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FIRST
SECTION
CASE OF ISMAYILOV v. AZERBAIJAN
(Application
no. 4439/04)
JUDGMENT
STRASBOURG
17 January
2008
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 Ismayilov v. Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Loukis Loucaides,
Nina Vajić,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4439/04) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national,
Mr Ismayil Asgar oglu Ismayilov (İsmayıl
Əsgər oğlu İsmayılov –
“the applicant”), on 30 December 2003.
- The
applicant, who had been granted legal aid, was represented by Ms L.
Madatova, a lawyer practising in Baku. The Azerbaijani Government
(“the Government”) were represented by their Agent, Mr C.
Asgarov.
- The
applicant alleged that the significant delays in the state
registration of the public association of which he was a founder
amounted to a violation of his right to freedom of association, that
the domestic courts were not independent and impartial, and that the
domestic remedies were not effective in lawsuits filed by public
associations against the Ministry of Justice of Azerbaijan.
- On
30 November 2006 the President of the Chamber decided to give notice
of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, the Court decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1947 and lives in Baku.
- The applicant was one of the founders of an association
named “Humanity and Environment” (“İnsan
və Mühit” İctimai Birliyi),
established on 6 September 1999.
7. On
30 September 1999 the founders applied to register the
association with the Ministry of Justice (“the Ministry”),
the government authority responsible for the state registration of
legal entities. In accordance with the domestic law, a
non-governmental organisation acquires the status of a legal entity
only upon its state registration by the Ministry.
- On
11 February 2000, approximately four and a half months after the date
of application for registration, the Ministry returned the
registration documents to the founders without taking any action,
that is without issuing either a state registration certificate or an
official refusal to register the association. The Ministry noted that
the association's charter did not comply with Article 1 of the Law on
Public Associations of 10 November 1992.
- The
founders redrafted the charter in line with the Ministry's comments
and on 24 July 2000 reapplied for state registration, submitting a
new version of the charter. On 28 December 2000 the Ministry
responded with another refusal, stating that the charter provisions
concerning the association's members were not in compliance with
Article 10 of the Law on Non-Governmental Organisations (Public
Associations and Funds) of 13 June 2000 (“the NGO Law”).
- The
applicants again revised the charter and on 28 August 2002 submitted
their third registration request.
- Having
not received any response to their third registration request, on 25
October 2002 the founders lodged an action, complaining that the
Ministry “evaded” registering their organisation within
the time-limits specified by law and asking the court to oblige the
Ministry to register it. They also demanded compensation for
non-pecuniary damage. On 2 December 2002 the Yasamal District
Court dismissed the founders' claim, finding nothing unlawful in the
actions of the Ministry. The court found that the association's
charter had not been drafted in accordance with the requirements of
the domestic law. The founders lodged an appeal against this judgment
with the Court of Appeal.
- In
the meantime, on 6 December 2002 the Ministry again returned the
registration documents to the founders. This time the reason for
declining the registration was the founders' failure to include in
the charter the conditions for terminating membership of the
association, as required by Article 13 of the NGO Law.
- On
22 May 2003 the Court of Appeal upheld the judgment of the Yasamal
District Court. On 5 November 2003 the Supreme Court upheld the lower
courts' judgments dismissing the founders' claim.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. State registration of non-governmental organisations
- The Civil Code of the Republic of Azerbaijan of 2000
provides as follows:
Article 47. Charter of a legal entity
“47.1. The charter of a legal entity
approved by its founders is the legal entity's foundation document.
...
47.2. The charter of a legal entity shall set
out the name, address, procedure for management of activities and
procedure for liquidation of the legal entity. The charter of a
non-commercial legal entity shall define the object and purpose of
its activities. ...”
Article 48. State registration of legal
entities
“48.1. A legal entity shall be subject
to state registration by the relevant executive authority. ...
48.2. A violation of the procedure of a legal
entity's establishment or non compliance of its charter with
Article 47 of the present Code shall be the grounds for refusal to
register the legal entity. ...”
- The
Law on State Registration of Legal Entities of 6 February 1996
provides as follows:
Article 9. Review of an application [for
state registration]
“Upon receipt of an application for state
registration from a legal entity or a branch or representative office
of a foreign legal entity, the authority responsible for state
registration shall:
– accept the documents for review;
– within ten days, issue to the
applicant a state registration certificate or a written notification
of refusal to register; or
– review the documents resubmitted
after rectification of the breaches previously existing therein and,
within five days, take a decision on state registration.”
- The
Law on Non-Governmental Organisations (Public Associations and Funds)
of 13 June 2000 provides as follows:
Article 16. State registration of
non-governmental organisations
“16.1. The state registration of
non-governmental organisations shall be carried out by the relevant
executive authority in accordance with the laws of the Republic of
Azerbaijan on state registration of legal entities.
16.2. Non-governmental organisations shall
acquire the status of a legal entity only after achieving state
registration.”
Article 17. Refusal of state registration
“17.1. Non-governmental organisations
can be refused registration only if there is another organisation
existing under the same name, or if the documents submitted for
registration contravene the Constitution of the Republic of
Azerbaijan, this law and other laws of the Republic of Azerbaijan, or
contain false information.
17.2. Decision on refusal of state
registration shall be presented in writing to the representative of
the non-governmental organisation, with indication of the grounds for
refusal as well as the provisions and articles of the legislation
breached upon preparation of the foundation documents.
17.3. Refusal of registration shall not
prevent the organisation from resubmitting its registration documents
after rectification of the breaches.
17.4. A decision on refusal of state
registration may be challenged in court.”
B. Additional cassation procedure in civil proceedings
- For
the summary of the relevant domestic law and practice concerning
requests for the reopening of the domestic civil proceedings and
review of the final decision by the Plenum of the Supreme Court under
the procedure of additional cassation, see Babayev v. Azerbaijan
((dec.), no. 36454/03, 27 May 2004).
C. Right of individual application to the
Constitutional Court
- The
Constitution of the Republic of Azerbaijan of 12 November 1995, as
amended by the referendum of 24 August 2002, provides as follows:
Article 130. The Constitutional Court of
the Republic of Azerbaijan
“V. Every person claiming to be a
victim of an infringement of his or her rights and freedoms by the
legislative and executive authorities, as well as decisions of
municipal authorities and courts, may lodge a complaint with the
Constitutional Court of the Republic of Azerbaijan ... with the
purpose of the restoration of the infringed human rights and
freedoms.”
- The
Law on the Constitutional Court of the Republic of Azerbaijan of 23
December 2002, in force from 8 January 2004 (hereafter the “Law
on Constitutional Court”), provides as follows:
Article 34. Complaints
“34.1. Every person claiming to be a
victim of an infringement of his or her rights and freedoms by the
legislative and executive authorities, as well as decisions of
municipal authorities and courts, may lodge a complaint with the
Constitutional Court of the Republic of Azerbaijan in order to
resolve matters set out in Article 130, Part III.1-7 of the
Constitution with the purpose of the restoration of the infringed
human rights and freedoms. ...
34.4. Complaints can be submitted to the
Constitutional Court in the following cases:
34.4.1. after exhaustion of all appeal
rights, within six months of the entry into force of the decision of
the court of last instance (the Supreme Court of the Republic of
Azerbaijan);
34.4.2. within three months of the
infringement of the complainant's right to access to court.
34.5. A complaint may be lodged directly with
the Constitutional Court if the courts of general jurisdiction cannot
prevent serious and irreparable damage to the complainant as a result
of violation of his or her human rights and freedoms.”
D. Relevant domestic practice
- Prior
to lodging a constitutional complaint against the domestic courts'
decisions in civil cases, individual applicants were required, as
part of the conditions on admissibility of individual applications
under Article 34.4.1 of the Law on Constitutional Court, to have
lodged an additional cassation appeal with the President of the
Supreme Court, requesting the reopening of the proceedings and a
review of the Supreme Court's final decision by the Plenum of the
Supreme Court. The constitutional complaint was admitted into
preliminary examination only after the individual complainant had
obtained either a refusal by the President of the Supreme Court to
reopen the proceedings or, if the proceedings had been re-opened, a
decision of the Plenum of the Supreme Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The applicant complained that the failure by the
Ministry of Justice to register the public association in a timely
manner had constituted an interference with his freedom of
association. As the Ministry evaded registering the organisation by
significantly delaying the examination of the founders' registration
requests and breaching the statutory time-limit for the official
response, his association had not been able to acquire legal status.
