Communicated on 16 March 2016
FIFTH SECTION
Application no. 64733/09
ELECTION MONITORING AND DEMOCRACY EDUCATION CENTRE and others
against Azerbaijan
lodged on 20 November 2009
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. The applicants are represented by Mr I. Aliyev, a lawyer practicing in Azerbaijan.
The Election Monitoring Centre (Seçkilərin Monitorinqi Mərkəzi- “the Centre”) was a non-governmental organisation (“NGO”) specialising in monitoring of elections established on 19 February 2006. It was founded by Mr Anar Mammadli and Ms Sevil Hamidova. On an unspecified date in July 2007 Ms Sevil Hamidova withdrew from the list of founders and she was replaced by Mr Bashir Suleymanli. Mr Anar Mammadli was the Centre’s chairman.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. State registration of the Centre and its subsequent dissolution
On 14 March 2006 the Centre submitted an application to the Ministry of Justice (“the Ministry”) for its state registration as a legal entity, as required by the domestic law, together with the relevant documents. While the domestic law did not require NGOs to be officially registered, effective operation of an NGO, including an ability to receive and register grants, open bank accounts and so on, was contingent on obtaining the status of a legal entity.
On 1 June 2006 the Ministry returned the registration documents without taking a decision on state registration. It substantiated the return of the documents by the facts that the decision on the establishment of the Centre was not duly signed and that the Centre’s charter did not provide for the rules relating to adoption of decisions within the scope of the competence of its board of directors.
On 28 July 2006 the Centre re-submitted the state registration request, carrying out the required modifications in the documents.
On 15 September 2006 the Ministry returned the registration documents again finding deficiencies in the documents submitted to it. The Ministry again held that the decision on the establishment of the Centre was not duly signed. It further found that the Centre’s charter did not provide for the rules relating to holding of meetings of the Centre’s surveillance and audit board.
It appears from the case file that the Centre’s other three applications for state registration were returned by the Ministry between September 2006 and December 2007. The Ministry referred each time to various deficiencies in the documents submitted by the Centre.
On 10 December 2007 the Centre applied for the sixth time for its state registration.
By a decision of 1 February 2008, the Centre was registered by the Ministry and acquired the status of a legal entity.
A few months later, on 17 April 2008 the Ministry lodged an action with the Khatai District Court asking for the Centre’s dissolution. The Ministry claimed that the Centre had failed to inform it of the change of its official address and in the list of its founders, as well as the opening of its eight representations.
In reply to the Ministry’s action, on 8 May 2008 the Centre lodged an objection with the court, claiming that the Ministry had failed to justify its claim. In particular, the Centre submitted that it had provided the Ministry with all the relevant documents and information and that it had carried out its activities in compliance with the domestic law. The Centre further argued that, in any event, in accordance with the relevant domestic law, the Ministry could not lodge an action with the court for its dissolution before issuing written warnings concerning its alleged unlawful activities. The Centre also lodged a counterclaim against the Ministry asking the court to recognise the violation of its rights on account of the delay in its state registration.
On 14 May 2008 the Khatai District Court ordered the Centre’s dissolution, finding that it had failed to comply with the requirements of the domestic law. In particular, the court held that the Centre had not provided the Ministry with the information on the change of its official address and in the list of its founders. It also found that the Centre had established, without informing the Ministry, eight representations which did not have a charter. As regards the applicant’s counterclaim, the court dismissed it as unfounded, finding that there had been no undue delay in the Centre’s state registration.
On 5 June 2008 the Centre appealed against that judgment, claiming the unlawfulness of its dissolution. It reiterated that it had carried out its activities in compliance with the domestic law. It further complained about the Ministry’s failure to register it almost during a period of two years.
On 25 November 2008 the Baku Court of Appeal dismissed the appeal, finding it unjustified.
On 22 May 2009 the Supreme Court upheld the Baku Court of Appeal’s judgment of 25 November 2008.
B. Search at the applicants’ representative’s home and office and seizure of the case files
On 8 August 2014 the applicants’ representative before the Court, Mr I. Aliyev, was arrested on charges of tax evasion, abuse of power and illegal entrepreneurship. On 8 and 9 August 2014 the prosecuting authorities conducted a search of Mr Aliyev’s home and office. During the search, a large number of documents, including all the case files relating to the applications before the Court that were in Mr I. Aliyev’s possession as a representative, were seized by the domestic authorities.
By a fax dated 28 August 2014, Mr I. Aliyev informed the Court of the seizure of the case files claiming a breach of Article 34 of the Convention in respect of all the applications affected. In his letters sent to the Court in September 2014 Mr I. Aliyev reiterated the complaint concerning the seizure of the case files.
On 25 October 2014 a part of the seized documents was returned to Javad Javadov, Mr. I. Aliyev’s counsel.
C. Relevant domestic law
Article 31 of the Law on Non-Governmental Organisations (Public Associations and Funds) of 4 October 2000, as in force at the material time, provided as follows:
Article 31. Liability of a non-governmental organisation
“31.1. A non-governmental organisation that breaches the requirements of this Law is liable in accordance with the laws of the Republic of Azerbaijan.
31.2. If the actions of a non-governmental organisation are incompatible with the objectives of this Law, the relevant executive authority [the Ministry of Justice] may issue a written warning to the organisation and give an instruction to remedy such breaches.
31.3. A non-governmental organisation may judicially challenge such a warning or instruction.
31.4. If a non-governmental organisation receives, within one year, more than two written warnings or instructions to remedy the breaches of the law, it may be dissolved pursuant to a court order.”
COMPLAINTS
Relying on Article 11 of the Convention, the applicants complain that the forced dissolution of the Centre was unlawful and violated their right to freedom of association. They further complain about the repeated returns of their applications for state registration by the domestic authorities which resulted in a significant delay in registration of the Centre.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ freedom of association, in particular, their right to form an association, within the meaning of Article 11 § 1 of the Convention, on account of the forced dissolution of the Election Monitoring Centre by the domestic authorities? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?
2. Has there been an interference with the applicants’ freedom of association, in particular, their right to form an association, within the meaning of Article 11 § 1 of the Convention, on account of the delay in state registration of the Election Monitoring Centre by the domestic authorities? In particular, did the actions of the Ministry of Justice and the reasons given by it for returning the registration documents comply with the requirements of the domestic law? If so, was the interference necessary in terms of Article 11 § 2?
3. In view of the seizure of the case files from Mr I. Aliyev’s home and office on 8 and 9 August 2014, has there been any hindrance by the State in the present case with the effective exercise of the applicants’ right of application, ensured by Article 34 of the Convention?
4. The parties are requested to provide the Court with all the documents relating to the Election Monitoring Centre’s establishment, its state registration and subsequent dissolution, as well as the relevant domestic court proceedings.
APPENDIX
1.Election Monitoring Centre is a non-governmental organisation established on 19 February 2006 in Baku. The present application was lodged on its behalf by Mr Anar Mammadli who was its chairman.
2.Anar Asaf oglu Mammadli is an Azerbaijani national who was born on 26 July 1978 and lives in Baku.
3.Bashir Suleyman oglu Suleymanli is an Azerbaijani national who was born on 20 March 1980 and lives in Baku.
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