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Acquisition of Legal Personality and Registration

Ismayilov v Azerbaijan, 17 January 2008 [ECtHR]

Case no. 4439/04

48. The Court has found previously that the failure by the Ministry of Justice to reply, within the statutory time-limits, to requests for state registration of a public association, amounted to a de facto refusal to register the association. Lacking the status of a legal entity, the association's legal capacity was not identical to that of state-registered non-governmental organisations, even assuming that it could engage in certain limited activities. The significant delays in the registration procedure, if attributable to the Ministry of Justice, amounted to an interference with the exercise of the right of the association's founders to freedom of association (see Ramazanova and Others, cited above, §§ 54-60, with further references). Accordingly, in the present case, where the applicant was one of the founders of the public association, there has been an interference with the exercise of his right to freedom of association.

49. Such interference will not be justified under the terms of Article 11 of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that Article and was “necessary in a democratic society” for the achievement of that aim or aims (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 104, ECHR 1999-III).

50. The Court is aware of the fact that, since the time of the events giving rise to the present complaint, certain amendments have been made to Azerbaijani legislation on state registration of legal entities. However, for the purposes of this complaint, the Court will have regard to the domestic law as it was applicable at the relevant time.

51. The Court observes that Article 9 of the Law on State Registration of Legal Entities of 6 February 1996 set a ten-day time-limit for the Ministry to issue a decision on the state registration of a legal entity or refusal to register it. Where the legal entity's foundation documents contained rectifiable deficiencies, the Ministry could return the documents to the founders within the same ten-day time-limit with instructions for their rectification. After the registration request was resubmitted following a rectification, the law provided for a five-day time-limit for official response.

52. In the present case, the Ministry delayed its response to each of the three registration requests by several months. In particular, in the period falling within the Court's temporal jurisdiction, the response to the applicant's third registration request of 28 August 2002 was delayed by more than three months, whereas the law clearly required it to be issued within five days. Therefore, the Ministry violated the procedural time-limits. There was no basis in the domestic law for such delays (see Ramazanova and Others, cited above, § 65).

53. The Court also reiterates its finding that the Law on State Registration of Legal Entities of 6 February 1996 did not afford sufficient protection against delays in the state registration procedure caused by the Ministry's failure to respond to registration requests within the statutory time-limits (see Ramazanova and Others, cited above, § 66).

54. Having found that the Ministry of Justice breached the statutory time-limit for issuing the formal response to the state registration requests and that the domestic law did not afford sufficient protection against such delays, the Court concludes that the interference was not “prescribed by law” within the meaning of Article 11 § 2 of the Convention.

55. Having reached that conclusion, the Court does not need to satisfy itself that the other requirements of Article 11 § 2 (legitimate aim and necessity of the interference) have been complied with.

56. There has accordingly been a violation of Article 11 of the Convention.

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Jurisprudence

Registration Founding meeting Documentation Premises Grounds for refusal Processing applications Fair decision-making Renewal requirements Need for precision in any requirements Name or description Length of existence Delay Opportunity to amend application Judicial control