ISLAM-ITTIHAD ASSOCIATION AND OTHERS v. AZERBAIJAN - 5548/05 - Chamber Judgment [2014] ECHR 1220 (13 November 2014)

In the case of Islam-Ittihad Association and Others v. Azerbaijan

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 21 October 2014,

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

PROCEDURE

1. The case originated in an application (no. 5548/05) 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 the Islam-Ittihad Association (İslam-İttihad Cəmiyyəti - “the Association”), the headquarters of which are in Baku, and two Azerbaijani nationals, Mr Azer Samadov and Mr Ilgar Allahverdiyev (the Association, Mr Samadov and Mr Allahverdiyev together are referred to as “the applicants”), on 17 January 2005.

2. The applicants were represented by Mr B. Bowring, a lawyer practising in London. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicants alleged that the dissolution of the Association had infringed their right to freedom of association, guaranteed under Article 11 of the Convention.

4. On 12 June 2007 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The Association, which has now been dissolved, was a non-profit-making non-governmental organisation (NGO). It was active between 1991 and 2003. Mr Azer Samadov was Chairman of the Association, and Mr Ilgar Allahverdiyev was a member of its management board. They were born in 1961 and 1973, respectively, and live in Baku.

A. The Association’s aims and activities

6. The Association was registered by the Ministry of Justice (“the Ministry”) on 12 January 1995 and acquired the status of a legal entity.

7. Clause 1.1 of the Association’s Charter defined it as an association with voluntary membership of citizens of the Republic of Azerbaijan, conducting its activities within the framework of the Constitution and the laws of the Republic of Azerbaijan, as well as its own Charter.

8. According to clause 2 of its Charter, the main aims of the Association included the repair and maintenance of abandoned mosques and other places of worship, organising pilgrimages to Islamic shrines, providing material and moral aid to orphanages as well as elderly, ill and disabled people, and publishing books with a religious content.

9. The Association’s actual activities included the repair and maintenance of several mosques and projects aimed at promoting respect for human rights and building a civil society. The Association also engaged in a number of humanitarian activities, such as assistance to disabled children, campaigning against drugs and alcoholism, and a programme dedicated to promoting tolerance between representatives of different religions in Azerbaijan.

10. The highest governing body of the Association was the general assembly of members, held once a year, as provided for in clause 4 of its Charter. At the general assembly, the members elected the Association’s chairman and the three members of its management board. They also discussed and commented on the Association’s annual activity and submitted their proposals for its future activity.

11. It appears from the documents submitted to the Court that at the general assembly held on 8 August 1997 the members discussed the Association’s annual activity and decided to assist financially orphaned children and economically disadvantaged sections of the population and to raise awareness about the historical and religious values in the society.

12. The Association held its next general assembly on 4 January 1998. According to the minutes of the assembly, after having discussed the Association’s annual activity, the members decided to repair the Juma mosque in Baku and to participate actively in the process of building a civil society in the country by raising this issue in the media. They further decided to inform the public about the unlawfulness of the existing monopoly in organising pilgrimages to Islamic shrines. It was also decided to provide pilgrims with relevant information about the organisation of their visits.

13. On 29 December 2001 the Association held another general assembly at which the members adopted the Association’s annual activity report and decided, inter alia, to hold a conference on Prophet Muhammad on the occasion of his birthday and to prepare for the forthcoming seminar on the dialogue between civilizations, which would be held in Baku. They also agreed on the necessity to write articles in the media about subjects relating to existentialism and humanism.

B. Warnings issued by the Ministry of Justice

14. On an unspecified date in 2002, the Ministry commenced an inspection of the Association’s activities in order to determine whether its activities had been carried out in compliance with its Charter.

15. According to an undated inspection report, the Association had twenty-seven members who did not pay any membership fees. The sources of the Association’s financing were not clear. It did not have a bank account. It was also noted in the report that, despite having a different registered legal address, the Association’s actual headquarters were located in a mosque. The Association’s chairman was also the head of a religious community and all of the Association’s members were also members of that community. The inspection concluded that, generally, it was difficult to establish whether the Association functioned as a non-governmental organisation or a religious organisation.

16. On 4 February 2002 the Ministry sent an official warning to the Association, claiming that its primary activities involved religious propaganda and agitation. The Ministry noted that, in accordance with the Law on Non-Governmental Organisations (Public Associations and Funds), public associations were not allowed to engage in religious activities. The Association was requested to remedy this breach of the law and, within ten days, report to the Ministry about the measures taken. The relevant part of the letter reads as follows:

“Religious activity is without any exception the duty and function of religious organisations and their status is governed by the Law on Freedom of Religion. In accordance with Article 7 of this Law, religious organisations are ‘voluntary organisations established for the purpose of spreading religious belief and religion’. In accordance with Article 1.4 of the Law on Non-Governmental Organisations (Public Associations and Funds), this Law is not applicable to religious organisations.

Therefore, any religious activity on the part of your association is unlawful.”

17. On 3 August 2002 the Association replied to the Ministry, claiming that it had carried out numerous social programmes providing assistance to the population, as well as activities related to the establishment of a civil society and the promotion of human rights. The Association denied any involvement in religious activities, noting that the Ministry had failed to specify which of the Association’s activities was qualified as “religious activity”. Moreover, the Association pointed out that Azerbaijani legislation did not provide any precise definition of what constituted a “religious activity”.

18. On 6 September 2002 the Ministry sent a second written warning to the Association, demanding that it cease its unlawful activities. It appears from the letter that the Ministry considered as “religious activities” some of the decisions taken by the Association’s general assembly. The relevant part of the letter reads as follows:

“Although it was denied in your letter of 3 August 2002 that the Association engaged in religious activities, the decisions of the Association’s general assembly, as well as some provisions of the Association’s Charter, confirm that it carries out religious activities.

In fact, at the general assemblies held on 4 January 1998, 7 January 1999 and 29 December 2001, religious matters were included in the agenda and discussed, and relevant decisions were taken. We reiterate that non-governmental organisations have no right to engage in religious activities.”

19. On 3 October 2002 the Ministry sent a third written warning. It pointed out that, despite two prior warnings, it had not been informed about any measures taken by the Association to comply with the Ministry’s demands that the Association cease its religious activities.

C. Dissolution of the Association

20. On 2 July 2003 the Ministry lodged an action with the Sabail District Court. It claimed that the Association unlawfully engaged in religious activities and requested the court to order its dissolution. In support of its claim, the Ministry noted that the fact that the questions relating to pilgrimages to holy shrines and the activity of the Caucasus Muslims Board (Qafqaz Müsəlmanlar İdarəsi, the official governing body of Muslim religious organisations in Azerbaijan) had been discussed at the Association’s general assembly proved that the Association had been engaging in religious activities.

21. In reply to the Ministry’s action, on an unspecified date the Association lodged an objection with the court, claiming that it had not engaged in religious activities. In particular, the Association submitted that decisions such as holding a conference dedicated to the birthday of Prophet Muhammad or criticising the Caucasus Muslims Board’s monopoly in the organisation of pilgrimages to Islamic shrines did not constitute religious activities. The Association also noted that all of its activities had been carried out in compliance with its charter, which the Ministry had never requested it to modify.

22. On 28 August 2003 the Sabail District Court ordered the Association’s dissolution. The court found that the Association had unlawfully engaged in religious activities and, despite three warnings by the Ministry, had failed to take any measures to cease such activities. The relevant part of the judgment reads as follows:

“It appears from minutes n^o 5 of the Islam-Ittihad Association dated 4 January 1998 ... that the fifth and eighth points relating to questions on the agenda concerned, respectively, ‘active participation in building a civil society’ and ‘pilgrimages to holy shrines’. One of the participants in the assembly, A.N., took the floor on this matter, stating that the Association should take an active stance in building a civil society in the country and proposed to participate in it actively by appearing in the media. This proposal was voted on and adopted unanimously.

It appears from minutes n^o 6 of the Islam-Ittihad Association dated 7 January 1999 ... that the sixth point relating to questions on the agenda was about ‘the Caucasus Muslim Board’ and M.Q., who took the floor on this matter, criticized the position of the Caucasus Muslim Board. Those who participated in the discussions said that this organisation had a monopoly on Islam in the country and that its officials had weakened the social and moral situation of the country, which was already low, by accusing each other of corruption in the media ...

