CEDH · CASELAW;CLIN;ENG — 1 février 2007

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Azerbaijan - 44363/02 Judgment 1.2.2007 [Section I] Article 11 Article 11-1 Freedom of association Repeated delays by authorities in registering an association: violation   Facts : In April 2001 the four applicants founded a non-profit-making association to provide aid to the homeless and filed a request with the Ministry of Justice for its registration. Under domestic law an association only acquired the status of a legal entity on registration and was subject to various restrictions on its capacity, notably to receive donations, pending registration. However, the applicants did not manage to register the association until February 2005, at the fifth attempt, after their successive requests had been returned with instructions to make various changes to the association’s charter. In the interim, they had issued various proceedings complaining of the delays and of procedural irregularities and seeking an order requiring the Ministry to effect the registration. In one of these sets of proceedings, they obtained an order by the Constitutional Court in May 2004 quashing the judgments and decisions of the courts below on the ground that they breached their constitutional right to judicial guarantees for the protection of human rights and freedoms and remitting the case for a fresh examination. Subsequently, an appeal court found that the Ministry had contravened domestic law by its repeated delays in responding to the applicants’ requests for registration and awarded three of them roughly the equivalent of EUR 700 for non-pecuniary damage. Law – Admissibility : The Government’s submission that the application should be struck out of the list following the registration of the association amounted to an assertion that the applicants were no longer victims of the alleged violation of the Convention. A decision or measure favourable to an applicant was not in principle sufficient to deprive him of his status as a “victim” unless the national authorities had acknowledged, either expressly or in substance, and then afforded redress for, the breach. The mere fact that the authorities had finally registered the association after a significant delay could not be viewed as automatically depriving the applicants of that status. Even assuming that the compensation award by the domestic courts amounted to an acknowledgement of a violation of the applicants’ Convention rights, it was made to only three of them and the amount was too low to be considered as full redress. In those circumstances, the registration of the association was insufficient to deprive them of their “victim” status. Objections relating to competence ratione temporis and non-exhaustion were also dismissed. Merits : The ability to establish a legal entity in order to act collectively in a field of mutual interest was one of the most important aspects of freedom of association, without which that right would be deprived of any meaning. While States had a right to satisfy themselves that an association’s aim and activities were in conformity with the rules laid down in legislation, they had to do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions. The Court took note of the Government’s argument that the return of foundation documents for rectification did not constitute a formal and final refusal to register the association or a total ban on its activities. However, on the facts, the delay of almost four years in registering the association was to a large extent attributable to the Ministry’s failure to respond to the applicants’ requests for registration in a timely manner and its repeated failure to issue a definitive decision amounted to a de facto refusal to register. Moreover, domestic law restricted the association’s ability to function as a charity since, without legal-entity status, it could not receive “grants” or financial donations, one of the main sources of financing for non-governmental organisations in Azerbaijan. The significant delays in registration thus amounted to an interference by the authorities with the applicants’ exercise of their right to freedom of association. As to whether the interference was justified, there was no basis in domestic law for such significant delays, which were in breach of the statutory time-limits. The Ministry’s heavy workload could not extenuate the indisputable fact that, by delaying the examination of the registration requests for unreasonably long periods, the Ministry had breached the procedural requirements of domestic law. It was the duty of the Contracting State to organise its registration system and to take necessary measures to allow the relevant authorities to comply with the time-limits imposed by its own law. Furthermore, as domestic law did not provide for automatic registration or other legal consequences in the event of the Ministry failing to act in a timely manner and did not specify a limit on the number of times the Ministry could return documents without issuing a final decision, it did not afford the applicants sufficient legal protection against arbitrariness. The interference with the applicants’ right to freedom of association was therefore “not prescribed by law”. Conclusion : violation (unanimously). Article   41 – EUR 4,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes