FIFTH SECTION

DECISION

Application no. 11612/10 Elchin Mammad oglu MAMMAD against Azerbaijan

The European Court of Human Rights (Fifth Section), sitting on 15 April 2021 as a Committee composed of:

Mārtiņš Mits , President, Lətif Hüseynov , Mattias Guyomar , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 16 February 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

2 . The Azerbaijani Government (“the Government”) are represented by their Agent, Mr Ç. Əsgərov .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . In 2000 the applicant established a non-governmental organisation in a form of an association. In 2001-2006 the Ministry of Justice of the Republic of Azerbaijan (“the Ministry of Justice”) refused to register that association as a legal entity ten times, noting each time some deficiencies in its registration documents .

5 . In 2007-2009 the applicant unsuccessfully challenged before the domestic courts the actions of the Ministry of Justice. His civil action about violation of his right to freedom of association was dismissed by the first ‑ instance and appellate courts. When lodging a cassation appeal the applicant requested a State-funded legal assistance to hire an advocate with membership in the Bar Association. The applicant ’ s cassation appeal was declared inadmissible.

6 . In 2014 the applicant ’ s representative, Mr I. Aliyev, was arrested. The prosecuting authorities conducted a search of Mr Aliyev ’ s home and office. During the search, a large number of documents, including all the case files relating to the applications before the Court that were in Mr Aliyev ’ s possession as a representative, were seized by the domestic authorities.

COMPLAINTS

7 . The applicant complained that the refusals of the Ministry of Justice to register his association amounted to a violation of his right to freedom of association as provided in Article 11 of the Convention. The applicant also complained under Article 6 of the Convention that his right of access to a court was violated because he was not provided with a State-funded advocate at cassation proceedings. Lastly, by a separate letter signed by the representative concerning a number of applications, including the present application, the representative complained on behalf of the applicant that the seizure of his case file from the office of the representative was in breach of the applicant ’ s right of individual application without hindrance under Article 34 of the Convention.

PROCEDURE BEFORE THE COURT

8 . The application form was submitted on 16 February 2010. The application form contained all the required personal details of the applicant and his representative, Mr Aliyev. The “declaration and signature” section of the application form contained the representative ’ s typed name but no handwritten signature. No power of attorney was enclosed either.

9 . On 24 July 2017 Mr Aliyev submitted written observations and claims for just satisfaction on behalf of the applicant. The observations on the admissibility and merits of the case were signed by Mr Aliyev, whereas the claims for just satisfaction were signed both by Mr Aliyev and allegedly the applicant.

10 . In their observations submitted on 25 September 2017 the Government challenged the authenticity of the application claiming that Mr Aliyev had no written authority signed by the applicant and that the application form had not been signed. Those observations of the Government were sent to Mr Aliyev.

11 . Mr. Aliyev did not attempt to address the Government ’ s objections regarding the authenticity of the application.

THE LAW

12 . Rule 36 of the Rules of Court reads, in the relevant part:

“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative ...

4. ( a) The representative ... shall be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber.”

13 . Rule 45 § 3 of the Rules of Court, in so far as relevant, reads:

“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant ’ s representative ...

3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”

14 . The applicant has never been in contact with the Court directly and the application was introduced through his alleged representative Mr Aliyev. Where applicants choose to be represented by another person under Rule 36 of the Rules of Court, rather than to introduce their application themselves, it is a requirement, under Rule 45 § 3 of the Rules of Court, that a power of attorney or written authority to act shall be supplied by their representatives. However, written authority has never been submitted to the Court and the application form was not signed.

15 . The Court considers it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act. In the present case the file contains no document in which the applicant has indicated that he wished Mr Aliyev to lodge an application with the Court on his behalf. The Court cannot but conclude that the case must be rejected for want of an “applicant” for the purposes of Article 34 of the Convention. Consequently, in the circumstances of the case the application must be rejected for being incompatible ratione personae , pursuant to Article 35 §§ 3 and 4 of the Convention (see N.Z. v. Croatia ( dec. ), no. 2140/13, 2 June 2015; see, mutatis mutandis , Post v. the Netherlands ( dec. ), no. 21727/08, 20 January 2009; K.M. and Others v. Russia ( dec. ), no. 46086/07, 29 April 2010; and Şükrü Çetin v. Turkey ( dec. ), no. 10449/08, 13 September 2011 ).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 May 2021 .

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Martina Keller Mārtiņš Mits Deputy Registrar President