European Court of Human Rights

 

 

FIRST SECTION

CASE OF BASHIRLI AND OTHERS v. AZERBAIJAN

(Applications nos. 18555/15 and 34068/15)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

23 February 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Bashirli and Others v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Krzysztof Wojtyczek, President,
          Lətif Hüseynov,
          Ivana Jelić, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaint concerning Article 11 of the Convention to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated in private on 31 January 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present applications concern refusals by the domestic authorities to register associations founded by the applicants.

2.  In 2012 and 2013 respectively the applicants established non‑governmental organisations in the form of associations (their names and the dates on which they were established are indicated in the appended table). They requested the Ministry of Justice of the Republic of Azerbaijan (“the Ministry”) to register their associations as legal entities and submitted relevant documents.

3.  In letters addressed to the applicants the Ministry indicated certain alleged deficiencies in those documents and returned them to the applicants.

4.  In application no. 18555/15 the documents were returned first on 11 December 2012 and again on 18 April, 19 September and 13 December 2013 for, respectively, the following alleged deficiencies:

(i) no documents had been submitted to confirm the payment of a State fee or the legal address of the association, in contravention of Articles 5.4.2 and 5.4.5 of the Law on State Registration and the State Register of Legal Entities (“the Law on State Registration”);

(ii) the decision establishing the association and approving its charter did not describe the structure of the management bodies of the association, in contravention of Article 5.4.1 of the Law on State Registration;

(iii) the charter was not in compliance with Article 9.1 of the Law on Non‑Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”), according to which legal persons (except for State and self‑governing bodies) and individuals who had reached the age of 18 (for youth associations, the age of 16) could become founders of an association; furthermore, the founders’ decision on the association’s address had not been submitted, in contravention of the Ministry’s Decision amending the Rules on Registration of Non-Commercial Organisations and Educational Institutions (“the Rules”).

(iv)  the charter did not state the composition of the Control and Review Committee, in contravention of Article 25.1 of the Law on NGOs.

5.  In application no. 34068/15 the documents were returned first on 25 September 2013, and again on 22 November 2013, 27 January 2014 and 17 April 2014 for, respectively, the following alleged deficiencies:

(i)  the founders’ decision on the association’s address had not been submitted, which, despite the submission of a document proving its legal address, was considered a contravention of sub-paragraph 2.5 of the Rules;

(ii)  the request for registration had not been certified by a notary, in contravention of Article 5.2 of the Law on State Registration;

(iii)  the decision establishing the association’s management bodies had not been submitted, in contravention of Article 5.4.1 of the Law on State Registration;

(iv)  no certificate confirming the possession of the relevant property rights had been submitted, in contravention of Article 12.1 of the Law on the State Register of Immovable Property.

6.  All the letters of the Ministry ended by stating that, on the basis of Article 11.3.1 of the Law on State Registration, the documents were “being returned” or “being returned unexecuted”.

7.  After receiving each letter from the Ministry, the applicants made rectifications to the documents and resubmitted their requests for registration. Each time the Ministry returned the documents to the applicants in the same manner.

8.  Upon receiving the last of those letters from the Ministry, the applicants lodged complaints with the Baku Administrative Economic Court No. 1 against the Ministry’s refusal to register their associations. They argued that the Ministry’s allegations were unfounded and that, in any event, it should have acted in accordance with Article 8.3 of the Law on State Registration when returning the documents, namely by identifying all the alleged deficiencies in its first letter and giving the applicants an opportunity to rectify them.

9.  On 5 June and 9 July 2014 respectively, the first-instance court dismissed the applicants’ complaints. It held that the allegations made by the Ministry in its letters had a factual and legal basis.

10.  The Baku Court of Appeal, on 14 August and 23 October 2014 respectively, and the Supreme Court, on 10 December 2014 and 11 March 2015 respectively, upheld the judgments of the first-instance court in the two cases, largely reiterating the latter’s findings.

11.  In addition, the Supreme Court addressed the applicants’ argument that, as the Ministry had returned the documents for rectification, it should have complied with the requirements of Article 8.3 of the Law on State Registration. The court held that each of the Ministry’s letters had to be understood as a direct refusal to register the associations in question under a different provision of the Law on Registration, namely Article 11.3.1. It also held that the Ministry had acted in compliance with the latter provision. The court explained that if the documents submitted as part of a request to register an association were in breach of any domestic legislative act, that fact on its own could serve as a valid basis for refusing to register the association under Article 11.3.1.

