Communicated on 26 January 2017
FIFTH SECTION
Application no 11612/10
Elchin Mammad oglu MAMMAD against Azerbaijan
and 8 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Azerbaijani nationals. They are represented before the Court by various lawyers practising in Azerbaijan (see Appendix).
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Requests for the State registration of associations
The applicants are the founders – or are amongst the founders – of non‑governmental organisations established in the form of public associations (“associations”). On various dates the applicants submitted requests to the Ministry of Justice (“the Ministry”) for state registration of those associations as legal entities, as required by the domestic law, together with the relevant documents.
While the domestic law did not require associations to be officially registered, the effective operation of an association, including the ability to receive and register grants, open bank accounts and so on, was contingent on obtaining the status of a legal entity.
Relying on Article 11.3.1 of the Law on State Registration and the State Register of Legal Entities (“the Law on State Registration”) the Ministry rejected the requests for state registration and returned the documents submitted by the applicants in applications nos. 59502/13, 59565/13, 69422/13, 79522/13, 28884/14, 33892/14, 47154/14 and 41995/15 on account of certain deficiencies that needed to be rectified.
In case of the applicant in application no. 11612/10 the Ministry returned the documents submitted by that applicant without taking a formal decision rejecting or granting the request for state registration. In its letter to the applicant the Ministry indicated some deficiencies to be rectified.
After receiving the rejection letter the applicants in application no. 41995/15 lodged a complaint against the Ministry’s actions with the domestic court (see Appendix).
All the other applicants re-submitted the documents for registration of the associations concerned, either after correcting the deficiencies pointed out by the Ministry (applications nos. 11612/10, 59502/13, 59565/13, 69422/13, 28884/14, 33892/14 and 47154/14) or making no changes in those documents (application no. 79522/13). On various dates the Ministry again returned the documents submitted by those applicants.
After receiving the Ministry’s rejection letters, the applicants in applications nos. 79522/13 and 28884/14 lodged complaints against the Ministry’s actions with the domestic courts, while the applicants in applications nos. 11612/10, 59502/13, 59565/13, 69422/13, 33892/14 and 47154/14 re-submitted the documents after rectifying the deficiencies pointed out by the Ministry. Those requests for state registration were rejected (and re‑submitted) once more or several times in the same manner before the applicants decided to complain to the domestic courts (see Appendix).
It appears that the association which is subject of application no. 69422/13 is the same association which the applicants unsuccessfully tried to register in 2009 and which has been the subject of another pending application submitted to the Court by the same applicants, namely, application no. 24504/11.
2. Deficiencies indicated by the Ministry in its rejection letters
In its rejection letters sent to the applicants in applications nos. 79522/13 and 41995/15 the Ministry indicated exclusively the following deficiencies:
(a) in contravention of Article 3.1 of the Law on NGOs, the title of the association did not reflect the character of its activity (application no. 79522/13);
(b) in contravention of Article 10.3 of the Law on NGOs, the charter did not set up guarantees for complaining internally about cancellation of membership of the association (including the procedure and the time‑frame for examining a complaint) (application no. 41995/15).
In each of its rejection letters sent to the applicants in applications nos. 11612/10 and 47154/14 the Ministry referred to some new deficiencies that needed to be rectified. Deficiencies indicated by the Ministry in its last rejection letters were as follows:
(a) in contravention of Article 13.1 of the Law on Non-Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”), the charter did not contain the procedure on cancellation of membership in the association; it was necessary to bring Article 12.3 of the charter in accordance with Article 11 of the Law on Bookkeeping; the receiver of State fees was the Chief State Treasury, the applicant therefore was asked to retransfer the state fee to that body; and it was necessary to make relevant changes in the cover page of the charter, because by the Presidential Decree of 17 August 2006 the Chief Department on Registration and Notary (“Qeydiyyat və Notariat Baş İdarəsi”) had been created (application no. 11612/10);
(b) in contravention of Article 20 of the Law on State Fees, the applicants paid 0.50 manats as a fee instead of 11 manats (application no. 47154/14).
Similarly, in each of its rejection letters (except for the last ones) sent to all the other applicants the Ministry referred to some new deficiencies. In its last rejection letters the Ministry referred to the deficiencies already indicated in one of the previous rejection letters:
(a) in contravention of Article 9.2 of the Law on NGOs, the charter did not indicate the scope of mutual rights and responsibilities of the founders (applications nos. 59502/13 and 69422/13);
(b) in contravention of Article 5.4.1 of the Law on State Registration, the decisions establishing the association and approving its charter did not define the powers of its legal representative (application no. 59565/13);
(c) in contravention of Article 5.4.1 of the Law on State Registration, the decision establishing management bodies of the association did not refer to the formation of those management bodies (application no. 28884/14);
(d) in contravention of Article 5.4.1 of the Law on State Registration, the decision establishing the association, approving its charter and establishing management bodies of the association did not refer to the formation of those management bodies (application no. 33892/14).
3. Court proceedings
On various dates the applicants complained about the violation of their right to freedom of association and asked first-instance courts to order the Ministry to carry out state registration of the associations concerned. The applicant in application no. 11612/10 claimed in particular that the Ministry arbitrarily delayed the registration instead of indicating all deficiencies at once and providing a certain time limit for correcting them. All the other applicants claimed in particular that the grounds which the Ministry had cited were false and/or could not constitute a basis under the domestic law for refusal of state registration.
On various dates the respective first-instance courts dismissed the applicants’ complaints (“iddia ərizəsi”), finding nothing unlawful in the actions of the Ministry (see Appendix).
The applicants appealed against those judgments, reiterating their previous complaints. The Baku Court of Appeal upheld the first-instance courts’ judgments (see Appendix).
On unspecified dates the applicants in applications nos. 59502/13, 59565/13, 69422/13, 79522/13, 28884/14, 33892/14, 47154/14 and 41995/15 lodged cassation appeals. On various dates the Supreme Court upheld the Baku Court of Appeal’s respective judgments (see Appendix).
The applicant in application no. 11612/10 lodged his cassation appeal on 21 June 2007. He incorporated in that appeal a motion either to be allowed in the cassation proceedings without a lawyer or to be provided with a State‑funded legal assistance as he lacked financial means to hire a lawyer. In that motion the applicant also asked the appellate court to give him guidance on types of documentary evidence he had to submit to be eligible for State‑funded legal assistance as the law lacked such guidance.
On 13 July 2007 the Court of Appeal found that the cassation appeal of the applicant in application no. 11612/10 was inadmissible because he was not represented by a lawyer which was a compulsory requirement.
On 16 June 2009 the Supreme Court upheld the ruling of 13 July 2007. The court held that the civil procedure law did not entitle the courts to accept cassation appeals without signature of a lawyer or to ask the Bar Association to provide State-funded legal assistance in civil cases.
4. Search and seizure in the office of the applicants’ representative (applications nos. 11612/10, 59502/13, 59565/13, 69422/13, 79522/13, 28884/14, 33892/14 and 47154/14)
On 8 August 2014 Mr I. Aliyev, who represented most of the applicants before the Court (see Appendix), 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 Aliyev’s possession as a representative, were seized by the domestic authorities.
In a fax dated 28 August 2014, Mr 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 concerned. In letters Mr Aliyev sent to the Court in September 2014 he reiterated the complaint concerning the seizure of the case files.
On 25 October 2014 some of the seized documents were returned to Mr Javad Javadov, Mr. Aliyev’s counsel.
B. Relevant domestic law
1. Code of Civil Procedure of 2000 (“the CCP”)
Law no. 819-IIIQD of 26 May 2009, which entered into force on 24 June 2009, introduced a new provision in Article 14 of the CCP:
Article 14
Principles of court proceedings
“... 14.5. In the instances where this Code requires compulsory participation of an advocate in court proceedings, persons involved in a case, who do not have sufficient financial means to pay for services of an advocate, have the right to free (State‑funded) professional legal assistance for representation of their interests and for exercise of their procedural rights.”
Law no. 819-IIIQD also introduced new wording to Article 67 of the CCP:
Article 67
Compulsory participation of an advocate in proceedings
“67.1. Cassation appeals ... shall be admitted [for examination on merits] only if they were prepared by an advocate. Persons involved in a case shall participate in cassation ... court hearings only together with an advocate.
67.2. In the instances where this Code requires compulsory participation of an advocate in court proceedings [and] persons involved in a case do not have sufficient financial means to pay for services of an advocate, a court which has adopted a decision [against which a cassation appeal was lodged] shall ensure, on the basis of a written request by [those] persons, participation of an advocate in the proceedings.”
Before the above mentioned changes Article 67 of the CCP read as follows:
Article 67
Compulsory participation of an advocate in proceedings
“Cassation appeals ... shall be admitted [for examination on merits] only if they were prepared by an advocate and shall be examined on merits only with participation of an advocate.”
