IMRANOVA AND AHMADOVA v. AZERBAIJAN - 41995/15 (Judgment : Article 11 - Freedom of assembly and association : First Section Committee) [2023] ECHR 177 (23 February 2023)

JUDGMENT STRASBOURG 23 February 2023 This judgment is final but it may be subject to editorial revision. In the case of Imranova and Ahmadova 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. 41995/15) 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 3 August 2015 by two Azerbaijani nationals, Ms Aynura Imran gizi Imranova and Ms Asya Humayag gizi Ahmadova, born in 1976 and 1975 respectively and living in Zardab and Zangilan (“the applicants”), who were represented by Mr Y. Agazade, a lawyer based in Azerbaijan; the decision to give notice of the complaint concerning Article 11 to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare inadmissible the remainder of the application; 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 application concerns a refusal by the domestic authorities to register an association set up by the applicants. 2. In 2014 the applicants set up a non-governmental organisation in the form of an association called Support to Development of Media and Democracy - Public Association ( “ Demokratiyanın və Medianın İnkişafına Dəstək” Ictimai Birliyi ). They requested the Ministry of Justice of the Republic of Azerbaijan (“the Ministry”) to register their association as a legal entity and submitted relevant documents. . In a letter of 13 June 2014 addressed to the applicants, the Ministry indicated that, in contravention of Article 10.3 of the Law on Non‑Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”), the charter of the association had not laid out guarantees for complaining internally about termination of membership of the association, including a procedure and time‑limits for examining such a complaint. 4. The letter ended by stating that, on the basis of 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 unexecuted” ( sənədlər icra olunmadan geri qaytarılır ). 5. Having received that letter, the applicants lodged a complaint with the Baku Administrative Economic Court No. 1 against the Ministry’s refusal to register their organisation. They argued that the Ministry’s allegation was false and unlawful because sections 5.12‑5.15 of the charter regulated the termination of membership of the association, and section 5.15 specifically stipulated that a complaint about termination could be lodged both internally and before a court. Furthermore, Article 10.3 of the Law on NGOs did not require the charter to set out a procedure and time-limits for examination of a complaint lodged internally. That Article merely required that a charter guarantee the right to complain internally and before a court. 6. On 16 October 2014 the first-instance court dismissed the complaint, finding that the Ministry had acted lawfully by refusing to register the association. The first-instance court emphasised that the finding made by the Ministry as to the alleged deficiency (summarised in paragraph 3 above) had been lawful. The Baku Court of Appeal upheld that judgment on 14 January 2015, largely reiterating the first-instance court’s findings. On 27 May 2015 the Supreme Court upheld the judgment of the appellate court. The Supreme Court emphasised that the charter of the association guaranteed the right to complain internally and before a court about the termination of membership, but it did not fully and clearly explain a procedure for internal complaints. 7. The applicants complained before the Court that the Ministry’s actions had violated their right to freedom of association. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 8. The applicants argued that the allegation made by the Ministry in its refusal letter had no factual or legal basis. . The Government submitted that the Ministry had returned the documents so that the applicants could rectify the deficiency contained in them. 10. 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. 11. 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). 12. As in that case, the Court reiterates that the Law on State Registration contained, inter alia , two relevant 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 those documents and give the founders twenty days to rectify those deficiencies. 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 (ibid., § 51). 13. The wording of the Ministry’s letter in the present case was ambiguous as to whether the letter was a decision under Article 11.3.1 of the Law on State Registration “refusing to register” the association or a decision under Article 8.3 of the same Law “returning the documents for rectification” (compare Election Monitoring Centre and Others , cited above, § 52). 14. Nevertheless, the domestic courts treated the Ministry’s letter as a decision under Article 11.3.1 of the Law on State Registration refusing to register the association, without examining whether the letter was procedurally correct. The courts proceeded to declare that the Ministry’s finding as to the alleged deficiency (summarised in paragraph 3 above) had been lawful and, consequently, that the refusal to register the association had also been lawful (compare and contrast Election Monitoring Centre and Others , cited above, §§ 93 and 54 respectively). 15. It follows, therefore, that the domestic courts treated the alleged deficiency as one warranting a direct refusal to register the association simply because that deficiency constituted a breach of a certain domestic norm - namely Article 10.3 of the Law on NGOs. 16. In that connection, the Court notes that, pursuant to Article 10.3 of the Law on NGOs, “a charter [of an association] had to guarantee the right to complain internally and [the right to complain] to a court about termination of membership of the association”. That provision did not require that a charter set out a procedure and time-limits for examining the internal complaint. It appears, therefore, that the procedure for doing so, including the time-limits, could be detailed in a document other than a charter. Furthermore, it is clear from the material submitted to the Court that section 5.15 of the charter of the applicants’ association guaranteed the right to complain about termination of membership both internally (namely before the Control and Review Committee and the General Assembly of the association) and before a court. It is not clear, therefore, why the domestic authorities, including the courts, were not satisfied that the applicants had complied with the above-mentioned Article 10.3 of the Law on NGOs. Nor did the Government submit any explanation to that end. 17. However, in the Court’s view, even assuming that there were factual and legal grounds for finding that the charter of the association had not complied with the above-mentioned provision of the Law on NGOs, as alleged by the Ministry, clearly that deficiency did not concern substantive issues related to the existence or activities of the association, and that deficiency could only be characterised as an alleged shortcoming of a procedural nature. Therefore, it is not clear why the domestic authorities chose not to treat it as a “rectifiable deficiency”. 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 interference. 18. Having regard to all the above, the Court finds that the domestic authorities’ refusal to register the applicant’s association was arbitrary and not “prescribed by law” within the meaning of Article 11 § 2 of the Convention. 19. There has accordingly been a violation of Article 11 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 20. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 11 of the Convention. 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 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII