Acquisition of Legal Personality and Registration

Ramazanova and Others v Azerbaijan, 1 February 2007 [ECtHR]

Case no 44363/02

54. The Court reiterates that 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, cited above, p. 1614, § 40).

55. The ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning. The Court has consistently held the view that a refusal by the domestic authorities to grant legal entity status to an association of individuals amounts to an interference with the applicants' exercise of their right to freedom of association (see e.g. Gorzelik and Others v. Poland [GC], no. 44158/98, § 52, 17 February 2004; Sidiropoulos, cited above, p. 1612, § 31; and APEH Üldözötteinek Szövetsége and Others v. Hungary (dec.), no. 32367/96, 31 August 1999).

56. The Court takes note of the Government's argument that, under the domestic law applicable at that time, the return of foundation documents for rectification of deficiencies did not constitute a formal and final refusal to register the association or a total ban on its activities. However, the Court observes that, in the present case, the registration procedure was substantially delayed due to the Ministry of Justice's continuous failure to respond to the applicants' registration requests within the time-limits set by the domestic law on state registration. More specifically, since the date of the lodging of the applicants' first registration request on 9 April 2001, almost four years passed until the applicants' association was finally registered on 18 February 2005. Almost three years of that total period fall within the period after Azerbaijan's ratification of the Convention on 15 April 2002.

57. Having regard to the facts of the case, the Court observes that, each time the registration documents were returned to the applicants, they rectified the deficiencies noted in the Ministry's letters and re-submitted a new registration request in a prompt manner (usually within less than one month after receiving the Ministry's comments). On the other hand, the Ministry delayed the response to each of the applicants' registration requests for several months. Accordingly, it cannot be disputed that the delay of almost four years in the association's registration is to a large extent attributable to the Ministry's failure to respond in a timely manner.

58. The association was in fact deprived of a legal entity status for the entire duration of this delayed registration procedure. Although the return of documents for rectification of deficiencies may not be regarded as a formal and final refusal to register the association under the domestic law, the Court, leaving aside the domestic interpretations of “formal refusal”, considers that the repeated failures by the Ministry of Justice to issue a definitive decision on state registration of the association amounted to de facto refusals to register the association.

59. Moreover, the Court notes that, even assuming that theoretically the association had a right to exist pending the state registration, the domestic law effectively restricted the association's ability to function properly without the legal entity status. It could not, inter alia, receive any “grants” or financial donations which constituted one of the main sources of financing of non-governmental organisations in Azerbaijan (see Article 3 of the Law On Grant). Without proper financing, the association was not able to engage in charitable activities which constituted the main purpose of its existence. It is therefore apparent that, lacking the status of a legal entity, the association's legal capacity was not identical to that of state-registered non-governmental organisations.

60. The Court considers that, whereas the applicants were the founders of the association, the significant delays in its state registration, which resulted in its prolonged inability to acquire the status of a legal entity, amounted to an interference by the authorities with the applicants' exercise of their right to freedom of association.

(b)  Whether the interference was justified

61. 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 e.g. Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 104, ECHR 1999‑III).

62. The Court recalls that the expression “prescribed by law” requires that the impugned measure should have some basis in domestic law and refers 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 e.g. Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I; Adalı v. Turkey, no. 38187/97, § 272, 31 March 2005; and Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III). 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 Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI; and Maestri, cited above, § 30).

63. 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 the 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.

64. 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. In the event 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 the instructions to rectify those deficiencies. After the registration request was re-submitted following such rectification, the law provided for a five-day time-limit for official response. However, in the present case, the Ministry delayed its response to each registration request by several months. In particular, the response to the applicants' third registration request of 2 October 2001 was delayed by more than nine months, whereas the law clearly required it to be issued within 5 days. The response to the fourth registration request was delayed by approximately six months. In such circumstances, the Court cannot but conclude that the Ministry violated the procedural time-limits.

65. It follows that there was no basis in the domestic law for such significant delays. The Government's argument that the delays were caused by the Ministry's heavy workload cannot extenuate the undisputable fact that, by delaying the examination of the registration requests for unreasonably long periods, the Ministry breached the procedural requirements of the domestic law. It is the duty of the Contracting State to organise its domestic state-registration system and take necessary remedial measures so as to allow the relevant authorities to comply with the time‑limits imposed by its own law and to avoid any unreasonable delays in this respect (see, by analogy, Martins Moreira v. Portugal, judgment of 26 October 1988, Series A no. 143, p. 19, §§ 53-54; Unión Alimentaria Sanders S.A. v. Spain, judgment of 7 July 1989, Series A no. 157, p. 15, § 40; and Zimmermann and Steiner v. Switzerland, judgment of 13 July 1983, Series A no. 66, pp. 12-13, § 29). In the present case, there is no evidence as to whether any measures have ever been undertaken by the State authorities to remedy the situation at the material time. The Court therefore considers that the Ministry's alleged heavy workload was not a good excuse for such unreasonable delays as in the present case.

66. Furthermore, as to the quality of the law in question, the Court considers that the law did not establish with sufficient precision the consequences of the Ministry's failure to take action within the statutory time-limits. In particular, the law did not provide for an automatic registration of a legal entity or any other legal consequences in the event the Ministry failed to take any action in a timely manner, thus effectively defeating the very object of the procedural deadlines. Moreover, the law did not specify a limit on the number of times the Ministry could return documents to the founders “with no action taken”, thus enabling it, in addition to arbitrary delays in the examination of each separate registration request, to arbitrarily prolong the whole registration procedure without issuing a final decision by continuously finding new deficiencies in the registration documents and returning them to the founders for rectification. Accordingly, the law did not afford the applicants sufficient legal protection against the arbitrary actions of the Ministry of Justice.

67. Having found that the Ministry of Justice breached the statutory time-limits for the association's state registration 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.

68. 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.

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

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