FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37083/03
by TEBIETI MÜHAFIZE CEMIYYETI and Sabir ISRAFILOV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 8 November 2007 as a Chamber composed of:
MrL. Loucaides, President,
MrsN. Vajić,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and A. Wampach, Deputy Section Registrar
Having regard to the above application lodged on 8 October 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The individual applicant, Mr Sabir Israfilov, is an Azerbaijani national who was born in 1948 and lives in Baku. He submitted the present application on his own behalf and on behalf of Tebieti Mühafize Cemiyyeti (Təbiəti Mühafizə Cəmiyyəti – “TMC”), which was a public association with the head office in Baku. The applicants were represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Mr Israfilov was a chairman of TMC, a non-profit association registered by the Ministry of Justice on 25 August 1995. The main purpose of the association’s activity was raising public awareness of the environmental protection issues and organisation of a “public movement” for clean environment in Azerbaijan.
It appears that in July 1997 the Ministry of Justice carried out a review of TMC’s activities and found that there had been a number of breaches of the law and the association’s own charter. On 9 July 1997 a warning letter was sent to TMC in this connection.
It also appears that, since its establishment and until August 2002, TMC never convened a general meeting of its members, which was the main governing body of the association in accordance with its charter and the domestic law.
On 14 August 2002 the Ministry of Justice performed another review of TMC’s activities. Following this, on 10 September 2002 the Ministry issued a warning to TMC, in which it stated that its activities did not comply with the requirements of the domestic law, because no general meeting of association members had been held within the time-limits specified by law and TMC’s charter. In particular, the charter required such a meeting to be held every five years. The Ministry further noted that this requirement of the charter was itself incompatible with the domestic law, as the Law on Non‑Governmental Organisations (Public Associations and Funds) (hereinafter the “NGO Law”) required that the supreme governing body of the public association – the general meeting of members – was to be convened no less than once every year. The Ministry requested that, within ten days, TMC remedy the situation and inform the Ministry about the results.
In reply, Mr Israfilov informed the Ministry that, in fact, the general meeting of members had taken place on 26 August 2002.
Having examined the documents relating to this meeting, on 3 October 2002 the Ministry of Justice issued a second warning, noting that the general meeting of 26 August 2002 had been carried out with numerous violations of the domestic law. Specifically, the Ministry mentioned inter alia that not all members of TMC had been properly informed about the general meeting and thus had failed to participate in it and that TMC’s local subdivisions had not been equally represented at the meeting. Generally, the current membership records had not been properly kept and it was impossible to determine the exact number and identity of members. Local subdivisions of TMC did not hold regular local meetings of members and, in fact, functioned as local offices directly governed by the head office in an administrative manner. The Ministry again demanded that, within ten days, information be submitted as to any steps taken to remedy these breaches.
Finally, on 28 October 2002 the Ministry issued a third warning, stating that it had not received any information from TMC as to the compliance with the prior two warnings. In addition to confirming its concerns contained in the prior warnings, the Ministry also noted that TMC had engaged in activities prohibited by law, by attempting to unlawfully collect membership fees from, and carry out environmental audits at, various government organs and private enterprises.
In December 2002 the Ministry filed a lawsuit, requesting that TMC be liquidated as a legal entity. TMC, represented by Mr Israfilov, filed a counterclaim, contending that the Ministry’s warnings had been unlawful and unsubstantiated.
On 7 March 2003 the Yasamal District Court dismissed TMC’s counterclaim and ordered its dissolution. The court found that, despite an early warning issued on 9 July 1997, TMC continued to commit breaches of domestic law even on more systematic basis. It noted that the association’s charter had not been brought into compliance with the domestic laws on public associations which required that the general meeting of members be held no less than once a year. In any event, even the five-year period for convening the general meeting, as required by the charter, was breached. The court further found that the Ministry’s remarks concerning numerous irregularities during the general meeting of 26 August 2002, as well as breaches of law in the general functioning of the association, had been well‑founded.
Furthermore, based on the materials available and on witness testimonies, the court found that TMC had frequently crossed the limits of the scope of its activities as defined in its charter and permitted by law, by interfering with the competence of the relevant state authorities. In particular, the association’s local subdivisions attempted to carry out unlawful environmental audits at various state and commercial enterprises and collect membership fees from them, issued “acts” on compliance of these enterprises with environmental standards, as well as took other actions interfering with the activities of commercial entities. The court found that, by engaging in such actions, TMC exceeded the limits of its freedom of association by allowing itself to breach the domestic laws, violate rights of other persons and misappropriate the competence of a state authority.
The court further held that TMC must be dissolved, because it had taken no measures to remedy the above-mentioned shortcomings despite the warnings given by the Ministry of Justice.
TMC appealed, claiming that the provisions of the NGO Law were vague and imprecise, giving the Ministry a wide discretion to interfere with public associations’ activities and to issue warnings even on minor irregularities in their activities. TMC also argued that the first instance courts’ factual findings concerning its activities had been incorrect and unsubstantiated. On 4 July 2003 the Court of Appeal dismissed the appeal and upheld the first instance court’s judgment.
Following TMC’s cassation appeal, on 29 October 2003 the Supreme Court upheld the lower courts’ judgments. Accordingly, TMC was dissolved and its state registration certificate was revoked.
B. Relevant domestic law
1. Civil Code of 1 September 2000
Article 59. Dissolution of a legal entity
“59.2. A legal entity may be dissolved: ...
59.2.3. by a court order, if the legal entity engages in activities without the required permit (license) or in activities prohibited by law, or if it otherwise commits repeated or grave breaches of law, or if a public association or fund systematically engages in activities that are contrary to the purposes of its by-laws, as well as in other cases provided by law.
59.3. A request to dissolve the legal entity under the grounds provided in Article 59.2 of this Code may be filed by the relevant state authority or local self‑administration authority, to which the right to file such a request is granted by law. ...”
2. Law on Non-Governmental Organisations (Public Associations and Funds) of 13 June 2000
Article 1. Objectives of this Law
“1.1. This Law regulates the relations concerning the establishment and functioning of public associations and funds.
1.2. The definition of “non-governmental organisation” in this Law includes public associations and funds.
1.3. This Law determines the rules for establishment, activity, reorganisation and dissolution of non-governmental organisations, as well as their functioning, management, and relations with government bodies.
1.4. This Law does not apply to political parties, trade unions, religious organisations, local self-administration authorities and non-governmental organisations which are regulated by other laws.”
Article 20. Dissolution of a non-governmental organisation
“A non-governmental organisation may be dissolved in the manner established by the laws of the Republic of Azerbaijan on state registration of legal entities.”
Article 25. Principles of management of a public association
“25.2. The supreme management body of a public association is the general meeting to be convened not less than once a year.
25.3. The general meeting shall be convened upon the initiative by the public association’s executive body, by one of its founders, or by one third of its members. ...”
Article 31. Liability of a non-governmental organisation
“31.1. A non-governmental organisation breaching the requirements of this Law shall be liable in accordance with the laws of the Republic of Azerbaijan.
31.2. If [a non-governmental organisation commits] actions incompatible with the objectives of this Law, the relevant executive authority 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 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 law, such organisation may be dissolved pursuant to a court order.”
COMPLAINTS
1. The applicants complained under Article 11 of the Convention that the domestic courts’ order to dissolve TMC had violated their right to freedom of association.
2. The applicants also complained under Article 6 of the Convention that the domestic courts erred in assessing the facts of the case and failed to give due consideration to the arguments and evidence submitted by the applicants.
THE LAW
A. The parties’ submissions
The Government submitted that the applicants did not exhaust all the available domestic remedies before submitting their application to the Court. Specifically, the applicants filed their application while their cassation appeal was still pending before the Supreme Court.
The applicants submitted that although they had lodged the application before the Supreme Court ruled on their cassation appeal the Supreme Court delivered its decision shortly thereafter and the applicants immediately notified the Court about it.
B. The Court’s assessment
The Court has repeatedly stated that while the applicant is bound to exercise different remedies before lodging his or her application with the Court the Court may accept that the last stage of such remedies may be reached after the lodging of the application but before the Court is called upon to pronounce itself on admissibility (see, for example, Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 38, § 91, and Ramazanova and Others v. Azerbaijan, no. 44363/02, § 42, 1 February 2007).
The applicants lodged the present application with the Court on 8 October 2003 while their cassation appeal was still pending before the Supreme Court. Shortly after this date the Supreme Court delivered its decision on 29 October 2003. That decision constituted the final domestic decision in the present case. Accordingly, at the time of the present admissibility decision the applicants have exhausted the last stage of the domestic remedies. It follows that the application cannot be rejected on the ground of non-exhaustion of domestic remedies.
Furthermore, the Court considers that the application 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 application 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.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention to this case; and
Declares the application admissible, without prejudging the merits of the case.
André WampachLoukis Loucaides
Deputy RegistrarPresident
Full & Egal Universal Law Academy