Communicated on 11 October 2016
FIFTH SECTION
Application no 12982/14
Farhad VALIYEV and Kamran ALIYEV against Azerbaijan
and 9 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 on account of certain deficiencies that needed to be rectified.
After correcting the deficiencies pointed out by the Ministry, the applicants re-submitted the documents for registration of the associations concerned. On various dates the Ministry again returned the documents submitted by the applicants, referring to some new deficiencies (which had not been mentioned in the initial rejection letters) that needed to be rectified.
After receiving those rejection letters, some of the applicants lodged a complaint against the Ministry’s actions with the domestic courts, while others re-submitted the documents after rectifying the deficiencies pointed out by the Ministry. Those requests for state registration were rejected (and re‑submitted) several times in the same manner before the applicants decided to complain to the domestic courts (see Appendix).
2. Deficiencies indicated by the Ministry in its last rejection letters
Deficiencies indicated by the Ministry in its last rejection letters were as follows:
(a) in contravention of Article 9.2 of the Law on Non-Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”), the charter of the association did not indicate the scope of mutual rights and responsibilities of the founders; moreover, it was required to make Article 5.2.1 of the charter comply with Article 9.1 of that Law (application no. 12982/14);
(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‑limit for examination of a complaint) (application no. 15689/14);
(c) in contravention of paragraph 2.11 of the Rules on Registration of Non-Commercial organisations and Educational Institutions, the cover page of the charter did not contain [the field for] the registration number of the entity wishing to obtain legal-entity status or the entity’s registration date or the name of the registering authority (application no. 17466/14);
(d) in contravention of Article 5.4.1 of the Law on State Registration, the decision establishing the association, approving its charter and establishing its management bodies did not define the powers of the association’s management bodies (application no. 31592/14);
(e) 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. 34151/14);
(f) the founding decision did not comply with Article 25 of the Law on NGOs, which sets out the basic rules for managing an association (application no. 51860/14);
(g) in contravention of sub-paragraph 8 of paragraph 2.5 of the Rules on Registration of Non-Commercial organisations and Educational Institutions, instead of submitting a document showing the goodwill (the consent) of the owner of the address at which the association was based, the applicants submitted a document showing the consent of a third party (application no. 56754/14);
(h) in contravention of paragraph 2.5 of the Rules on Registration of Non-Commercial organisations and Educational Institutions, the founders’ decision regarding the association’s address was not submitted (applications nos. 66539/14 and 69466/14);
(i) in contravention of Article 25.1 of the Law on NGOs, the charter did not set out a decision-making procedure to be followed by the Control and Review Committee (application no. 75264/14).
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 applicants claimed 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 various dates the Supreme Court upheld the Baku Court of Appeal’s respective judgments (see Appendix).
4. Search and seizure in the office of the applicants’ representative (applications nos. 12982/14, 15689/14, 17466/14, 31592/14, 34151/14, 51860/14 and 56754/14)
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. 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; ...”
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 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. The applicants in applications nos. 12982/14, 17466/14, 34151/14 and 51860/14 complain under Article 6 of the Convention that they were not notified about the respective hearings of the Supreme Court.
2. 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.
3. The applicants in applications nos. 12982/14, 15689/14, 17466/14, 31592/14, 34151/14, 51860/14 and 56754/14 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 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 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 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
1. Applications nos. 12982/14, 17466/14, 34151/14 and 51860/14: 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?
2. Applications nos. 12982/14, 15689/14, 17466/14, 31592/14, 34151/14, 51860/14 and 56754/14: 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 name
date of birth
place of residence
Represented by
Notes
First-instance judgment
Appellate instance judgment
Final judgment
12982/14*
30/01/2014
Farhad VALIYEV
1994
Baku
Kamran ALIYEV
1994
Baku
Intigam ALIYEV
“Support to Young Musicians” Association (“Gənc Musiqiçilərə Dəstək”) was founded in 2012.
The Ministry of Justice returned the documents three times (on 26 July and 24 October 2012 and 29 January 2013).
Decision of the Baku Administrative Economic Court no. 1 of 5 March 2013
Decision of the Baku Court of Appeal of 6 June 2013
Decision of the Supreme Court of 18 October 2013
15689/14*
10/02/2014
Khayyam ABBASOV
1983
Baku
Nemat ORUJOV
1979
Baku
Intigam ALIYEV
Centre for Public Interests Advocacy (“İctimai Maraqların müdafiəsi Mərkəzi”) was founded in 2012.
The Ministry of Justice returned the documents three times (on 6 February, 20 April and 5 July 2012).
Decision of the Baku Administrative Economic Court no. 1 of 24 October 2012
Decision of the Baku Court of Appeal of 29 January 2013
Decision of the Supreme Court of 1 August 2013 (sent to the applicants on 10 October 2013)
17466/14*
18/02/2014
Azad ISA-ZADE
1958
Baku
Matanat AZIZOVA
1974
Baku
Intigam ALIYEV
Women’s Crisis Centre (“Qadın Krizis Mərkəzi”) was founded in 2011.
The Ministry of Justice returned the documents three times (on 7 February, 6 June and 30 August 2012).
Decision of the Baku Administrative Economic Court no. 1 of 12 March 2013
Decision of the Baku Court of Appeal of 30 May 2013
Decision of the Supreme Court of 30 October 2013
31592/14*
14/04/2014
Afruza MAHARRAMOVA
1952
Masalli
Sadaya HUSEYNOVA
Masalli
Intigam ALIYEV
“Religion and Women’s Rights” Association (“Din və Qadın Hüquqları”) was founded in 2011.
The Ministry of Justice returned the documents four times (on 2 August and 2 November 2011, 7 March and 19 November 2012).
Decision of the Baku Administrative Economic Court no. 1 of 27 March 2013
Decision of the Baku Court of Appeal of 1 August 2013
Decision of the Supreme Court of 6 November 2013 (sent to the applicants on 30 December 2013)
34151/14*
22/04/2014
Elshan NAGIYEV
1977
Baku
Nurlan GULIYEV
1989
Agdam
Intigam ALIYEV
Association “Public Health Institute” (“İctimai Səhiyyə İnstitutu”) was founded in 2012.
The Ministry of Justice returned the documents two times (on 13 April and 21 June 2012).
Decision of the Baku Administrative Economic Court no. 1 of 29 January 2013
Decision of the Baku Court of Appeal of 25 June 2013
Decision of the Supreme Court of 30 October 2013
51860/14*
24/06/2014
Afsun SUJAYEV
1979
Lerik
Saida BASHIROVA
1979
Lerik
Intigam ALIYEV
Centre for South Region Development and Gender (“Cənub Regional İnkişaf və Gender Mərkəzi”) was founded in 2012.
The Ministry of Justice returned the documents three times (on 29 June and 28 November 2012 and 30 April 2013).
Decision of the Baku Administrative Economic Court no. 1 of 30 July 2013
Decision of the Baku Court of Appeal of 10 October 2013
Decision of the Supreme Court of 23 January 2014
56754/14*
08/08/2014
Fariz ADIGOZALOV
1946
Baku
Alakbar AGASIYEV
1958
Baku
Intigam ALIYEV
“Support to Sustainable Development Models” Association (“Davamlı İnkişaf Modellərinə Dəstək”) was founded in 2012.
The Ministry of Justice returned the documents four times (on 15 March, 25 May and 6 August 2012 and 7 January 2013).
Decision of the Baku Administrative Economic Court no. 1 of 30 May 2013
Decision of the Baku Court of Appeal of 17 September 2013
Decision of the Supreme Court of 30 January 2014 (sent to the applicants on 20 February 2014)
66539/14*
24/09/2014
Teymur MIRZAYEV
1972
Barda
Khalid KAZIMOV
1978
Baku
Yashar AGAZADEH
“Support to Development of Regional Communities and to Lessening of Poverty” Association (“Region İcmalarının İnkişafına və Yoxsulluğun Azaldılmasına Dəstək”) was founded in 2012.
The Ministry of Justice returned the documents four times (on 29 August and 1 November 2012, 24 April and 18 July 2013).
Decision of the Baku Administrative Economic Court no. 1 of 2 December 2013
Decision of the Baku Court of Appeal of 14 May 2014
Decision of the Supreme Court of 10 September 2014
69466/14*
15/10/2014
Elchin ABDULLAYEV
1974
Shirvan
Araz NURMAMMADOV
1990
Shirvan
Yashar AGAZADEH
Centre for Rehabilitation and Protection of HIV/AIDS and Tuberculosis Patients (“HİV/AİDS və Vərəmli Xəstələrin Reabilitasiya və Müdafiə Mərkəzi”) was founded in 2013.
The Ministry of Justice returned the documents two times (on 27 June and 15 November 2013).
Decision of the Baku Administrative Economic Court no. 1 of 18 February 2014
Decision of the Baku Court of Appeal of 9 April 2014
Decision of the Supreme Court of 18 June 2014
75264/14
13/11/2014
Mehdibay SAFAROV
1960
Baku
“Azeri – Talish National Moral Values” Association (“Azəri – Talış Milli-Mənəvi Dəyərlər”) was founded in 2013.
The Ministry of Justice returned the documents four times (on 25 December 2012, 18 March, 16 May and 18 July 2013).
Decision of the Baku Administrative Economic Court no. 1 of 10 October 2013
Decision of the Baku Court of Appeal of 14 January 2014
Decision of the Supreme Court of 13 May 2014
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