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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ABDULLAYEV AND OTHERS v. AZERBAIJAN - 69466/14 (Judgment : Freedom of assembly and association : Fifth Section Committee) [2021] ECHR 430 (20 May 2021)
URL: http://www.bailii.org/eu/cases/ECHR/2021/430.html
Cite as: CE:ECHR:2021:0520JUD006946614, [2021] ECHR 430, ECLI:CE:ECHR:2021:0520JUD006946614
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FIFTH SECTION
CASE OF ABDULLAYEV AND OTHERS v. AZERBAIJAN
(Applications nos. 69466/14 and 12 others)
JUDGMENT
STRASBOURG
20 May 2021
This judgment is final but it may be subject to editorial revision.
In the case of Abdullayev and Others v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Lətif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
the applications (nos. 69466/14, 75264/14, 18568/15, 20700/15, 22809/15, 34064/15, 34080/15, 34082/15, 34116/15, 35090/15, 42009/15, 42503/15 and 43025/15) 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 Azerbaijani nationals whose names are listed in the appended table (“the applicants”), on the various dates indicated in the appended table;
the decisions to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Article 11 of the Convention and to declare inadmissible the remainder of the applications (except for application no. 75264/14 where there were no inadmissible complaints);
the parties’ observations;
Having deliberated in private on 15 April 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants, who were founders of non-governmental organisations, complained that the refusals by the domestic authorities to register those associations violated their right to freedom of association under Article 11 of the Convention.
THE FACTS
2. The applicants’ details are set out in the appended table.
3. The Government were represented by their Agent, Mr Ç. Əsgərov.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Requests to register the associations
5. The applicants established non-governmental organisations (“NGOs”) in a form of associations (the dates of establishment and titles of the associations are set out in the appended table). They also adopted the associations’ charters.
6. On various dates the applicants requested the Ministry of Justice of the Republic of Azerbaijan (“the Ministry of Justice”) to register their associations as legal entities and submitted relevant registration documents.
7. On various dates the Ministry of Justice sent letters to the applicants indicating certain deficiencies allegedly contained in the submitted documents and returned those documents to the applicants (see the appended table for detailed information on each deficiency indicated by the Ministry in each case).
8. After making changes in the registration documents in compliance with the indications made in the letters of the Ministry of Justice, the applicants resubmitted their requests for registration.
9. On various dates the Ministry of Justice again replied with letters indicating certain deficiencies allegedly contained in the resubmitted documents and returned those documents. In some of the cases, this process, whereby the applicants rectified the documents and resubmitted them for registration and the Ministry subsequently returned the registration documents to the applicants with indication of deficiencies, was repeated several times in the same manner (dates of the Ministry’s letters and the alleged deficiencies indicated in them are set out in the appended table).
10. The letters of the Ministry of Justice stated that based on Article 11.3.1 of the Law on state registration and the state register of legal entities (“the Law on State Registration”), the documents were “being returned” (sənədlər geri qaytarılır) or “being returned unexecuted” (sənədlər icra olunmadan geri qaytarılır).
B. Domestic court proceedings
11. Having received two or more refusal letters the applicants lodged complaints against the Ministry of Justice before the Baku Administrative Economic Court no. 1, claiming that their right to freedom of association had been violated and asking the courts to order the Ministry to register the associations in question.
12. In each case, the applicants challenged the Ministry of Justice’s findings that there had been deficiencies in the already-rectified and resubmitted registration documents and argued that the specific reasons given by the Ministry of Justice in its refusal letters were unlawful.
13. The applicants further complained that the actions of the Ministry of Justice had been in breach of the statutory requirements relating to the registration procedure. The applicants argued in particular that the Ministry should have identified all the alleged deficiencies at the same time and given the applicants the opportunity to rectify them all at once, in accordance with Article 8 of the Law on State Registration.