12.  The applicants complained before the Court that the refusals by the Ministry to register their associations had violated their right to freedom of association under Article 11 of the Convention.

THE COURT’S ASSESSMENT

I.        JOINDER OF THE APPLICATIONS

13.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

14.  The applicants argued that the Ministry had breached the requirements of domestic law concerning the registration procedure. It should have identified all the alleged deficiencies at the same time and given the applicants an opportunity to rectify them, in accordance with Article 8.3 of the Law on State Registration.

15.  The Government submitted that the Ministry had returned the documents so that the applicants could rectify the deficiencies contained in them.

16.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

17.  The general principles applicable to the present complaint have been summarised in Election Monitoring Centre and Others v. Azerbaijan (no. 64733/09, §§ 65-66 and 69-74, 2 December 2021).

18.  The Court observes that it has already found a violation of Article 11 in a number of cases against Azerbaijan where the domestic authorities delayed or even impeded in practical terms the registration and therefore the functioning of non-governmental organisations by repeatedly returning or refusing registration requests for alleged failure to fulfil administrative formalities (see Jafarov and Others v. Azerbaijan, no. 27309/14, 25 July 2019; Mehman Aliyev and Others v. Azerbaijan [Committee], nos. 46930/10 and 11 others, 20 May 2021; Abdullayev and Others v. Azerbaijan [Committee], nos. 69466/14 and 12 others, 20 May 2021; and Election Monitoring Centre and Others, cited above).

19.  As in Jafarov and Others and Election Monitoring Centre and Others (both cited above), the Court reiterates that the Law on State Registration contained, inter alia, two registration rules prescribed by Articles 8.3 and 11.3.1 respectively. Article 8.3 provided that if the documents submitted contained deficiencies which did not warrant a formal refusal to register an association, the Ministry had to return the documents and give the founders twenty days to rectify the deficiencies. Furthermore, it had to identify all such “rectifiable deficiencies” in a single review. Under Article 11.3.1, registration could be refused if the documents submitted were in breach of the Constitution of Azerbaijan, the Law on State Registration or any other legislation (see Jafarov and Others, cited above, §§ 87-89, and Election Monitoring Centre and Others, cited above, § 51).

20.  The wording of the Ministry’s letters in the present applications was ambiguous as to whether they were decisions under Article 11.3.1 of the Law on State Registration “refusing to register” the associations, or decisions under Article 8.3 of the same Law “returning the documents for rectification” (compare Jafarov and Others, cited above, § 91, and Election Monitoring Centre and Others, cited above, § 52).

21.  Moreover, most of the alleged deficiencies identified by the Ministry after the applicants’ subsequent requests would already have been present in the documents submitted with their earlier requests. Nevertheless, the Ministry did not notify the applicants of all those alleged deficiencies after the initial review; instead, it addressed a new alleged deficiency found in the same documents after each successive registration request had been lodged (compare Jafarov and Others, cited above, § 92, and Election Monitoring Centre and Others, cited above, § 53).

22.  The domestic courts in turn, when seized of the applicants’ complaints, failed to assess the procedural correctness and consistency of the Ministry’s responses, or to clarify the interplay between the rules set out in Articles 8.3 and 11.3.1 of the Law on State Registration. They simply held that the allegations made in the Ministry’s letters had a factual and legal basis. Furthermore, the first-instance and appellate courts reiterated the submissions made by the Ministry to the effect that the documents had been “returned” owing to deficiencies contained in them (compare Jafarov and Others, cited above, § 93, and Election Monitoring Centre and Others, cited above, § 54).

23.  However, unlike the first-instance and appellate courts, the Supreme Court did attempt to examine and justify the references by the Ministry to Article 11.3.1 of the Law on State Registration (contrast Jafarov and Others, and Election Monitoring Centre and Others, both cited above).

24.  According to the interpretation given by the Supreme Court, each of the Ministry’s letters was to be understood as a direct “refusal to register” the associations in question under Article 11.3.1 and not as decisions “returning the documents for rectification” under Article 8.3 of the same Law (contrast with the Supreme Court’s findings in Mehman Aliyev and Others, cited above, § 18, and Abdullayev and Others, cited above, § 14). The court also explained that if the documents submitted as part of a request to register an association were in breach of any domestic legislative act, that fact on its own could serve as a valid basis for refusing to register the association. It follows, therefore, that the Supreme Court considered all the alleged deficiencies found in the documents as ones which warranted a direct refusal to register the applicants’ associations, simply because those deficiencies constituted a breach of certain domestic norms (namely those mentioned in paragraphs 4‑5 above).

25.  In the Court’s view, even assuming that there were factual and legal grounds for finding that the documents contained the deficiencies alleged by the Ministry, clearly none of those deficiencies (summarised in paragraphs 4‑5 above) concerned substantive issues related to the existence or activities of the associations in question, and they could only be characterised as alleged shortcomings of a procedural or even technical nature. Therefore, it is not clear why the Supreme Court chose not to treat them as “rectifiable deficiencies”. The Court considers that by applying Article 11.3.1 of the Law on State Registration to any, even the slightest, failure to comply with a particular domestic norm - irrespective of the substantiveness of the matter regulated by the norm in question - the domestic authorities adopted an unforeseeably broad interpretation of that Article (compare, mutatis mutandis, Election Monitoring Centre and Others, cited above, § 90). It follows, therefore, that the manner in which the domestic law was interpreted and applied in the present case did not afford the applicants protection against arbitrary interferences.

26.  Having regard to all the above, the Court finds that the domestic authorities’ refusal to register the applicants’ associations was arbitrary and not “prescribed by law” within the meaning of Article 11 § 2 of the Convention.

27.  There has accordingly been a violation of Article 11 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  The applicants in application no. 18555/15 claimed jointly 50,000 Azerbaijani manats (AZN) and AZN 3,000 in respect of pecuniary and non‑pecuniary damage respectively, and AZN 2,000 for costs and expenses incurred before the domestic courts and the Court. The applicants in application no. 34068/15 claimed jointly under the same heads AZN 30,000, AZN 5,000, and AZN 2,000 respectively. The applicants argued that their associations had lost potential revenue.

29.  The Government submitted that the claims were unsubstantiated or excessive.

30.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, keeping in mind that it cannot make an award ultra petitum, it awards EUR 1,600 jointly to the applicants in application no. 18555/15, and EUR 2,700 jointly to the applicants in application no. 34068/15, in respect of non-pecuniary damage, plus any tax that may be chargeable.

31.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 in total to the applicants in both applications jointly for their costs and expenses, plus any tax that may be chargeable to them.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that there has been a violation of Article 11 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,700 (two thousand seven hundred euros) jointly to the applicants in application no. 34068/15, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,600 (one thousand six hundred euros) jointly to the applicants in application no. 18555/15, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 1,000 (one thousand euros) jointly to the applicants in both applications, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ representative, Mr Y. Agazade;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 23 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Liv Tigerstedt                                               Krzysztof Wojtyczek
          Deputy Registrar                                                      President

 

APPENDIX

No.	Application no. Lodged on	Case name	Applicant Year of birth Place of residence Nationality	Represented by	Association founded by the applicants
1.	18555/15 08/04/2015	Bashirli and Yolchuyev v. Azerbaijan	Emin Ali oglu BASHIRLI 1979 Shirvan Azerbaijani Vusal Bakhtiyar oglu YOLCHUYEV 1992 Shirvan Azerbaijani	Yashar AGAZADE	Youth Centre for Fight against HIV/AIDS and Drug Addiction (Gənclərin HİV/AİDS və Narkomaniya Qarşı Mübarizə Mərkəzi) Established by the applicants in 2012
2.	34068/15 01/07/2015	Ahmadova and Aliyev v. Azerbaijan	Mehriban Eyyub gizi AHMADOVA 1973 Ganja Azerbaijani Jeyhun Yusif oglu ALIYEV 1978 Ganja Azerbaijani	Yashar AGAZADE	Centre for Psycho-Social Training and Consultation (Psixososial Təlim və Konsultasiya Mərkəzi) Established by the applicants in 2013