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- Year: 2008
- Country: Azerbaijan
- Language: English
- Document Type: International Court Case
- Topic: Defending Civil Society
CO N SEIL
DE L’EUROPE COU N CIL
COUR EUROPÉE N N E DES DROITS DE L’HOMM E
EU R OPEA N COU RTOFHUMA N R IGHTS
CASE OF ISMAYILOV v. AZERBAIJAN
(Application no. 4439/04)
17 January 2008
This judgment will become final in th e circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
ISMAYILOV v. AZERBAIJAN JUDGMENT 1
In the case of Ismayilov v. Azerbaijan,
The European Court of Human Right s (First Section), sitting as a
Chamber composed of:
Christos Rozakis, President,
Nina Vajić ,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
Søren Nielsen , Section Registrar ,
Having deliberated in private on 11 December 2007,
Delivers the following judgment, wh ich was adopted on that date:
1. The case originated in an application (no. 4439/04) against the
Republic of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Huma n Rights and Fundamental Freedoms
(“the Convention”) by an Azerbaijani national, Mr Ismayil Asgar oglu
Ismayilov ( İsmay ıl Əsg ər o ğlu İsmay ılov – “the applicant”), on
30 December 2003.
2. The applicant, who had been granted legal aid, was represented by
Ms L. Madatova, a lawyer practising in Baku. The Azerbaijani Government
(“the Government”) were represente d by their Agent, Mr C. Asgarov.
3. The applicant alleged that the significant delays in the state
registration of the public association of which he was a founder amounted to
a violation of his right to freedom of association, th at the domestic courts
were not independent and impartial, and that the domestic remedies were
not effective in lawsuits filed by public associations agains t the Ministry of
Justice of Azerbaijan.
4. On 30 November 2006 the President of the Chamber decided to give
notice of the application to the G overnment. Under the provisions of
Article 29 § 3 of the Conv ention, the Court decided to examine the merits of
the application at the same time as its admissibility.
2 ISMAYILOV v. AZERBAIJAN JUDGMENT
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1947 and lives in Baku.
6. The applicant was one of the founders of an association named
“Humanity and Environment” (“ İnsan v ə Mühit” İctimai Birliyi ),
established on 6 September 1999.
7. On 30 September 1999 the founders applied to register the association
with the Ministry of Justice (“the Ministry”), the government authority
responsible for the state registration of legal entities. In accordance with the
domestic law, a non-governmental organi sation acquires the status of a legal
entity only upon its state re gistration by the Ministry.
8. On 11 February 2000, approximately four and a half months after the
date of application for registration, th e Ministry returned the registration
documents to the founders without taking any action, that is without issuing
either a state registration certificate or an official refusal to register the
association. The Ministry noted that th e association’s charter did not comply
with Article 1 of the Law on Public Associations of 10 November 1992.
9. The founders redrafted the charter in line with the Ministry’s
comments and on 24 July 2000 reapplied for state registration, submitting a
new version of the charter. On 28 December 2000 the Ministry responded
with another refusal, stating that the charter provisions concerning the
association’s members were not in compliance with Article 10 of the Law
on Non-Governmental Organisations (P ublic Associations and Funds) of
13 June 2000 (“the NGO Law”).
10. The applicants again revise d the charter and on 28 August 2002
submitted their third registration request.
11. Having not received any response to their third registration request,
on 25 October 2002 the founders lodged an action, complaining that the
Ministry “evaded” registering thei r organisation within the time-limits
specified by law and asking the court to oblige the Ministry to register it.
They also demanded compensation for non-pecuniary damage. On
2 December 2002 the Yasamal District Court dismissed the founders’ claim,
finding nothing unlawful in the actions of the Ministry. The court found that
the association’s charter had not b een drafted in accordance with the
requirements of the domestic law. Th e founders lodged an appeal against
this judgment with th e Court of Appeal.