In accordance with Article 7 of the Law on Freedom of Religion, ‘religious organisations are voluntary organisations established for the purposes of spreading religious belief.’

Article 8 of this Law provides that the religious community is a voluntary religious organisation of devout persons associated for exercising together prayer and meeting other religious needs ...

The court considers that in compliance with this requirement of the Law any religious activity by non-governmental organisations is unlawful.

Under Articles 1 and 4 of the Law on Public Associations, a public association may not be established for political purposes. Moreover, a non-governmental organisation may not carry out activities contrary to the aims provided for in its charter ...

At the court hearing the respondent failed to submit to the court any reliable evidence proving that it did not really engage in any religious activity.”

23. On an unspecified date the Association appealed against that judgment, reiterating that it had not engaged in religious activities. It complained that the court had put the burden of proof on the Association, holding that the respondent had failed to prove that it had not engaged in religious activities. It also complained that although it had been dissolved on account of its alleged engagement in religious activities, the relevant legislation provided no definition of “religious activity”.

24. On 20 November 2003 the Court of Appeal dismissed the Association’s appeal. The wording of the appellate court’s judgment was identical to the first-instance court’s judgment.

25. On 26 February 2004 the Association lodged a cassation appeal, reiterating its previous complaints. It also submitted that actively participating in building a civil society and criticising the activity of a religious authority were not unlawful activities.

26. On 21 July 2004 the Supreme Court upheld the Court of Appeal’s judgment.

II. RELEVANT DOMESTIC LAW

A. The Civil Code, as in force at the material time

27. 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 (licence) or in activities prohibited by law, or if it otherwise commits repeated or grave breaches of the 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 on 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 Funds) of 4 October 2000, as in force at the material time

28. The relevant provisions of the Law on Non-Governmental Organisations read as follows:

Article 1. Objectives of this Law

“1.1. This Law regulates 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.”

Article 2. Non-Governmental Organisations

“2.1. A public association is a voluntary and self-governing 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 ...”

Article 22. Types of activity of a non-governmental organisation

“22.1. A non-governmental organisation may engage in any type of activity, within the country or abroad, which is not prohibited by the legislation of the Republic of Azerbaijan and which is not contrary to the aims of the organisation as set out in its charter ...”

Article 31. Liability of a non-governmental organisation

“31.1. A non-governmental organisation that breaches the requirements of this Law is liable in accordance with the laws of the Republic of Azerbaijan.

31.2. If the actions of a non-governmental organisation are 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 a 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 the law, may be dissolved pursuant to a court order.”

C. Law on Freedom of Religion of 20 August 1992

29. Article 7 of the Law on Freedom of Religion, as in force at the material time, defined as “religious organisations” religious communities, departments and centres, religious fraternities, religious educational establishments and their unions. The same article provided that religious organisations were voluntary organisations established for the purpose of promoting freedom of religious belief, as well as spreading religion and religious belief.

30. This Law did not provide for any definition of religious activity at the material time. On 5 July 2011 the Law of 20 August 1992 was amended and supplemented by a new Article 4-1 describing “professional religious activity”. The relevant part of the new Article reads as follows:

Article 4-1. Professional religious activity and clergyman

“4-1.1. Professional religious activity is an activity aimed at religious education and religious training, meeting the religious needs of devout persons, spreading religions, practising religious rites, preaching, and administrative and organisational governance of religious organisation.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

31. Relying on Articles 10 and 11 of the Convention, the applicants complained that the forced dissolution of the Association had violated their rights to freedom of association and freedom of expression. The Court considers that the present complaint falls to be examined solely under 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

32. The Government submitted that the applicants had failed to exhaust all available domestic remedies because they had not lodged a complaint with the Constitutional Court challenging the Supreme Court’s final decision of 21 July 2004.

33. The applicants maintained that they had exhausted all ordinary domestic remedies.

34. The Court reiterates its previous finding that a constitutional complaint to the Constitutional Court does not amount to an ordinary and effective remedy which applicants are required to use for the purposes of Article 35 § 1 of the Convention (see Ismayilov v. Azerbaijan, no. 4439/04, §§ 39-40, 17 January 2008, and Muradova v. Azerbaijan, no. 22684/05, § 86, 2 April 2009). The Court finds no reason to depart from that finding in the present case and, therefore, rejects the Government’s objection of non-exhaustion of domestic remedies.

35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

36. The Government accepted that the dissolution of the Association amounted to an interference with the applicants’ right to freedom of association. The Government maintained that the interference was prescribed by domestic law, which was both accessible and foreseeable. In this connection, they relied on Article 31 of the Law on Non-Governmental Organisations and Article 59 of the Civil Code, noting that those provisions provided for liability of a non-governmental organisation and the possibility of interference with its activities. The Government submitted that the interference pursued the legitimate aims of “protection of public safety”, “protection of the rights and freedoms of others” and “prevention of crime”.

37. The Government submitted that the interference had been necessary in a democratic society. In this connection, they pointed out that although the Association had been registered as a public association, it had engaged in religious activities that only religious organisations were allowed to perform under domestic law. Lastly, the Government noted that the Association had not kept accounting records, contrary to the requirements of domestic law, a situation that would inevitably lead to money laundering.

38. The applicants contested the Government’s submissions. They argued that the interference was not prescribed by law, did not pursue a legitimate aim and was disproportionate. They further submitted that the Association was not a religious organisation and had not engaged in any religious activity. They also noted that although Article 1 of the Law on Non-Governmental Organisations excluded religious organisations from the ambit of the Law, it lacked clarity and accessibility.

2. The Court’s assessment

(a) General principles in the Court’s case-law on freedom of association

39. The right to form an association is an inherent part of the right set forth in Article 11 of the Convention. 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 aims 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).

40. 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, ECHR 2004-I, and Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 53, ECHR 2009).

(b) Whether there was interference

41. It was undisputed by the parties that the Association’s dissolution amounted to an interference with the applicants’ right to exercise freedom of association. The Court shares the same view.

42. 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.

43. 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 Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I, and Ramazanova and Others v. Azerbaijan, no. 44363/02, § 62, 1 February 2007).

44. 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 Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI). It is, however, not possible to attain absolute certainty 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 Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III, and Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII).

45. Turning to the circumstances of the present case, the Court observes that Article 31 of the Law on Non-Governmental Organisations and Article 59 of the Civil Code provided for a possibility of dissolution of an association by a court order in the event that 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 basis in domestic law and that the law was accessible.

46. As to the issue of foreseeability, the applicants argued that although the Association had been dissolved on account of its alleged religious activities, domestic law did not provide a clear definition of “religious activity”. The Court observes that the Ministry, in the three warnings that it sent to the Association, and the domestic courts, in their judgments ordering the Association’s dissolution, found that as a non-governmental organisation the Association had engaged in unauthorised religious activities. In those circumstances, the Court must determine whether the definition of what constituted “religious activity” provided in the domestic legislation was sufficiently precise to enable the applicants to foresee, to a degree that was reasonable in the circumstances, the consequences of their actions.

47. In this connection, the Court notes that it has already found that the provisions of the Law on Non-Governmental Organisations, as in force at the material time, concerning the dissolution of associations are worded in rather general terms and may give rise to extensive interpretation (see Tebieti Mühafize Cemiyyeti and Israfilov, cited above, §§ 61-63). It has also found a violation of the Convention in the context of the restriction on participation in elections, concluding that the Azerbaijani law, as in force at the material time, did not provide any definition of what constituted “professional religious activity” (see Seyidzade v. Azerbaijan, no. 37700/05, §§ 31-40, 3 December 2009). The Court is also aware that, since the time of the events giving rise to the present complaint and following the adoption of the judgment in the case of Seyidzade (cited above), certain amendments have been made to Azerbaijani legislation on the definition of professional religious activity (see paragraph 30 above). However, for the purposes of this complaint, the Court will have regard to the domestic law as applicable at the relevant time (see Ramazanova and Others, cited above, § 63).

48. The Court notes that in the present case the domestic courts ordered the Association’s dissolution because it had engaged in religious activities despite the fact that it had the status of a non-governmental organisation. It further observes that Article 1 of the Law on Non-Governmental Organisations excluded religious organisations from the ambit of that Law, stipulating that that Law did not apply to religious organisations. Article 7 of the Law on Freedom of Religion, as in force at the material time, provided that religious communities, departments and centres, religious fraternities, religious educational establishments and their unions constituted “religious organisations”. However, neither the Law on Non-Governmental Organisations, nor the Law on Freedom of Religion, provided any kind of definition of what constituted “religious activity”. In other words, it was not possible to determine, on the basis of the above-mentioned provisions, what specifically might or might not constitute “religious activity”.