14. The Baku Administrative Economic Court no. 1 dismissed the applicants’ complaints, finding nothing unlawful in the actions of the Ministry of Justice. The court held that the reasons indicated by the Ministry in its refusal letters were lawful and that the Ministry had correctly exercised its powers. The court mentioned that Article 11.3.1 of the Law on State Registration gave to the Ministry the right to refuse to register an organisation as a legal entity. The appellate and cassation-instance courts upheld the judgments of the Baku Administrative Economic Court no. 1, largely reiterating the first-instance court’s findings. In addition, in application no. 22809/15 the Supreme Court declared that the actions of the Ministry were to be interpreted as “returning the registration documents for rectification” and not as “refusing to register” the association in question (dates of the domestic courts’ decisions are set out in the appended table).
RELEVANT LEGAL FRAMEWORK AND RELEVANT INTERNATIONAL DOCUMENTS
15. A detailed description of the relevant provisions of the 1995 Constitution, the Law on non-governmental organisations (public associations and funds) of 13 June 2000 (“the Law on NGOs”), the Law on state registration and the state register of legal entities of 12 December 2003 (“the Law on State Registration”), as well as of the relevant international documents, may be found in Jafarov and Others v. Azerbaijan (no. 27309/14, §§ 31, 36-37, 41 and 43-44, 25 July 2019).
THE LAW
I. JOINDER OF THE APPLICATIONS
16. 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
17. The applicants complained under Article 11 of the Convention that the repeated failures by the Ministry of Justice to register their associations and grant those associations legal-entity status had amounted to a violation of their right to freedom of association. Article 11 reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
A. Admissibility
18. The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
1. Submissions by the parties
(a) The applicants
19. The applicants submitted that the reasons given by the Ministry of Justice in its refusal letters were unlawful because the specific alleged deficiencies indicated in those letters were either groundless or did not have a legal basis, or because the laws that served as a basis for finding those deficiencies did not comply with the “quality of law” requirement of the Convention.
20. The applicants further argued that the Ministry of Justice should have identified all the alleged deficiencies at the same time and given the applicants the opportunity to rectify them all at once, in accordance with Article 8 of the Law on State Registration, instead of repeatedly refusing to register the associations owing to finding a new deficiency in the already‑rectified and resubmitted documents. Some of the applicants particularly emphasised the minor and technical nature of the alleged deficiencies.
21. The applicant in application no. 75264/14 argued that, despite being able to engage in certain limited activities, non-registered associations could not function properly as they did not have the same legal capacity as those which were registered and hence acquired a status of a legal entity.
(b) The Government
22. The Government argued that the actions of the Ministry of Justice had been in line with domestic law and that the reasons given by the Ministry for its decisions had been well-founded. The applicants had been seeking to obtain registration of their associations on the basis of the documents contradicting provisions of the relevant domestic laws. Consequently, the Ministry of Justice had returned the registration documents so that the applicants rectified the deficiencies contained in them.
23. The Government also argued that domestic law had not prevented non-governmental organisations from functioning without registration. Therefore, the associations could engage in their activities and even enter into various contracts, such as rent premises, open a bank account, and so on, in the absence of registration and without obtaining legal-entity status. Furthermore, the associations in fact had continued their activities after they received replies by the Ministry of Justice.
1. The Court’s assessment
(a) Applicable principles
24. The Court notes that the principles relevant to the present complaints are set out, among others, in Gorzelik and Others v. Poland [GC] (no. 44158/98, §§ 52-53 and 64-65, ECHR 2004‑I); Koretskyy and Others v. Ukraine (no. 40269/02, §§ 38-39, 43 and 46-47, 3 April 2008); The United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2) (no. 34960/04, §§ 30-31 and 33, 18 October 2011); and Jafarov and Others v. Azerbaijan (no. 27309/14, §§ 54-55, 62-63, 69-70 and 80-81, 25 July 2019).
(b) Whether there was interference
25. The Court considers that the refusals (failures) by the Ministry of Justice to register the associations in question amounted to an interference with the applicants’ right to freedom of association.
26. As to the Government’s argument that domestic law had not prevented non-governmental organisations from functioning without registration and that the associations had continued their activities in the absence of registration, the Court rejects these arguments for the same reasons it rejected a similar argument in Jafarov and Others (cited above, §§ 59-60).