12. In the meantime, on 6 Decembe r 2002 the Ministry again returned
the registration documents to the founders. This time the reason for
declining the registration was the founders’ failure to include in the charter
the conditions for terminating membership of the association, as required by
Article 13 of the NGO Law.
ISMAYILOV v. AZERBAIJAN JUDGMENT 3
13. On 22 May 2003 the Court of Appeal upheld the judgment of the
Yasamal District Court. On 5 N ovember 2003 the Supreme Court upheld
the lower courts’ judgments dismissing the founders’ claim.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. State registration of non-governmental organisations
14. The Civil Code of the Republic of Azerbaijan of 2000 provides as
Article 47. Charter of a legal entity
“47.1. The charter of a legal entity approved by its founders is the legal entity’s
foundation document. …
47.2. The charter of a legal entity shall set out the name, address, procedure for
management of activities and procedure for liquidation of the legal entity. The charter
of a non-commercial legal entity shall define the object and purpose of its activities.
Article 48. State registr ation of legal entities
“48.1. A legal entity shall be subject to state registration by the relevant executive
48.2. A violation of the procedure of a legal entity’s establishment or
non-compliance of its charter with Article 47 of the present Code shall be the grounds
for refusal to register the legal entity. …”
15. The Law on State Registration of Legal Entities of 6 February 1996
provides as follows:
Article 9. Review of an appl ication [for state registration] “Upon receipt of an application for state re gistration from a legal entity or a branch
or representative office of a foreign legal entity, the authority responsible for state
– accept the documents for review;
– within ten days, issue to the applicant a state registration certificate or a written
notification of refusal to register; or
– review the documents resubmitted after rectification of the breaches previously
existing therein and, within five days, take a decision on state registration.”
4 ISMAYILOV v. AZERBAIJAN JUDGMENT
16. The Law on Non-Governmental Or ganisations (Public Associations
and Funds) of 13 June 2000 provides as follows:
Article 16. State registration of non-governmental organisations
“16.1. The state registration of non-governmental organisations shall be carried out
by the relevant executive auth ority in accordance with the laws of the Republic of
Azerbaijan on state registration of legal entities.
16.2. Non-governmental organisations shall acquire the status of a legal entity only
after achieving state registration.”
Article 17. Refusal of state registration
“17.1. Non-governmental organisations can be refused registration only if there is
another organisation existing under the same name, or if the documents submitted for
registration contravene the Constitution of the Republic of Azerbaijan, this law and
other laws of the Republic of Azerbaijan, or contain false information.
17.2. Decision on refusal of state registration shall be presented in writing to the
representative of the non-governmental organisation, with indication of the grounds
for refusal as well as the provisions and articles of the legislation breached upon
preparation of the foundation documents.
17.3. Refusal of registration shall not prevent the organisation from resubmitting its
registration documents after rectification of the breaches.
17.4. A decision on refusal of state registration may be challenged in court.”
B. Additional cassation procedure in civil proceedings
17. For the summary of the relevant domestic law and practice
concerning requests for the reopening of the domestic civil proceedings and
review of the final decision by the Plenum of the Supreme Court under the
procedure of additional cassation, see Babayev v. Azerbaijan ((dec.),
no. 36454/03, 27 May 2004).
C. Right of individual applicat ion to the Constitutional Court
18. The Constitution of the Republic of Azerbaijan of 12 November
1995, as amended by the referendum of 24 August 2002, provides as
Article 130. The Constitutional Court of the Republic of Azerbaijan
“V. Every person claiming to be a victim of an infringement of his or her rights and
freedoms by the legislative and executive authorities, as well as decisions of
municipal authorities and courts, may lodge a complaint with the Constitutional Court
ISMAYILOV v. AZERBAIJAN JUDGMENT 5
of the Republic of Azerbaijan … with the purpose of the restoration of the infringed
human rights and freedoms.”
19. The Law on the Constitutional Court of the Republic of Azerbaijan
of 23 December 2002, in force from 8 Ja nuary 2004 (hereafter the “Law on
Constitutional Court”), provides as follows:
Article 34. Complaints
“34.1. Every person claiming to be a victim of an infringement of his or her rights
and freedoms by the legislative and executive authorities, as well as decisions of
municipal authorities and courts, may lodge a complaint with the Constitutional Court
of the Republic of Azerbaijan in order to resolve matters set out in Article 130,
Part III.1-7 of the Constitution with the purpose of the restoration of the infringed
human rights and freedoms. …
34.4. Complaints can be submitted to the Constitutional Court in the following
34.4.1. after exhaustion of all appeal rights, within six months of the entry into
force of the decision of the court of last instance (the Supreme Court of the Republic
34.4.2. within three months of the infringement of the complainant’s right to access
34.5. A complaint may be lodged directly with the Constitutional Court if the courts
of general jurisdiction cannot prevent serious and irreparable damage to the
complainant as a result of violation of his or her human rights and freedoms.”
D. Relevant domestic practice
20. Prior to lodging a constitutiona l complaint against the domestic
courts’ decisions in civil cases, individual applicants were required, as part
of the conditions on admissibility of individual applications under
Article 34.4.1 of the Law on Constitutional Court, to have lodged an
additional cassation appeal with the President of the Supreme Court,
requesting the reopening of the proceed ings and a review of the Supreme
Court’s final decision by the Ple num of the Supreme Court. The
constitutional complaint was admitted into preliminary examination only
after the individual complainant had obtained either a refusal by the
President of the Supreme Court to reopen the proceedings or, if the
proceedings had been re-opened, a decision of the Plenum of the Supreme
6 ISMAYILOV v. AZERBAIJAN JUDGMENT
I. ALLEGED VIOLATION OF AR TICLE 11 OF THE CONVENTION
21. The applicant complained that th e failure by the Ministry of Justice
to register the public association in a timely manner had constituted an
interference with his freedom of a ssociation. As the Ministry evaded
registering the organisation by signifi cantly delaying the examination of the
founders’ registration requests and breach ing the statutory time-limit for the
official response, his association had not been able to acquire legal status.
This allegedly constituted a violation of his right to freedom of association,
as provided in Article 11 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
others. This Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the
administration of the State.”
1. Scope of the case and its compatibility ratione temporis with the
provisions of the Convention
22. The Government submitted that each of the three registration
requests had related to a different association, because each time either the
number of founders or the name of the association had been different.
Specifically, the first registration request referred to an association named
the Scientific-Practical Centre “Humanity and Environment” ( “İnsan v ə
Mühit” Elmi- Əm əli M ərkə zi), while the second and third registration
requests related to an association named the Public Association “Humanity
and Environment” ( “İnsan v ə Mühit” İctimai Birliyi ). Moreover, while the
second registration request was signed by three co-founders, the third one
was signed only by two of them. For th ese reasons, the Government argued
that the first and second registration reque sts related to different associations
and were irrelevant to this case.
ISMAYILOV v. AZERBAIJAN JUDGMENT 7
23. The applicant stated that all the registration requests had related to
the same public association. The changes in the full name of the association
had been due to minor corrections made by the founders in the association’s
constituent documents during the cour se of the registration process.
Moreover, a mere exclusion of one of the founders before the third
registration request did not “change th e public association and … make it
different”. Finally, the fact that all the registration requests referred to the
same association had never been di sputed at the domestic level by the
Ministry of Justice.
24. Having regard to the different versions of the association’s charter
submitted at each registration request, the Court is not persuaded by the
Government’s argument that it wa s not the same public association.
Moreover, it does not appear from the materials in the case file that the
domestic courts considered the thr ee registration requests to relate to
different public associations.
