European Court of Human Rights

 

 

FIRST SECTION

CASE OF INTERNATIONAL RESEARCH AND EXCHANGE BOARD v. AZERBAIJAN

(Application no. 7668/15)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

2 March 2023

 

 

 

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

 

In the case of International Research and Exchange Board 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 application (no. 7668/15) 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”) on 30 December 2014 by a representative office of an international organisation, International Research and Exchanges Board (IREX - “the applicant organisation”), registered in 1998 and based in Baku, which was represented before the Court by Mr E.A. Sadigov, a lawyer practising in Baku;

the decision to give notice to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, of the complaints under Articles 6, 8 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning an order for search and seizure and an order to freeze the applicant organisation’s bank accounts, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 7 February 2023,

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

SUBJECT MATTER OF THE CASE

1.  The applicant organisation is the representative office in Azerbaijan of the International Research and Exchanges Board, an international humanitarian organisation. The application concerns the search of its office and the seizure of documents and electronic devices by the national authorities, as well as the order to freeze its bank accounts in the framework of criminal proceedings initiated against several local non-governmental organisations (NGOs) and representative offices of international organisations.

2.  On 22 April 2014 the Prosecutor General’s Office opened criminal case no. 142006023 under Article 308.1 (abuse of power) and Article 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of NGOs (see Democracy and Human Rights Resource Centre and Mustafayev v. Azerbaijan, nos. 74288/14 and 64568/16, § 6, 14 October 2021). The applicant organisation was mentioned in the decision of 22 April 2014, but never had the status of a “suspect” in the investigation.

I.        Freezing of the applicant organisation’s bank accounts

3.  Soon thereafter the bank accounts of numerous NGOs and civil society activists were frozen by the domestic authorities within the framework of criminal case no. 142006023 (ibid., § 7). Accordingly, on 26 July 2014 the Nasimi District Court issued an attachment order in respect of all bank accounts of the applicant organisation pending the outcome of the investigation in criminal case no. 142006023. The court relied on the need “to carry out a complete, comprehensive and objective investigation” in that case. According to the order, it was amenable to appeal within three days after it was issued.

4.  The applicant organisation submitted that the court hearing on 26 July 2014 had been held in the absence of the applicant organisation’s representative due to a lack of notification. No copy of the order was sent to the applicant organisation. Because 27 July 2014 was a Sunday and 28 and 29 July 2014 were public holidays (on the occasion of Ramadan), the bank informed it of the freezing of its accounts only on 30 July 2014. On 31 July 2014 the applicant organisation obtained a copy of the attachment order from the court, and it lodged an appeal against the order the next day. It also requested the court to restore the time-limit for lodging the appeal.

5.  On 7 August 2014 the Nasimi District Court dismissed the applicant organisation’s request to restore the time-limit for lodging its appeal. The court noted that the applicant organisation had failed to provide any valid reasons for having missed the above-mentioned time-limit. On 18 August 2014 the Baku Court of Appeal upheld that decision.

6.  The attachment order in respect of the applicant organisation’s bank accounts was lifted on 10 July 2020.

II.     Search of the applicant organisation’s office and seizure of its assets

7.  On 4 September 2014 the Yasamal District Court authorised the investigating authorities to search the applicant organisation’s office and to seize legal, financial, accounting and bank documents relating to the applicant organisation’s activities and its receipt of grants and other financial aid, including documents found on electronic devices. The court referred to the need to ensure a complete, comprehensive and objective investigation in criminal case no. 142006023.

8.  On 5 September 2014 the search was carried out. The investigating authorities seized twelve laptops, six computer system units, eight video cameras, two photo cameras, one mobile phone, forty-one CDs and DVDs, one hard drive, fifteen flash drives, one audio cassette and thirty-five boxes of documents.

9.  On 24 September 2014 the Baku Court of Appeal upheld the Yasamal District Court’s search warrant of 4 September 2014 on appeal, endorsing its reasoning.

10.  After expert examinations had been carried out, the seized items were returned to the applicant organisation on 13 November 2015. According to the applicant organisation, the computers had not been returned in working condition.

III.   complaints

11.  The applicant organisation complained under Article 6 of the Convention and Article 1 of Protocol No. 1 of the freezing of its bank accounts. It further complained under Article 8 of the Convention and Article 1 of Protocol No. 1 of the search and seizure at its office. The applicant organisation also complained under Article 1 of Protocol No. 1 about retention of their computers for about a year and their return in allegedly unusable condition. Finally, it complained that the restrictions imposed by the State in the present case were applied for a purpose other than those envisaged by the relevant provisions, contrary to Article 18 of the Convention.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 1 of Protocol no. 1 to THE CONVENTION

12.  Relying on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant organisation complained about the freezing of its bank accounts. The Court considers that the present complaint falls to be examined solely under Article 1 of Protocol No. 1 to the Convention (see Democracy and Human Rights Resource Centre and Mustafayev, cited above, § 53).

