ELECTION MONITORING AND DEMOCRACY EDUCATION CENTRE AND OTHERS v. AZERBAIJAN - 70981/11 (Judgment : Article 11 - Freedom of assembly and association : First Section Committee) [2023] ECHR 6 (12 January 2023)

JUDGMENT STRASBOURG 12 January 2023 This judgment is final but it may be subject to editorial revision. In the case of Election Monitoring and Democracy Education Centre and Others v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Committee composed of: Krzysztof Wojtyczek , President , Lətif Hüseynov, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no. 70981/11) 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 4 November 2011 by an applicant association and two individual applicants whose details are listed in the appended table (“the applicants”) and who were represented by Mr I. Aliyev, a lawyer based in Azerbaijan; the decision to give notice of the complaints concerning Articles 11 and 34 of the Convention 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 6 December 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The present application concerns the refusal by the domestic authorities to register the applicant association established by the two individual applicants. 2. In 2008 the two individual applicants (the second and third applicants, see appended list) established the applicant association, a non-governmental organisation called Election Monitoring and Democracy Education Centre ( Seçkilərin Monitorinqi və Demokratiyanın Tədrisi Mərkəzi ). 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. 3. On 12 March 2009 the Ministry extended by thirty days the time-limit for examination of the documents submitted. . In a letter of 29 April 2009 addressed to the second applicant, the Ministry indicated the following alleged deficiencies and returned those documents: (a) in accordance with Article 5.4 of the Law on State registration and the State register of legal entities (“the Law on State Registration”), a decision to establish the applicant association and adopt its charter should have been submitted, instead of a record of the meeting of the founders at which that decision was taken; and (b) in section 1.4 of the charter, the title of the Law on Non-Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”) was written incorrectly. 5. Having received the above-mentioned letter, the second and third applicants lodged a complaint against the Ministry with the Yasamal District Court. They argued that the Ministry’s allegations were false and unlawful because they had, in fact, submitted the decision establishing the association and adopting its charter - namely the document entitled “Decision” and subtitled “Extract from the record”. 6. They also argued that there had been no valid “exceptional” reason, as required by Article 8.2 of the Law on State Registration, to extend the time‑limit for examination of the documents submitted. 7. On 2 September 2009 the first-instance court dismissed the complaint, finding nothing unlawful in the Ministry’s actions. The Baku Court of Appeal upheld that judgment on 17 December 2009. However, on 13 August 2010 the Supreme Court quashed the lower courts’ judgments and remitted the case to the appellate court for re-examination. 8. On 3 December 2010 the Baku Court of Appeal dismissed the complaint, finding that the Ministry had acted lawfully, both by extending the time-limit for examination of the documents and by refusing to register the applicant association. Regarding the refusal, the appellate court emphasised that the first finding made by the Ministry as to alleged deficiencies (summarised in paragraph 4 (a) above) had been lawful. On 20 April 2011 the Supreme Court upheld the judgment, largely reiterating the appellate court’s findings (the Supreme Court’s decision was sent to the applicants on 6 May 2011). . In August 2014 criminal proceedings were instituted against the applicants’ representative, Mr Aliyev. The investigating authorities seized many documents from his office, including the case file relating to the present application. 10. The applicants complained before the Court that the Ministry’s actions had violated their right to freedom of association. . They also complained that the seizure of their case file from the office of their lawyer had been in breach of Article 34 of the Convention. THE COURT’S ASSESSMENT I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 12. The applicants argued that the allegations made by the Ministry in its refusal letter had no factual or legal basis. . They also argued that there had been no valid “exceptional” reason, as required by the relevant domestic law, to extend the time-limit for examination of the documents submitted. . The Government submitted that the Ministry had returned the documents so that the applicants could rectify the deficiencies contained in them. 15. 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. 16. 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). 17. As in Election Monitoring Centre and Others , 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). 18. 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 applicant 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). 19. 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 applicant association, without examining whether the letter was procedurally correct. The courts proceeded to declare that the Ministry’s first finding as to alleged deficiencies (summarised in paragraph 4 (a) above) had been lawful and, consequently, that the refusal to register the applicant association had also been lawful (compare and contrast Election Monitoring Centre and Others , cited above, §§ 93 and 54 respectively). 20. It follows, therefore, that the domestic courts treated the alleged deficiency as one warranting a direct refusal to register the applicant association simply because that deficiency constituted a breach of a certain domestic norm - namely Article 5.4 of the Law on State Registration, which required that a decision establishing an association and adopting its charter be attached to a request for registration. 21. In that connection, the Court notes that even though the document submitted by the applicants to the Ministry bore the subtitle “Extract from the record”, the text of that document incorporated a decision establishing the applicant association and adopting its charter. 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 5.4 of the Law on State Registration. Nor did the Government submit any explanation to that end. 22. However, 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 paragraph 4 above) concerned substantive issues related to the existence or activities of the applicant association, and they could only be characterised as alleged shortcomings of a procedural or even technical nature. Therefore, it is not clear why the domestic authorities 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. 23. Having regard to all the above, the Court finds that the domestic authorities’ refusal to register the applicant association was arbitrary and not “prescribed by law” within the meaning of Article 11 § 2 of the Convention. 24. In view of the above finding, there is no need to examine the other argument raised by the applicants in respect of the present complaint (see paragraph 13 above). 25. There has accordingly been a violation of Article 11 of the Convention. II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 26. The applicants also raised another complaint (see paragraph 11 above) covered by the well‑established case-law of the Court. Having examined all the material before it, the Court concludes that that complaint discloses a violation of Article 34 of the Convention in the light of its findings in Annagi Hajibeyli v. Azerbaijan (no. 2204/11 , §§ 64-79 , 22 October 2015). APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. The applicants claimed jointly 20,000 euros (EUR) in respect of non‑pecuniary damage and EUR 4,700 for costs and expenses (namely EUR 4,500 for legal services and EUR 200 for translation services) incurred before the domestic courts and the Court. 28. The Government submitted that the claims were unsubstantiated and excessive. 29. The Court awards EUR 4,500 to the applicants jointly, in respect of non-pecuniary damage, plus any tax that may be chargeable. 30. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 500 and EUR 200 to the applicants jointly, for legal and translation services respectively, plus any tax that may be chargeable to the applicants. 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; 3. Holds that there has been a violation of Article 34 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants jointly, 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 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicants, in respect of translation services; (iii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicants, in respect of legal services, to be paid directly into the bank account of the applicants’ representative, Mr I. Aliyev; (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 12 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President APPENDIX No. Applicant’s name Year of birth / establishment Nationality Place of residence / establishment 1. ELECTION MONITORING AND DEMOCRACY EDUCATION CENTRE Baku 2. Anar Asaf oglu MAMMADLI Azerbaijani Baku 3. Bashir Suleyman oglu SULEYMANLI Azerbaijani Baku BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII