter before it was presented to them during the court proceedings.
On 7 August 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, claiming that the requirement to specify in the charter the term of office of the association’s Deputy President was “absurd” and could not be used as justification for evading registering the organisation. On 11 October 2002 the Court of Appeal upheld the district court’s judgment. On 12 February 2003 the Supreme Court upheld the Court of Appeal’s decision.
In the meantime, while the judicial proceedings were still underway, the applicants once again redrafted the association’s charter to take account of the Ministry’s remarks made in the letter of 19 July 2002, and once again re-submitted the registration documents on 16 September 2002. According to the applicants, they did not receive any response from the Ministry until 14 February 2004, when the registration documents were again returned to them without any explanation.
B. Relevant domestic law
1. 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. ...”
2. 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.”
3. Law “On Non-Governmental Organisations (Public Associations and Funds) of 13 June 2000
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 and indicating 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. ...”
4. Constitution of the Republic of Azerbaijan of 1995
Article 8. Head of the Azerbaijani State
“IV. The President of the Republic of Azerbaijan shall be the guarantor of the independence of the judicial power.”
Article 109. Competence of the President of the Republic of Azerbaijan
“The President of the Republic of Azerbaijan: ...
(9) submits proposals to the Milli Majlis [National Assembly] of the Republic of Azerbaijan for appointment of judges of the Constitutional Court of the Republic of Azerbaijan, Supreme Court of the Republic of Azerbaijan and the appellate courts of the Republic of Azerbaijan; appoints judges of other courts of the Republic of Azerbaijan; ...”
Article 127. Independence of judges
“I. Judges are independent, they are subordinate only to Constitution and laws of the Republic of Azerbaijan, and cannot be replaced during the term of their office. ...
III. It shall not be permitted for anyone and for any reason to impose direct or indirect restrictions on, or illegally influence, threaten or interfere with legal proceedings in courts. ...”
Article 128. Immunity of judges
“I. Judges shall have immunity.
II. A judge can be called for criminal responsibility only in accordance with the procedure provided for by law.
III. Authority of a judge may be terminated only in cases and in the manner specified by law.
IV. If a judge has committed a crime, the President of the Republic of Azerbaijan, based on an opinion by the Supreme Court of the Republic of Azerbaijan, may submit to the Milli Majlis of the Republic of Azerbaijan the initiative to dismiss the judge from his post. ...”
5. Law “On Courts and Judges” of 10 June 1997 (as applicable at the material time)
Pursuant to Article 94 of this Law and pursuant to Article 109 of the Constitution, the judges of the Supreme Court and of the appellate courts are appointed by the Milli Majlis [National Assembly] upon nomination by the President of the Republic of Azerbaijan. All other judges are appointed by the President. The President also appoints presiding judges of courts and court chambers. Chairman of the Ali Majlis [Supreme Assembly] of the Nakhchivan Autonomous Republic participates in the selection of candidates to judicial positions in the courts of the Nakhchivan Autonomous Republic.
In accordance with Article 96, the term of office of the judges of the Supreme Court, Economic Court, Court of Appeal and Supreme Court of the Nakhchivan Autonomous Republic is 10 years, while the term of office of all other judges is 5 years. According to Article 97, the judge may not be dismissed before the expiry of his term of office, except in certain specific circumstances provided by Article 113 (voluntary resignation, death, physical or mental incapacity, involvement in activities incompatible with the office of a judge, repudiation of Azerbaijani citizenship, etc.).
The Law also sets out guarantees for the independence, irremovability, judicial immunity, personal security, as well as material and social protection of judges.
6. Statute of the Judicial Legal Council under the President of the Republic of Azerbaijan, adopted by the Presidential Decree of 1 December 1998 (superseded by Law “On Judicial Legal Council” of 28 December 2004)
Under Article 1.2 of the Statute, the Judicial Legal Council (Məhkəmə-Hüquq Şurası) is a consultative organ which is accountable only to the President of the Republic of Azerbaijan and which, within the scope of its competence, assists the President in the organisation of courts, selection of candidates to judicial positions as well as in other issues relating to courts and judges.
Under Article 3, the Judicial Legal Council deals with and submits proposals to the President relating to: (1) organisation of the courts (location, territorial jurisdiction and the number of judges); (2) applications from candidates for judicial positions and carrying out examinations to determine their professional qualifications and merits; (3) merit awards for judges; (4) legal and informational support for the court activities as well as logistical support and financing of the courts; and (5) early termination of a judge’s tenure in cases specified by the Law On Courts and Judges.
In accordance with Article 2, the Judicial Legal Council consists of 7 persons appointed by the President. Under Article 4, the decisions of the Judicial Legal Council are adopted by a majority vote. The chairman of the meeting may cast his vote only after all others have voted. All members of the Council sign the adopted decisions, and each of them has a right to append a special opinion.
7. Presidential Instructive Order “On the Composition of the Judicial Legal Council under the President of the Republic of Azerbaijan” of 24 December 1998 (superseded by Law “On Judicial Legal Council” of 28 December 2004)
Pursuant to the Order, the composition of the Judicial Legal Council was as follows: (1) the Minister of Justice (serving as a Chairman of the Council); (2) the President of the Constitutional Court; (3) the President of the Supreme Court; (4) the President of the Economic Court; (5) the President of the Court of Appeal; (6) the President of the Supreme Court of the Nakhchivan Autonomous Republic; and (7) the President of the Assize Court.
8. Rules on Selection of Candidates for Judicial Positions in the Republic of Azerbaijan, adopted by the decision of the Judicial Legal Council of 11 April 2000 (superseded by the Rules on Selection of Candidates for Vacant Judicial Positions, adopted by the decision of the Judicial Legal Council of 11 March 2005)
The Rules define a procedure for selecting candidates for appointment or nomination as a judge by the President. According to the Rules, the Judicial Legal Council selects candidates in two stages. In advance of the selection process, the Council publishes in the mass media the terms and procedure of the competition as well as all other relevant information. The first stage of the selection process is a written examination, consisting of 140 multiple‑choice questions on different legal issues, designed to determine an applicant’s legal expertise, and 60 additional questions on contemporary national and international matters, designed to determine an applicant’s general erudition and ability in logical thinking. The examinees mark the answers to the questions on special examination cards, where they can only put their personal examination code without indicating their name. The process of evaluating the examination cards and determining the examinees’ scores is computerised. This process is jointly supervised by the Judicial Legal Council together with the State Commission on the Admission of Students (the authority which is otherwise responsible for testing of students for admission to higher education institutions).
The second stage is an oral interview, to which the top 600 applicants who have attained the highest scores in the written examination are admitted. The interview is conducted by members of the Judicial Legal Council, who form several interview panels. In addition, well-known legal scholars and jurists may also be invited to participate as interviewers in each of these panels. After the interview, the interviewers exchange their opinions concerning the interviewed and determine his interview score pursuant to the relevant guidelines. After the scoring, the results are submitted to the Chairman of the Judicial Legal Council.
The Presidents of the Supreme Court, Economic Court, Court of Appeal, Supreme Court of the Nakhchivan Autonomous Republic, Assize Court and Military Assize Court are exempt from the written examination and the interview.
Applicants holding a degree of Doctor of Juridical Sciences are exempt from the written examination.
After the interview stage is completed, the Judicial Legal Council prepares a final list of successful candidates and publishes it in the press. The list of candidates, together with relevant proposals, is then submitted to the President for appointments of judges.
COMPLAINTS
1. The applicants complained under Article 11 of the Convention that the failure by the Ministry of Justice to register their organisation in a timely manner constituted an interference with their freedom of association. Because 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 organisation could not acquire legal status. This allegedly constituted an interference with their right to form an association.