2. The Law on State Registration and the State Register of Legal Entities of 12 December 2003, effective from 9 January 2004
Article 8 of the Law provided as follows:
“8.1. State registration of a non-commercial organisation wishing to obtain legal‑entity status ... shall, as a rule, be carried out within 40 days. ...
8.3. If deficiencies which do not warrant refusal of state registration are detected in the submitted documents, the relevant executive body of the Republic of Azerbaijan [i.e. the Ministry of Justice] shall return those documents to the applicant and provide an additional 20-day period for rectifying those deficiencies. All deficiencies which do not warrant refusal of registration must be identified at the same time and conveyed to the applicant for rectification. ...”
Article 11 of the Law provided as follows:
“... 11.3. State registration of an entity applying to obtain legal-entity status ... may be refused only in the following cases:
11.3.1. if the documents submitted [for the registration] to the relevant executive body of the Republic of Azerbaijan contravene the Constitution of the Republic of Azerbaijan, the present Law and other legislative acts; ...”
3. The Law on Non-Governmental Organisations (Public Associations and Funds) of 13 June 2000
Article 16 of the Law provided as follows:
“... 16.3. If an inconsistency is detected in the founding documents of a non‑governmental organisation ... as regards the law, the relevant executive body shall require that organisation to make their founding documents comply with the law within a 30-day period. ...”
Article 17 of the Law provided as follows:
“17.1. State registration of a non-governmental organization may be refused only in the cases specified in the Law of the Republic of Azerbaijan on State Registration and the State Register of Legal Entities. ...”
COMPLAINTS
1. All the applicants complain under Article 11 of the Convention that the failure by the Ministry of Justice to register the associations which they founded amounted to a violation of their right to freedom of association.
2. The applicant in application no. 11612/10 complains under Article 6 of the Convention that his right to fair trial was violated because he was not provided with a State-funded lawyer whereas it was compulsory to be represented by a lawyer at cassation proceedings.
3. The applicants in application no. 59565/13, 79522/13, 33892/14 and 47154/14 complain under Article 6 of the Convention that they were not notified about the respective hearings of the Supreme Court.
4. The applicants in applications nos. 11612/10, 59502/13, 59565/13, 69422/13, 79522/13, 28884/14, 33892/14 and 47154/14 complain that the seizure by the State authorities of the case files relating to the applications lodged with the Court, which were in Mr Aliyev’s possession as their representative, was in breach of their right of individual application under Article 34 of the Convention.
COMMON QUESTIONS
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? 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?
2. The parties are requested to provide the Court with all documents relating to the establishment of their associations in question and the requests for state registration, as well as with all documents relating to the relevant domestic court proceedings.
CASE SPECIFIC QUESTIONS
1. Application no. 11612/10: Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s right of access to the Supreme Court respected?
2. Applications nos. 59565/13, 79522/13, 33892/14 and 47154/14: Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the applicants properly notified about the date and time of the respective hearings of the Supreme Court?
3. Applications nos. 11612/10, 59502/13, 59565/13, 69422/13, 79522/13, 28884/14, 33892/14 and 47154/14: 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 cases with the effective exercise of the applicants’ right of application, ensured by Article 34 of the Convention?
APPENDIX
No.
Application no.
Lodged on
Applicant’s name,
date of birth and
place of residence
Represented by
Notes
First-instance judgment
Appellate instance judgment
Final judgment
11612/10
16/02/2010
Elchin MAMMAD
1978
Sumgayit
Intigam ALIYEV
“Legal Education of Sumgait Youths” Association (“Sumqayıt Gənclərinin Hüquqi Maarifləndirilməsi”) was founded in 2000.
The Ministry returned the documents ten times (on 29 August 2001, 2 February, 14 May and 23 August 2004, 31 March, 23 June and 28 December 2005, 3 March, 2 August and 1 November 2006).
Decision of the Yasamal District Court of 2 February 2007
Decision of the Court of Appeal of 4 May 2007
Ruling of the Court of Appeal of 13 July 2007
Decision of the Supreme Court of 16 June 2009 (received by the applicant on 20 September 2009)
59502/13
19/08/2013
Gunel BASHIRLI
1987
Shirvan
Rashad BASHIRLI
1981
Shirvan
Intigam ALIYEV
Centre for Development of Rural Women (“Kəndli Qadınların İnkişaf Mərkəzi”) was founded in 2012.
The Ministry returned the documents three times (on 5 December 2011, 7 February and 13 June 2012).
Decision of the Baku Administrative Economic Court no. 1 of 29 November 2012
Decision of the Baku Court of Appeal of 12 February 2013
Decision of the Supreme Court of 15 May 2013
59565/13
29/08/2013
Mustafa AKHUNDOV
1976
Salyan
Sevinj MAJIDOVA
1989
Salyan
Intigam ALIYEV
“Social Initiatives and Human Rights” Association (“Sosial Təşəbbüslər və İnsan Hüquqları”) was founded in 2011.
The Ministry returned the documents four times (on 26 April, 14 July, 19 September and 28 December 2011).
Decision of the Baku Administrative Economic Court no. 1 of 13 April 2012
Decision of the Baku Court of Appeal of 17 October 2012
Decision of the Supreme Court of 13 February 2013 (sent to the applicants on 11 March 2013)
69422/13
05/09/2013
Shukur IZZAT OGLU
1956
Shirvan
Ali BASHIRLI
1952
Shirvan
Intigam ALIYEV
Regional Centre for Human Rights and Social Researches (“Regional İnsan Hüquqları və Sosial Araşdırmalar Mərkəzi”) was founded in 2009.
The Ministry returned the documents three times (on 6 January and 12 April 2011 and 18 June 2012).
Decision of the Baku Administrative Economic Court no. 1 of 14 December 2012
Decision of the Baku Court of Appeal of 6 March 2013
Decision of the Supreme Court of 19 June 2013
79522/13
03/12/2013
Gubad BAYRAMOV
1971
Baku
Rajab IMANOV
1980
Fuzuli
Intigam ALIYEV
“Centre for Public Initiatives” Association (“İctimai Təşəbbüslər Mərkəzi”) was founded in 2012.
The Ministry returned the documents two times (on 22 May and 2 August 2012).
Decision of the Baku Administrative Economic Court no. 1 of 12 December 2012
Decision of the Baku Court of Appeal of 12 February 2013
Decision of the Supreme Court of 5 June 2013
28884/14
01/04/2014
Lalandar NOVRUZOVA
1992
Baku
Intigam ALIYEV
“Promotion of Culture and Support to Folk Art” Association (“Mədəniyyətlərin Təbliği və Xalq Yaradıcılığına Dəstək”) was founded in 2012.
The Ministry returned the documents two times (on 29 May and 17 September 2012).
Decision of the Baku Administrative Economic Court no. 1 of 12 March 2013
Decision of the Baku Court of Appeal of 4 June 2013
Decision of the Supreme Court of 30 October 2013
33892/14
23/04/2014
Sabuhi BAYRAMOV
1983
Goychay
Rashad GURBANLI
1990
Baku
Intigam ALIYEV
“Promotion of Cultures and Social Initiatives” Association (“Mədəniyyətlərin Təbliği və Sosial Təşəbbüslər”) was founded in 2012.
The Ministry returned the documents three times (on 24 May and 24 October 2012 and 21 January 2013).
Decision of the Baku Administrative Economic Court no. 1 of 31 May 2013
Decision of the Baku Court of Appeal of 5 September 2013
Decision of the Supreme Court of 29 January 2014
47154/14
20/06/2014
Fagan ASADOV
1986
Baku
Yashar AGAZADEH
1979
Baku
Intigam ALIYEV
“Azerbaijani Committee for the Protection of Human Rights and Freedoms” Association (“Azərbaycan İnsan Hüquq və Azadlıqlarının Müdafiə Komitəsi”) was founded in 2011.
The Ministry returned the documents four times (on 2 November 2011, 15 February, 22 May and 22 October 2012).
Decision of the Baku Administrative Economic Court no. 1 of 14 March 2013
Decision of the Baku Court of Appeal of 25 June 2013
Decision of the Supreme Court of 23 October 2013 (sent to the applicants on 24 December 2013)
41995/15
03/08/2015
Aynura IMRANOVA
1976
Fuzuli
Asya AHMADOVA
1975
Zangilan
Yashar AGAZADEH
“Support to Development of Media and Democracy” Association (“Demokratiyanın və Medianın İnkişafına Dəstək”) was founded in 2014.
The Ministry returned the documents on 13 June 2014.
Decision of the Baku Administrative Economic Court no. 1 of 16 October 2014
Decision of the Baku Court of Appeal of 14 January 2015
Decision of the Supreme Court of 27 May 2015
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