FIRST SECTION
CASE OF MAHMUDOV AND OTHERS v. AZERBAIJAN
(Applications nos. 73088/13 and 47154/14)
JUDGMENT
STRASBOURG
23 February 2023
This judgment is final but it may be subject to editorial revision.
In the case of Mahmudov and Others v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Lətif Hüseynov,
Ivana Jelić, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the applications 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;
the decisions to give notice of the complaints concerning Article 6 (raised in application no. 47154/14), Article 11 and Article 34 (raised in both applications) of the Convention to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 31 January 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The present applications primarily concern refusals by the domestic authorities to register associations founded by the applicants.
2. In 2011 the applicants established non-governmental organisations in the form of associations (their names and the dates on which they were established are indicated in the appended table). They requested the Ministry of Justice of the Republic of Azerbaijan (“the Ministry”) to register their associations as legal entities and submitted relevant documents.
3. In letters addressed to the applicants the Ministry indicated certain alleged deficiencies in those documents and returned them to the applicants.
4. In application no. 73088/13 the documents were returned first on 16 December 2011 and again on 21 May 2012, for, respectively, the following alleged deficiencies:
(i) the title of the organisation failed to reflect its organisational legal form and the nature of its activity, in contravention of Article 3.1 of the Law on Non-Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”);
(ii) the charter did not outline the procedure for withdrawing from membership of the association, in contravention of Article 13.1 of the Law on NGOs.
5. In application no. 47154/14 the documents were returned first on 2 November 2011 and again on 15 February, 22 May and 22 October 2012 for, respectively, the following alleged deficiencies:
(i) the decision establishing the association did not detail the powers of its legal representative, in contravention of Article 5.4.1 of the Law on State Registration and the State Register of Legal Entities (“the Law on State Registration”);
(ii) the charter did not delineate the powers of the chairman and vice‑chairman, in contravention of Article 25.1 of the Law on NGOs;
(iii) the charter described only the rights of the founders, but not their responsibilities, in contravention of Article 9.2 of the Law on NGOs;
(iv) the applicants had submitted a receipt confirming payment of 0.50 Azerbaijani manats (AZN) as a registration fee, instead of AZN 11, in contravention of Article 20 of the Law on State Fees.
6. All the letters of the Ministry ended by stating that, on the basis of Article 11.3.1 of the Law on State Registration, the documents were “being returned” or “being returned unexecuted”.
7. After receiving each letter from the Ministry the applicants made rectifications to the documents and resubmitted their requests for registration. Each time the Ministry returned the documents to the applicants in the same manner.
8. Upon receiving the last of those letters from the Ministry, the applicants lodged complaints with the Baku Administrative Economic Court No. 1 against the Ministry’s refusal to register their associations. They argued that the Ministry’s allegations were unfounded and that, in any event, it should have acted in accordance with Article 8.3 of the Law on State Registration when returning the documents, namely by identifying all the alleged deficiencies in its first letter and giving the applicants an opportunity to rectify them.
9. On 27 November 2012 and 25 June 2013 respectively, the first-instance court dismissed the applicants’ complaints. It held that the allegations made by the Ministry in its letters had a factual and legal basis.
10. The Baku Court of Appeal, on 29 January and 14 March 2013 respectively, and the Supreme Court, on 22 May and 23 October 2013 respectively, upheld the judgments of the first-instance court in the two cases, largely reiterating the latter’s findings (the Supreme Court’s decision of 23 October 2013 was notified to the applicants on 24 December 2013).
11. In application no. 73088/13 the domestic courts also held that the charter of the association submitted during the court proceedings did not contain the deficiency alleged by the Ministry in its last letter; however, the court found that the applicants had failed to prove that it was the same version of the charter which they had submitted to the Ministry. In application no. 47154/14 the courts held that the applicants had failed to prove that, contrary to the Ministry’s allegation in its last letter, they had submitted a receipt for payment of the State registration fee.
12. In August 2014 criminal proceedings were instituted against the applicants’ representative, Mr Aliyev. The investigating authorities seized a large number of documents from his office, including the case files relating to the present applications.
13. The applicants complained before the Court that the refusals by the Ministry to register their associations had violated their right to freedom of association.
