Information Note on the Court’s case-law No. 123
October 2009
Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan - 37083/03
Judgment 8.10.2009 [Section I]
Article 11
Article 11-1
Freedom of association
Dissolution of association for alleged breaches of the law and its own charter: violation
Facts – The applicant association was registered by the Ministry of Justice (“the Ministry”) in 1995. Its charter required it to hold a general meeting every five years, but it did not do so until August 2002. Two weeks later it received a warning letter* from the Ministry requiring it to remedy certain breaches of domestic law and its own charter. The association replied that a meeting had been held and that steps were being taken to bring the charter into line with the statutory requirements. The Ministry then issued a second warning in which it noted irregularities in the convening of the meeting in August 2002, notably on account of alleged errors in the association’s records of members and branches. At the end of October 2002, a third warning was sent noting that no information had been received regarding compliance with the previous two letters. The third warning letter also asserted that the association had breached a statutory ban on public associations interfering with the activities of private businesses. In March 2003 the Ministry obtained a court order for the association’s dissolution for failure to remedy the breaches referred to in the three warning letters. Subsequently, following unsuccessful appeals, the association was dissolved.
Law – Article 11: The Court was prepared to accept that the dissolution of the applicant association had pursued the legitimate aim of protecting the rights and freedoms of others. The question whether that interference was prescribed by law would be examined with the closely-related broader issue of whether it was necessary in a democratic society. There were question marks over the foreseeability of the legislation, which was couched in general terms and appeared to give a wide discretion to the Ministry of Justice. In particular, the notion of activities “incompatible with the objectives” of the Law on Non-Governmental Organisations appeared to encompass an unlimited range of issues when in view of the severity of the only possible sanction – compulsory dissolution – they should have been precisely delimited. Nor were there any detailed rules governing such matters as the scope and extent of the Ministry’s power to intervene in an association’s internal management and activities, the procedure for conducting inspections or the time allowed to eliminate any shortcomings.
The domestic authorities had relied on two grounds for dissolving the association. The first being alleged breaches of the rules on internal management, the second alleged engagement in unlawful activities.
As to the first, the Court noted that freedom of association did not preclude the States from laying down rules and requirements on corporate governance and management and from satisfying themselves that they were observed. Such rules served to ensure the members’ rights to participate in the association’s management and activities and to prevent abuse of the legal status and associated economic privileges enjoyed by non-commercial entities. The applicant association had clearly been at fault in failing to call a general meeting for around seven years or to bring its charter into conformity with domestic legislation. However, even before receiving the first warning, it had sought to rectify the position by convening a general meeting and should have been given a genuine chance to put matters right. Instead, the focus of the accusations had shifted to other alleged breaches and the Ministry had issued two further warnings in a relatively short time span, on each occasion giving the association only ten days in which to remedy the situation, without any explanation as to what specific measures were required. That deadline appeared to have been set arbitrarily and, on the face of it, was too short to afford the association a genuine chance to rectify matters. In any event, there appeared to be little justification for the Ministry interfering with the internal workings of the association to the extent it had in the two additional warnings, especially in the absence of any complaints by members. While it was legitimate for States to introduce certain minimum requirements as to the role and structure of an association’s governing bodies, it was not the authorities’ role to ensure observance of every single formality set out in an association’s own charter. In any event, the domestic courts had not carried out any independent judicial inquiry into the alleged failings, but had simply accepted the findings of Ministry of Justice officials at face value, so that there was no sound evidence that they had, in fact, taken place or constituted a compelling reason for the interference. Accordingly, the domestic authorities had failed to adduce relevant and sufficient reasons for the interference. Lastly, outright dissolution was a disproportionate response to a mere failure to comply with certain internal management rules and less radical measures were called for.
As to the second ground, engaging in unlawful activities, the allegations had been extremely vague, brief and lacking in detail. The domestic courts had simply accepted the Ministry’s allegations as true, without examining any direct evidence of the alleged misconduct or hearing testimony from alleged victims or witnesses. In sum, the allegations were unproven and the decision to dissolve the applicant association on this ground was nothing short of arbitrary.
Conclusion: violation (unanimously).
Article 41: EUR 8,000 in respect of non-pecuniary damage.
* Under Article 31 of the Law on Non-Governmental Organisations a warning may be issued to any NGO committing “actions incompatible with the objectives” of the Law. A court order for dissolution may be made if the NGO receives more than two written warnings within a year.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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