CASE OF RAMAZANOVA AND OTHERS v. AZERBAIJAN
Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings
Christos Rozakis
5. The applicants were born in 1947, 1949, 1952 and 1947 respectively and live in Baku. 6. On 4 April 2001 the applicants founded a public association named “Assistance to the Human Rights Protection of the Homeless and Vulnerable Residents of Baku” (“Evsiz və Məzlum Bakılıların İnsan Hüquqlarının Müdafiəsinə Yardım” İctimai Birliyi). This was a non-profit organisation aimed at providing aid to the homeless and protection of their interests. 7. On 9 April 2001 the applicants filed a request for the association's state registration with the Ministry of Justice (hereinafter also referred to as the “Ministry”), the government authority responsible for the state registration of legal entities. According to the Government, this request was filed on 12 April 2001. Under the domestic law, a non-governmental organisation acquired the status of a legal entity only upon its state registration by the Ministry. 8. On 18 May 2001 the Ministry returned the registration documents to the applicants “without taking any action”, i.e. without issuing a state registration certificate or an official refusal to register the association. In the cover letter, the Ministry noted that the association's charter did not comply with Article 6 of the Law On Non-Governmental Organisations, because it did not include a provision on the territorial area of the association's activity. 9. The applicants redrafted the charter in line with the Ministry's comments and on 4 June 2001 filed the second registration request, submitting a new version of the charter. On 10 September 2001 the Ministry responded with another refusal, stating that the charter was once again not in compliance with the requirements of the Law On Non-Governmental Organisations. Specifically, it failed to provide for the terms of office of the association's supervisory board, as required by Article 25.1 of that Law. 10. The applicants again revised the charter and on 2 October 2001 submitted their third registration request. 11. Having not received any response to their third registration request for several months, on 22 May 2002 the applicants applied to the Yasamal District Court, complaining that the Ministry “evaded” registering their organisation and asking the court to oblige the Ministry to register it. They also demanded moral compensation in the amount of 25,000,000 Azerbaijani manats (AZM). 12. On 5 July 2002 the Ministry sent a letter to the court, informing that the documents were again returned “with no action taken” by the Ministry. This time the reason for declining the registration was the applicants' failure to include in the charter the conditions for membership in the association, as required by Article 10.3 of the Law On Non-Governmental Organisations. 13. On 15 July 2002 the Yasamal District Court dismissed the applicants' 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. 14. The applicants appealed. On 19 September 2002 the Court of Appeal upheld the district court's judgment. On 20 November 2002 the Supreme Court upheld the Court of Appeal's decision. 15. In the meantime, the applicants once again re-drafted the organisation's charter according to the Ministry's latest comments and on 29 July 2002 submitted their fourth registration request. Having not received a reply within the statutory five-day period, they filed a new lawsuit with the Yasamal District Court, claiming that the Ministry committed repeated procedural violations and unlawfully delayed the examination of their registration request. 16. The representatives of the Ministry argued in the court that the examination of the applicants' registration request was delayed due to the heavy workload of the Ministry's Department of State Registration of Legal Entities. 17. On 5 September 2002 the Yasamal District Court issued a procedural decision (qərardad) on “leaving the claim without examination”, i.e. declaring the applicant's lawsuit inadmissible. The court noted that the applicants' registration request was still pending examination with the Ministry of Justice and that the applicant had filed the lawsuit without exhausting extrajudicial resolution of the matter. On 1 November 2002 the Court of Appeal and on 13 January 2003 the Supreme Court upheld this decision. 18. While the second lawsuit was still examined on appeal, the applicants, having not received any answer from the Ministry by December 2002, filed another lawsuit, asking the court to provide legal interpretation as to whether the Ministry had a right under the domestic law to delay and decline registration multiple times, and to forward the matter of constitutionality of the Ministry's actions for the consideration of the Constitutional Court. On 18 December 2002 the Yasamal District Court refused to admit the lawsuit, noting that the applicants' previous lawsuit was still under consideration on appeal. It also noted that, under the domestic law applicable at that time, a petition to forward the case to the Constitutional Court should be filed with the Supreme Court. By a final decision of 26 September 2003, the Supreme Court upheld this decision. 19. In January 2003, about six months after the filing of the applicants' fourth registration request in July 2002, the Ministry again refused registration. It appears that, on a later unspecified date, having again redrafted the charter, the applicants re-submitted their registration request for the fifth time. 20. At the same time, the applicants filed a new lawsuit against the Ministry's latest refusal. On 26 February 2003 the Yasamal District Court refused to admit this lawsuit, because the applicants' appeals in earlier lawsuits were still pending before the higher courts. By a final decision of 3 September 2003, the Supreme Court upheld this decision. 21. Finally, the applicants filed an additional-cassation appeal with the President of the Supreme Court, requesting the reopening of the proceedings and referral of the case to the Plenum of the Supreme Court. By a letter of 10 November 2003, the Supreme Court's President rejected the applicants' request, finding no grounds for the reopening of the proceedings. 22. The applicants filed a constitutional complaint against the domestic courts' judgments, claiming that a number of their constitutional rights had been violated. On 23 February 2004 the Constitutional Court admitted their complaint for examination on the merits. 