14. They also complained that the seizure of their case files from the office of their lawyer had been in breach of Article 34 of the Convention.
15. Lastly, the applicants in application no. 47154/14 complained under Article 6 of the Convention that the Supreme Court had examined their case in their absence.
THE COURT’S ASSESSMENT
JOINDER OF THE APPLICATIONS16. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
WITHDRAWAL OF COMPLAINTS BY ONE OF THE APPLICANTS in APPLICATION No. 47154/1417. In a letter dated 13 July 2017, the representative of the applicants in application no. 47154/14 informed the Court that one of the applicants, Mr Fagan Arif oglu Asadov, wished to withdraw his complaints.
18. Consequently, the Court considers, in accordance with Article 37 § 1 (a) of the Convention, that it is no longer justified to continue the examination of application no. 47154/14 in so far as that applicant is concerned. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case in his respect. Accordingly, those parts of application no. 47154/14 are to be struck out of the list.
19. Consequently, when it indicates hereinafter “the applicants”, the Court will be referring to the remaining applicants in applications nos. 73088/13 and 47154/14 only.
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION20. The applicants argued, inter alia, that the Ministry had breached the requirements of domestic law concerning the registration procedure. It should have identified all the alleged deficiencies at the same time and given the applicants an opportunity to rectify them, in accordance with Article 8.3 of the Law on State Registration.
21. Furthermore, with reference to the facts summarised in paragraph 11 above, the applicants argued that the domestic courts had placed an excessive burden of proof on them.
22. The Government submitted that the Ministry had returned the documents so that the applicants could rectify the deficiencies contained in them.
23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
24. The general principles applicable to the present complaint have been summarised in Election Monitoring Centre and Others v. Azerbaijan (no. 64733/09, §§ 65-66 and 69-74, 2 December 2021).
25. The Court observes that it has already found a violation of Article 11 in a number of cases against Azerbaijan where the domestic authorities delayed or even impeded in practical terms the registration and therefore the functioning of non-governmental organisations by repeatedly returning or refusing registration requests for alleged failure to fulfil administrative formalities (see Jafarov and Others v. Azerbaijan, no. 27309/14, 25 July 2019; Mehman Aliyev and Others v. Azerbaijan [Committee], nos. 46930/10 and 11 others, 20 May 2021; Abdullayev and Others v. Azerbaijan [Committee], nos. 69466/14 and 12 others, 20 May 2021; and Election Monitoring Centre and Others, cited above).
26. As in Jafarov and Others and Election Monitoring Centre and Others (both cited above), the Court reiterates that the Law on State Registration contained, inter alia, two registration rules prescribed by Articles 8.3 and 11.3.1 respectively. Article 8.3 provided that if the documents submitted contained deficiencies which did not warrant a formal refusal to register an association, the Ministry had to return the documents and give the founders twenty days to rectify the deficiencies. Furthermore, it had to identify all such “rectifiable deficiencies” in a single review. Under Article 11.3.1, registration could be refused if the documents submitted were in breach of the Constitution of Azerbaijan, the Law on State Registration or any other legislation (see Jafarov and Others, cited above, §§ 87-89, and Election Monitoring Centre and Others, cited above, § 51).
27. The wording of the Ministry’s letters in the present applications was ambiguous as to whether they were decisions under Article 11.3.1 of the Law on State Registration “refusing to register” the associations, or decisions under Article 8.3 of the same Law “returning the documents for rectification” (compare Jafarov and Others, cited above, § 91, and Election Monitoring Centre and Others, cited above, § 52).
28. Moreover, most of the alleged deficiencies identified by the Ministry after the applicants’ subsequent requests would already have been present in the documents submitted with their earlier requests. Nevertheless, the Ministry did not notify the applicants of all those alleged deficiencies after the initial review; instead, it addressed a new alleged deficiency found in the same documents after each successive registration request had been lodged (compare Jafarov and Others, cited above, § 92, and Election Monitoring Centre and Others, cited above, § 53).
