CASE OF ISLAM-ITTIHAD ASSOCIATION AND OTHERS v. AZERBAIJAN
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The Association, which has now been dissolved, was a nonprofitmaking 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. 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. 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. 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 no 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 no 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.