13.  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.

14.  The relevant general principles have been reiterated in Democracy and Human Rights Resource Centre and Mustafayev (cited above, § 67, with further references).

15.  The Court has found in previous cases against Azerbaijan concerning attachment of property that the interference complained of did not comply with the lawfulness requirement enshrined in Article 1 of Protocol No. 1, since the applicants did not belong to the categories of persons to whom an attachment measure could be applied. In particular, the Court held that attachment could be ordered only in respect of property of the “accused person” or “other persons who could be held materially liable” for the criminal actions of the accused (ibid., § 68; and see also Rafig Aliyev v. Azerbaijan, no. 45875/06, §§ 122-26, 6 December 2011). Furthermore, no procedural provisions in the Code of Criminal Procedure relating to the measures applicable in respect of legal persons for their criminal responsibility existed before 29 November 2016 (see Democracy and Human Rights Resource Centre and Mustafayev, cited above, § 70).

16.  In the present case the applicant organisation was not an accused person within the framework of criminal case no. 142006023 and was a legal person. The applicant organisation did not therefore belong to the categories of persons to whom an attachment measure could be applied under the domestic law in 2014 and the interference cannot therefore be considered lawful within the meaning of Article 1 of Protocol No. 1 to the Convention. Given this conclusion, it is not necessary to ascertain whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (ibid., § 72).

17.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II.      ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

18.  The applicant organisation further complained under Article 8 of the Convention and Article 1 of Protocol No. 1 of the search and seizure at its office. The Court considers that this complaint falls to be considered under Article 8 of the Convention alone (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).

19.  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.

20.  The general principles concerning searches of residential and professional premises have been reiterated in Avaz Zeynalov v. Azerbaijan (nos. 37816/12 and 25260/14, §§ 84-86, 22 April 2021).

21.  The Court notes that neither the applicant organisation itself nor its managers or employees were suspects in criminal case no. 142006023.

22.  When authorising the search of the applicant organisation’s office and the seizure of all legal and financial documents, including those on electronic devices (see paragraphs 7-8 above), the Yasamal District Court merely relied on the need to ensure a complete, comprehensive and objective investigation in criminal case no. 142006023. The Court considers that such general reasoning does not demonstrate that the national authorities examined the question whether the interference with the applicant organisation’s rights answered a pressing social need and was proportionate to the legitimate aims pursued. Moreover, the terms of the search warrant were too broad and did not sufficiently specify the reason for the search or which items or documents relevant to the investigation were expected to be found and seized at the applicant organisation’s office. The breadth and vagueness of the search warrant were reflected in the way in which it was executed, given that the investigating authorities seized the applicant organisation’s electronic devices without using any sifting procedure. The Court notes in particular that the appellate court did not give any indication as to the relevance to the investigation of those items seized from the applicant organisation and limited itself to the examination of the formal lawfulness of the search.

23.  On the basis of the above, the Court concludes that the interference was not proportionate to the legitimate aim pursued.

24.  There has accordingly been a violation of Article 8 of the Convention.

III.   REMAINING COMPLAINTS

25.  The applicant organisation complained under Article 1 of Protocol No. 1 about retention of the computers for about a year and their return in allegedly unusable condition. It also complained that the restrictions imposed by the State in the present case, purportedly pursuant to Articles 6 and 8 of the Convention and Article 1 of Protocol No.1, were applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

26.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  The applicant organisation claimed 64,000 euros (EUR) and EUR 70,000 in respect of pecuniary and non-pecuniary damage respectively and EUR 17,891.83 in respect of costs and expenses incurred before the domestic courts and before the Court. It requested that the latter amount be paid directly into its representative’s bank account.

28.  The Government submitted that the applicant organisation’s claims should be rejected. In particular, they noted that the applicant organisation had not submitted a copy of the legal services agreement with its representative.

29.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant organisation EUR 5,900 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.

30.  Having regard to the documents in its possession and given that no contract for legal services was submitted to the Court, it dismisses the claim for costs and expenses (see Tagiyeva v. Azerbaijan, no. 72611/14, § 92, 7 July 2022, and Malik Babayev v. Azerbaijan, no. 30500/11, § 97, 1 June 2017).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints concerning the search and seizure at the applicant organisation’s office under Article 8 of the Convention and the freezing of the applicant organisation’s bank accounts under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the freezing of the applicant organisation’s bank accounts;

3.      Holds that there has been a violation of Article 8 of the Convention in respect of the search and seizure at the applicant organisation’s office;

4.      Holds

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

EUR 5,900 (five thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 applicant organisation’s claim for just satisfaction.

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

 

            Liv Tigerstedt                                               Krzysztof Wojtyczek
          Deputy Registrar                                                      President