2. The applicants further complained that, contrary to Article 6 § 1 of the Convention, the domestic courts of all instances had not been independent and impartial. They noted that 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.
3. Finally, the applicants complained that, in violation of Article 13 of the Convention, domestic remedies in their case had been ineffective because of the courts’ well-established practice to always rule in favour of the Ministry. They submitted that, according to the general practice, the Azerbaijani courts always ruled in favour of governmental authorities. In particular, the applicants alleged that the courts had never delivered a single judgment in favour of a non-governmental organisation in lawsuits against the Ministry of Justice.
THE LAW
1. The applicants complained that the failure by the Ministry of Justice to respect the statutorily-defined time-limits for registering their association constituted an interference with their right to freedom of association under Article 11 of the Convention. That Article provides 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.”
The Government noted that, upon replying to the applicants’ first registration request, the Ministry had duly complied with the statutory time‑limits, because the registration request was submitted on 8 February 2002 and the Ministry issued its reply on 15 February 2002, i.e. within the statutorily defined 10-day period. With regard to the second registration request submitted by the applicants on 12 April 2002, the Government claimed, without producing any evidence, that the Ministry replied to this request on 10 May 2002, and not on 19 July 2002 as claimed by the applicants.
Nevertheless, the Government acknowledged that, except for the reply to the first registration request, the Ministry had breached the statutory time‑limits while replying to the applicants’ further registration requests. However, the Government stressed that these delays were caused by technical reasons. Due to the increased number of newly-formed public associations applying for state registration, it was sometimes difficult for the Ministry to process these applications within the short statutory time-limits. The Government, however, was of the opinion that, despite the delayed processing, the applicants’ registration requests were handled within reasonable time.
The Government further maintained that the Ministry of Justice did not officially refuse to register the organisation, but merely returned the registration documents to the applicants “in order to bring [the association’s charter] into compliance with the legislation.” The Government, therefore, concluded that, whereas the request to remedy the irregularities in the association’s charter did not amount to an official refusal to register the organisation and a ban on its activity, there was no interference with the applicants’ freedom of association.
The applicants maintained that the first registration request was submitted in December 2001, and not on 8 February 2002 as claimed by the Government, and that it took over two months for the Ministry to reply.
As to the second registration request, the applicants noted that they had not received any reply from the Ministry on 10 May 2002, as claimed by the Government. They received only the letter of 19 July 2002, the copy of which was produced during the domestic court proceedings as the only evidence of the Ministry’s reply to their second registration request. Accordingly, the applicants argued that the Ministry delayed its official response for more than three months, whereas it must have registered the association or officially refused the registration within five days from the receipt of the re-submitted registration request.
The applicants further noted that, after they had submitted their third registration request, the Ministry had delayed the response for approximately one and a half years and had simply sent them back the registration documents without any official decision on registration and without specifying any reason for doing so.
Apart from the breach of statutory time-limits, the applicants also argued that, under the domestic law, the Ministry of Justice was required to spot all the irregularities during the initial examination of the registration documents and notify the founders of all these irregularities, in order to enable the latter to remedy them and re-submit a corrected version of the registration documents. If, upon the second (re-submitted) registration request the documents had been duly corrected, the Ministry was obliged to register the association within five days of re-submission of the documents. If, however, the irregularities had not been duly remedied, then the Ministry was obliged to issue an official refusal to register the association, again within five days of re-submission of the documents. However, in the present case, the Ministry found a new type of irregularity in the registration documents upon each registration request. Each time, the Ministry returned the documents to the applicants without taking any action and, in effect, evaded issuing an official decision to register the association or to refuse registration. In the applicant’s opinion, this proved that the Ministry intentionally dragged out the registration process and was unwilling to register their association.
The Court observes that the applicant’s complaint partially relates 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 will only examine the part of the complaint relating to the events that occurred after 15 April 2002. Nevertheless, if necessary, the Court shall take into consideration the state of affairs as it existed at the time of the Convention’s entry into force with respect to Azerbaijan.
