Communicated on 11 October 2016
FIFTH SECTION
Application no. 8954/09
Mahammad RZAYEV against Azerbaijan
and 4 other applications
(see list appended)
The applicants are Azerbaijani nationals. They are represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan (see Appendix).
One of the applicants in applications nos. 12990/14 and 15436/14 is the same person, Mr Alasgar Huseynov.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants are the founders – or are amongst the founders – of certain non‑governmental organisations established in the form of public associations (“associations”) (see Appendix).
1. Application no. 8954/09 lodged on 29 January 2009 by Mahammad Rzayev
On 23 May 2008 the applicant submitted a request to the Ministry of Justice of the Nakhchivan Autonomous Republic (“the Ministry of Justice of NAR”) for state registration of the association as a legal entity, as required by the domestic law, together with the relevant documents. However, the Ministry of Justice of NAR failed to respond to that request.
In July 2008 the applicant lodged a complaint (“iddia ərizəsi”) with the Nakhchivan City Court against the inaction of the Ministry of Justice of NAR and the consequent delay in obtaining state registration of the association. The court did not respond to that complaint.
The applicant complained about the inaction of the Nakhchivan City Court to the Judicial Legal Council.
In a letter dated 5 September 2008 the Judicial Legal Council transferred the applicant’s complaint to the Nakhchivan City Court for examination and instructed the court to inform the applicant of the outcome of the examination.
The Nakhchivan City Court failed to inform the applicant of the examination (if any) of his complaint.
2. Application no. 46930/10 lodged on 10 August 2010 by Mehman Aliyev, Emin Huseynov and Samir Ismayilov
(a) First set of proceedings
On 20 April 2009 the applicants submitted a request to the Ministry of Justice of the Republic of Azerbaijan (“the Ministry of Justice”) for state registration of their association as a legal entity.
In a letter dated 2 June 2009 the Ministry of Justice extended the time‑limit for examination by 30 days.
On 16 July 2009, 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 of Justice rejected the request for state registration and returned the documents submitted by the applicants. In its rejection letter the Ministry of Justice stated that – in contravention of Article 5 of the Law on Non-Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”), the charter of the association did not state whether it was established on a permanent basis or for the purposes of achieving concrete goals.
On an unspecified date the applicants complained about the violation of their right to freedom of association and asked a first-instance court to order the Ministry of Justice to carry out state registration of the association. The applicants argued that the rejection was issued too late and that the association should therefore have been deemed to be state-registered. They also asserted that the reason which the Ministry of Justice had cited could not constitute lawful grounds for refusing state registration, and that it was anyway evident from the charter that the association had been established on a permanent basis.
By a ruling (“qərardad”) of 25 August 2009 the Yasamal District Court returned the complaint and the documents attached to it, without examination on the merits. The court noted that the complaint had failed to comply with the Code of Civil Procedure provisions regarding the form and content of complaints concerning the action or inaction of an executive body: a “respondent party” should have been referred to as a “party concerned” (“maraqlı şəxs”), a “claimant” should have been referred to as a “complainant”, and in the concluding section of their complaint the applicants should merely have asked the court to “rule that an action or inaction or a decision of a person in charge was unlawful”.
The applicants appealed against the ruling of 25 August 2009, arguing that it was unlawful. At the same time, after making the changes demanded by the Yasamal District Court, they re-submitted their complaint.
By a ruling of 16 September 2009 the Yasamal District Court returned the complaint and the documents attached to it, without examination on the merits. The court noted that the complaint was in breach of Article 149 of the Code of Civil Procedure on form and content of complaints: a copy of the charter of the association, attached to the complaint, had not been certified by a notary.
The applicants appealed against the ruling of 16 September 2009, arguing that it was unlawful because, firstly, the charter attached to the complaint was an original document and not a copy and therefore no certification by a notary was needed, and, secondly, the grounds to which the court had referred could not constitute a basis under the domestic law for returning a complaint without examination on the merits.
The Baku Court of Appeal upheld the first-instance court’s ruling in a ruling dated 2 November 2009.
On 4 March 2010 the Supreme Court upheld the Baku Court of Appeal’s ruling.
(b) Second set of proceedings
On an unspecified date, after rectifying the deficiencies pointed out by the Ministry of Justice, the applicants re-submitted their request for state registration.