29. The domestic courts in turn, when seized of the applicants’ complaints, failed to assess the procedural correctness and consistency of the Ministry’s responses or to clarify the interplay between the rules set out in Articles 8.3 and 11.3.1 of the Law on State Registration. The courts reiterated the submissions made by the Ministry to the effect that the documents had been “returned” owing to deficiencies contained in them and held that the reasons indicated by the Ministry in its letters were lawful. None of the domestic courts made any attempt to examine or explain the lawfulness of the references made by the Ministry of Justice to the above-mentioned Article 11.3.1 (compare Jafarov and Others, cited above, § 93, and Election Monitoring Centre and Others, cited above, § 54).
30. If the Ministry indeed intended to return the documents for rectification – as was argued by the Government in their observations before the Court (see paragraph 22 above) – the provisions of Article 8.3 of the Law on State Registration should have been applied correctly. In particular, the Ministry should have given the applicants a twenty-day rectification period and, where relevant, identified all the alleged deficiencies in one review (see Jafarov and Others, cited above, § 94, and Election Monitoring Centre and thers, cited above, § 55).
31. Having regard to all the above, the Court finds that the failure of the domestic authorities to register the applicants’ associations was not “prescribed by law” within the meaning of Article 11 § 2 of the Convention.
32. In view of the above finding, there is no need to examine the other arguments raised by the applicants in respect of the present complaint (see paragraph 21 above).
33. There has accordingly been a violation of Article 11 of the Convention.
OTHER ALLEGED VIOLATION OF THE CONVENTION UNDER THE WELL-ESTABLISHED CASE-LAW34. The applicants also raised another complaint (see paragraph 14 above) covered by the well‑established case-law of the Court. Having examined all the material before it, the Court concludes that that complaint discloses a violation of Article 34 of the Convention in the light of its findings in Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 64-79, 22 October 2015).
OTHER COMPLAINTS35. The applicant in application no. 47154/14 also complained under Article 6 of the Convention (see paragraph 15 above). Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the application and that there is no need for it to examine the remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. The applicants in application no. 73088/13 claimed jointly 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,100 for costs and expenses incurred before the Court. The applicant in application no. 47154/14 claimed the same amounts under the same heads.
37. The Government submitted, inter alia, that the claims were unsubstantiated or excessive.
38. The Court awards EUR 4,500 jointly to the applicants in application no. 73088/13, and EUR 2,000 to the applicant in application no. 47154/14, in respect of non-pecuniary damage, plus any tax that may be chargeable.
39. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 in total to the applicants in both applications jointly for their costs and expenses, plus any tax that may be chargeable to them.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Decides to strike part of application no. 47154/14 out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the complaints raised by Mr Fagan Arif oglu Asadov;Declares the complaint under Article 11 of the Convention admissible;Holds that there has been a violation of Article 11 of the Convention;Holds that there is no need to examine the admissibility and merits of the complaint under Article 6 of the Convention raised in application no. 47154/14;Holds that the respondent Government have failed to comply with their obligations under Article 34 of the Convention;Holds(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,500 (four thousand five hundred euros) jointly to the applicants in application no. 73088/13, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros) to the applicant in application no. 47154/14, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(iii) EUR 1,000 (one thousand euros) jointly to the applicants in both applications, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ representative, Mr I. Aliyev;
(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 23 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President
APPENDIX
No.
Application no.
Lodged on
Case name
Applicant
Year of birth
Place of residence
Nationality
Represented by
Association founded by the applicants
1.
73088/13
19/08/2013
Mahmudov and Agazade v. Azerbaijan
Rovshan Asgar oglu MAHMUDOV (KABIRLI)
1961
Baku
Azerbaijani
Yashar Vagif oglu AGAZADE
1979
Baku
Azerbaijani
Intigam ALIYEV
Support to Prison Reforms (Həbsxana İslahatlarına Yardım)
Established by the applicants in 2011
2.
47154/14
20/06/2014
Asadov and Agazade v. Azerbaijan
Fagan Arif oglu ASADOV[1]
1986
Baku
Azerbaijani
Yashar Vagif oglu AGAZADE
1979
Baku
Azerbaijani
Intigam ALIYEV
Azerbaijani Committee for the Protection of Human Rights and Freedoms (Azərbaycan İnsan Hüquq və Azadlıqlarının Müdafiə Komitəsi) Established by the applicants in 2011
[1] This applicant has withdrawn his complaints and his part of the application is struck out of the list of cases (see the operative part of the judgment).