As regards the part of the complaint relating to the events that occurred after 15 April 2002, the Court considers, in the light of the parties’ submissions, that it raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicants complained under Article 6 § 1 of the Convention that the involvement of the Minister of Justice in the process of selection of judicial candidates cast doubt on the independence and impartiality of the domestic courts in the lawsuits against the Ministry of Justice. Article 6 § 1 provides as follows, in the relevant part:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
The Government submitted that the current procedure for appointment of judges in Azerbaijan does not in itself place the courts’ independence under suspicion. The judges could not be instructed in the course of their activities by any representative of the executive branch, including the Minister of Justice. Although the Minister of Justice was a member of the Judicial Legal Council, the Council itself was a collegial body consisting of seven members. Thus, it could not be concluded that the Minister of Justice was solely responsible for selecting judicial candidates. Moreover, the Minister had no power to impose his will upon other members or otherwise unduly influence the selection process, because the Council’s decisions were taken by a majority of votes, with the Minister casting his vote after all members had voted. The Government concluded that, in such circumstances, there could not be any legitimate doubt as to the domestic court’s independence or impartiality in cases involving the Ministry of Justice as a party.
The applicants disagreed, noting that the Minister of Justice had the possibility to influence the selection process at the interview stage. The interview was oral and conducted personally by the members of the Judicial Legal Council. The interviewers were not restricted as to the number and type of questions to be put forward to the candidates. The Minister, as a member of the Council, could adopt a different approach in interviewing different candidates and, thus, influence the result of the interview. The applicants alleged that, since judges in Azerbaijan were appointed to their position for a fixed term of office (either five or ten years), the judges wishing to be re-appointed to a new term were not inclined to deliver any judgments against the Ministry of Justice because the Minister of Justice would deal with the matter of their re-appointment in the future.
The Court is aware of the fact that, since the time of lodging of the present application, significant amendments have been made to the Azerbaijani legislation on courts and judges and on selection and appointment of candidates for judicial position. However, for the purposes of this complaint, the Court will consider the relevant domestic law as it was applicable at the time of the events giving rise to the complaint.
The Court recalls that, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see e.g. Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I, § 73).
As to the condition of “impartiality” within the meaning of that provision, there are two tests to be applied: a subjective test, that is trying to determine the personal conviction of a particular judge in a given case, and also an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see e.g. Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, § 46). As to the subjective test, the applicants have not alleged that the judges concerned acted with personal bias. In any event, the personal impartiality of a judge must be presumed until there is proof to the contrary and in the present case there is no such proof. Thus, only the objective test is relevant in this case.
The Court will examine together the issues of independence as well as impartiality of the domestic courts under the objective test.
At the outset, the Court considers that the mere fact that a representative of the executive authority is to a certain extent involved in the process of formation of the courts cannot be held as justifying, in itself, fears as to the independence and impartiality of the courts in general (see, mutatis mutandis, Gasper v. Sweden, no. 18781/91, Commission decision of 6 July 1998). Moreover, the applicants do not dispute that, and the Court does not consider it necessary to examine whether the manner of appointment and the terms of service of the domestic judges, as such, raise any specific concerns for the independence of the courts in the present case. It also appears that, in general, the domestic law provides for sufficient safeguards against outside pressures on judges. The Constitution and the Law On Courts and Judges guarantee the independence of the judiciary by ensuring, inter alia, that judges are irremovable from their office, immune from prosecution for their judicial activity, and that no public authority may give them instructions concerning their judicial activities or influence them in the performance of their duties (see, mutatis mutandis, Ettl and Others v. Austria, judgment of 23 April 1987, Series A no. 117, § 38; Incal v. Turkey, judgment of 9 June 1998, Reports 1998‑IV, § 67).