(c) Whether the interference was justified
27. At the outset, the Court considers that, in the circumstances of the present cases, it is not necessary to examine the applicants’ grievances concerning the alleged unlawfulness of the specific reasons (alleged specific deficiencies found in the registration documents), indicated by the Ministry of Justice in its letters (contrast Jafarov and Others, cited above, §§ 68-85). Even assuming that all the findings by the Ministry as to the deficiencies in the registration documents were well-founded and lawful, the Ministry’s refusals (failures) to register the associations were not “lawful” for the other reasons specified below.
28. The Court notes that the Law on State Registration contained several provisions applicable to the procedure of registration of NGOs as legal entities, in particular, Articles 8.3 and 11.3.1 of the Law. Article 8.3 of the Law on State Registration was applicable to situations where there were “deficiencies” in registration documents not warranting a “definitive” formal refusal to register an association, that is “rectifiable deficiencies”. According to that Article, if the submitted documents were found to contain “deficiencies” that could not serve as a basis for refusal of registration, the Ministry of Justice had to return the documents and give the founders a twenty-day period for rectification of those deficiencies. Furthermore, all such deficiencies had to be identified by the Ministry of Justice in one review (Article 8.3 of the Law on State Registration). Once documents were resubmitted following the rectification of any deficiencies, the Ministry of Justice had to either register the association or issue a formal notice of definitive refusal to register (Articles 8.4 and 11.3.4 of the Law on State Registration). Article 11.3.1 of the Law on State Registration was applicable to situations that warranted a “definitive” formal refusal to register an association. According to that Article, registration could be refused if the submitted documents were in contradiction to the Constitution of the Republic of Azerbaijan, the Law on State Registration or any other legislation (for more detailed analysis of these and other relevant provisions of the Law on State Registration by the Court see Jafarov and Others, cited above, §§ 87‑90).
29. In the present cases, similarly to Jafarov and Others, the wording of the Ministry of Justice’s letters was ambiguous as to which of the above‑mentioned provisions of the Law on State Registration had been applied. Thus, on the one hand, the Ministry of Justice mentioned that the documents of the associations in question contained deficiencies and therefore were being “returned” (or “returned unexecuted”). That wording suggested that the Ministry intended to return the documents for rectification of the alleged deficiencies, in accordance with Article 8.3 of the Law on State Registration, without adopting a definitive decision with regard to the requests for registration. However, the letters did not expressly provide for a twenty-day rectification period. On the other hand, the Ministry of Justice cited Article 11.3.1 of the same Law as a basis for returning the registration documents. Reference to Article 11.3.1 of the Law on State Registration suggested that the Ministry’s each reply constituted a “definitive” decision refusing to register the respective association. However, the letters of the Ministry of Justice did not state that registration had been formally “refused”, but merely that the documents were being “returned”, the term used in Article 8.3 of the Law (compare with Jafarov and Others, cited above, § 91).
30. Moreover, the alleged deficiencies identified by the Ministry of Justice after the applicants’ subsequent requests would already have been present in the registration documents submitted with their first requests. Nevertheless, the Ministry did not notify the applicants of all those alleged deficiencies after the respective initial reviews, instead sequentially addressing a new alleged deficiency in the same registration documents after each successive registration request by the applicants was made (compare with Jafarov and Others, cited above, § 92). The applicants challenged before the domestic courts the actions of the Ministry of Justice and argued that the provisions of Article 8.3 of the Law on State Registration were the correct provisions applicable in their cases.
31. The domestic courts, however, failed to assess the procedural correctness and consistency of the Ministry of Justice’s responses, and to clarify the interplay between the rules provided under Articles 8.3 and 11.3.1 of the Law on State Registration. The courts reiterated the submissions made by the Ministry of Justice that the documents had been “returned” due to deficiencies contained in them and held that the reasons indicated by the Ministry in its letters were lawful. None of the domestic courts examined and explained the lawfulness of the references by the Ministry of Justice to Article 11.3.1 of the Law on State Registration. They either simply mentioned that that provision gave to the Ministry the right to refuse to register an organisation as a legal entity or, as the Supreme Court in application no. 22809/15, declared that the actions of the Ministry were to be interpreted as “returning the registration documents for rectification” and not as “refusing to register” the association (compare with Jafarov and Others, cited above, § 93).