23. By a decision of 11 May 2004, the Constitutional Court found that all the judgments and decisions of the Yasamal District Court, the Court of Appeal and the Supreme Court were in breach of the judicial guarantees for protection of human rights and freedoms, as guaranteed by the Constitution. Specifically, the Constitutional Court noted that, in the first set of judicial proceedings, the domestic courts failed to examine the applicants' complaint thoroughly and assess the evidence objectively. In particular, in the first set of civil proceedings, the courts failed to thoroughly examine the issue of an alleged violation of the applicants'Constitutional Court found that, thus, the domestic courts violated Articles 60 and 70 (I) of the Constitution, providing for judicial guarantees of individual rights and freedoms, as well as a number of provisions of the Code of Civil Procedure. It further found that, in the subsequent judicial proceedings, the domestic courts likewise violated the same provisions of the Constitution. 24. The Constitutional Court quashed all the domestic judgments and decisions relating to the applicants' case and remitted the case to the courts of general jurisdiction for a new examination. It specifically instructed them to examine the alleged violation of the applicants' right to freedom of association guaranteed by Article 58 of the Constitution. 25. On 18 February 2005 the Ministry of Justice, in response to the applicants' fifth registration request, registered the association and issued a state registration certificate. 26. On the same day, the Yasamal District Court re-examined the applicants' complaint concerning the unlawful actions of the Ministry and their claim of compensation in the amount of AZM 25,000,000 for the alleged violation of their freedom of association. The court dismissed the applicants' claims, noting that, by the time of the new examination of the case, the applicants' association had already been registered and, therefore, the disputed matter had been solved. The court further held that the domestic law did not provide for compensation for moral damages in such situations. 27. On 22 July 2005 the Court of Appeal upheld the first-instance courts' judgment. On 22 December 2005 the Supreme Court upheld the lower courts' judgments. 28. It appears that, thereafter, the applicants filed a new lawsuit, seeking acknowledgement of a breach of domestic law by the Ministry of Justice. On 14 September 2006 the Yasamal District Court rejected this claim. Following an appeal, on 8 December 2006 the Court of Appeal found that the repeated delays by the relevant official of the Ministry of Justice in responding to the applicants' registration requests had constituted a breach of requirements of Article 9 of the Law On State Registration of Legal Entities. The court awarded three of the four applicants in the present case, Ms Ramazanova, Mr Alizadeh and Ms Ganbarova, collectively, the sum of 800 New Azerbaijani manats (AZN), which approximately equals to 705 euros (EUR), as a compensation for moral damages. This amount was to be paid by the relevant official of the Ministry of Justice responsible for the delays in the association's state registration. “I. Everyone has a right to freedom of association with others. II. Everyone has the right to form any association, including political parties, trade unions or other public associations, or join existing associations. Free functioning of all associations shall be guaranteed. ...” “I. Judicial protection of every person's rights and freedoms shall be guaranteed. II. Every person shall have a right to complain in the court about decisions and actions (or omission to act) of state authorities, political parties, trade unions and other public associations, as well as public officials.” “I. The executive, legislative and judicial powers shall have the duty to guarantee and protect human rights and freedoms fixed in the Constitution. ...” “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 define 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. ...” “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. ...” “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 the 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.” “6.1. Non-governmental organisations may be established and carry out their activities with the all-Azerbaijani, regional, and local status. The area of activities of a non-governmental organisation shall be determined independently by the organisation. 6.2. Activities of all-Azerbaijani non-governmental organisations shall apply to the whole territory of the Azerbaijan Republic. Activities of regional non-governmental organisations shall cover two or more administrative-territorial units of the Republic of Azerbaijan. Local non-government organisations shall operate within one administrative-territorial unit. ...” “3. The issue of acquiring and termination of membership in a public association shall be determined by its charter. Charter of a public association shall guarantee the right to lodge a complaint, within the association and in court, regarding termination of membership. ...” “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 passing the 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 contradict 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. The decision on refusal of state registration may be challenged in court.” “25.1. The charter of a public association shall, in accordance with this law and other laws, define the structure and composition of the public association; the competence, formation procedure and term of office of its managing bodies; as well as the procedure for decision-making and representation of the public association. ...” “1. A grant is an assistance rendered pursuant to this law in order to develop and implement humanitarian, social and ecological projects, works on rehabilitation of destroyed objects of industrial and social purpose, of infrastructure in the territories damaged as a result of the war and disaster, programs in the field of education, health, culture, legal advice, information, publishing, sport, scientific research and design programs as well as other programs of importance for the state and public. A grant shall only be provided for a specific purpose (or purposes). 2. A grant shall be provided in the financial and/or in any other material form. The grant shall be rendered gratis and its repayment in any form may not be requested. ...” “1. A grant beneficiary is a recipient in respect of a donor. 2. The following may be a recipient: - The Azerbaijani State in the person of the relevant executive authority; - Municipal authorities; - Resident and non-resident legal entities, their branches, representative offices and departments carrying out activity in the Republic of Azerbaijan, whose main objective, according to their articles of association, is charitable activities or implementation of projects and programs that may be a subject of a grant, and which are not aimed at direct generation of profit resulting from the grant; and - Individuals in the Republic of Azerbaijan. ...”