49. The Court notes in this connection that it is not its task to substitute its own interpretation for that of the national authorities, and notably the courts, as it is primarily for the latter to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A, and Seyidzade, cited above, § 35). However, in the present case the Ministry and the domestic courts failed to give any definition of “religious activity”. The Court is struck by the fact that the domestic courts, instead of giving an interpretation of the term “religious activity” as provided for in the domestic legislation to demonstrate that the Association had engaged in such activities, imposed the burden of proof on the Association, holding that it had failed to submit any reliable evidence proving that it had not engaged in such activity (see paragraph 22 above).

50. The Court further observes that the Ministry and the domestic courts also failed to specify the religious activities in which the Association had allegedly engaged. In particular, they did not refer to any action taken by the Association within the framework of its activities which could be qualified as religious activity. The only evidence on which the domestic authorities relied in this respect was the minutes of the Association’s general assembly. It appears from those minutes that the Association’s members discussed, among other issues, the organisation of pilgrimages to holy shrines and the Caucasus Muslim Board’s “monopoly” in this field. However, the Court points out that the organisation of pilgrimages to holy shrines constituted one of the aims of the Association as provided for in clause 2 of its Charter, which had been registered by the Ministry (see paragraph 8 above). In this connection, the Court notes that if the Ministry considered that the organisation of pilgrimages to holy shrines was a religious activity, it could have asked the Association to amend the relevant provisions of its Charter in order to bring it into line with domestic law. However, it never asked the Association to do so. In any event, neither the Ministry in its application for the Association’s dissolution, nor the domestic courts in their judgments ordering the dissolution provided any explanation as to why they considered the discussion of the above-mentioned issue as a “religious activity”.

51. Accordingly, the Court considers that the lack of any definition of the term “religious activity” made it impossible for the applicants to foresee what constituted “religious activity” in order to carry out their activities in line with domestic law. The domestic authorities were thus given an unlimited discretionary power in that sphere.

52. The foregoing considerations are sufficient to enable the Court to conclude that the condition of foreseeability was not satisfied and therefore the interference was not prescribed by law. There has accordingly been a violation of Article 11 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

53. The applicants complained, under Article 6 of the Convention, that the domestic proceedings had failed to comply with the “reasonable time requirement”, because the hearings before the domestic courts had been very short.

54. However, having regard to all the material in its possession, and in so far as this complaint is within its competence, the Court finds that it does not disclose any appearance of a violation of the Convention as alleged by the applicant. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

55. 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

56. The applicants claimed 100,000 euros (EUR) in compensation for non-pecuniary damage.

57. The Government submitted that a finding of a violation would constitute sufficient just satisfaction.

58. 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 for solely by the finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the Association the sum of EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. This sum is to be paid to Mr Azer Samadov, who will be responsible for making it available to the Association.

B. Costs and expenses

59. The applicants claimed 1,975 pounds sterling (GBP) for costs and expenses incurred before the Court, including GBP 500 for reading documents, GBP 300 for drafting letters in this and two other cases, GBP 1,000 for drafting the reply to the Government’s observations and GBP 175 for administrative costs. After having submitted their initial claims for just satisfaction, on a later date the applicants submitted new claims for just satisfaction in which they claimed GBP 2,115 for costs and expenses incurred before the Court.

60. The Government considered that the claims were unsubstantiated and excessive. In particular, they submitted that the applicants had failed to produce all the necessary documents in support of their claims. The Government pointed out that the applicants’ claims for drafting letters in two other cases was irrelevant. They also submitted that the applicants’ subsequent claims for just satisfaction were irrelevant.

61. In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court considers that only the initial claims for just satisfaction that the applicants submitted in due time with their observations in reply to the Government’s observations are relevant. Moreover, the Court points out that the claims for drafting letters in two other cases are irrelevant to the present case. Therefore, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.

C. Default interest

62. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 11 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 11 of the Convention;

3. Holds, unanimously,

(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 Azerbaijani manats at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), 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;

4. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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