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FIRST
SECTION
CASE OF NASIBOVA v. AZERBAIJAN
(Application
no. 4307/04)
JUDGMENT
STRASBOURG
18 October
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nasibova v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 27 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4307/04) 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 an Azerbaijani national,
Mrs Sheyda Khalil qizi Nasibova (Şeyda
Xəlil qızı Nəsibova –
“the applicant”), on 19 December 2003.
- The
applicant was represented by Mr I. Aliyev and Mrs G. Guliyeva,
lawyers practising in Baku. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr C. Asgarov.
- The
applicant alleged that the significant delays in the state
registration of the public association of which she was a founder
amounted to a violation of her right to freedom of association, that
the domestic proceedings were unfair, that the domestic courts were
not independent and impartial, and that the domestic remedies were
not effective in lawsuits filed by public associations against the
Ministry of Justice of Azerbaijan.
- On
7 February 2006 the President of the Chamber decided to give notice
of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, the Court decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Baku.
- The
applicant was a co-founder and director of a public association named
“The Journalist Inquiry Centre” (“Jurnalist
Araşdırmaları Mərkəzi” İctimai
Birliyi), established on 15 July 2001. This was a non-profit
organisation aimed at promoting the profession of a journalist and
freedom of mass media in Azerbaijan.
- On
12 September 2001 the association's founders filed a request for its
state registration with the Ministry of Justice (hereinafter also
referred to as the “Ministry”), the government authority
responsible for the state registration of legal entities. In
accordance with the domestic law, a non-governmental organisation
acquired the status of a legal entity only upon its state
registration by the Ministry.
- According
to the Government, by a letter of 11 October 2001 the Head of the
Department for State Registration of Legal Entities of the Ministry
of Justice replied to the applicant that the association's charter
contained a number of deficiencies and requested the founders to
revise the charter accordingly (the Government submitted a copy of
this letter). According to the applicant, the founders did not
receive such a letter and, in fact, did not receive any formal reply
from the Ministry for more than one year and four months.
- In
the meantime, the founders made certain amendments to the
association's charter. On 12 September 2002 they re-submitted their
registration request together with the new version of the
association's charter. In the cover letter for this request, the
applicant noted that the founders had made an original request one
year earlier but, despite two follow-up letters of 25 September and 2
November 2001 and a meeting with the Ministry official, they had not
received any formal reply from the Ministry.
- In
January 2003 the applicant filed a lawsuit against the Ministry with
the Yasamal District Court, complaining of the Ministry's failure to
take any action within the ten-day time-limit specified by law.
- While
the examination of the lawsuit was pending, on 27 January 2003 the
Ministry returned the registration documents to the applicant
“without taking any action”, i.e. without issuing a state
registration certificate or an official refusal to register the
association. In the cover letter, the Ministry noted that the
association's charter did not comply with Articles 3.1 and 10.3 of
the Law on Non-Governmental Organisations. Specifically, the charter
did not provide for the internal procedure to challenge a decision to
terminate membership in the association. Moreover, the official name
of the association allegedly did not mention its organisational legal
form. It appears that the Ministry's letter of 27 January 2003
referred to the deficiencies in the association's original charter,
although these deficiencies had already been rectified in the revised
version of the charter submitted to the Ministry on 12 September
2002.
- On
10 February 2003 the Yasamal District Court dismissed the applicant's
claim, finding nothing unlawful in the actions of the Ministry. The
court found that the association's charter had not been drafted in
accordance with the requirements of the Law on Non-Governmental
Organisations and, therefore, the Ministry's refusal to register the
association had been lawful.
- The
applicant appealed. On 24 June 2003 the Court of Appeal upheld the
first instance court's judgment. On 16 October 2003 the Supreme Court
upheld the Court of Appeal's decision.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Republic of Azerbaijan of 12
November 1995
Article 58. Right to association
“I. Everyone has a right to freedom of
association with others.
II. Everyone has the right to form any
association, including political parties, trade unions or other
public associations, or join existing associations. Free functioning
of all associations shall be guaranteed. ...”
B. Civil Code of the Republic of Azerbaijan of 2000
Article 47. Charter of a legal entity
“47.1. The charter of a legal entity
approved by its founders is the legal entity's foundation document.
...
47.2. The charter of a legal entity shall
define the name, address, procedure for management of activities and
procedure for liquidation of the legal entity. The charter of a
non-commercial legal entity shall define the object and purpose of
its activities. ...”
Article 48. State registration of legal
entities
“48.1. A legal entity shall be subject
to state registration by the relevant executive authority. ...
48.2. A violation of the procedure of a legal
entity's establishment or non-compliance of its charter with Article
47 of the present Code shall be the grounds for refusal to register
the legal entity. ...”
C. Law on State Registration of Legal Entities of 6
February 1996
Article 9. Review of the application [for
state registration]
“Upon receipt of an application for state
registration from a legal entity or a branch or representative office
of a foreign legal entity, the authority responsible for state
registration shall:
– accept the documents for review;
– within ten days, issue to the
applicant a state registration certificate or a written notification
of the refusal to register; or
– review the documents resubmitted
after rectification of the breaches previously existing therein and,
within five days, take a decision on state registration.”
D. Law on Non-Governmental Organisations (Public
Associations and Funds) of 13 June 2000
Article 3. Name and location of a
non-governmental organisation
“3.1. The name of a non-governmental
organisation must mention its organisational legal form and nature of
its activity. ...”
Article 10. Members of public associations
“10.3. The issue of acquiring and
termination of membership in a public association shall be determined
by its charter. Charter of a public association shall guarantee the
right to lodge a complaint, within the association and in court,
regarding termination of membership. ...”
Article 16. State registration of
non-governmental organisations
“16.1. The state registration of
non-governmental organisations shall be carried out by the relevant
executive authority in accordance with the laws of the Republic of
Azerbaijan on state registration of legal entities.
16.2. Non-governmental organisations shall
acquire the status of a legal entity only after passing the state
registration.”
Article 17. Refusal of state registration
“17.1. Non-governmental organisations
can be refused registration only if there is another organisation
existing under the same name, or if the documents submitted for
registration contradict the Constitution of the Republic of
Azerbaijan, this law and other laws of the Republic of Azerbaijan, or
contain false information.
17.2. Decision on refusal of state
registration shall be presented in writing to the representative of
the non-governmental organisation, with indication of the grounds for
refusal as well as the provisions and articles of the legislation
breached upon preparation of the foundation documents.
17.3. Refusal of registration shall not
prevent the organisation from re-submitting its registration
documents after rectification of the breaches.
17.4. The decision on refusal of state
registration may be challenged in court.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicant complained that the failure by the Ministry of Justice to
register the public association in a timely manner constituted an
interference with her freedom of association. As the Ministry evaded
registering the organisation by significantly delaying the
examination of the founders' registration requests and breaching the
statutory time-limit for the official response, her association could
not acquire legal status. This allegedly constituted a violation of
her right to freedom of association, as provided in Article 11 of the
Convention, which 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
1. Compatibility ratione
temporis
- The
Court observes that part of the events giving rise to the applicant's
complaint relate to the period before 15 April 2002, the date of the
Convention's entry into force with respect to Azerbaijan. The Court
notes that it is only competent to examine complaints of violations
of the Convention arising from events that have occurred after the
Convention had entered into force with respect to the High
Contracting Party concerned (see, for example, Kazimova v.
Azerbaijan (dec.), no. 40368/02, 6 March 2003).
- Accordingly,
the Court's competence is limited to the part of the complaint
relating to the events that occurred after 15 April 2002, whereas the
events that occurred prior to that date fall outside of its
competence ratione temporis. Nevertheless, where necessary,
the Court shall take into account the state of affairs as it existed
at the beginning of the period under consideration.
2. Domestic remedies
- The
Government submitted that the applicant had not exhausted the
domestic remedies because, in her submissions to the domestic courts,
she had not specifically complained about a violation of her right to
freedom of association under Article 11 of the Convention.
- The
applicant disagreed and noted that she had explicitly referred to
Article 11 of the Convention in her appeals.
- Having
regard to the subject matter of the domestic proceedings, the Court
finds that the applicant's lawsuit against the Ministry of Justice,
where she complained about the unlawfulness of the delay in state
registration of the public association of which she was a founder,
amounted in its substance to a complaint about an alleged violation
of her right to freedom of association.
- Accordingly,
the Court rejects the Government's objection as to exhaustion of
domestic remedies.
3. Conclusion
- Having
regard to the above conclusions, the Court further notes that the
complaint is not inadmissible on any other grounds and that it is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It must therefore be declared admissible in the part
relating to the events that took place after 15 April 2002.
B. Merits
1. The parties' submissions
- The
Government argued that the Ministry had responded to the founders'
first registration request of 12 September 2001 by a letter of
11 October 2001, and to the second registration request of 12
September 2002 by a letter of 27 January 2003.
- The Government further submitted that there was no
interference with the applicant's freedom of association. The
Government noted that the Ministry had not refused to register the
association. Instead, it merely returned the association's foundation
documents to the founders so that the latter could rectify the
deficiencies and ensure that they complied with the requirements of
the domestic law.
- Finally, the Government argued that the lack of the
status of a legal entity did not prevent the association from
continuing its activities because “the state registration of a
non-governmental organisation [was] not a mandatory pre-requisite for
its functioning”.
- The applicant disagreed with the Government's
contention that the Ministry had replied to the first registration
request on 11 October 2001. She claimed that the Ministry replied
formally to her for the first time only on 27 January 2003.
- The applicant further argued that the delay in
responding to the founders' registration requests, which was
significantly beyond the time-limits set by the domestic law,
constituted an interference with, and a violation of, her right to
freedom of association. The applicant maintained that such delay was
in breach of the domestic law.
- The applicant also noted that, without acquiring the
status of a legal entity through the state registration, the
association was unable to function properly and to engage in its
primary activities. In particular, she claimed that an unregistered
non-governmental organisation could not maintain a bank account,
obtain financing, benefit from tax abatements, carry out financial
operations, etc.
2. The Court's assessment
- The
Court has found previously that the failure by the Ministry of
Justice to reply, within the statutory time-limits, to requests for
state registration of a public association amounted to a de facto
refusal to register the association. Lacking the status of a legal
entity, the association's legal capacity was not identical to that of
state-registered non-governmental organisations. The significant
delays in the registration procedure, if attributable to the Ministry
of Justice, amounted to an interference with the right of the
association's founders to freedom of association (see Ramazanova
and Others v. Azerbaijan, no. 44363/02, §§ 54-60, 1
February 2007, with further references). Accordingly, in the present
case, where the applicant was one of the founders of the public
association, there has been an interference with the exercise of her
right to freedom of association.
- Such
interference will not be justified under the terms of Article 11 of
the Convention unless it was “prescribed by law”, pursued
one or more of the legitimate aims set out in paragraph 2 of that
Article and was “necessary in a democratic society” for
the achievement of that aim or aims (see, for example, Chassagnou
and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95,
§ 104, ECHR 1999-III).
- The
Court is aware of the fact that, since the time of the events giving
rise to the present complaint, certain amendments have been made to
the Azerbaijani legislation on state registration of legal entities.
However, for the purposes of this complaint, the Court will have
regard to the domestic law as it was applicable at the relevant time.
- The
Court observes that Article 9 of the Law on State Registration of
Legal Entities of 6 February 1996 set a ten-day time-limit for the
Ministry to issue a decision on the state registration of a legal
entity or refusal to register it. Where the legal entity's foundation
documents contained rectifiable deficiencies, the Ministry could
return the documents to the founders within the same ten-day
time-limit with instructions for their rectification. After the
registration request was re-submitted following such rectification,
the law provided for a five-day time-limit for official response.
- The
Court considers that the Government failed to present reliable
evidence to support their contention that the Ministry had replied to
the founders' first registration request on 11 October 2001. In
particular, the Government submitted a copy of the letter which was
allegedly sent to the founders on 11 October 2001 (see paragraph 8
above). However, contrary to the usual practice, this letter does not
feature the Ministry's official letterhead, is not dated, and does
not contain a reference number. There is no evidence showing that
this letter has ever been sent to, and received by, the applicant or
any of the other founders. In such circumstances, the Court concludes
that the first formal response to the founders' registration request
of 12 September 2001 was issued only on 27 January 2003. Accordingly,
there was a delay of more than one year and four months. More than
nine months of this delay fell within the period after 15 April 2002,
the date of the Convention's entry into force with respect to
Azerbaijan. The Court therefore concludes that the Ministry seriously
breached the statutory ten-day time-limit.
- In
any event, following the founders' second registration request of 12
September 2002, it still took the Ministry more than four months to
issue a formal reply, which was also in breach of the statutory
ten-day time-limit.
- The
Court also reiterates its finding that the Law on State Registration
of Legal Entities of 6 February 1996 did not afford sufficient
protection against delays in the state registration procedure caused
by the Ministry's failure to respond to registration requests within
the statutory time-limits (see Ramazanova and Others, cited
above, § 66).
- Having
found that the Ministry of Justice breached the statutory time-limit
for issuing the formal response to the state registration requests
and that the domestic law did not afford sufficient protection
against such delays, the Court concludes that the interference was
not “prescribed by law” within the meaning of Article 11
§ 2 of the Convention.
- 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.
- There
has accordingly been a violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE RIGHT TO A FAIR TRIAL
- The
applicant complained that the domestic courts had not taken into
consideration the evidence proving the unlawfulness of the Ministry's
refusal to register the association and had failed to properly
examine the complaint concerning the Ministry's breach of statutory
time-limits for an official response to the state registration
request. She relied on Article 6 of the Convention, which provides as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- However,
the Court considers that the applicant's present complaint and
arguments are essentially the same as those examined above under
Article 11. Therefore, having regard to the conclusions set out in
paragraph 35 above, the Court does not consider it necessary to
examine separately the present complaint under Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION IN RESPECT OF INDEPENDENCE AND IMPARTIALITY OF
DOMESTIC COURTS
- The
applicant also complained that, contrary to Article 6 § 1 of the
Convention, the domestic courts had not been independent and
impartial. She noted that, in accordance with the law applicable at
the time of the events in question, the selection of candidates to
judicial positions in Azerbaijan was performed by the Judicial Legal
Council under the President of the Republic of Azerbaijan, presided
over by the Minister of Justice. The applicant alleged that, in such
circumstances, the judges of the domestic courts could not be
independent and impartial in the proceedings against the Ministry of
Justice, because their subsequent re-appointment to the courts would
depend on the discretion of the Minister of Justice as the Chairman
of the Judicial Legal Council. Furthermore, in conjunction with
Article 6 § 1, the applicant complained under Article 13 of the
Convention that the domestic courts could not be considered as an
effective remedy because they had never ruled against the Ministry of
Justice in cases concerning the delays in registration of
non-governmental organisations.
- The
Court notes that these complaints are essentially the same as those
raised before the Court in the case of Asadov and Others v.
Azerbaijan ((dec.), no. 138/03, 12 January 2006). In that
case, the Court found that the complaints were manifestly
ill-founded. In the absence of any substantially new arguments or
evidence submitted in the present case, the Court does not find any
reason to deviate from its reasoning in the Asadov and Others
case.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 11,400 euros (EUR) in respect of pecuniary damage
and EUR 20,000 in respect of non-pecuniary damage.
- The
Government did not comment.
- The
Court observes that the applicant did not submit any evidence
supporting her claim for pecuniary damage or any basis for
calculation of the amount claimed. In such circumstances, the Court
does not discern any causal link between the violation found and the
pecuniary damage alleged; it therefore rejects this claim.
- As
to non-pecuniary damage, the arbitrary delay in the state
registration procedure must have been frustrating for the applicant
as the co-founder of the public association. Nevertheless, the amount
claimed is excessive. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicant EUR 1,000 in respect of moral damage, plus any tax that may
be chargeable on this amount.
B. Costs and expenses
- The
applicant also claimed a total of EUR 2,610 for costs and expenses,
including EUR 500 for translation expenses, EUR 110 for postal
expenses, EUR 1,000 for costs incurred before the domestic courts and
EUR 1,000 for those incurred before the Court. She did not
submit any documentary proof of the translation and postal expenses.
In support of her claim for the costs incurred in the domestic courts
and before the Court, she submitted a copy of the contract for legal
services concluded with her representative.
- The
Government did not comment.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,000 covering costs under all
heads, plus any tax that may be chargeable on this amount.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaints concerning the
applicant's right to freedom of association and right to a fair trial
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that there is no need to examine the
complaint under Article 6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR
1,000 (one thousand euros) in respect of non-pecuniary damage and EUR
2,000 (two thousand euros) in respect of costs and expenses, both
amounts to be converted into the national currency at the rate
applicable at the date of settlement, plus any tax that may be
chargeable on these amounts;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 October 2007 pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
