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FIRST
SECTION
CASE OF TEBIETI MÜHAFIZE CEMIYYETI AND ISRAFILOV
v.
AZERBAIJAN
(Application
no. 37083/03)
JUDGMENT
STRASBOURG
8 October 2009
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 Tebieti Mühafize
Cemiyyeti and Israfilov v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni, judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 17 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37083/03) 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 Tebieti Mühafize
Cemiyyeti (Təbiəti Mühafizə
Cəmiyyəti – “the
Association”), an association with its headquarters in
Baku, and an Azerbaijani national, Mr Sabir
Israfilov (the Association and Mr Israfilov together referred to as
“the applicants”), on 8 October 2003.
- The
applicants, who had been granted legal aid, were represented by Mr I.
Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç.
Asgarov.
- The
applicants alleged, in particular, that the dissolution of the
Association had infringed their right to freedom of association,
guaranteed under Article 11 of the Convention.
- By
a decision of 8 November 2007 the Court declared the application
admissible.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
Association is a non-profit-making non-governmental organisation, now
dissolved, which was active between 1995 and 2002. The application
was lodged by its former Chairman, Mr Sabir Israfilov, who was born
in 1948 and lives in Baku.
A. The Association's objects and management structure
-
The Association was registered by the Ministry of Justice on
25 August 1995 and acquired the status of a legal entity.
- Clause
1.1 of the Association's Charter defined it as an independent,
charitable public organisation with voluntary membership, conducting
its activities within the framework of the laws of the Republic of
Azerbaijan on public associations, other applicable laws and its own
Charter.
- According
to clause 1.2 of the Charter, the main objects of the Association
were:
“... in the circumstances of the present-day
environmental crisis, to develop the environmental culture and
awareness of the various strata of the country's population, to
organise a public movement for a clean environment in Azerbaijan, to
give impetus to the process of effective resolution of environmental
protection problems, and to strive permanently to promote the
measures necessary to create a healthier environment.”
- According
to the Charter, the Association's governing bodies consisted of the
Congress (the general assembly of members), the Central Council (the
management board elected by the general assembly for a five year
term), the Central Supervisory Commission (a body of internal control
elected by the general assembly for a five-year term), and various
local bodies. Clause 4.8 of the Charter provided that the Congress,
as the general assembly of members, was the Association's supreme
governing body and would convene once every five years.
- Since
the date of its establishment and state registration, and until
August 2002, the Association had not convened a general assembly of
its members.
- It
appears that, on 9 July 1997, about two years after the Association's
state registration, the Ministry of Justice sent a letter to the
Association, noting that the latter had committed certain breaches of
the domestic law and the Association's own Charter. The exact content
of that letter is not clear from the materials available in the case
file.
B. Warnings issued by the Ministry of Justice
- On
14 August 2002 the Ministry of Justice commenced an inspection of the
Association's activities.
- On
10 September 2002 the Ministry issued a warning to the Association in
accordance with Article 31.2 of the Law on Non Governmental
Organisations (Public Associations and Foundations), applicable at
the material time (“the NGO Act”). The Ministry stated
that the Association's activities did not comply with the
requirements of its own Charter and the domestic law. It was noted
that a general assembly of the Association's members had not been
convened within the five-year period specified in its own Charter.
Moreover, in any event, this provision of the charter was itself
incompatible with the domestic law, as Article 25.2 of the NGO Act
required that the supreme governing body of a public association –
the general assembly of members – was to be convened at least
once every year. The Ministry requested that, within ten days, the
Association take measures to remedy the aforementioned breach and
inform the Ministry of the measures taken.
- In
reply, Mr Israfilov informed the Ministry that, in fact, a general
assembly of members had taken place on 26 August 2002. It appears
that, among other things, the Association's general assembly decided
to establish a working group in order to bring the Association's
Charter into conformity with the current legislation.
- Having
examined the documents relating to the general assembly meeting of 26
August 2002, on 3 October 2002 the Ministry of Justice issued a new
warning to the Association (which constituted a second warning issued
in 2002). It noted that the general assembly of 26 August 2002 had
been convened in violation of numerous provisions of the domestic
law. The Ministry noted, inter alia, that not all
members of the Association had been properly informed about the
general assembly and thus had been unable to participate in it, and
that the Association's local branches had not been equally
represented at the assembly. Generally, the current membership
records had not been properly kept and it was impossible to determine
the exact number and identity of members. Local branches of the
Association had not held any regular local assemblies of members and,
in fact, functioned as regional offices directly governed by the head
office in an administrative and hierarchical manner, whereas in a
genuine public association ordinary members should be able to
directly participate in its management. The Ministry again demanded
that, within ten days, information be submitted as to the steps taken
to remedy these breaches.
- It
appears that the Association disagreed with the above findings in its
correspondence with the Ministry and took no action in response to
this second warning.
- Finally,
on 28 October 2002 the Ministry issued a third warning, stating that
it had not received any information from the Association as to
compliance with the prior two warnings. In addition to reiterating
the remarks contained in the prior warnings, the Ministry noted that
the Association also engaged in an activity prohibited by law.
Specifically, the domestic law (namely, the NGO Act, the Law on
Environmental Protection and the Law on Entrepreneurial Activity)
prohibited public associations from interfering with the activities
of private businesses. In this connection, the Ministry noted:
“However, contrary to these legal requirements,
the Association ... attempts to collect money from State organs and
commercial organisations in the guise of membership fees, regularly
conducts [unlawful] inspections at economic enterprises and draws up
[environmental compliance] reports, and engages in other illegal acts
interfering with the rights of entrepreneurs ...”
- As
it had done previously, the Ministry demanded that, within ten days,
the Association submit information as to the steps taken to remedy
the situation. The Association did not react.
C. Dissolution of the Association
- In
December 2002 the Ministry lodged an action with the Yasamal District
Court, seeking an order for dissolution of the Association. The
Association, represented by Mr Israfilov, lodged a counterclaim,
contending that the Ministry's warnings had been unlawful and
unsubstantiated.
- On
7 March 2003 the Yasamal District Court dismissed the Association's
counterclaim and granted the Ministry's request, ordering the
Association's dissolution.
- Specifically,
in respect of the Ministry's request for dissolution, the court heard
oral submissions by the Association's members and the officials of
the Ministry of Justice's Department of State Registration of Legal
Entities, reviewed the content of the Ministry's three warning
letters issued in 2002 and examined the correspondence between the
Association and the Ministry. The court also examined six internal
reports by various officials of the Ministry of Justice concerning
the results of the inspection of the activities of the Association's
various local branches. According to these reports, most of the
inspected branches had not held regular local assemblies of members
and had not maintained proper records of members and membership fees.
One of these reports stated that, according to “information
obtained” during the inspection, the Association's branch in
the Tovuz Region carried out illegal environmental inspections and
engaged in other illegal activities.
- Based
on the above materials, the court found that, despite the early
warning issued on 9 July 1997 (the content of which was not specified
in the judgment), the Association had continued to commit breaches of
domestic law on an even more systematic basis, which had led to the
issuance by the Ministry of Justice of the three warning letters in
2002. The court noted that the Association's Charter had not been
brought into compliance with the domestic law on public associations,
which required that a general assembly of members be held no less
than once a year. In any event, even the five-year period for
convening a general assembly, as required by the Association's
Charter, had not been complied with. The court further found that the
Ministry's findings concerning numerous irregularities during the
general assembly meeting of 26 August 2002, as well as breaches of
law in the general functioning of the Association, constituted a
basis on which to dissolve the Association for systematic failure to
comply with the domestic law.
- Furthermore,
again based on the above-mentioned oral testimonies of the Ministry
officials and their inspection reports, the court noted that the
Association had frequently overstepped the limits of the scope of its
activities as defined in its Charter and permitted by law, by
interfering with the competence of the relevant State authorities. In
particular, it was noted that the Association's local branches had
attempted to carry out unlawful environmental inspections on the
premises of various State and commercial enterprises and collect
membership fees from them, issued reports on these enterprises'
compliance with environmental standards, and engaged in other actions
interfering with the activities of commercial entities. The court
found that, by engaging in such actions, the Association had violated
the rights of other persons and attempted to misappropriate powers of
a State regulating authority.
- The
court further noted that, in accordance with the NGO Act, the
issuance of three warnings by the Ministry of Justice constituted a
basis for an association's dissolution if the latter did not take any
measures to remedy the shortcomings in its activities. The court
therefore ordered that the Association be dissolved.
- The
Association appealed, claiming that the provisions of the NGO Act
were vague and imprecise, giving the Ministry a wide discretion to
interfere with public associations' activities and to issue warnings
even for minor irregularities in their activities. The Association
also argued that the Yasamal District Court's factual findings
concerning its activities had been incorrect and unsupported by any
evidence.
- On
4 July 2003 the Court of Appeal dismissed the appeal and upheld the
Yasamal District Court's judgment.
- By
a final decision of 29 October 2003, the Supreme Court upheld the
lower courts' judgments.
- The
Association's state registration certificate was revoked and the
Association was dissolved.
II. RELEVANT DOMESTIC LAW
A. Civil Code of 2000
- Article
59 of the Civil Code provides:
Article 59. Dissolution of a legal entity
“59.2. A legal entity may be dissolved:
...
59.2.3. by a court order, if the legal entity
engages in activities without the required permit (license) or in
activities prohibited by law, or if it otherwise commits repeated or
grave breaches of law, or if a public association or foundation
systematically engages in activities that are contrary to the aims
set out in its by-laws, as well as in other cases provided by law.
59.3. A request to dissolve the legal entity
under the grounds specified in Article 59.2 of this Code may be
lodged by the relevant State authority or local self-administration
authority, to which the right to lodge such a request is granted by
law. ...”
B. Law on Non-Governmental Organisations (Public
Associations and Foundations) of 13 June 2000 (“NGO Act”)
- Article
1 provides:
Article 1. Objectives of this Law
“1.1. This Law regulates the relations
concerning the establishment and functioning of public associations
and foundations.
1.2. The definition of “non-governmental
organisation” in this Law includes public associations and
foundations.
1.3. This Law determines the rules for the
establishment, activity, reorganisation and dissolution of
non-governmental organisations, as well as their functioning,
management, and relations with government bodies.
1.4. This Law does not apply to political
parties, trade unions, religious organisations, local
self-administration authorities and non-governmental organisations
which are regulated by other laws.”
- Under
Article 2, a public association is defined as a non governmental
organisation established on the initiative of several individuals and
(or) legal entities associated on the basis of common interests in
pursuing the objectives set out in the association's by-laws, which
does not engage in profit-making as a primary aim of its activity and
which does not distribute any profit between its members.
- Chapter
IV (Articles 22-24) regulates issues related to the activities and
property of non-governmental organisations. In particular, under
Article 22.1, a non-governmental organisation may engage in any type
of activity which is not prohibited by the laws of the Republic of
Azerbaijan and which is not contrary to the aims of the organisation
as set out in its charter.
34. Chapter
V (Articles 25-27) contains rules on the management of
non-governmental organisations. Article 25.1 provides that the
internal structure of a public association, the powers of its
governing bodies, their formation procedure and term of office and
the rules on decision-making and representing the association shall
be regulated by the public association's charter, subject to the
conditions set out in the NGO Act and other relevant legal
provisions. In particular, the supreme governing body of a public
association is the general assembly of members, to be convened not
less than once a year, upon the initiative of the associations's
executive body, one of its founders or one third of its members
(Articles 25.2-25.3). The general assembly decides upon, inter
alia, the following issues:
(1) adoption of and amendments to the association's charter; (2)
use of the association's property; (3) election of the association's
other governing bodies and early termination of their office; (4)
approval of the annual report, etc. (Article 25.5). The founders and
members of the public association must be informed of the date and
place of the general assembly at least two weeks in advance.
Amendments to the association's charter may be made only if the
quorum of more than half of the association members is present.
Decisions are adopted by a majority of votes of the participating
members. Each member has one vote (Article 25.6). It is required to
keep written minutes of the general assembly, which shall be signed
by the assembly's president and secretary and, if necessary,
distributed to all members (Article 25.7).
35. Article
31 provides:
Article 31. Liability
of a non-governmental organisation
“31.1. A non-governmental organisation
that breaches the requirements of this Law shall be liable in
accordance with the laws of the Republic of Azerbaijan.
31.2. If a non-governmental organisation
commits actions incompatible with the objectives of this Law, the
relevant executive authority [the Ministry of Justice] may issue a
written warning to the organisation and give an instruction to remedy
such breaches.
31.3. A non-governmental organisation may
judicially challenge such warning or instruction.
31.4. If a non-governmental organisation
receives, within one year, more than two written warnings or
instructions to remedy the breaches of law, such organisation may be
dissolved pursuant to a court order.”
C. Other legal provisions
- Article
4 of the Law on Environmental Protection of 8 June 1999 (“the
Environmental Protection Act”) provides, inter alia,
that the carrying out of environmental monitoring and audits is
within the competence of the relevant State authorities. Article
7 and 73 of the Environmental Protection Act define the rights and
obligations of non-governmental organisations (“NGOs”) in
the field of environmental protection. The essence of the NGOs'
rights, within the meaning of these provisions, is the civic defence
of environmental rights, encouraging public debate on environmental
issues and alerting the relevant State regulatory authorities to any
environmental hazard or breach of the applicable environmental
standards. The range of NGOs' rights in this field does not include a
right to conduct formal environmental inspections or enforce relevant
environmental norms or standards.
- Likewise,
Article 7 of the Law on Ecological Safety
of 8 June 1999 vests rights in NGOs, inter alia, to make
proposals on ecological safety to the relevant State authorities and
alert the latter to breaches of environmental laws. NGOs are not
vested with a right to enforce environmental laws.
- Article
5.2 of the Law on Entrepreneurial Activity of 15 December 1992
prohibits political parties and NGOs from interfering with
entrepreneurial activities.
III. RELEVANT DOCUMENTS OF THE COUNCIL OF EUROPE
- The
following are extracts from Recommendation CM/Rec(2007)14 of the
Committee of Ministers to member States on the legal status of
non governmental organisations in Europe:
“... 44. The legal personality of NGOs
can only be terminated pursuant to the voluntary act of their members
– or in the case of non-membership-based NGOs, its governing
body – or in the event of bankruptcy, prolonged inactivity or
serious misconduct. ...
46. The persons responsible for the
management of membership-based NGOs should be elected or designated
by the highest governing body or by an organ to which it has
delegated this task. The management of non-membership-based NGOs
should be appointed in accordance with their statutes.
47. NGOs should ensure that their management
and decision-making bodies are in accordance with their statutes but
they are otherwise free to determine the arrangements for pursuing
their objectives. In particular, NGOs should not need any
authorisation from a public authority in order to change their
internal structure or rules.
48. The appointment, election or replacement
of officers, and ... the admission or exclusion of members should be
a matter for the NGOs concerned. ...
67. The activities of NGOs should be presumed
lawful in the absence of contrary evidence.
68. NGOs can be required to submit their
books, records and activities to inspection by a supervising agency
where there has been a failure to comply with reporting requirements
or where there are reasonable grounds to suspect that serious
breaches of the law have occurred or are imminent. ...
70. No external intervention in the running
of NGOs should take place unless a serious breach of the legal
requirements applicable to NGOs has been established or is reasonably
believed to be imminent. ...
72. In most instances, the appropriate
sanction against NGOs for breach of the legal requirements applicable
to them (including those concerning the acquisition of legal
personality) should merely be the requirement to rectify their
affairs and/or the imposition of an administrative, civil or criminal
penalty on them and/or any individuals directly responsible.
Penalties should be based on the law in force and observe the
principle of proportionality. ...
74. The termination of an NGO ... should only
be ordered by a court where there is compelling evidence that the
grounds specified in paragraph 44 ... above have been met. Such an
order should be subject to prompt appeal.”
IV. COMPARATIVE LAW
40. A
comparative study of the relevant legislation of 25 out of 47 member
States of the Council of Europe shows that an NGO can be
membership-based or non-membership-based and can take a variety of
legal forms applicable in the domestic legal order, such as an
association, foundation, trust, charity or even company. A key
factor in determining the level of scrutiny and control that an NGO
will be subjected to is whether the body concerned is legally
incorporated and enjoys legal personality. Normally, unincorporated
associations enjoy a much wider scope of self management and are
not interfered with unless they conduct activities which are illegal
or prejudicial to public order. Legally incorporated NGOs, on the
other hand, are often subject to more narrowly delimited rules and
may be dissolved or face other sanctions in the event of
non-compliance.
41. It
appears that in a number of States an NGO can, in certain
circumstances, be dissolved either, specifically, for failure to
conduct its internal management in accordance with the requirements
of domestic law or, more generally, for failure to comply with its
own charter. Countries within this category include: (i)
Austria, where an association can be dissolved by a decision of a
competent public authority if, inter alia, it exceeds its
field of activity or if it no longer fulfils its own statutory rules;
(ii) the Czech Republic, where foundations, endowment funds and
public benefit corporations can be dissolved by a court for failure
to comply with their charter or the domestic law (however,
associations cannot be dissolved for failure to conduct their
internal management); (iii) Finland, where a court may on the basis
of an action brought by the relevant public authority or an
association member dissolve an association if it acts substantially
against the law or substantially against the purpose defined for it
in its rules; (iv) Hungary, where the courts may declare the
dissolution of a civil society organisation if it has failed to
operate for at least one year, or the number of its members is
permanently below the number determined by law; (v) Italy, where the
competent governmental authorities may dissolve foundations in the
event that they are not conducted in a lawful manner and in
conformity with their by-laws; (vi) Luxembourg, where associations
may be dissolved for failure to comply with the objectives which they
have assumed, or if they have gravely contravened their constitutive
statute or the law; and foundations can be dissolved if they are no
longer able to pursue the object for which they were created; (vii)
Malta, where a voluntary organisation may be struck off the register
of voluntary organisations and/or issued with a suspension order
potentially permanently suspending all or part of its activities, if
the organisation in question is not complying with the provisions of
its statute or the relevant domestic law; (viii) the Netherlands,
where a regional court can dissolve an association or foundation,
inter alia, if its statutes do not fulfil the requirements of
the law or if it acts substantially contrary to its own Articles;
(ix) Poland, where the courts can, in situations where associations
are found to be acting contrary to the law or infringing the
provisions of their own charter, order their dissolution; (x)
Romania, where the relevant law provides that an association's
failure to convene its general assembly or board of directors for
more than one year results in its de jure dissolution; (xi)
Russia, where an association may be dissolved if it repeatedly
and seriously violates the requirements of the applicable domestic
law; (xii) Slovakia, where courts can decide to dissolve non-profit
organisations, foundations, non-investment funds and associations for
contraventions of the applicable domestic law as regards their
internal management; and (xiii) Turkey, where the Civil Code provides
that associations can be dissolved for, inter alia,
failure to compose the internal bodies required by law, hold their
first general assembly meetings within the time-limits prescribed by
law or to hold subsequent general assembly meetings regularly.
- In
a number of other member States an NGO may not be subject to
involuntary dissolution for failure to conduct its internal
management in accordance with the requirements of the domestic law or
its charter (although the authorities may dissolve an NGO, inter
alia, if it engages in illegal activities or if its goals
and acts violate the public order). Countries within this category
include Bulgaria, the United Kingdom (England and Wales), Estonia,
France, Germany, Ireland, Latvia, Portugal, Slovenia, Spain, Sweden
and Ukraine.
- As
for the range of alternative sanctions (apart from involuntary
dissolution) that may be imposed on NGOs for various types of
contraventions, such sanctions include: (i) fines (Austria, Malta,
Russia, Slovakia, Slovenia, Turkey, and Ukraine); (ii) suspension of
activities (Finland, Hungary, Malta, Russia, Slovakia, Turkey and
Ukraine); (iii) the invalidity of a decision taken in contravention
of the organisation's internal charter or applicable domestic law
(Estonia, Hungary, Italy, Latvia and Poland); (iv) the dismissal of
administrators (Italy and, in respect of foundations, Luxembourg);
and (v) being struck off a special register and withdrawal of
associated privileges such as tax benefits (Bulgaria, England and
Wales (loss of charitable status), Ireland, Portugal and Spain).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicants complained that the forced dissolution of the Association
had violated their right to freedom of association under Article 11
of the Convention, which provides 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. The parties' submissions
- The
Government maintained that the interference with the applicants'
freedom of association was prescribed by the domestic law, which was
both accessible and foreseeable. The Association's acts and
omissions, which had led the Ministry to issue its warnings, were
clearly in breach of the legal requirements applicable to
non-commercial legal entities, including public associations. The
possibility of an association's dissolution, as a consequence of such
breaches, was also prescribed in the domestic law and was
foreseeable. In this connection, the Government noted that, in the
event of an association's continuing failure to bring its activities
into compliance with the domestic law following at least three
warnings by the Ministry of Justice issued within one calendar year,
forced dissolution was the only sanction available under the domestic
law applicable at the relevant time.
- The
Government submitted that the interference pursued the legitimate aim
of “protection of the rights and freedoms of others”,
such as the rights of the Association's own members who had been
deprived of their right to participate in the association's
management, as well as third persons affected by the Association's
unlawful activities.
- Lastly,
the Government maintained that the interference had been necessary in
a democratic society. The Association's activities had been in breach
of the domestic law for an extended period of time (at least since
the time of issuance of the first warning in 1997) and, within that
period, despite repeated warnings, it had not taken any steps to
remedy the situation. In such circumstances, there had been a
“pressing social need” justifying the interference with
the applicants' rights.
- The
applicants argued that the interference was not prescribed by law,
because the NGO Act, being vague and imprecise, gave the Ministry of
Justice an unlimited discretion to issue warnings to public
associations without specifying clearly the scope of such discretion.
This situation allowed the Ministry to request dissolution of an
association for anything that it deemed to be a breach of the
requirements of the NGO Act, even if it was relatively minor.
Therefore, the NGO Act was not formulated with sufficient precision,
which made it impossible to foresee, to a reasonable degree, the
specific actions (or omissions) that could entail the forced
dissolution of the Association.
- The
applicants maintained that the Ministry's remarks concerning the
alleged breaches of the legal requirements concerning the
Association's management were unsubstantiated. In particular, the
Association's general assembly had been convened on 26 August 2002.
It had been carried out in accordance with the requirements of the
Association's Charter and the domestic law. All the members of the
Association had been duly informed about the general assembly in
advance; thus, their right to participate in the Association's
management had been respected. As for the Ministry's remark that the
Association's local branches had not been equally represented, the
applicants noted that this was baseless and nonsensical as the number
of members in each branch was not equal and therefore it was
impossible to ensure equal representation.
- The
applicants further argued that the remaining accusations against the
Association, namely that it had engaged in unlawful acts contrary to
its main objects of activity, were completely unsubstantiated and
lacked any evidence. Neither the Ministry of Justice, nor the
domestic courts had ever even named which enterprises' or persons'
rights had been infringed by the Association's allegedly unlawful
activities. There had been no complaint lodged by any third persons
claiming that the Association had attempted to illegally collect
money from them “in the guise of membership fees” or
conducted unlawful environmental “inspections” of their
enterprises. It had not been shown which specific persons affiliated
to the Association had engaged in these activities. Moreover, while
such unlawful activities entailed criminal liability under the
domestic law, not a single Association member or any other person
affiliated to it had ever been charged with a criminal offence in
connection with these allegations.
- For
the above reasons, the applicants concluded that the order for the
Association's dissolution had been arbitrary as there had been no
compelling grounds for such interference with their freedom of
association. Even if the Association had committed some breaches of
the rules concerning internal management of public associations, the
interference in the present case had been disproportionate to the
aims pursued and, therefore, not necessary in a democratic society.
B. The Court's assessment
1. General principles in the Court's case-law on
freedom of association
- The right to form an association is an inherent part
of the right set forth in Article 11. That citizens should be able to
form a legal entity in order to act collectively in a field of mutual
interest is one of the most important aspects of the right to freedom
of association, without which that right would be deprived of any
meaning. The way in which national legislation enshrines this freedom
and its practical application by the authorities reveal the state of
democracy in the country concerned. Certainly States have a right to
satisfy themselves that an association's aim and activities are in
conformity with the rules laid down in legislation, but they must do
so in a manner compatible with their obligations under the Convention
and subject to review by the Convention institutions (see
Sidiropoulos and Others v. Greece, 10 July 1998, § 40,
Reports of Judgments and Decisions 1998 IV).
- While in the context of Article 11 the Court has often
referred to the essential role played by political parties in
ensuring pluralism and democracy, associations formed for other
purposes are also important to the proper functioning of democracy.
For pluralism is also built on the genuine recognition of, and
respect for, diversity and the dynamics of cultural traditions,
ethnic and cultural identities, religious beliefs, artistic, literary
and socio-economic ideas and concepts. The harmonious interaction of
persons and groups with varied identities is essential for achieving
social cohesion. It is only natural that, where a civil society
functions in a healthy manner, the participation of citizens in the
democratic process is to a large extent achieved through belonging to
associations in which they may integrate with each other and pursue
common objectives collectively (see Gorzelik and Others v. Poland
[GC], no. 44158/98, § 92, 17 February 2004; The Moscow
Branch of the Salvation Army v. Russia, no. 72881/01, § 61,
ECHR 2006 ...; and Zhechev v. Bulgaria, no. 57045/00, §
35, 21 June 2007).
2. Whether there was interference
- It was undisputed by the parties that the
Association's dissolution amounted to an interference with the
applicants' exercise of their right to freedom of association. The
Court shares the same view.
3. Whether the interference was justified
- Such an interference will constitute a breach of
Article 11 unless it was “prescribed by law”, pursued one
or more legitimate aims under paragraph 2 and was “necessary in
a democratic society” for the achievement of those aims.
(a) “Prescribed by law”
- The
expressions “prescribed by law” and “in accordance
with the law” in Articles 8 to 11 of the Convention not only
require that the impugned measure should have some basis in domestic
law, but also refer to the quality of the law in question. The law
should be accessible to the persons concerned and formulated with
sufficient precision to enable them – if need be, with
appropriate advice – to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may
entail (see, among many other authorities, Maestri v. Italy
[GC], no. 39748/98, § 30, ECHR 2004 I).
- For domestic law to meet these requirements, it must
afford a measure of legal protection against arbitrary interferences
by public authorities with the rights guaranteed by the Convention.
In matters affecting fundamental rights it would be contrary to the
rule of law, one of the basic principles of a democratic society
enshrined in the Convention, for a legal discretion granted to the
executive to be expressed in terms of an unfettered power.
Consequently, the law must indicate with sufficient clarity the scope
of any such discretion and the manner of its exercise (see, among
many other authorities, Hasan and Chaush v. Bulgaria [GC],
no. 30985/96, § 84, ECHR 2000 XI).
- It
is however not possible to attain absolute rigidity in the framing of
laws, and many of them are inevitably couched in terms which, to a
greater or lesser extent, are vague. The level of precision required
of domestic legislation depends to a considerable degree on the
content of the instrument in question and the field it is designed to
cover (see Hashman and Harrup v. the United Kingdom [GC],
no. 25594/94, § 31, ECHR 1999 VIII).
-
It was undisputed by the applicants that there was a basis in the
domestic law for the sanction imposed (Article 31 of the NGO Act) and
that the law in question was accessible. The applicants, however,
argued that it did not comply with the “quality of law”
requirement as it was so vague that it was not foreseeable as to its
effects.
- Article
31.4 of the NGO Act provided for a possibility of dissolution of an
association by a court order in the event the association received,
within the same calendar year, more than two written warnings by the
regulating authority (the Ministry of Justice). The Court, therefore,
accepts that the sanction imposed on the Association had a clear
basis in the domestic law and that this law was accessible.
- However,
as to the issue of foreseeability, the Court notes that the
provisions of the NGO Act were far from being precise as to what
could be a basis for warnings by the Ministry of Justice that could
ultimately lead to an association's dissolution. Article
31.2 of the NGO Act empowered the Ministry of Justice to warn
non-governmental organisations, including public associations, if
their activities were deemed to be “incompatible with the
objectives” of the NGO Act. Under Article
1 of the NGO Act, its “objectives” included, inter
alia, the general regulation of the principles and rules for the
establishment, management and scope of activities of public
associations. This definition, in essence, appeared to encompass an
unlimited range of issues related to an association's existence and
activity.
-
The Court agrees with the applicants that the above provisions are
worded in rather general terms and may give rise to extensive
interpretation. The Government have not submitted any examples of
domestic judicial cases which would provide a specific interpretation
of these provisions. In such circumstances, the NGO Act appears to
have afforded the Ministry of Justice a rather wide discretion to
intervene in any matter related to an association's existence. This
situation could render it difficult for associations to foresee which
specific actions on their part could be qualified by the Ministry as
“incompatible with the objectives” of the NGO Act.
- The
situation was exacerbated by the fact that involuntary dissolution
was the only sanction available under the domestic law against
associations engaging in activities “incompatible with the
objectives” of the NGO Act. In the Court's view, this is the
most drastic sanction possible in respect of an association and, as
such, should be applied only in exceptional circumstances of very
serious misconduct. Therefore, the domestic law should delimit more
precisely the circumstances in which this sanction could be applied.
- The
Court also notes that the NGO Act contained no detailed rules
governing the scope and extent of the Ministry of Justice's power to
intervene in the internal management and activities of associations,
or minimum safeguards concerning, inter alia, the procedure
for conducting inspections by the Ministry or the period of time
granted to public associations to eliminate any shortcomings detected
(see also paragraph 77 below), thus providing sufficient guarantees
against the risk of abuse and arbitrariness.
- The
above considerations, in themselves, give a strong indication that
the provisions of the NGO Act did not meet the “quality of law”
requirement, which would be sufficient for a finding of a violation
of Article 11 on the basis that the interference was not prescribed
by law. The Court notes, however, that these questions are in this
case closely related to the broader issue of whether the interference
was necessary in a democratic society. The Court considers that, in
the circumstances of the present case, respect for human rights
requires it to examine the latter issue as well. In view of this, as
well as in view of its analysis in paragraphs 70-91 below, the Court
does not find it necessary to decide whether the wording of the NGO
Act's relevant provisions met the “quality of law”
requirement within the meaning of Article 11 § 2 of the
Convention.
(b) Legitimate aim
- For
the purposes of further analysis, the Court is prepared to accept the
Government's view that the interference had the aim of “protecting
the rights and freedoms of others”.
(c) “Necessary in a democratic
society”
(i) General principles
- The Court reiterates that the exceptions to freedom of
association are to be construed strictly and only convincing and
compelling reasons can justify restrictions on that freedom. Any
interference must correspond to a “pressing social need”;
thus, the notion “necessary” does not have the
flexibility of such expressions as “useful” or
“desirable”. In determining whether a necessity within
the meaning of 11 § 2 exists, the States have only a limited
margin of appreciation, which goes hand in hand with rigorous
European supervision embracing both the law and the decisions
applying it, including those given by independent courts (see, among
other authorities, Gorzelik and Others, cited above, § 95,
and Sidiropoulos, cited above, § 40).
- When
the Court carries out its scrutiny, its task is not to substitute its
own view for that of the relevant national authorities but rather to
review the decisions they delivered in the exercise of their
discretion. This does not mean that it has to confine itself to
ascertaining whether the respondent State exercised its discretion
reasonably, carefully and in good faith; it must look at the
interference complained of in the light of the case as a whole and
determine whether it was “proportionate to the legitimate aim
pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”.
In so doing, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in the Convention and, moreover, that they based
their decisions on an acceptable assessment of the relevant facts
(ibid.; see also United Communist Party of Turkey and Others v.
Turkey, 30 January 1998, § 47, Reports 1998 I,
and The United Macedonian Organisation Ilinden and Others v.
Bulgaria, no. 59491/00, § 62, 19 January 2006).
(ii) Application of these principles to
the present case
- The
Court notes that the domestic authorities, and the Government in
their pleadings, relied on two groups of arguments as grounds
justifying the interference (see paragraphs 23-24 above). That being
so, the Court will examine these grounds in turn.
(α) Breach of the legal requirements on
internal management
- Under
this ground for the Association's dissolution, the Ministry of
Justice and domestic courts found, inter alia, that the
Association had failed to convene a general assembly of members for
around seven years, that the equal representation of members had not
been ensured at the general assembly eventually convened on 26 August
2002, and that the Association had not kept proper membership
records.
- With
regard to one of these findings, it is undisputed in the present case
that the Association had not convened a general assembly of its
members for around seven years, from August 1995 to August 2002. It
therefore breached the requirements of its own Charter, which
required the general assembly to be convened at least once every five
years, and the domestic law, which required it to be convened at
least once every year. As for the other findings, the situation is
far less clear and the Court will have regard to them below.
- In
general, the Court accepts that, in certain cases, the States' margin
of appreciation may include a right to interfere – subject to
the condition of proportionality – with freedom of association
in the event of non compliance by an association with reasonable
legal formalities applying to its establishment, functioning or
internal organisational structure (see, mutatis mutandis,
Ertan and Others v. Turkey (dec.), no. 57898/00, 21 March
2006). In this respect, the Court notes that, in so far as the
domestic corporate law is concerned, private persons' freedom of
association does not preclude the States from laying down in their
legislation rules and requirements on corporate governance and
management and from satisfying themselves that these rules and
requirements are observed by the incorporated entities. In fact, the
domestic laws of many member States of the Council of Europe provide
for such rules and requirements, with varying degrees of regulation
(see paragraphs 40-43 above). The Court does not see a problem per
se in that Azerbaijani law provided for certain formal
requirements concerning corporate legal forms (together with
associated internal management structures) which associations had to
satisfy in order to be eligible for state registration as a
non-profit-making legal entity.
- Therefore,
as to the formal requirement that public associations have certain
governing bodies and, more specifically, periodically convene a
general assembly of members, the Court does not consider this to
constitute, in itself, an undue interference with freedom of
association. This requirement serves to ensure, inter alia,
the right of association members to directly participate in the
management and activities of the association. Moreover, the Court
considers that this requirement, together with other rules concerning
the rights of members and internal control and management mechanisms,
are normally designed to prevent any possible abuse of the legal
status and associated economic privileges enjoyed by non-commercial
entities.
- Turning
to the specific circumstances of the present case, the Court
considers it necessary to assess whether the domestic authorities'
findings concerning the alleged breaches of the legal requirements on
internal management were well-founded and, as such, sufficient to
justify the sanction imposed. Having made that assessment, the Court
is not convinced, for the following reasons, that there existed
compelling reasons justifying the interference in question and that
this interference was proportionate to the legitimate aim pursued.
- At
the outset, the Court stresses that, indeed, the Association's
failure to convene a general assembly of its members for around seven
years constituted a wanton disregard of the requirements not only of
the domestic law, but also of its own Charter. Moreover, by the time
of its dissolution, the Association had failed to even bring its
Charter into conformity with the basic legal requirements applicable
under the NGO Act which, by then, had been in force for around two
years. Having committed these breaches, the Association clearly put
itself in a situation where it risked sanctions. Accordingly, in the
light of the considerations in paragraphs 72-74 above, the Court
cannot find that it was inappropriate for the domestic authorities to
react to these breaches and to ensure that the basic formal
requirements of the domestic law on corporate management be observed.
- Nevertheless,
in assessing whether the authorities' subsequent decision to apply
the sanction of involuntary dissolution was justified and
proportionate, it cannot be overlooked that the Association actually
attempted to rectify the problem by convening a general assembly on
26 August 2002, even prior to the Ministry of Justice's first
warning of 10 September 2002. Due account should have been taken
of this intention when deciding upon the necessity of the
interference with the Association's rights in the present case. The
Association should have been given a genuine chance to put matters
right before being dissolved.
- While
the Court has accepted that, initially, the authorities correctly
reacted to the breach of the requirement to convene a general
assembly once a year, it observes that, subsequently, the focus of
the accusations against the Association shifted to other “breaches”.
In particular, having been informed about the general assembly of 26
August 2002, the Ministry was not satisfied with its “lawfulness”
and followed up its initial warning with another two warnings issued
in a relatively short time span, on each occasion allowing the
Association a ten-day period in which to take measures to eliminate
the alleged breaches of law. The Court notes, firstly, that these
ten-day periods appear to have been set arbitrarily. This problem
stems from the fact that the NGO Act allowed the Ministry unlimited
discretion in this respect (see paragraph 64 above). Secondly, there
was no explanation in the warning letters as to what specific
measures taken by the Association would be deemed as acceptable by
the Ministry. Having regard to the nature of the Ministry's remarks,
the Association was most likely expected to convene a new general
assembly. However, under the domestic law, the process of convening a
general assembly required at least two weeks (see paragraph 34
above). In such circumstances, it is difficult to see how the
Association could be expected to eliminate the “breaches of
law” within the ten-day period set by the Ministry. This raises
a legitimate concern as to whether the Association was given a
genuine chance to rectify its affairs before it had to face the
sanction of dissolution.
- As
to the substance of the second and third warnings, it was noted, in
generalised terms, that not all members of the Association had been
properly informed of the general assembly of 26 August 2002, that the
Association's local branches had not been equally represented at the
assembly, and that the current membership records had not been
properly maintained. The Court sees little justification for the
Ministry of Justice to interfere with the internal workings of the
Association to such an extent, especially in the absence of any
complaints by Association members concerning these matters. For
example, in so far as the question of representation of local
branches is concerned, the domestic law did not appear to directly
regulate this matter. The Court considers that it should be up to an
association itself to determine the manner in which its branches or
individual members are represented in its central governing bodies.
Likewise, it should be primarily up to the association itself and its
members, and not the public authorities, to ensure that formalities
of this type are observed in the manner specified in the
association's charter. The Court considers that, while the State may
introduce certain minimum requirements as to the role and structure
of associations' governing bodies (see paragraph 73 above), the
authorities should not intervene in the internal organisational
functioning of associations to such a far-reaching extent as to
ensure observance by an association of every single formality
provided by its own charter.
- The
Court further observes that, while the Ministry of Justice was vested
with authority to initiate an action for the dissolution of the
Association, it was for the domestic courts to decide whether it was
justified to apply this sanction. They were therefore required to
provide relevant and sufficient reasons for their decision (see
paragraph 68 above). In the present case, that requirement first and
foremost obliged the domestic courts to verify whether the
allegations made against the Association by the Ministry of Justice
were well-founded. This however has not been done in the present
case. It appears that the only evidence assessed by the courts were
the submissions of the parties, correspondence between the
Association and the Ministry of Justice, and the reports of the
Ministry of Justice officials concerning the results of their
inspection of the Association's activities. Having heard the parties,
the courts relied on the findings of the officials of the Ministry of
Justice and accepted them at their face value as constituting true
facts, without an independent judicial inquiry. Specifically, there
is no indication in the domestic judgments that the courts had ever
attempted to evaluate the merit of the Ministry's factual findings by
independently examining such evidence as the minutes of the general
assembly of 26 August 2002, the Association's membership
records, documents relating to the organisational structure of the
Association's branches, etc.
- Having
regard to the above, the Court considers that, while it is undisputed
that for around seven years the Association was in breach of the
legal requirement to regularly convene a general assembly of members,
the authorities did not give due weight to its attempt to rectify the
problem by convening a general assembly on 26 August 2002. As to the
other alleged breaches committed by the Association (“unlawfulness”
of the general assembly of 26 August 2002, deficiencies in membership
records, etc.), neither the domestic authorities, nor the Government
in their observations before the Court, have been able to prove with
any sound evidence that these breaches did indeed take place and, if
so, whether they constituted a compelling reason for the interference
in question.
- It
therefore follows that, in respect of this ground for the
interference (breaches by the Association of the domestic legal
requirements on internal management), the reasons adduced by the
national authorities to justify it were not relevant and sufficient.
In such circumstances, the Court considers that the respondent State
failed to demonstrate that the interference met a pressing social
need.
- Moreover,
the interference did not, in any event, comply with the
“proportionality” requirement. In this connection the
Court considers that the nature and severity of the sanction imposed
are factors to be taken into account when assessing the
proportionality of the interference (see, mutatis mutandis,
Mahmudov and Agazade v. Azerbaijan,
no. 35877/04, § 48, 18 December 2008). In the
present case, forced dissolution was the only sanction available
under the domestic law in respect of public associations found to
have breached the requirements of the NGO Act and, accordingly, this
sanction could be applied indiscriminately without regard to the
gravity of the breach in question. The Court considers that a mere
failure to respect certain legal requirements on internal management
of non-governmental organisations cannot be considered such serious
misconduct as to warrant outright dissolution. Therefore, even if the
Court were to assume that there were compelling reasons for the
interference, it considers that the immediate and permanent
dissolution of the Association constituted a drastic measure
disproportionate to the legitimate aim pursued. Greater flexibility
in choosing a more proportionate sanction could be achieved by
introducing into the domestic law less radical alternative sanctions,
such as a fine or withdrawal of tax benefits (see paragraph 43 above
for examples of alternative sanctions available in other member
States of the Council of Europe).
- In
sum, the Court finds that the order to dissolve the Association on
the ground of the alleged breaches of the domestic legal requirements
on internal management of non-governmental organisations was not
justified by compelling reasons and was disproportionate to the
legitimate aim pursued.
(β) Engagement in “activities
prohibited by law”
- Under
this ground for the Association's dissolution, the Ministry of
Justice and the domestic courts found that the Association had
engaged in activities in which non-commercial organisations were
prohibited to engage by law. In particular, the Association was
accused of having attempted to collect money from State organs and
commercial organisations in the guise of membership fees, conducted
unlawful inspections at various organisations, and engaged in “other
illegal acts interfering with the rights of entrepreneurs” (see
paragraphs 18 and 24 above).
- The
Court observes at the outset that, while it appears that at least
some of the above allegations, if proven, would entail criminal
responsibility of the Association's managers or members implicated in
the alleged unlawful actions, no criminal proceedings have ever been
instituted in connection with these allegations. This fact is, in
itself, indicative of lack of sound evidence supporting the
authorities' findings.
- The
Court further notes that neither the third warning of the Ministry of
Justice, in which the above allegations were made, nor the Ministry's
submissions to the domestic courts in connection with its request to
dissolve the Association contained any specific evidence proving
these allegations. Moreover, the allegations themselves were
extremely vague, briefly worded and offered little insight into the
details of the alleged illegal activities.
- The
domestic courts accepted the above allegations as true, without any
independent judicial inquiry and without examining any direct
evidence of the misconduct alleged. The Yasamal District Court had
regard only to the content of the Ministry's third warning letter,
heard evidence from the Head of the Ministry's Department of State
Registration of Legal Entities (who merely reiterated the content of
the third warning letter), and examined an internal inspection report
of a Ministry of Justice official, which mentioned, in very brief
terms, that the Association's branch in the Tovuz Region engaged in
some illegal activities (see paragraph 22 in fine above).
- However,
neither the submissions of the Ministry of Justice officials nor the
Yasamal District Court's judgment itself ever mentioned who
specifically (that is, which person affiliated to the Association)
had attempted to unlawfully collect money in the guise of membership
fees. It was never mentioned when exactly these attempts were made,
and from which specific State organ or commercial organisation the
money was unlawfully collected. No direct victims or other witnesses
of this misconduct were examined in court, no written complaints were
examined, and no other direct evidence was produced. Likewise, no
evidence was produced or examined as to when exactly, by which
directly responsible individuals, and in which specific organisations
the alleged “unlawful inspections” had been carried out.
Lastly, there was no explanation at all as to what was specifically
meant by “other illegal acts interfering with the rights of
entrepreneurs”.
- Put
simply, the fact of the Association's alleged engagement “in
activities prohibited by law” was unproven. In such
circumstances, the domestic courts' decision to dissolve the
Association on this ground is, in the Court's view, nothing short of
arbitrary.
- The
Government have likewise failed to submit any explanation as to the
specific details of the Association's allegedly unlawful activities
or any evidence of such unlawful activities.
- In
sum, the Court considers that no justification has been provided by
the domestic authorities or the Government for the Association's
dissolution on this ground.
(γ) Conclusion
- Having
regard to the above analysis, the Court concludes that the
interference was not “necessary in a democratic society”.
There has accordingly been a violation of Article 11 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the domestic courts' findings were
unsupported by sufficient evidence. Article 6 § 1 provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- Having
regard to the analysis in respect of a violation of Article 11 above,
the Court considers that it is not necessary to examine separately
essentially the same or similar arguments under Article 6 § 1 of
the Convention (compare Linkov v. the Czech Republic, no.
10504/03, § 50, 7 December 2006, and Tunceli Kültür
ve Dayanışma Derneği v. Turkey, no. 61353/00,
§ 37, 10 October 2006).
III. 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
1. Pecuniary damage
- The
applicants claimed 100,000 euros (EUR) in respect of pecuniary
damage, arguing that as a result of the Association's dissolution it
had been unable to receive grants and donations for several years.
- The
Government observed that the applicants had not submitted any
documentary justification for this claim.
- The
Court notes that the amount claimed is hypothetical and constitutes
nothing more than the applicants' estimation unsupported by any
evidence or convincing arguments. In such circumstances, the Court
cannot speculate as to the amount of any contributions the
Association might have received had it not been dissolved. The Court
therefore rejects the claim in respect of pecuniary damage.
2. Non-pecuniary damage
- The
applicants claimed EUR 20,000 in compensation for non pecuniary
damage caused by the dissolution of the Association.
- The
Government considered that this amount was unjustified and argued
that the finding of a violation would constitute sufficient
reparation in respect of any non-pecuniary damage suffered.
- The
Court considers that the Association's founders and members must have
suffered non-pecuniary damage as a consequence of the Association's
dissolution, which cannot be compensated solely by the finding of a
violation. Ruling on an equitable basis, the Court awards the
Association the sum of EUR 8,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable. This sum is to be paid to
Mr Sabir Israfilov, who will be responsible for making it
available to the Association.
B. Costs and expenses
- The
applicants claimed EUR 2,050 for legal fees incurred in the domestic
proceedings, EUR 2,315 for legal fees incurred in the proceedings
before the Court and EUR 750 for translation costs. In support of
these claims, they submitted two contracts for legal services
provided by Mr Intigam Aliyev, and a contract for translation
services. All of the contracts stipulated that the amounts due were
to be paid in the event that the Court found a violation of the
applicants' rights.
- The
Government argued that the claims were unsubstantiated because the
amounts claimed had not been paid by the applicants and therefore
were not actually incurred.
- According
to the Court's established case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred and were also reasonable as to
quantum (see Sunday Times v. the United Kingdom (no. 1)
(Article 50), 6 November 1980, § 23, Series A no. 38).
- The
Court notes that, in support of the part of the claim corresponding
to legal fees incurred in the domestic proceedings, the applicants
submitted a contract purporting to show that Mr Aliyev either
provided legal advice or represented the Association in the domestic
proceedings. However, having regard to the materials in the case file
(including the domestic courts' decisions and the Association's
appeals), the Court observes that in the courts of general
jurisdiction the Association was represented neither by Mr Aliyev,
nor by any other lawyer. Therefore, there is no basis to accept this
part of the claim. Mr Aliyev represented the Association only in its
subsequent unsuccessful attempt to have the case reviewed by the
Constitutional Court. However, taking into account that the latter
was not a remedy which the applicants were required to exhaust (see,
for example, Ismayilov v. Azerbaijan, no. 4439/04, §§
39-40, 17 January 2008), the Court considers that the expenses
related to lodging the constitutional complaint were not “necessarily
incurred”. For these reasons, the Court rejects the applicants'
claim in the part relating to legal fees incurred in the domestic
proceedings.
- As
to the legal fees incurred in the Convention proceedings, the Court
notes that, in the contract for legal services signed with Mr Aliyev,
the work to be done by the lawyer was broken down into separate
stages and the total amount of fees was broken down accordingly for
each stage. Among others, the contract stipulated specific amounts to
be paid for the lawyer's work in connection with “submissions
on friendly settlement”, “assistance in friendly
settlement negotiations” and “participation in oral
hearings”. As there have been no formal friendly settlement
proposals or oral hearings in the present case, the part of the total
amount covering this portion of the claimed legal fees must be
rejected. As for the remainder of the claim, the Court notes that,
although the applicants have not yet actually paid the legal fees,
they are bound to pay them pursuant to a contractual obligation to Mr
Aliyev. Accordingly, in so far as Mr Aliyev is entitled to seek
payment of his fees under the contract, the legal fees were “actually
incurred”.
- Likewise,
the applicants are under a contractual obligation to pay for the
translation expenses. However, taking into account the total amount
of documents actually translated in the present case, the Court
considers that the claim in respect of the translation expenses is
excessive and therefore only a partial award can be made under this
head.
- Having
regard to the above reasons, the Court awards the applicants a global
sum of EUR 2,000 in respect of costs and expenses, less the sum of
EUR 850 received in legal aid from the Council of Europe, plus any
tax that may be chargeable to the applicants on that sum.
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
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into New Azerbaijani manats at the
rate applicable at the date of settlement:
(i) EUR 8,000 (eight thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), less EUR 850 (eight
hundred and fifty euros) granted by way of legal aid, plus any tax
that may be chargeable to the applicants, in respect of 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