This allegedly constituted a violation of his right to freedom of
association, as provided in Article 11 of the Convention, which reads
as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
A. Admissibility
1. Scope of the case and its compatibility ratione
temporis with the provisions of the Convention
- The
Government submitted that each of the three registration requests had
related to a different association, because each time either the
number of founders or the name of the association had been different.
Specifically, the first registration request referred to an
association named the Scientific-Practical Centre “Humanity and
Environment” (“İnsan və Mühit”
Elmi-Əməli Mərkəzi), while the second and
third registration requests related to an association named the
Public Association “Humanity and Environment” (“İnsan
və Mühit” İctimai Birliyi). Moreover, while
the second registration request was signed by three co-founders, the
third one was signed only by two of them. For these reasons, the
Government argued that the first and second registration requests
related to different associations and were irrelevant to this case.
- The applicant stated that all the registration
requests had related to the same public association. The changes in
the full name of the association had been due to minor corrections
made by the founders in the association's constituent documents
during the course of the registration process. Moreover, a mere
exclusion of one of the founders before the third registration
request did not “change the public association and ... make it
different”. Finally, the fact that all the registration
requests referred to the same association had never been disputed at
the domestic level by the Ministry of Justice.
- Having regard to the different versions of the
association's charter submitted at each registration request, the
Court is not persuaded by the Government's argument that it was not
the same public association. Moreover, it does not appear from the
materials in the case file that the domestic courts considered the
three registration requests to relate to different public
associations.
- In any event, the Court notes that the events relating
to the first and second registration requests occurred prior to 15
April 2002, the date of the Convention's entry into force with
respect to Azerbaijan. The Court notes that it is only competent to
examine complaints of violations of the Convention arising from
events that have occurred after the Convention had entered into force
with respect to the High Contracting Party concerned (see, for
example, Kazimova v. Azerbaijan (dec.), no. 40368/02, 6 March
2003). Accordingly, the Court's competence is limited to the part of
the complaint relating to the events that occurred after 15 April
2002, whereas the events relating to the applicant's first and second
registration requests fall outside of its competence ratione
temporis. However, where necessary, the Court shall take into
account the state of affairs as it existed at the beginning of the
period under consideration.
2. Domestic remedies
- The Government submitted that the applicant had not
exhausted domestic remedies because, in his submissions to the
domestic courts, he had not specifically complained of an
infringement of his right to freedom of association under Article 11
of the Convention.
- The
Government further submitted that “despite [the fact that] the
Supreme Court, as a cassation instance, was the highest judicial
authority in Azerbaijan, there was [a] higher judicial instance
directly accessible to the applicant, [namely] the Constitutional
Court”. The Government argued that, under domestic law, final
decisions of the Supreme Court could be reviewed by the
Constitutional Court. An individual application to the Constitutional
Court constituted an ordinary remedy which the applicant had failed
to exhaust. In this regard, the Government argued that, in Ramazanova
and Others v. Azerbaijan (no. 44363/02, § 43, 1 February
2007), the European Court had recognised the Constitutional Court as
an effective domestic remedy for alleged violations of the rights and
freedoms under the Convention.
- The
applicant submitted that it was not necessary for him to refer
expressly to Article 11 of the Convention in his appeals to the
domestic courts, because his complaint that the Ministry had
unlawfully “evaded the registration of the non-governmental
organisation” constituted a substantive complaint of an
infringement of his freedom of association.
- The
applicant also noted that the final decision in the present case had
been delivered by the Supreme Court on 5 November 2003. In such
circumstances, he could not have been required to lodge an appeal
with the Constitutional Court, because that court had not been
directly accessible to individuals until the beginning of 2004, when
the right of individual application had been granted by the Law on
Constitutional Court.
- In
addition, the applicant argued that the Constitutional Court did not
constitute part of the system of the courts of general jurisdiction
and could not be considered as an effective remedy. The
Constitutional Court was accessible to individuals only after
exhausting the additional cassation procedure, that is requesting the
President of the Supreme Court to reopen the proceedings and refer
the case to the Plenum of the Supreme Court. The additional cassation
procedure was an ineffective remedy in itself, because it constituted
an indirect and extraordinary appeal.
- Lastly,
the applicant argued that, in practice, the Constitutional Court was
ineffective because, in the period between 2004 and 2007, it had
admitted for examination only about 60 applications out of
approximately 1,600 individual applications made.
- As
for the Government's argument that the applicant had not expressly
relied on Article 11 of the Convention in the domestic proceedings,
the Court finds that the applicant's court action against the
Ministry of Justice, in which he complained of unlawful delay in
state registration of the association of which he was a founder,
amounted in substance to a complaint of an alleged violation of his
right to freedom of association.
- As
to the Government's contention that the applicant was also required
to apply to the Constitutional Court, the Court points out, at the
outset, that the Government's interpretation of the Ramazanova and
Others case is incorrect. Nothing in that case can be interpreted
to suggest that the Court had “established” that the
Constitutional Court was a domestic remedy to be exhausted in
Azerbaijan prior to applying to Strasbourg. In that case, the
applicants had indeed lodged an additional cassation appeal and a
constitutional complaint after lodging their application with the
Court (see Ramazanova and Others, cited above, §§
22-24); as such, these developments were taken into consideration by
the Court as new factual circumstances of the case which took place
after the lodging of the application with the Court and which
resulted in the reopening of the domestic proceedings in the courts
of general jurisdiction. However, the question whether the applicants
were required, within the meaning of Article 35 § 1 of the
Convention, to file a constitutional complaint either before or after
lodging their application with the Court was not, as such, within the
scope of issues on which the Court was called upon to decide in that
case (ibid., §§ 40-45).
- It therefore remains to be determined whether, in the
present case, the applicant was required, within the meaning of
Article 35 § 1 of the Convention, to apply to the Constitutional
Court.
- The
Court reiterates that the purpose of the domestic remedies rule in
Article 35 § 1 of the Convention is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged before they are submitted to the Court. However,
the only remedies to be exhausted are those that relate to the
breaches alleged and that, at the same time, are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness; it falls to
the respondent State to establish that these various conditions are
satisfied (see, among other authorities, Vernillo v. France,
judgment of 20 February 1991, Series A no. 198, pp. 11-12, §
27).
- The
Court reiterates that the issue whether domestic remedies have been
exhausted is normally determined by reference to the date when the
application was lodged with the Court (see Baumann v. France,
no. 33592/96, § 47, ECHR 2001-V (extracts)) although,
depending on the circumstances of the case, the Court may accept that
the last stage of available remedies may be reached after the lodging
of the application but before the Court is called upon to pronounce
itself on admissibility (see, for example, Ringeisen v. Austria,
judgment of 16 July 1971, Series A no. 13, p. 38, § 91;
Ramazanova and Others, cited above, § 42; and Ivanov
v. Azerbaijan (dec.), no. 34070/03, 15 February 2007). This
rule is also subject to other exceptions which may be justified by
the specific circumstances of each case, for example when a new
remedy, specifically designed to address a certain general problem,
is introduced after the lodging of a particular individual
application with the Court (see, for example, Nogolica v. Croatia
(dec.), no. 77784/01, ECHR 2002-VIII; see also, among many other
cases, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001 IX).
- Turning
to the circumstances of the present case, the Court notes that,
although the right of individual application to the Constitutional
Court was granted by the constitutional amendments of 24 August 2002,
such a right was not available in practice until the entry into force
of the Law on Constitutional Court on 8 January 2004, which
established the procedural rules for examination of individual
constitutional complaints. According to the information available to
the Court, pending the entry into force of that Law, the
Constitutional Court refused to examine any complaints lodged by
individuals, citing lack of procedural rules for examination of such
complaints.
- Accordingly, at the time of the lodging of the present
application with the Court on 30 December 2003, lodging a
constitutional complaint did not offer the applicant any reasonable
prospect of success (see, mutatis mutandis, Urukalo and
Nemet v. Croatia, no. 26886/02, § 35, 28 April 2005).
The Court also observes that, unlike the Nogolica and Brusco
cases cited above, this new remedy was not introduced specifically
with the purpose of providing direct redress for such type of
complaints as those raised by the applicant in the present case. The
Court finds no other special circumstances which would justify making
an exception to the general rule of non-exhaustion.
