Accountability and Supervision

Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, (ECtHR), 8 October 2009 [ECtHR]

Case no. 37083/03

44.  The applicants complained that the forced dissolution of the Association had violated their right to freedom of association under Article 11 of the Convention ...

52.  The right to form an association is an inherent part of the right set forth in Article 11. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association's aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports of Judgments and Decisions 1998 IV).
53.  While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes are also important to the proper functioning of democracy. For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, 17 February 2004; The Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 61, ECHR 2006 ...; and Zhechev v. Bulgaria, no. 57045/00, § 35, 21 June 2007).

54.  It was undisputed by the parties that the Association's dissolution amounted to an interference with the applicants' exercise of their right to freedom of association. The Court shares the same view.

55.  Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.
56.  The expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among many other authorities, Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 I).
57.  For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see, among many other authorities, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000 XI).
58.  It is however not possible to attain absolute rigidity in the framing of laws, and many of them are inevitably couched in terms which, to a greater or lesser extent, are vague. The level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question and the field it is designed to cover (see Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 VIII).
59. It was undisputed by the applicants that there was a basis in the domestic law for the sanction imposed (Article 31 of the NGO Act) and that the law in question was accessible. The applicants, however, argued that it did not comply with the “quality of law” requirement as it was so vague that it was not foreseeable as to its effects.
60.  Article 31.4 of the NGO Act provided for a possibility of dissolution of an association by a court order in the event the association received, within the same calendar year, more than two written warnings by the regulating authority (the Ministry of Justice). The Court, therefore, accepts that the sanction imposed on the Association had a clear basis in the domestic law and that this law was accessible.
61.  However, as to the issue of foreseeability, the Court notes that the provisions of the NGO Act were far from being precise as to what could be a basis for warnings by the Ministry of Justice that could ultimately lead to an association's dissolution. Article 31.2 of the NGO Act empowered the Ministry of Justice to warn non-governmental organisations, including public associations, if their activities were deemed to be “incompatible with the objectives” of the NGO Act. Under Article 1 of the NGO Act, its “objectives” included, inter alia, the general regulation of the principles and rules for the establishment, management and scope of activities of public associations. This definition, in essence, appeared to encompass an unlimited range of issues related to an association's existence and activity.
62.  The Court agrees with the applicants that the above provisions are worded in rather general terms and may give rise to extensive interpretation. The Government have not submitted any examples of domestic judicial cases which would provide a specific interpretation of these provisions. In such circumstances, the NGO Act appears to have afforded the Ministry of Justice a rather wide discretion to intervene in any matter related to an association's existence. This situation could render it difficult for associations to foresee which specific actions on their part could be qualified by the Ministry as “incompatible with the objectives” of the NGO Act.
63.  The situation was exacerbated by the fact that involuntary dissolution was the only sanction available under the domestic law against associations engaging in activities “incompatible with the objectives” of the NGO Act. In the Court's view, this is the most drastic sanction possible in respect of an association and, as such, should be applied only in exceptional circumstances of very serious misconduct. Therefore, the domestic law should delimit more precisely the circumstances in which this sanction could be applied.
64.  The Court also notes that the NGO Act contained no detailed rules governing the scope and extent of the Ministry of Justice's power to intervene in the internal management and activities of associations, or minimum safeguards concerning, inter alia, the procedure for conducting inspections by the Ministry or the period of time granted to public associations to eliminate any shortcomings detected (see also paragraph 77 below), thus providing sufficient guarantees against the risk of abuse and arbitrariness.
65.  The above considerations, in themselves, give a strong indication that the provisions of the NGO Act did not meet the “quality of law” requirement, which would be sufficient for a finding of a violation of Article 11 on the basis that the interference was not prescribed by law. The Court notes, however, that these questions are in this case closely related to the broader issue of whether the interference was necessary in a democratic society. The Court considers that, in the circumstances of the present case, respect for human rights requires it to examine the latter issue as well. In view of this, as well as in view of its analysis in paragraphs 70-91 below, the Court does not find it necessary to decide whether the wording of the NGO Act's relevant provisions met the “quality of law” requirement within the meaning of Article 11 § 2 of the Convention.
66.  For the purposes of further analysis, the Court is prepared to accept the Government's view that the interference had the aim of “protecting the rights and freedoms of others”.
(i) General principles
67.  The Court reiterates that the exceptions to freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”; thus, the notion “necessary” does not have the flexibility of such expressions as “useful” or “desirable”. In determining whether a necessity within the meaning of 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, among other authorities, Gorzelik and Others, cited above, § 95, and Sidiropoulos, cited above, § 40).
68.  When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (ibid.; see also United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998 I, and The United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, § 62, 19 January 2006).
(ii) Application of these principles to the present case
69.  The Court notes that the domestic authorities, and the Government in their pleadings, relied on two groups of arguments as grounds justifying the interference (see paragraphs 23-24 above). That being so, the Court will examine these grounds in turn.
(α) Breach of the legal requirements on internal management
70.  Under this ground for the Association's dissolution, the Ministry of Justice and domestic courts found, inter alia, that the Association had failed to convene a general assembly of members for around seven years, that the equal representation of members had not been ensured at the general assembly eventually convened on 26 August 2002, and that the Association had not kept proper membership records.
71.  With regard to one of these findings, it is undisputed in the present case that the Association had not convened a general assembly of its members for around seven years, from August 1995 to August 2002. It therefore breached the requirements of its own Charter, which required the general assembly to be convened at least once every five years, and the domestic law, which required it to be convened at least once every year. As for the other findings, the situation is far less clear and the Court will have regard to them below.
72.  In general, the Court accepts that, in certain cases, the States' margin of appreciation may include a right to interfere – subject to the condition of proportionality – with freedom of association in the event of non compliance by an association with reasonable legal formalities applying to its establishment, functioning or internal organisational structure (see, mutatis mutandis, Ertan and Others v. Turkey (dec.), no. 57898/00, 21 March 2006). In this respect, the Court notes that, in so far as the domestic corporate law is concerned, private persons' freedom of association does not preclude the States from laying down in their legislation rules and requirements on corporate governance and management and from satisfying themselves that these rules and requirements are observed by the incorporated entities. In fact, the domestic laws of many member States of the Council of Europe provide for such rules and requirements, with varying degrees of regulation (see paragraphs 40-43 above). The Court does not see a problem per se in that Azerbaijani law provided for certain formal requirements concerning corporate legal forms (together with associated internal management structures) which associations had to satisfy in order to be eligible for state registration as a non-profit-making legal entity.
73.  Therefore, as to the formal requirement that public associations have certain governing bodies and, more specifically, periodically convene a general assembly of members, the Court does not consider this to constitute, in itself, an undue interference with freedom of association. This requirement serves to ensure, inter alia, the right of association members to directly participate in the management and activities of the association. Moreover, the Court considers that this requirement, together with other rules concerning the rights of members and internal control and management mechanisms, are normally designed to prevent any possible abuse of the legal status and associated economic privileges enjoyed by non-commercial entities.
74.  Turning to the specific circumstances of the present case, the Court considers it necessary to assess whether the domestic authorities' findings concerning the alleged breaches of the legal requirements on internal management were well-founded and, as such, sufficient to justify the sanction imposed. Having made that assessment, the Court is not convinced, for the following reasons, that there existed compelling reasons justifying the interference in question and that this interference was proportionate to the legitimate aim pursued.
75.  At the outset, the Court stresses that, indeed, the Association's failure to convene a general assembly of its members for around seven years constituted a wanton disregard of the requirements not only of the domestic law, but also of its own Charter. Moreover, by the time of its dissolution, the Association had failed to even bring its Charter into conformity with the basic legal requirements applicable under the NGO Act which, by then, had been in force for around two years. Having committed these breaches, the Association clearly put itself in a situation where it risked sanctions. Accordingly, in the light of the considerations in paragraphs 72-74 above, the Court cannot find that it was inappropriate for the domestic authorities to react to these breaches and to ensure that the basic formal requirements of the domestic law on corporate management be observed.
76.  Nevertheless, in assessing whether the authorities' subsequent decision to apply the sanction of involuntary dissolution was justified and proportionate, it cannot be overlooked that the Association actually attempted to rectify the problem by convening a general assembly on 26 August 2002, even prior to the Ministry of Justice's first warning of 10 September 2002. Due account should have been taken of this intention when deciding upon the necessity of the interference with the Association's rights in the present case. The Association should have been given a genuine chance to put matters right before being dissolved.
77.  While the Court has accepted that, initially, the authorities correctly reacted to the breach of the requirement to convene a general assembly once a year, it observes that, subsequently, the focus of the accusations against the Association shifted to other “breaches”. In particular, having been informed about the general assembly of 26 August 2002, the Ministry was not satisfied with its “lawfulness” and followed up its initial warning with another two warnings issued in a relatively short time span, on each occasion allowing the Association a ten-day period in which to take measures to eliminate the alleged breaches of law. The Court notes, firstly, that these ten-day periods appear to have been set arbitrarily. This problem stems from the fact that the NGO Act allowed the Ministry unlimited discretion in this respect (see paragraph 64 above). Secondly, there was no explanation in the warning letters as to what specific measures taken by the Association would be deemed as acceptable by the Ministry. Having regard to the nature of the Ministry's remarks, the Association was most likely expected to convene a new general assembly. However, under the domestic law, the process of convening a general assembly required at least two weeks (see paragraph 34 above). In such circumstances, it is difficult to see how the Association could be expected to eliminate the “breaches of law” within the ten-day period set by the Ministry. This raises a legitimate concern as to whether the Association was given a genuine chance to rectify its affairs before it had to face the sanction of dissolution.
78.  As to the substance of the second and third warnings, it was noted, in generalised terms, that not all members of the Association had been properly informed of the general assembly of 26 August 2002, that the Association's local branches had not been equally represented at the assembly, and that the current membership records had not been properly maintained. The Court sees little justification for the Ministry of Justice to interfere with the internal workings of the Association to such an extent, especially in the absence of any complaints by Association members concerning these matters. For example, in so far as the question of representation of local branches is concerned, the domestic law did not appear to directly regulate this matter. The Court considers that it should be up to an association itself to determine the manner in which its branches or individual members are represented in its central governing bodies. Likewise, it should be primarily up to the association itself and its members, and not the public authorities, to ensure that formalities of this type are observed in the manner specified in the association's charter. The Court considers that, while the State may introduce certain minimum requirements as to the role and structure of associations' governing bodies (see paragraph 73 above), the authorities should not intervene in the internal organisational functioning of associations to such a far-reaching extent as to ensure observance by an association of every single formality provided by its own charter.
79.  The Court further observes that, while the Ministry of Justice was vested with authority to initiate an action for the dissolution of the Association, it was for the domestic courts to decide whether it was justified to apply this sanction. They were therefore required to provide relevant and sufficient reasons for their decision (see paragraph 68 above). In the present case, that requirement first and foremost obliged the domestic courts to verify whether the allegations made against the Association by the Ministry of Justice were well-founded. This however has not been done in the present case. It appears that the only evidence assessed by the courts were the submissions of the parties, correspondence between the Association and the Ministry of Justice, and the reports of the Ministry of Justice officials concerning the results of their inspection of the Association's activities. Having heard the parties, the courts relied on the findings of the officials of the Ministry of Justice and accepted them at their face value as constituting true facts, without an independent judicial inquiry. Specifically, there is no indication in the domestic judgments that the courts had ever attempted to evaluate the merit of the Ministry's factual findings by independently examining such evidence as the minutes of the general assembly of 26 August 2002, the Association's membership records, documents relating to the organisational structure of the Association's branches, etc.
80.  Having regard to the above, the Court considers that, while it is undisputed that for around seven years the Association was in breach of the legal requirement to regularly convene a general assembly of members, the authorities did not give due weight to its attempt to rectify the problem by convening a general assembly on 26 August 2002. As to the other alleged breaches committed by the Association (“unlawfulness” of the general assembly of 26 August 2002, deficiencies in membership records, etc.), neither the domestic authorities, nor the Government in their observations before the Court, have been able to prove with any sound evidence that these breaches did indeed take place and, if so, whether they constituted a compelling reason for the interference in question.
81.  It therefore follows that, in respect of this ground for the interference (breaches by the Association of the domestic legal requirements on internal management), the reasons adduced by the national authorities to justify it were not relevant and sufficient. In such circumstances, the Court considers that the respondent State failed to demonstrate that the interference met a pressing social need.
82.  Moreover, the interference did not, in any event, comply with the “proportionality” requirement. In this connection the Court considers that the nature and severity of the sanction imposed are factors to be taken into account when assessing the proportionality of the interference (see, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, no. 35877/04, § 48, 18 December 2008). In the present case, forced dissolution was the only sanction available under the domestic law in respect of public associations found to have breached the requirements of the NGO Act and, accordingly, this sanction could be applied indiscriminately without regard to the gravity of the breach in question. The Court considers that a mere failure to respect certain legal requirements on internal management of non-governmental organisations cannot be considered such serious misconduct as to warrant outright dissolution. Therefore, even if the Court were to assume that there were compelling reasons for the interference, it considers that the immediate and permanent dissolution of the Association constituted a drastic measure disproportionate to the legitimate aim pursued. Greater flexibility in choosing a more proportionate sanction could be achieved by introducing into the domestic law less radical alternative sanctions, such as a fine or withdrawal of tax benefits (see paragraph 43 above for examples of alternative sanctions available in other member States of the Council of Europe).
83.  In sum, the Court finds that the order to dissolve the Association on the ground of the alleged breaches of the domestic legal requirements on internal management of non-governmental organisations was not justified by compelling reasons and was disproportionate to the legitimate aim pursued.
(β) Engagement in “activities prohibited by law”
84.  Under this ground for the Association's dissolution, the Ministry of Justice and the domestic courts found that the Association had engaged in activities in which non-commercial organisations were prohibited to engage by law. In particular, the Association was accused of having attempted to collect money from State organs and commercial organisations in the guise of membership fees, conducted unlawful inspections at various organisations, and engaged in “other illegal acts interfering with the rights of entrepreneurs” (see paragraphs 18 and 24 above).
85.  The Court observes at the outset that, while it appears that at least some of the above allegations, if proven, would entail criminal responsibility of the Association's managers or members implicated in the alleged unlawful actions, no criminal proceedings have ever been instituted in connection with these allegations. This fact is, in itself, indicative of lack of sound evidence supporting the authorities' findings.
86.  The Court further notes that neither the third warning of the Ministry of Justice, in which the above allegations were made, nor the Ministry's submissions to the domestic courts in connection with its request to dissolve the Association contained any specific evidence proving these allegations. Moreover, the allegations themselves were extremely vague, briefly worded and offered little insight into the details of the alleged illegal activities.
87.  The domestic courts accepted the above allegations as true, without any independent judicial inquiry and without examining any direct evidence of the misconduct alleged. The Yasamal District Court had regard only to the content of the Ministry's third warning letter, heard evidence from the Head of the Ministry's Department of State Registration of Legal Entities (who merely reiterated the content of the third warning letter), and examined an internal inspection report of a Ministry of Justice official, which mentioned, in very brief terms, that the Association's branch in the Tovuz Region engaged in some illegal activities (see paragraph 22 in fine above).
88.  However, neither the submissions of the Ministry of Justice officials nor the Yasamal District Court's judgment itself ever mentioned who specifically (that is, which person affiliated to the Association) had attempted to unlawfully collect money in the guise of membership fees. It was never mentioned when exactly these attempts were made, and from which specific State organ or commercial organisation the money was unlawfully collected. No direct victims or other witnesses of this misconduct were examined in court, no written complaints were examined, and no other direct evidence was produced. Likewise, no evidence was produced or examined as to when exactly, by which directly responsible individuals, and in which specific organisations the alleged “unlawful inspections” had been carried out. Lastly, there was no explanation at all as to what was specifically meant by “other illegal acts interfering with the rights of entrepreneurs”.
89.  Put simply, the fact of the Association's alleged engagement “in activities prohibited by law” was unproven. In such circumstances, the domestic courts' decision to dissolve the Association on this ground is, in the Court's view, nothing short of arbitrary.
90.  The Government have likewise failed to submit any explanation as to the specific details of the Association's allegedly unlawful activities or any evidence of such unlawful activities.
91.  In sum, the Court considers that no justification has been provided by the domestic authorities or the Government for the Association's dissolution on this ground.
(γ)  Conclusion
92.  Having regard to the above analysis, the Court concludes that the interference was not “necessary in a democratic society”. There has accordingly been a violation of Article 11 of the Convention.

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