On 17 May 2010 the Ministry of Justice again returned the documents submitted by the applicants, referring to some new deficiencies to be rectified: in the request for state registration the number and the date of issuance of an ID card of Mr Mehman Aliyev (one of the applicants) had been stated incorrectly.
On 12 July 2010, after correcting the deficiencies pointed out by the Ministry of Justice, the applicants re-submitted the documents for registration of the association.
According to the applicants, they did not receive a reply to that request for state registration in due time.
They therefore lodged a complaint against the Ministry of Justice with Baku Administrative Economic Court no. 1. The applicants argued that the Ministry of Justice had exceeded the time-limit set forth in Article 8 of the Law on State Registration for examination of the request for state registration. They asked the court to compel the Ministry of Justice to issue a state registration certificate for the association.
During the court proceedings the Ministry of Justice produced a rejection letter dated 23 August 2010 (according to the applicants the letter was dated 3 September 2010) allegedly sent to the applicants. That letter stated that in the request for state registration, the number of the ID card belonging to Mr Samir Ismayilov (one of the applicants) had been given incorrectly.
On 9 June 2011 Baku Administrative Economic Court no. 1 dismissed the applicants’ complaint, finding nothing unlawful in the actions of the Ministry of Justice.
The applicants appealed, reiterating their previous complaints and adding that they never received the rejection letter produced by the Ministry of Justice during the first-instance court proceedings.
By a decision of 22 September 2011 the Baku Court of Appeal upheld the first-instance court’s decision, basing its decision on the rejection letter of 23 August 2010. It appears that the Ministry of Justice did not submit any evidence proving that that rejection letter had been sent to the applicants in due time, but the court did not address the applicants’ objection in that regard.
On 29 February 2012 the Supreme Court upheld the Baku Court of Appeal’s decision.
3. Application no. 12990/14 lodged on 30 January 2014 by Zahir Jabbarov and Alasgar Huseynov
On an unspecified date in 2012 the applicants submitted a request to the Ministry of Justice for state registration of their association as a legal entity.
On 13 April 2012, relying on Article 11.3.1 of the Law on State Registration the Ministry of Justice rejected the request for state registration and returned the documents submitted by the applicants. In its rejection letter the Ministry of Justice stated that, in contravention of Article 5.4.1 of the Law on State Registration, the decision establishing the association, approving its charter and establishing its management bodies did not define the powers of the association’s management bodies.
In May 2012, after correcting the deficiencies pointed out by the Ministry of Justice, the applicants re-submitted the documents for registration of the association.
According to the applicants, they did not receive a reply to that request for state registration in due time.
They therefore lodged a complaint against the Ministry of Justice with Baku Administrative Economic Court no. 1. The applicants argued that the Ministry of Justice had exceeded the time-limit set forth in Article 8 of the Law on State Registration for examination of a request for state registration. They asked the court to compel the Ministry of Justice to issue a state registration certificate for the association.
During the proceedings before the first-instance court, the Ministry of Justice produced a rejection letter dated 25 June 2012 allegedly sent to the applicants. According to that letter, in contravention of Article 9.2 of the Law on NGOs, the charter of the association did not define the scope of the mutual rights and responsibilities of the founders.
On 29 November 2012 Baku Administrative Economic Court no. 1 dismissed the applicants’ complaint, finding that the reasons for rejection stated by the Ministry of Justice in its letter of 13 April 2012 had been lawful.
The applicants appealed, reiterating their previous complaints.
The Baku Court of Appeal upheld the first-instance court’s decision in a decision dated 12 February 2013. In addition, the court referred in its decision to the Ministry’s rejection letter of 25 June 2012.
The applicants appealed, reiterating their previous complaints and adding that they never received the last rejection letter produced by the Ministry of Justice during the first-instance court proceedings.
On 29 May 2013 the Supreme Court upheld the Baku Court of Appeal’s decision. It appears that the Ministry of Justice did not submit any evidence proving that the rejection letter of 25 June 2012 had been sent to the applicants in due time, but the court did not address the applicants’ objection in that regard.
4. Application no. 15436/14 lodged on 13 November 2013 by Alasgar Huseynov and Aytakin Abuzarova
On unspecified date in 2012 the applicants submitted a request to the Ministry of Justice for state registration of their association as a legal entity.
On 13 April 2012, relying on Article 11.3.1 of the Law on State Registration the Ministry of Justice rejected the request for state registration and returned the documents submitted by the applicants. In its rejection letter the Ministry of Justice stated that, in contravention of Article 5.4.1 of the Law on State Registration, the decision establishing the association, approving its charter and establishing its management bodies did not define the powers of the association’s managerial organs.
In May 2012, after correcting the deficiencies pointed out by the Ministry of Justice, the applicants re-submitted the documents for registration of the association.
According to the applicants, they did not receive a reply to that request for state registration in due time.
They therefore lodged a complaint against the Ministry of Justice with Baku Administrative Economic Court no. 1. The applicants argued that the Ministry of Justice had exceeded the time-limit set forth in Article 8 of the Law on State Registration for examination of a request for state registration. They asked the court to compel the Ministry of Justice to issue a state registration certificate for the association.
During the proceedings before the first-instance court, the Ministry of Justice produced a rejection letter dated 25 June 2012 allegedly sent to the applicants. According to that letter, in contravention of Article 9.2 of the Law on NGOs, the charter of the association did not define the scope of mutual rights and responsibilities of the founders.
On 12 December 2012 Baku Administrative Economic Court no. 1 dismissed the applicants’ complaint, finding that the reasons for rejection indicated by the Ministry of Justice in its letter of 25 June 2012 had been lawful.
The applicants appealed, reiterating their previous complaints.
The Baku Court of Appeal upheld the first-instance court’s decision in a decision dated 20 February 2013.
The applicants appealed, reiterating their previous complaints and adding that they never received the last rejection letter produced by the Ministry of Justice during the first-instance court proceedings.
On 19 June 2013 the Supreme Court upheld the Baku Court of Appeal’s decision. It appears that the Ministry of Justice did not submit any evidence proving that the rejection letter of 25 June 2012 had been sent to the applicants in due time, but the court did not address the applicants’ objection in that regard.
5. Application no. 44463/14 lodged on 5 June 2014 by Sudaba Mammadova and Zeynab Agayeva
On unspecified date in 2012 the applicants submitted a request to the Ministry of Justice for state registration of their association as a legal entity.
On 13 April 2012, relying on Article 11.3.1 of the Law on State Registration, the Ministry of Justice rejected the request for state registration and returned the documents submitted by the applicants. In its rejection letter the Ministry of Justice stated that in contravention of Article 5.4.1 of the Law on State Registration, the decision establishing the association, approving its charter and establishing its management bodies did not define the powers of the association’s management bodies.
In June 2012, after correcting the deficiencies pointed out by the Ministry of Justice, the applicants re-submitted the documents for registration of the association.
According to the applicants, they did not receive a reply to that request for state registration in due time.
They therefore lodged a complaint against the Ministry of Justice with Baku Administrative Economic Court no. 1. The applicants argued that the Ministry of Justice had exceeded the time-limit set forth in Article 8 of the Law on State Registration for examination of the request for state registration. They asked the court to compel the Ministry of Justice to issue a state registration certificate for the association.
During the proceedings before the first-instance court the Ministry of Justice produced a rejection letter dated 9 August 2012 allegedly sent to the applicants. According to that letter, in contravention of Article 9.2 of the Law on NGOs, the charter of the association did not define the scope of the mutual rights and responsibilities of the founders. In addition, it was recommended that the cover-page of the charter be amended.
On 3 April 2013 Baku Administrative Economic Court no. 1 dismissed the applicants’ complaint, finding that the reasons for rejection given by the Ministry of Justice in its letter of 9 August 2012 had been lawful.
The applicants appealed, reiterating their previous complaints and adding that they never received the last letter of rejection produced by the Ministry of Justice during the first-instance court proceedings.
The Baku Court of Appeal upheld the first-instance court’s decision in a decision dated 6 June 2013. It appears that the Ministry of Justice did not submit any evidence proving that the rejection letter of 9 August 2012 had been sent to the applicants in due time, but the court did not address the applicants’ objection in that regard.
On 2 October 2013 the Supreme Court upheld the Baku Court of Appeal’s decision.
6. Search and seizure in the office of the applicants’ representative
On 8 August 2014 Mr I. Aliyev, who represented all 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. 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.
8.2. The relevant executive body of the Republic of Azerbaijan [i.e. the Ministry of Justice] shall accept an application for state registration and the documents attached thereto for review, and within a period of 30 days shall examine their compliance with the Constitution of the Republic of Azerbaijan, the present Law and other legislative acts of the Republic of Azerbaijan. In exceptional cases, where during the review process the need to carry out additional examination arises, that period may be prolonged by up to an additional 30 days.
8.3. If deficiencies which do not warrant the 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.
8.4. No later than 10 days after the review of the submitted documents ... the relevant executive body ... shall issue the applicant with a state registration certificate or a written notification of refusal to register (indicating and explaining the provisions of the law which formed the basis for the refusal).
8.5. If no response announcing refusal to register is provided within the time-limit set forth in this Article, the entity shall be considered as state-registered. In that case, within a period of no longer than 10 days, the relevant executive body ... shall issue the applicant with a state registration certificate. ...”
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; ...”
2. 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 any 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 organisation 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. The applicants in applications nos. 8954/09 and 46930/10 complain that their right to access to a court guaranteed by Article 6 of the Convention was violated.
2. The applicants in application no. 44463/14 complain under Article 6 of the Convention that they were not properly notified about the Supreme Court hearing.
3. All the applicants complain under Article 11 of the Convention that the failure by the Ministry of Justice (or the Ministry of Justice of NAR) to register the associations which they had founded amounted to a violation of their right to freedom of association.
4. All the applicants complain that the seizure by the State authorities of the case files relating to the applications lodged with the Court, which were in Mr I. Aliyev’s possession as their representative, was in breach of their right of individual petition 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 of the Republic of Azerbaijan (or the Ministry of Justice of the Nakhchivan Autonomous Republic) comply with the requirements of domestic law? If so, was the interference necessary in terms of Article 11 § 2?
2. 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 on the part of the State in the present cases in the effective exercise of the applicants’ right of application, ensured by Article 34 of the Convention?
3. The parties are requested to provide the Court with all the documents relating to the establishment of the associations in question and the requests for state registration, as well as all the documents relating to the relevant domestic court proceedings.
CASE SPECIFIC QUESTIONS
Applications nos. 8954/09, 46930/10 and 44463/14: 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, did the applicants in applications nos. 8954/09 and 46930/10 have access to a court? Were the applicants in application no. 44463/14 properly notified about the hearing of the Supreme Court?
APPENDIX
No.
Application no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Notes
First-instance judgment
Appellate instance judgment
Final judgment
8954/09
29/01/2009
Mahammad RZAYEV
1975
Nakhchivan
Intigam ALIYEV
Association “For Healthy Future” (“Sağlam Gələcək Uğrunda”) was founded in 2008.
---
---
---
46930/10*
10/08/2010
Mehman ALIYEV
1957
Baku
Emin HUSEYNOV
1979
Geneva
Samir ISMAYILOV
1968
Goychay
Intigam ALIYEV
“Media Monitoring Institute” Association (“Media Monitorinq Institutu”) was founded in 2009.
Ruling of the Yasamal District Court of 16 September 2009
Decision of Baku Administrative Economic Court no. 1 of 9 June 2011
Ruling of the Baku Court of Appeal of 2 November 2009
Decision of the Baku Court of Appeal of 22 September 2011
Decision of the Supreme Court of 4 March 2010
Decision of the Supreme Court of 29 February 2012
12990/14*
30/01/2014
Zahir JABBAROV
1972
Masalli
Alasgar HUSEYNOV
1957
Masalli
Intigam ALIYEV
Association “Support to Drivers” (“Sürüçülərə Dəstək”) was founded in 2012.
Decision of 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 29 May 2013 (received by the applicants on 3 December 2013)
15436/14*
13/11/2013
Alasgar HUSEYNOV
1957
Masalli
Aytakin ABUZAROVA
1980
Masalli
Intigam ALIYEV
Association “Support to Education and Children” (“Təhsilə və Uşaqlara Dəstək”) was founded in 2012.
Decision of Baku Administrative Economic Court no. 1 of 12 December 2012
Decision of the Baku Court of Appeal of 20 February 2013
Decision of the Supreme Court of 19 June 2013
44463/14*
05/06/2014
Sudaba MAMMADOVA
1960
Masalli
Zeynab AGAYEVA
1964
Masalli
Intigam ALIYEV
Centre for Protection on Women’s Rights, “Anacan” (“‘Anacan’ Qadın Hüquqları Müdafiəsi Mərkəzi”), was founded in 2012.
Decision of Baku Administrative Economic Court no. 1 of 3 April 2013
Decision of the Baku Court of Appeal of 6 June 2013
Decision of the Supreme Court of 2 October 2013 (received by the applicants on 13 February 2014)
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