- Furthermore,
in any event, the Court observes that, in accordance with the
domestic practice based on Article 34.4.1 of the Law on
Constitutional Court, individuals wishing to lodge a constitutional
complaint were first required to lodge an additional cassation appeal
with the Supreme Court's President, asking for the reopening of the
proceedings and a review of the Supreme Court's final decision by the
Plenum of the Supreme Court. Only after an attempt to make use of
that remedy did the Constitutional Court accept complaints from
individual applicants for preliminary examination. In this
connection, the Court reiterates its previous finding that an
additional cassation appeal filed with the President of the Supreme
Court constituted an extraordinary remedy which was not required to
be exhausted, within the meaning of Article 35 § 1 of the
Convention, prior to lodging an application with the Court (see
Babayev, cited above).
- In
such circumstances, the Court considers that the Constitutional Court
constituted a remedy which lacked adequate accessibility. In
particular, the applicant could not be required to exhaust a remedy
which, as a precondition of accessibility, obliged the applicant to
attempt to exhaust another remedy which was found to be ineffective
within the meaning of Article 35 § 1 of the Convention.
- For
the reasons above, the Court rejects the Government's objection.
3. Conclusion
- Having
regard to the above conclusions, the Court further notes that the
complaint is not inadmissible on any other grounds and that it is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It must therefore be declared admissible in the part
relating to the events that took place after 15 April 2002.
B. Merits
1. The parties' submissions
- The
Government argued that there had been no interference with the
applicant's freedom of association, noting that the Ministry had not
formally refused to register the association. Instead, it merely
returned the association's foundation documents to the founders so
that the latter could rectify the deficiencies and ensure that they
complied with the requirements of the domestic law. The Government
contended that, although “a refusal to register a public
association might be regarded as a violation of the right to freedom
of association, a delayed response to [an application for state
registration] is not a violation of this right”.
- Moreover,
the Government argued that the lack of the status of a legal entity
did not prevent the association from continuing its activities. In
this connection, they noted that the association had published a book
as a part of its actual activity even without a status of a legal
entity.
- The
Government further submitted that the founders “did not comply
with the duty of diligence” during the registration process, as
the public association's constituent documents had not been prepared
in accordance with the requirements of the law. Even if the Ministry
had committed procedural errors, they had not amounted to a violation
of the applicant's rights under Article 11.
- The
applicant argued that the delay in responding to the founders'
registration requests, which had been significantly beyond the
time-limits set by the domestic law, had constituted an interference
with, and a violation of, his right to freedom of association. The
applicant maintained that such a delay was in breach of the domestic
law.
- The
applicant also noted that, without acquiring the status of a legal
entity through state registration, the association had been unable to
function properly and to engage in its primary activities. As for the
book to which the Government referred, the applicant noted that the
book had not been published by the Public Association “Humanity
and Environment”. He stated that he was one of the co-authors
of the book, and the name of the unregistered association was
mentioned next to his name simply to show his occupation and
activities in the field of non-governmental organisations.
2. The Court's assessment
- The
Court has found previously that the failure by the Ministry of
Justice to reply, within the statutory time-limits, to requests for
state registration of a public association, amounted to a de facto
refusal to register the association. Lacking the status of a legal
entity, the association's legal capacity was not identical to that of
state-registered non-governmental organisations, even assuming that
it could engage in certain limited activities. The significant delays
in the registration procedure, if attributable to the Ministry of
Justice, amounted to an interference with the exercise of the right
of the association's founders to freedom of association (see
Ramazanova and Others, cited above, §§ 54-60, with
further references). Accordingly, in the present case, where the
applicant was one of the founders of the public association, there
has been an interference with the exercise of his right to freedom of
association.
- Such
interference will not be justified under the terms of Article 11 of
the Convention unless it was “prescribed by law”, pursued
one or more of the legitimate aims set out in paragraph 2 of that
Article and was “necessary in a democratic society” for
the achievement of that aim or aims (see, for example, Chassagnou
and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95,
§ 104, ECHR 1999-III).
- The
Court is aware of the fact that, since the time of the events giving
rise to the present complaint, certain amendments have been made to
Azerbaijani legislation on state registration of legal entities.
However, for the purposes of this complaint, the Court will have
regard to the domestic law as it was applicable at the relevant time.
- The
Court observes that Article 9 of the Law on State Registration of
Legal Entities of 6 February 1996 set a ten-day time-limit for the
Ministry to issue a decision on the state registration of a legal
entity or refusal to register it. Where the legal entity's foundation
documents contained rectifiable deficiencies, the Ministry could
return the documents to the founders within the same ten-day
time-limit with instructions for their rectification. After the
registration request was resubmitted following a rectification, the
law provided for a five-day time-limit for official response.