In such circumstances, the Court considers that the only question to be decided is whether, as submitted by the applicants, it would be reasonable to believe that, given the involvement of the Minister of Justice in the process of selection of judicial candidates, the domestic courts lacked independence and impartiality while dealing with lawsuits against the Ministry of Justice.
Under the objective test, it must be determined whether there are ascertainable facts which may raise doubts as to the judges’ impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the litigant is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see e.g. Hauschildt, cited above, § 48; Incal, cited above, § 71; and Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, § 51).
The Court notes that it is not the Judicial Legal Council, but the President of the Republic who was responsible for direct appointment of the lower-instance judges and nomination for appointment by Parliament of the higher-instance judges. The function of the Judicial Legal Council was to assist the President in selecting qualified candidates for appointment or nomination to a judicial position, and not to appoint judges directly.
Such selection was carried out by holding competitive examinations and interviews, designed to give equal opportunity for all eligible applicants. Results of the written examination were determined by using the anonymous computerised scoring system, whereas the examinees’ answer cards did not mention their names, but only indicated their personal examination code. The oral interview was not conducted by a sole member of the Judicial Legal Council, but by a panel of interviewers, consisting of members of the Council as well as outside experts. It seems that, for the entire interview stage, several such panels were usually established. It also seems that the Minister of Justice, as a member of the Council, could be an interviewer only in one of such panels and, as such, could personally take part in interviewing only a certain fraction of candidates. On the other hand, as a Chairman of the Council, he collected all the interview results, but only after the final scores had been determined by the relevant interviewers.
As for the composition of the Judicial Legal Council, the Court observes that the Minister of Justice was the only representative of the executive branch, while the remaining six members of the Council were the presiding judges of the country’s high-instance and special-jurisdiction courts. With regard to the decision-making process, the Court observes that the Council was a collegial body and the decisions were adopted by a majority of votes. During the voting, the Minister of Justice, as the meeting’s chairman, cast his vote only after all other participants had voted. While this voting sequence might place the tie-break vote in the chairman’s hands in case of a split vote, at the same time it also ensured that other meeting participants were not influenced by the chairman’s vote. The domestic law did not provide for any mechanism allowing the Minister of Justice to side-step this voting procedure and substitute his own decision for the collegial decision of the Council.
Taking the above into consideration, the Court considers that the possibility that the Minister of Justice would unduly influence the selection process and somehow exclude candidates who were personally unfavourable to him was too remote. Accordingly, the Court cannot conclude that there were any reasonable grounds to fear that the domestic judges might allow themselves to be unduly influenced by considerations which had nothing to do with the nature of the case, in particular by the prospects of their future re-appointment to serve a new term of office. Therefore, the Court finds that the applicants did not have a legitimate cause to doubt the independence and impartiality of the domestic courts that had examined their case.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
3. The applicants complained under Article 13 of the Convention that the domestic remedies in their case had been ineffective. Article 13 provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government submitted that the complaint was unsubstantiated. The applicants had sufficient remedies at their disposal in order to have their complaints examined and, if appropriate, to obtain redress.
The applicants alleged that the domestic courts had never ruled against the Ministry of Justice in cases concerning the delays in registration of non-governmental organisations. While the applicants were unable to produce any specific statistical information in this regard, they mentioned a number of non-governmental organisations who had allegedly lost their cases against the Ministry of Justice in the domestic courts. In the applicants’ opinion, this amounted to a well-established court practice rendering it impossible to obtain redress in cases against the Ministry of Justice.
The Court considers that this complaint is unsubstantiated. The applicants had the possibility to apply to the domestic courts and, in fact, they have done so. The mere fact that the outcome of the proceedings was unfavourable to them cannot lead to a conclusion that the remedy was ineffective. The Court also finds that the applicants’ allegation that the domestic courts always ruled in favour of the Ministry of Justice is not supported by sufficient evidence.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits, the applicants’ complaint concerning the right to freedom of association;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy