Restrictions on Foreign Funding of Civil Society
International Center for Not-for-Profit Law
The NGO Law: Azerbaijan Loses Another Case in the European Court
Mahammad Guluzade and Natalia Bourjaily
Legal Forms of Civil Society Organizations as a Governance Problem: The Case of Switzerland
Georg von Schnurbein and Daniela Schonenberg
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On 9 October 2009, Azerbaijan lost a case in the European Court of Human Rights (ECHR) under Article 11 of the European Convention on Protection of Human Rights and Fundamental Freedoms (Convention). The case, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, addresses the dissolution of a registered public union.2 This is the fifth time since Azerbaijan’s ratification of the Convention in April 2002 that the ECHR has issued a decision against Azerbaijan on a case involving the freedom of association under Article 11 of the Convention. The purpose of this article is to provide a review of certain problems with Azerbaijani legislation relating to nongovernmental organizations (NGOs) that were identified in the case Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, and to recommend how to improve Azerbaijani legislation based on international law and best practices.
Since 2002, citizens of Azerbaijan have submitted hundreds of applications to the ECHR. Many citizens faced problems with registering an NGO with the Ministry of Justice, as the authorized registration body. Domestic courts have not been supportive of NGOs and their founders in the lawsuits against the registration body. Frustrated founders have submitted several appeals for ECHR consideration relating, in particular, to problems with NGO registration. The ECHR swiftly resolved these cases with Azerbaijan losing all four considered cases: Ramazanova v. Azerbaijan,3 Ismailov v. Azerbaijan,4 Nasibova v. Azerbaijan,5 and Aliyev and others v. Azerbaijan.6 In all of these cases, the ECHR found Azerbaijan to be in violation of Article 11 (freedom of association) of the Convention. These four successful attempts of local NGOs to restore justice gave hope to many organizations having similar problems. Many similar cases relating to problems with registration of NGOs have also been submitted to the ECHR. As a result, the Government of Azerbaijan has improved the process of NGO registration, and has begun to settle issues relating to registration in favor of NGOs and their founders.
The ECHR appeared to be an especially effective mechanism to address issues with realization of the freedom of association in Azerbaijan. We hope the most recent ECHR case Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, and the articles and analysis coming in its wake, will contribute to improving the legislation relating to dissolution of NGOs in Azerbaijan.
Azerbaijani legislation on dissolution of NGOs
The Constitution of Azerbaijan delegates the power to dissolve an association exclusively to courts.7 In accordance with article 59 of the Civil Code of Azerbaijan, a legal entity may be dissolved by a court order, if:
The Ministry of Justice, under Azerbaijani law, does not have authority to dissolve an NGO, including an association. However, the Ministry of Justice is required to supervise activities of NGOs to ensure that they comply with “objectives of the NGO Law.”8 When it determines that an NGO violates a provision of the NGO Law or other legislation, it notifies the organization in writing, instructing it to correct the violations. If an NGO is notified more than twice in one year for violations, the Ministry of Justice may apply to court for dissolution of the NGO.9 An NGO has the right to appeal a Ministry of Justice’s notification in court. However, in practice courts usually side with the Ministry of Justice taking into consideration only the Ministry’s findings and ignoring other facts presented by an NGO, such as whether a violation of a law took place in reality.
Tebieti Mühafize Cemiyyeti (TMC or Association), one of the first NGOs registered in 1995, operated until its dissolution by court in 2002. The local court justified its decision to dissolve the Association by arguing that its activities did not comply with the requirements of its own by-laws and domestic law. Specifically, it had not convened a lawful general assembly of its members from the moment of establishment. Before sending a dissolution request to the court, the Ministry of Justice issued several notifications to TMC in which the following violations of applicable law were listed:
Before the ECHR, the Government of Azerbaijan stated that involuntary dissolution was the only sanction available under the domestic law against associations engaging in activities “incompatible with the objectives” of the NGO Law.
The European Court stated in the in TMC case:
A mere failure to respect certain legal requirements on internal management of non-governmental organizations cannot be considered such serious misconduct as to warrant outright dissolution. […] 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.11
The ECHR underlined the following shortcomings of the NGO legislation of Azerbaijan in the TMC case:
In this article, we will address each of the shortcomings identified by the ECHR and review relevant Azerbaijani legislation in light of international law and best practices.
(i) The circumstances in which involuntary dissolution can be applied are not precisely defined
In Azerbaijan, the legal provisions on involuntary dissolution of public associations are worded in rather general terms and may give rise to varying interpretations. For example, Article 59 of the Civil Code states that involuntary dissolution of a public association may take place if “the legal entity … commits repeated or grave breaches of law, or if a public association or foundation systematically engages in activities that are contrary to the aims set out in its by-laws, as well as in other cases provided by law.”
Remarkably, the list of reasons for involuntary dissolution of NGOs is longer than the list for other legal entities. A public association and a foundation, but not a business, must be dissolved if it systematically engages in activities that are contrary to the aims set out in its bylaws, as well as in other cases provided by law. Taking into consideration that the law does not set any limits on the purposes for which an NGO may be established, other than that the primary aim shall not be “generating profit,”13 NGOs may be set up and operate for any legitimate purpose. From the legal perspective, it is irrelevant how the aim of an NGO is defined in its own bylaws. The law does not (and may not) set any requirement on how the aim of an association may be defined. Therefore, it is common and appropriate that an aim is defined very broadly, such as “achieving public good” or “improving health care.” Even if an NGO’s bylaws set as a specific primary aim, for example, an “increase in literacy,” would it be illegal for an NGO to engage in activities other than educational activities? Certainly, an NGO should not be punished for engaging in legal activities simply because such activities are not explicitly spelled out in its bylaws.
Moreover, the NGO Law in Article 31.2 obliges NGOs to comply with the “aims” of the NGO Law, as defined in Article 1 of the Law. Obeying the “aim” of the law, as defined, not only the provisions of the law, is a confusing requirement impossible to consistently implement.
These confusing provisions allowed the Ministry of Justice to request the dissolution of the association for failure to organize its internal management, in contravention of international law and best practices.
We will briefly review the actual violations that were cited in the Ministry of Justice notices to the TMC and served as the basis for its dissolution. While states can set limitations on the freedom of association, including reasons for involuntary dissolution of an association, the list of such limitations must be short and well-defined. Freedom of association is not absolute14 and may under specific circumstances be restricted. Article 11, Paragraph 2 of the Convention sets the conditions for possible limitations. Restrictions on freedom of association may be allowed only if:
All three conditions must be fulfilled cumulatively. Should any one of them not be met, the implied restriction will be considered in violation of the Convention.15 It is clear that, for example, when an association misses its deadline for conducting a members meeting, it does not create a danger to a democratic society, and therefore, there is no necessity to restrict the activities of the association in order to preserve the democracy. Such a violation of internal governance rules may not be used as the basis for involuntary dissolution of an association, as such an action is an impermissible restriction of the right to freedom of association.
In addition, none of the violations listed in the Ministry’s notification to the TMC serving as the basis for dissolution comply with the technical condition of “being prescribed by law,” not to mention others. At the time of dissolution of TMC, Azerbaijani law did not regulate such issues as (1) how properly to inform members about participation in a general meeting or assembly, as the highest governance body of an association; or, (2) requiring equal representation of all association branches at the general assembly; or (3) how to keep membership records properly; or (4) setting the requirement for local branches of an NGO to call their own assemblies. In fact, Azerbaijani law complied with international law and practice by not regulating these issues. It was the intervention by the Ministry of Justice in the internal activities of the NGO that the ECHR identified as a problem. The ECHR considered that “it should be up to the 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.”16
Neither of the violations cited in the Ministry of Justice’s notification, which served as the basis for the local court’s decision to dissolve TLC, met the legal conditions, and therefore, could not serve as the basis for dissolution of TLC.
(ii) There are no alternative sanctions against associations engaging in activities “incompatible with the objectives” of the NGO Law
Azerbaijani law contains only one sanction, dissolution, for associations that violate the NGO Law or their own bylaws. The issuance of more than two warnings in a year suffices for the launch of a dissolution lawsuit before the domestic court.
In the Tebieti Mühafize Cemiyyeti, case the European Court underlined 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” and called this sanction “drastic.” Indeed, the Council of Europe Recommendations on the legal status of NGOs in Europe provide for dissolution of an NGO only in case of “serious misconduct.”17 Regrettably, the Azerbaijani NGO Law does not differentiate the seriousness of misconduct in the case of infringement of an NGO’s bylaws or legislation. For these purposes, Azerbaijan may benefit from the positive experience of other countries that do provide for alternative sanctions, such as fines payable by the manager of an NGO, for NGOs acting against the legislative acts described below.
In regards to international common practices, NGOs, including public associations, and their managers are subject to similar sanctions as other entities. The general rule is that if a sanction does not apply to a business, for example, for the failure to gather a meeting of shareholders, no penalties should apply to NGO for the same failure. Interested persons—shareholders in the case of a business, and members in the case of an association—may always bring a civil lawsuit if their interests or rights have been violated. Other than the dissolution of an entity, as a last-resort punishment against the most serious violations, the most common sanctions are fines against the management of either a business or an NGO.
(iii) There are 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.18
As the ECHR noted, the NGO Law has afforded the Ministry of Justice rather wide discretion to intervene in any matter related to an association’s existence.19 The NGO Law does not explicitly provide the Ministry of Justice with authority to audit NGOs. Instead, Article 31.2 states that “in case of actions contradicting the objectives of the present law, the relevant body of executive power [the Ministry of Justice of Azerbaijan] may in writing notify the NGO or instruct the latter to remove the violations.” Currently, the Ministry of Justice may audit NGOs at any time, on any subject, and without any procedural safeguards at all, in order to verify that NGOs’ actions are in compliance with the NGO Law. The Ministry of Justice, for example, may participate in the internal events of an association, request any internal documents, and demand provision of any information about an NGO or its managers or members. A broad and vaguely defined responsibility to watch for “actions contradicting the objectives of the present law” is burdensome not just for NGOs, but for the Ministry of Justice itself.
Azerbaijani NGO Law does not specify the minimum period the Ministry of Justice must give to an NGO for eliminating the deficiencies found in its statutory documents or internal management. Whereas under domestic law, the procedure for convening the general assembly of an NGO required at least two weeks,20 the Ministry of Justice in its warning to TMC gave a ten-day period.21
The mere fact that the Ministry of Justice had special authority to audit such internal affairs already contradicts international common practices. It is critical to mention that in the vast majority of European countries, the authority in charge of registration of an NGO, and in particular, a public association, does not carry any responsibility to supervise the activities of a registered NGO. Its responsibilities in regards to a particular NGO end immediately after incorporating information about the newly registered entity into the registry of legal entities. Other government authorities are responsible for compliance with the law of entities and individuals, such as a prosecutors, police, fire inspection, or tax inspection, and carry supervisory responsibilities over certain activities of entities and individuals. (However, some specific requirements might apply to certain special types of NGOs, especially those eligible for substantial tax preferences, such as charitable foundations.)
Conclusion and recommendations
Tebieti Mühafize Cemiyyeti case, certain provisions of the Azerbaijan NGO law have assigned excessive authority to the Ministry of Justice to intervene in the internal activities of an NGO, and even to initiate its liquidation through a court when it has not violated the law. Such provisions, as illustrated in this article, do not meet international standards and best practices. Since the judgments of the European Court have binding force22 for Azerbaijan and they are treated as grounds for appeal of judicial decisions in both criminal and civil cases (by the relevant decision of the Plenum of the Supreme Court of Azerbaijan23), Azerbaijani authorities should seek a permanent and sustainable solution to the legislative deficiencies by introducing amendments to the NGO legislation rather than merely solving the problem of one NGO that won a case in Strasbourg.
In order to implement the decision of the European Court, and to avoid appeals to the European court similar to the TLC case, it would be beneficial if the following improvements were introduced into Azerbaijani legislation:
1 Mahammad Guluzade is Legal Adviser in Azerbaijan for the International Center for Not-for-Profit Law (ICNL). Natalia Bourjaily is Vice President, Newly Independent States, ICNL. In Azerbaijan, ICNL implements a technical assistance project in partnership with Counterpart International (USA), which is funded by the US Agency for International Development (USAID) and aimed at improving the NGO legislation.
2 Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan,8 October 2009, application no. 37083/03.
3 Ramazanova and Others v. Azerbaijan, 1 February 2007, Application no. 44363/02.
4 Ismailov v. Azerbaijan, 17 January 2008, Application no.4439/04.
5 Nasibova v. Azerbaijan, 18 October 2007,Application no.4307/04.
6 Aliyev and others v. Azerbaijan, 18 December 2008, Application no.28736/05.
7 Article 58 (IV), Constitution of the Republic of Azerbaijan, 1995.
8 Article 31.2. of the NGO Law.
9 Article 31.4 of the NGO Law.
10 Section 16, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, supra note 2.
11 § Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, supra note 2.
12 §§ 63-64, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, supra note 2.
13 Article 2.1 of the NGO Law.
14 One of the absolute rights guaranteed by the Convention is the right to freedom from torture, inhuman and degrading treatment or punishment embodied in Article 3 of the Convention. It is not subject to any limitations.
15 On the Right to Freedom of Association Under the European Convention on Protection of Human Rights and Fundamental Freedoms, Zvonimir Mataga, LL. M, Legal Adviser at the European Court of Human Rights; Strasbourg, October 2006.
16 § 78, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, supra note 2.
17 § 44, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, supra note 2.
18 §§ 63-64, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, supra note 2.
19 Ibid, §§ 61-62.
20 Article 25.6 of the NGO Law.
21 § 77, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, supra note 2.
22 In virtue of article 46 of the Convention.
23 Articles 455-456 of the Criminal Procedure Code (2000) and articles 431-1-431-3 of the Civil Procedure Code (2000) of the Republic of Azerbaijan.