Communicated on 11 October 2016
FIFTH SECTION
Application no 24504/11
Shukur IZZAT OGLU and Ali BASHIRLI against Azerbaijan
and 14 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 second 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 5 of the Law on Non-Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”), the charter of the association did not indicate whether the latter was established on a permanent basis or for the purpose of achieving concrete goals (application no. 24504/11);
(b) 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. 31124/13);
(c) 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. 33165/13);
(d) in contravention of Article 5.4.1 of the Law on State Registration, the decision establishing the association and approving its charter did not set out the terms of reorganisation when a new legal entity was to be established as a result of merger, separation and division (application no. 36135/13);
(e) in contravention of Article 25.3 of the Law on NGOs, the charter of the association provided that the general assembly should be convened by the management board (application no. 53143/13);
(f) Article 12.1 of the Law on State Register of Immovable Property, requires property rights to be confirmed by a certificate ... [whereas] the “technical passport” [of a house] submitted by the founders as proof of the legal address of the association was not a document proving property rights (application no. 59519/13);
(g) in contravention of Article 10.3 of the Law on NGOs, the charter did not set up a procedure to guarantee the right to complain before a court about cancellation of membership of the association (applications nos. 59543/13 and 74319/13);
(h) 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 (application no. 59591/13);
(i) 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 (application no. 62480/13);
(j) the charter mentioned that the activity of the association would extend to Azerbaijan and other countries, but it did not specify the names of those foreign countries (application no. 62490/13);
(k) the cover page of the charter was not in accordance with the form shown in Annex no. 1 to the Rules on Registration of Non-Commercial organisations and Educational Institutions; furthermore, on the cover page of the charter the title of the department dealing with registration was written incorrectly (application no. 64016/13);
(l) in contravention of Article 13.1 of the Law on NGOs, the charter did not describe the procedure for withdrawal from membership of the association (applications nos. 73088/13 and 3206/14).
In the case of the applicants in application no. 36186/13, the Ministry noted in its last letter that, in contravention of Article 5.2 of the Law on State Registration, the request for state registration had not been certified by a notary.
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. 31124/13, 33165/13, 36135/13, 36186/13, 59519/13, 59543/13, 59591/13, 62480/13, 62490/13, 64016/13, 73088/13, 74319/13 and 3206/14)
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 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. 24504/11 and 53143/13 complain under Article 6 of the Convention that the court proceedings they initiated against the Ministry of Justice were unfair.
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. 31124/13, 33165/13, 36135/13, 36186/13, 59519/13, 59543/13, 59591/13, 62480/13, 62490/13, 64016/13, 73088/13, 74319/13 and 3206/14 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. 24504/11 and 53143/13: 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, was the applicants’ right to a reasoned decision respected?
2. Applications nos. 31124/13, 33165/13, 36135/13, 36186/13, 59519/13, 59543/13, 59591/13, 62480/13, 62490/13, 64016/13, 73088/13, 74319/13 and 3206/14: 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
24504/11
04/04/2011
Shukur IZZAT OGLU
1956
Shirvan
Ali BASHIRLI
1952
Shirvan
Azer NAGIYEV
Regional Centre for Human Rights and Social Researches (“Regional İnsan Hüquqları və Sosial Araşdırmalar Mərkəzi”) was founded in 2009.
The Ministry of Justice returned the documents two times (on 7 August and 24 November 2009).
Judgment of the Yasamal District Court of 17 March 2010
Judgment of the Baku Court of Appeal of 25 June 2010
Decision of the Supreme Court of 24 November 2010
31124/13*
09/03/2013
Mehriban VEZIR
1957
Baku
Elchin ABDULLAYEV
1974
Shirvan
Intigam ALIYEV
“Media and Democracy Institute” Association (“Media və Demokratiya İnstitutu”) was founded in 2010.
The Ministry of Justice returned the documents two times (on 5 July 2010 and 22 June 2011).
Decision of the Baku Administrative Economic Court no. 1 of 17 January 2012
Decision of the Baku Court of Appeal of 8 May 2012
Decision of the Supreme Court of 25 July 2012 (sent to the applicants on 10 September 2012)
33165/13*
08/05/2013
Alasgar HUSEYNOV
1957
Masalli
Aytakin ABUZAROVA
1980
Masalli
Intigam ALIYEV
“Regional Development and Human Rights” Association (“Regional İnkişaf və İnsan Hüquqları”) was founded in 2008.
The Ministry of Justice returned the documents five times (on 19 March and 27 August 2008, 19 May, 29 July and 17 October 2011).
Decision of the Baku Administrative Economic Court no. 1 of 26 January 2012
Decision of the Baku Court of Appeal of 21 June 2012
Decision of the Supreme Court of 10 October 2012 (sent to the applicants on 8 November 2012)
36135/13*
10/05/2013
Islam ABDULLAYEV
1959
Neftchala
Farida IBISHOVA
1971
Neftchala
Intigam ALIYEV
“Health and Human Rights” Association (“İnsan Hüquqları və Sağlamlıq”) was founded in 2011.
The Ministry of Justice returned the documents two times (on 12 July and 6 April 2011).
Decision of the Baku Administrative Economic Court no. 1 of 24 January 2012
Decision of the Baku Court of Appeal of 1 May 2012
Decision of the Supreme Court of 24 October 2012 (sent to the applicants on 16 November 2012)
36186/13*
08/05/2013
Fikrat JAFAROV
1968
Baku
Agadadash ALIYEV
1960
Baku
Intigam ALIYEV
“Human Rights and Awareness-raising about the Laws” Association (“İnsan Hüquqları və Qanunların Təbliği”) was founded in 2010.
The Ministry of Justice returned the documents three times (on 11 March, 21 June and 6 October 2010).
Decision of the Baku Administrative Economic Court no. 1 of 14 March 2012
Decision of the Baku Court of Appeal of 12 June 2012
Decision of the Supreme Court of 17 October 2012 (sent to the applicants on 8 November 2012)
53143/13*
25/07/2013
Mirza MAMMAD VALIYEV
1965
Sumgayit
Fariz NAMAZLI
“BAST” United Entrepreneurs with Disabilities Organisation (“‘BƏST’ – Birləşmiş Əlil Sahibkarlar Təşkilatı”) was founded in 2010.
The Ministry of Justice returned the documents ten times (on 12 July, 31 August and 10 November 2010, 3 February, 7 April, 14 June, 15 August, 18 October and 21 December 2011 and 28 February 2012).
Decision of the Baku Administrative Economic Court no. 1 of 31 July 2012
Decision of the Baku Court of Appeal of 30 October 2012
Decision of the Supreme Court of 6 March 2013
59519/13*
26/08/2013
Tunzala ABDULLAYEVA
1985
Shirvan
Shakarkhanim ALIYEVA
1965
Baku
Intigam ALIYEV
Centre for Fight against Gender Discrimination (“Cinsi Ayrıseçkiliyə Qarşı Mübarizə Mərkəzi”) was founded in 2012.
The Ministry of Justice returned the documents two times (on 21 May and 26 July 2012).
Decision of the Baku Administrative Economic Court no. 1 of 29 November 2012
Decision of the Baku Court of Appeal of 7 February 2013
Decision of the Supreme Court of 16 May 2013
59543/13*
02/09/2013
Mubariz TAGIYEV
1965
Agjabadi
Sayyad MAMMADOV
1967
Agjabadi
Intigam ALIYEV
“Human Rights in Extractive Industries” Association (“Mədən Sənayesində İnsan Haqları”) was founded in 2011.
The Ministry of Justice returned the documents two times (on 11 August and 10 November 2011).
Decision of the Baku Administrative Economic Court no. 1 of 7 June 2012
Decision of the Baku Court of Appeal of 17 October 2012
Decision of the Supreme Court of 27 February 2013 (sent to the applicants on 29 March 2013)
59591/13*
02/09/2013
Elshan NAGIYEV
1977
Baku
Nurlan GULIYEV
1989
Agdam
Intigam ALIYEV
Centre for Citizen Initiatives and Improvement of Laws (“Vətəndaş Təşəbbüsləri və Qanunların Təkmilləşdirilməsi Mərkəzi”) was founded in 2011.
The Ministry of Justice returned the documents three times (on 2 August, 18 October and 14 December 2011).
Decision of the Baku Administrative Economic Court no. 1 of 4 September 2012
Decision of the Baku Court of Appeal of 28 November 2012
Decision of the Supreme Court of 6 March 2013
62480/13*
16/09/2013
Nigar MAJIDOVA
1967
Salyan
Nargiz AKHUNDOVA
1989
Salyan
Intigam ALIYEV
“Gender Equality and Social Rights” Association (“Gender Bərabərliyi və Sosial Hüquqlar”) was founded in 2011.
The Ministry of Justice returned the documents three times (on 28 July and 16 November 2011 and 5 March 2012).
Decision of the Baku Administrative Economic Court no. 1 of 13 June 2012
Decision of the Baku Court of Appeal of 11 October 2012
Decision of the Supreme Court of 16 January 2013 (received by the applicants on 21 August 2013)
62490/13*
16/09/2013
Samaya ORUJOVA
1977
Jabrayil
Tamella MUKHTAROVA
1944
Barda
Intigam ALIYEV
“Development of Public Healthcare” Association (“İctimai Səhiyyənin İnkişafı”) was founded in 2011.
The Ministry of Justice returned the documents four times (on 31 May and 12 October 2011, 8 February 2012 and 24 May 2012).
Decision of the Baku Administrative Economic Court no. 1 of 27 November 2012
Decision of the Baku Court of Appeal of 30 January 2013
Decision of the Supreme Court of 13 June 2013
64016/13*
12/09/2013
Vugar HASANLI
1966
Baku
Rashad BASHIRLI
1981
Shirvan
Intigam ALIYEV
“Democratic Initiatives and Social Development” Association (“Demokratik Təşəbbüslər və Social İnkişaf”) was founded in 2011.
The Ministry of Justice returned the documents six times (on 7 July, 4 October and 19 December 2011, 21 February, 8 June and 6 September 2012).
Decision of the Baku Administrative Economic Court no. 1 of 28 November 2012
Decision of the Baku Court of Appeal of 6 March 2013
Decision of the Supreme Court of 28 June 2013
73088/13*
19/08/2013
Rovshan MAHMUDOV
1961
Baku
Yashar AGAZADEH
1979
Baku
Intigam ALIYEV
“Support to Prison Reforms” Association (“Həbsxana İslahatlarına Yardım”) was founded in 2011.
The Ministry of Justice returned the documents two times (on 16 December 2011 and 21 May 2012).
Decision of the Baku Administrative Economic Court no. 1 of 27 November 2012
Decision of the Baku Court of Appeal of 29 January 2013
Decision of the Supreme Court of 22 May 2013
74319/13*
13/11/2013
Sanubar NURMAMMADOVA
1961
Shirvan
Tahira BASHIRLI
1959
Shirvan
Intigam ALIYEV
Regional Centre for Women’s Rights (“Regional Qadın Hüquqları Mərkəzi”) was founded in 2009.
The Ministry of Justice returned the documents five times (on 10 February, 17 June and 28 December 2009, 26 October 2011 and 8 February 2012).
Decision of the Baku Administrative Economic Court no. 1 of 3 October 2012
Decision of the Baku Court of Appeal of 14 February 2013
Decision of the Supreme Court of 13 June 2013
3206/14*
24/12/2013
Konul ORUJOVA
1973
Baku
Kubra ABDULLAYEVA
1987
Baku
Intigam ALIYEV
“Palliative Care and Healthcare Initiatives” Association (“Palliativ Qulluq və Sağlamlıq Təşəbbüsləri”) was founded in 2012.
The Ministry of Justice returned the documents two times (on 18 May and 26 July 2012).
Decision of the Baku Administrative Economic Court no. 1 of 5 November 2012
Decision of the Baku Court of Appeal of 22 January 2013
Decision of the Supreme Court of 27 June 2013 (received by the applicants on 28 November 2013)
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