Communicated on 14 October 2015

FIRST SECTION

Application no. 27309/14 Rasul JAFAROV and others against Azerbaijan lodged on 18 March 2014

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. The applicants are represented by Ms R. Remezaite , a lawyer practicing in Lithuania.

A. The circumstances of the case

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

The Human Rights Club (HRC) is a non-governmental, non-profit, non ‑ political and non-religious human rights organisation established on 10 December 2010 in Azerbaijan. It was founded by three prominent Azerbaijani human rights defenders, Mr Rasul Jafarov , Mr Emin Huseynov and Mr Sabuhi Gafarov , who are the applicants in the present case. Mr Rasul Jafarov is its chairman.

On 26 July 2011 the applicants submitted an application to the Ministry of Justice for state registration of HRC as a legal entity, as required by the domestic legislation, together with the required documents. While domestic law did not require NGOs to be officially registered, effective operation of an NGO, including an ability to receive and register grants, open bank accounts and so on, was contingent on obtaining the status of a legal entity.

On 12 September 2011 the Ministry of Justice returned the registration documents to the applicants without taking a decision on state registration, noting that, contrary to the requirements of Article 5.4.4 of the Law on State Registration and State Register of Legal Entities and (“the Law on State Registration”), the founders of HRC had failed to submit copies of their identification documents.

On 23 September 2011 the applicants re-submitted the state registration request, enclosing the required additional documents.

On 4 November 2011 the Ministry of Justice returned the registration documents again, having found that, contrary to Article 5.4.1 of the Law on State Registration, the decision on the establishment of HRC was not signed by all three founders.

On 15 November 2011 the applicants re-submitted the state registration request for the third time, having rectified the alleged deficiencies found by the Ministry of Justice.

On 28 December 2011 the Ministry of Justice returned the registration documents for the third time, having found that, contrary to Article 5.4.1 of the Law on State Registration, the powers of an authorised representative were not specified in the decision on the establishment of HRC and adoption of its charter.

On 16 January 2012 the applicants lodged an action against the Ministry of Justice with the Baku Administrative Economic Court No. 1, arguing that the Ministry had unlawfully avoided registering HRC. In particular, they argued that appointment of an authorised representative was optional under Article 5.4.1 of the Law on State Registration and, since no such representative had ever been appointed by the founders, the Ministry of Justice ’ s latest decision of 28 December 2011 had been unlawful and unsubstantiated. Moreover, the applicants cited Article 8 of the Law on State Registration, which required that all deficiencies in the registration documents should be identified at once and notified to applicants. The applicants asked the court to recognise that the denial of state registration to HRC had constituted a violation of their rights under Article 58 of the Constitution and Article 11 of the Convention and to order the Ministry of Justice to register HRC.

On 14 February 2012 the Baku Administrative Economic Court No. 1 declared the complaint inadmissible on the ground that two of the founders (Mr Emin Huseynov and Mr Sabuhi Gafarov ) had failed to submit evidence that they had applied to the Ministry of Justice.

On 2 March 2012 the applicants appealed against that decision, arguing that the first-instance court ’ s finding had been wrong.

On 13 April 2012 the Baku Court of Appeal granted the applicants ’ appeal and remitted the case for examination on the merits.

By a decision of 25 September 2012 the Baku Administrative Economic Court No. 1 terminated the proceedings, finding that the complaint should be considered withdrawn because the applicants had failed to appear at the preliminary hearings of 19 July and 25 September 2012.

On 7 November 2012 the applicants submitted an information request to the court, requesting proof that they had been informed of the preliminary hearings.

Instead of replying to the information request, by a decision of 6 December 2012 the Baku Administrative Economic Court No. 1 reinstated the proceedings, finding that the applicants had not received the notifications about the time and place of the preliminary hearings of 19 July and 25 September 2012 and, therefore, their complaint could not be considered withdrawn.

By a judgment of 19 February 2013 the Baku Administrative Economic Court No. 1 dismissed the applicants ’ complaint, finding that the Ministry of Justice ’ s actions had been lawful. The judgment did not specifically address the applicants ’ arguments concerning the unlawfulness of the Ministry ’ s actions under Articles 5.4.1 and 8 of the Law on State Registration.

On 5 April 2013 the applicants appealed against the first-instance judgment.

By a judgment of 15 May 2013 the Baku Court of Appeal dismissed the appeal and upheld the first-instance court ’ s judgment.

On 12 June 2013 the applicants appealed to the Supreme Court.

By a decision of 18 September 2013, sent to the applicants on 14 October 2013, the Supreme Court dismissed the appeal and upheld the Baku Court of Appeal ’ s judgment.

In the meantime, HRC conducted its activities as an unregistered NGO and carried out a number of projects that received wide attention and support both on national and international level.

In August 2014 Mr Rasul Jafarov was arrested on charges of illegal entrepreneurship, large-scale tax evasion and abuse of power, in connection with receiving allegedly unregistered grants and donations, including those received for various HRC projects. His separate application no. 69981/14, concerning various complaints related to his arrest and detention, is currently pending before the Court. On 16 April 2015 he was convicted and sentenced to six and a half years ’ imprisonment.

B. Relevant domestic law

Article 5.4.1 of the Law on State Registration, as in force at the material time (before it was amended on 24 January 2012), provided as follows:

“5.4. The following documents shall be attached to the application [for state registration]:

5.4.1. Founding documents – the charter of the organisation wishing to obtain the status of the legal entity approved by its founder (founders) or his (their) authorised representative, the decision on the establishment of the organisation and adoption of its charter (the decision shall include the intention by its founders to establish the organisation wishing to obtain the status of the legal entity, terms of reorganisation of a new legal entity established by way of merger, separation or division, adoption of the charter, [information on] the authorised representative, if appointed, and his powers, as well as other issues considered necessary by the founders, and this decision shall be signed by all the founders); ...”

Article 8 of the Law on State Registration provided as follows, in the relevant part:

“8.3. ... Deficiencies [in the registration documents] that cannot serve as a ground for refusal [of state registration] must be identified and notified to the applicant for rectification all at once.”

COMPLAINT

The applicants complain under Article 11 of the Convention that the repeated returns of their applications for state registration resulted in a significant delay in registration of HRC and its inability to function properly without the legal entity status and, therefore, constituted an interference with their right to freedom of association. They argued that the interference was not “prescribed by law”, because the Ministry of Justice ’ s actions and argumentation justifying the denial of state registration had no basis in the domestic law, in particular the Law on State Registration.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicants ’ freedom of association, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law in terms of Article 11 § 2? In particular, did the actions of the Ministry of Justice and the reasons given by it for returning the registration documents comply with the requirements of the Law on State Registration and State Register of Legal Entities and other requirements of the domestic law? If so, was the interference necessary in terms of Article 11 § 2?

APPENDIX