- In
the present case, the Ministry delayed its response to each of the
three registration requests by several months. In particular, in the
period falling within the Court's temporal jurisdiction, the response
to the applicant's third registration request of 28 August 2002 was
delayed by more than three months, whereas the law clearly required
it to be issued within five days. Therefore, the Ministry violated
the procedural time-limits. There was no basis in the domestic law
for such delays (see Ramazanova and Others, cited above, §
65).
- The
Court also reiterates its finding that the Law on State Registration
of Legal Entities of 6 February 1996 did not afford sufficient
protection against delays in the state registration procedure caused
by the Ministry's failure to respond to registration requests within
the statutory time-limits (see Ramazanova and Others, cited
above, § 66).
- Having
found that the Ministry of Justice breached the statutory time-limit
for issuing the formal response to the state registration requests
and that the domestic law did not afford sufficient protection
against such delays, the Court concludes that the interference was
not “prescribed by law” within the meaning of Article 11
§ 2 of the Convention.
- Having
reached that conclusion, the Court does not need to satisfy itself
that the other requirements of Article 11 § 2 (legitimate aim
and necessity of the interference) have been complied with.
- There
has accordingly been a violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The applicant also complained that, contrary to
Article 6 § 1 of the Convention, the domestic courts had not
been independent and impartial. He noted that, in accordance with the
law applicable at the time of the events in question, the selection
of candidates for judicial positions in Azerbaijan was made by the
Judicial Legal Council under the President of the Republic of
Azerbaijan, presided over by the Minister of Justice. The applicant
alleged that, in such circumstances, the judges of the domestic
courts could not be independent and impartial in the proceedings
against the Ministry of Justice, because their subsequent
reappointment to the courts would depend on the discretion of the
Minister of Justice as the Chairman of the Judicial Legal Council.
Furthermore, in conjunction with Article 6 § 1, the applicant
complained under Article 13 of the Convention that the domestic
courts could not be considered as an effective remedy because they
had never ruled against the Ministry of Justice in cases concerning
delays in registration of non-governmental organisations.
- The Court notes that these complaints are essentially
the same as those raised before the Court in the case of Asadov
and Others v. Azerbaijan ((dec.), no. 138/03, 12 January
2006). In that case, the Court found that the complaints were
manifestly ill-founded. In the absence of any substantially new
arguments or evidence submitted in the present case, the Court does
not find any reason to deviate from its reasoning in the Asadov
and Others case.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
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
applicant claimed 20,000 euros (EUR) in respect of pecuniary damage.
He argued that, as a result of the Ministry's failure to register the
association for several years, the association's founders had not
been able to secure any financial resources for its activity.
- The
Government submitted that this claim was unsubstantiated.
- The
Court cannot speculate whether the applicant would indeed have been
able to secure any funding for his association if it had been
registered in a timely manner, and if so, in what amount. The Court,
therefore, rejects the applicant's claim in respect of pecuniary
damage.
2. Non-pecuniary damage
- The
applicant claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested this claim.
- In
the Court's view, the delay in the state registration procedure must
have been frustrating for the applicant as the co-founder of the
public association. Nevertheless, the amount claimed is excessive.
Making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court awards the applicant EUR 1,000 in
respect of non pecuniary damage, plus any tax that may be
chargeable on this amount.
B. Costs and expenses
- The
applicant also claimed EUR 2,000 for the costs and expenses incurred
before the domestic courts and the Court. He claimed that this amount
also included translation, postal, fax and photocopy expenses.
Although he was unable to produce evidence proving these expenses, he
argued that they were actually incurred and reasonable.
- The
Government asked the Court to reject this claim for lack of evidence.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to all the information
in the Court's possession and the above criteria, as well as the fact
that the applicant was not represented by a lawyer in the domestic
proceedings and that he has received the sum of EUR 850 in legal aid
from the Council of Europe, the Court finds that there is no call to
award the applicant any additional amount under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant's right to freedom of association admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros)
in respect of non-pecuniary damage, to be converted into the national
currency at the rate applicable at the date of settlement, plus any
tax that may be chargeable on this amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