32. Furthermore, if the Ministry of Justice indeed intended to return the registration documents for rectification - as it had been declared by the Supreme Court in application no. 22809/15 and argued by the Government in its observations before the Court (see paragraph 22 above) - provisions of Article 8.3 of the Law on State Registration should have been applied correctly. In particular, the Ministry should have identified all the alleged deficiencies in one review and explicitly provided the applicants with a twenty-day rectification period.
33. Having regard to the above, the Court finds that the Ministry of Justice did not comply with the requirements of domestic law concerning the registration procedure, which resulted in an unlawful refusal by the national authorities to register the associations in question. Accordingly, the interference in the present cases cannot be considered to have been “prescribed by law” within the meaning of Article 11 § 2 of the Convention.
34. Having reached that conclusion, the Court does not need to satisfy itself that the other requirements of Article 11 § 2 (legitimate aim and necessity of the interference) have been complied with.
35. There has accordingly been a violation of Article 11 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
37. The applicants, except for the applicant in application no. 75264/14, claimed different amounts varying from 5,000 Azerbaijani manats (AZN) to AZN 50,000, in each application jointly, in respect of pecuniary damage. The applicants argued that without obtaining registration their associations had not been able to participate in grant competitions announced by domestic and international donors, or to receive any revenue.
38. The applicants claimed different amounts (in applications where there is more than one applicant, in each application jointly) in respect of non‑pecuniary damage, specifically as follows:
(i) AZN 1,000 in applications nos. 20700/15, 34064/15, 34080/15 and 34082/15;
(ii) AZN 2,000 in applications nos. 34116/15 and 42009/15;
(iii) AZN 3,000 in applications nos. and 69466/14, 22809/15 and 35090/15;
(iv) AZN 4,000 in application no. 42503/15;
(v) AZN 5,000 in applications nos. 18568/15 and 43025/15; and
(vi) 20,000 euros (EUR) in application no. 75264/14.
39. The Government submitted that the applicants failed to provide any evidence proving that they had actually suffered any pecuniary damage, showing loss of any potential income or establishing a causal link between the alleged violation of the Convention and the pecuniary damage claimed. The Government asked the Court to adopt a strict approach in respect of the applicants’ claims under this head and reject them.
40. The Government also submitted that the amounts claimed by the applicants in respect of non-pecuniary damage were unsubstantiated and asked the Court to adopt a strict approach in respect of the applicants’ claims and reject them.
41. As to the claims in respect of pecuniary damage made by all the applicants except for the applicant in application no. 75264/14, the Court does not find any causal link between the damage claimed and the violation found. The Court therefore dismisses the applicants’ claims in respect of pecuniary damage.
42. The Court considers that the applicants have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. It notes, however, that in several applications the claims were expressed in the national currency. As the Court cannot make an award ultra petitum, claims in respect of non‑pecuniary damage expressed in a currency other than the euro should be converted into euros before the Court decides on an equitable basis. The exchange rate for the conversion is the date on which the claims were submitted (see Shukurov v. Azerbaijan, no. 37614/11, §§ 27-36, 27 October 2016). Having made such conversions, and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards under this head the sums of EUR 540 in applications nos. 20700/15, 34064/15, 34080/15 and 34082/15, EUR 1,080 in applications nos. 34116/15 and 42009/15, EUR 1,620 in applications nos. 69466/14, 22809/15 and 35090/15, EUR 2,160 in application no. 42503/15, EUR 2,430 in applications nos. 18568/15 and 43025/15 and EUR 4,500 in application no. 75264/14, in each application where there is more than one applicant jointly, plus any tax that may be chargeable on these amounts.
B. Costs and expenses
43. All the applicants, except for the applicant in application no. 75264/14, claimed AZN 2,000, in each application jointly, for the costs and expenses incurred before the domestic courts and the Court. In support of their claims they submitted contracts, signed by them and their representative, Mr Y. Agazade.
44. The applicant in application no. 75264/14 claimed EUR 4,260 for the costs and expenses incurred before the domestic courts and the Court. In support of his claim he submitted contracts, signed with Mr S. Dadashov and Mr K. Bagirov, who represented him before the Court, and with Mr R. Aliyev, who provided translation services. According to those contracts, the applicant had to pay EUR 360 to Mr R. Aliyev, and would have to pay EUR 2,300 to Mr S. Dadashov and EUR 1,600 to Mr K. Bagirov in case the Court awards compensation.
45. The Government noted that the contract between the applicant in application no. 75264/14 and Mr S. Dadashov concerned an unrelated, apparently criminal case.
46. The Government also submitted that the contract between the applicant in application no. 75264/14 and his representative, Mr K. Bagirov, lacked legality and credibility. They argued in particular that since the applicant and his representative agreed that the former would proceed with payment of legal fees only in case the Court awards compensation, the representative could easily indicate in a contract any amount he wished and the applicant would not object.
47. Lastly, the Government submitted that the amounts claimed by the applicants were excessive. They noted in particular that all the applicants, except for the applicant in application no. 75264/14, were represented by the same lawyer, Mr Y. Agazade, and argued that the lawyer’s submissions in all the applications were very similar.
48. The Court accepts the Government’s submission that the contract between the applicant in application no. 75264/14 and Mr S. Dadashov concerned an unrelated case and considers, therefore, that the corresponding part of the claim must be rejected.
49. The Court considers unsubstantiated the Government’s objections as to the legality and credibility of the terms on which the applicant in application no. 75264/14 and his representative, Mr K. Bagirov, agreed to pay the legal fees for his services. According to the Court’s case‑law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 94, ECHR 2013 (extracts)). The Court considers that the legal fees in question were actually and necessarily incurred. However, for the purposes of assessing the reasonableness of the amount claimed, the Court notes that this lawyer represented the applicant in the Court proceedings only after the application was communicated to the Government.
50. The Court accepts the Government’s argument that Mr Y. Agazade’s submissions in all the applications where he was a representative were very similar and repetitive.
51. Taking into account the above considerations, the Court awards the total amount of EUR 6,000 to all the applicants (except for the applicant in application no. 75264/14) jointly in respect of the legal services rendered by Mr Y. Agazade, plus any tax that may be chargeable to the applicants, to be paid directly into the bank account of the applicants’ representative. The Court awards EUR 1,000 to the applicant in application no. 75264/14 in respect of the legal services rendered by Mr K. Bagirov, plus any tax that may be chargeable to the applicant, to be paid directly into the bank account of the applicant’s representative. The Court also awards EUR 360 to the applicant in application no. 75264/14 in respect of the other costs and expenses (translation costs), plus any tax that may be chargeable to the applicant.
C. Default interest
52. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
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, 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 540 (five hundred and forty euros), plus any tax that may be chargeable, in applications nos. 20700/15, 34064/15, 34080/15 and 34082/15, to all the applicants in each application jointly, in respect of non-pecuniary damage;
(ii) EUR 1,080 (one thousand and eighty euros), plus any tax that may be chargeable, in applications nos. 34116/15 and 42009/15, to all the applicants in each application jointly, in respect of non‑pecuniary damage;
(iii) EUR 1,620 (one thousand six hundred and twenty euros), plus any tax that may be chargeable, in applications nos. 69466/14, 22809/15 and 35090/15, to all the applicants in each application jointly, in respect of non-pecuniary damage;
(iv) EUR 2,160 (two thousand one hundred and sixty euros), plus any tax that may be chargeable, in application no. 42503/15, to all the applicants jointly, in respect of non-pecuniary damage;
(v) EUR 2,430 (two thousand four hundred and thirty euros), plus any tax that may be chargeable, in applications nos. 18568/15 and 43025/15, to all the applicants in each application jointly, in respect of non-pecuniary damage;
(vi) EUR 4,500 (four thousand five hundred euros) plus any tax that may be chargeable, in application no. 75264/14, in respect of non‑pecuniary damage;
(vii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicants, to all the applicants in all applications except for application no. 75264/14 jointly, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ representative;
(viii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in application no. 75264/14, in respect of legal fees, to be paid directly into the bank account of the applicants’ representative; and
(ix) EUR 360 (three hundred and sixty euros), plus any tax that may be chargeable to the applicant, in application no. 75264/14, in respect of the other costs and expenses;
(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 20 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_2}
Martina Keller Mārtiņš Mits
Deputy Registrar President
Appendix