25. In any event, the Court notes that the events relating to the first and
second registration requests occurred prior to 15 April 2002, the date of the
Convention’s entry into force with re spect to Azerbaijan. The Court notes
that it is only competent to examine complaints of violations of the
Convention arising from events that ha ve occurred after the Convention had
entered into force with respect to the High Contracting Party concerned
(see, for example,
Kazimova v. Azerbaijan (dec.), no. 40368/02, 6 March
2003). Accordingly, the Court’s compet ence is limited to the part of the
complaint relating to the events that occurred after 15 April 2002, whereas
the events relating to th e applicant’s first and se cond registration requests
fall outside of its competence
ratione temporis . However, where necessary,
the Court shall take into account the st ate of affairs as it existed at the
beginning of the period under consideration.
2. Domestic remedies
26. The Government submitted that the applicant had not exhausted
domestic remedies because, in his su bmissions to the domestic courts, he
had not specifically complained of an infringement of his right to freedom
of association under Article 11 of the Convention.
27. The Government further submitted th at “despite [the fact that] the
Supreme Court, as a cassation instance, was the highest judicial authority in
Azerbaijan, there was [a] higher judicial instance directly accessible to the
applicant, [namely] the Constitutional Court”. The Government argued that,
under domestic law, final decisions of the Supreme Court could be reviewed
by the Constitutional Court. An individual application to the Constitutional
Court constituted an ordinary remedy which the applicant had failed to
exhaust. In this regard, th e Government argued that, in Ramazanova and
Others v. Azerbaijan (no. 44363/02, § 43, 1 Februa ry 2007), the European
Court had recognised the Constitutional Court as an effective domestic
8 ISMAYILOV v. AZERBAIJAN JUDGMENT
remedy for alleged violations of the rights and freedoms under the
28. The applicant submitted that it was not necessary for him to refer
expressly to Article 11 of the Conven tion in his appeals to the domestic
courts, because his complaint that th e Ministry had unlawfully “evaded the
registration of the non-governmental orga nisation” constituted a substantive
complaint of an infringement of his freedom of association.
29. The applicant also noted that th e final decision in the present case
had been delivered by the Supreme Court on 5 November 2003. In such
circumstances, he could not have been required to lodge an appeal with the
Constitutional Court, because that court had not been directly accessible to
individuals until the beginning of 2004, when the right of individual
application had been granted by the Law on Constitutional Court.
30. In addition, the appl icant argued that the Constitutional Court did not
constitute part of the system of the courts of general jurisdiction and could
not be considered as an effectiv e remedy. The Constitutional Court was
accessible to individuals only after exhausting the additional cassation
procedure, that is requesting the Pres ident of the Supreme Court to reopen
the proceedings and refer the case to th e Plenum of the Supreme Court. The
additional cassation procedure was an in effective remedy in itself, because
it constituted an indirect and extraordinary appeal.
31. Lastly, the applicant argued that, in practice, the Constitutional Court
was ineffective because, in th e period between 2004 and 2007, it had
admitted for examination only about 60 applications out of approximately
1,600 individual applications made.
32. As for the Government’s argument that the applicant had not
expressly relied on Article 11 of the Convention in the domestic
proceedings, the Court finds that the applicant’s court action against the
Ministry of Justice, in which he co mplained of unlawful delay in state
registration of the association of which he was a founder, amounted in
substance to a complaint of an alleged violation of his right to freedom of
33. As to the Government’s contention that the applicant was also
required to apply to the Constitutional C ourt, the Court points out, at the
outset, that the Government’s interpretation of the Ramazanova and Others
case is incorrect. Noth ing in that case can be interpreted to suggest that the
Court had “established” that the Constitutional Court was a domestic
remedy to be exhausted in Azerbaijan prior to applying to Strasbourg. In
that case, the applicants had indeed lodged an additional cassation appeal
and a constitutional compla int after lodging their application with the Court
(see Ramazanova and Others, cited above, §§ 22-24); as such, these
developments were taken into consideration by the Court as new factual
circumstances of the case which t ook place after the lodging of the
application with the Court and whic h resulted in the reopening of the
ISMAYILOV v. AZERBAIJAN JUDGMENT 9
domestic proceedings in the courts of general jurisdiction. However, the
question whether the applicants were required, within the meaning of
Article 35 § 1 of the Convention, to file a constitutional complaint either
before or after lodging their application with th e Court was not, as such,
within the scope of issues on which th e Court was called upon to decide in
that case (ibid., §§ 40-45).
34. It therefore remains to be determ ined whether, in the present case,
the applicant was required, within th e meaning of Article 35 § 1 of the
Convention, to apply to the Constitutional Court.
35. The Court reiterates that the pur pose of the domestic remedies rule
Article 35 § 1 of the Convention is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged before they
are submitted to the Court. However, the only remedies to be exhausted are
those that relate to the breaches alleged and that, at the same time, are
available and sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they will lack
the requisite accessibility and effectiven ess; it falls to the respondent State
to establish that these various conditions are satisfied (see,
, Vernillo v. France , judgment of 20 February 1991, Series A
no. 198, pp. 11-12, § 27).
36. The Court reiterates that the is sue whether domestic remedies have
been exhausted is normally determined by reference to the date when the
application was lodged with the Court (see
Baumann v. France ,
no. 33592/96, § 47, ECHR 2001-V (extra cts)) although, depending on the
circumstances of the case, the Court may accept that the last stage of
available remedies may be reached after the lodging of the application but
before the Court is called upon to pronoun ce itself on admissibility (see, for
example, Ringeisen v. Austria , judgment of 16 July 1971, Series A no. 13,
p. 38, § 91; Ramazanova and Others, cited above, § 42; and Ivanov
v. Azerbaijan (dec.), no. 34070/03, 15 February 2007). This rule is also
subject to other exceptions which may be justified by the specific
circumstances of each case, for example when a new remedy, specifically
designed to address a certain genera l problem, is introduced after the
lodging of a particular i ndividual application with the Court (see, for
Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; see
also, among many other cases, Brusco v. Italy (dec.), no. 69789/01, ECHR
37. Turning to the circumstances of the present case, the Court notes
that, although the right of individual application to the Constitutional Court
was granted by the constitutional amendments of 24 August 2002, such a
right was not available in practice un til the entry into force of the Law on
Constitutional Court on 8 January 2004, which established the procedural
rules for examination of individual cons titutional complaints. According to
the information available to the Court, pending the entry into force of that
10 ISMAYILOV v. AZERBAIJAN JUDGMENT
Law, the Constitutional Court refused to examine any complaints lodged by
individuals, citing lack of procedural rules for examination of such
38. Accordingly, at the time of the lodging of the present application
with the Court on 30 December 2003, lodgi ng a constitutional complaint did
not offer the applicant any reasona ble prospect of success (see, mutatis
mutandis , Urukalo and Nemet v. Croatia , no. 26886/02, § 35, 28 April
2005). The Court also observes that, unlike the Nogolica and Brusco cases
cited above, this new remedy was not introduced specifically with the
purpose of providing direct redress for such type of complaints as those
raised by the applicant in the present case. The Court finds no other special
circumstances which would justify making an exception to the general rule
39. Furthermore, in any event, th e Court observes that, in accordance
with the domestic practice based on Article 34.4.1 of the Law on
Constitutional Court, individuals wishing to lodge a constitutional
complaint were first required to lodge an additional cassation appeal with
the Supreme Court’s President, asking for the reopening of the proceedings
and a review of the Supreme Court’s final decision by the Plenum of the
Supreme Court. Only after an attempt to make use of that remedy did the
Constitutional Court accept complaints from individual applicants for
preliminary examination. In this connec tion, the Court reiterates its previous
finding that an additional cassation app eal filed with the President of the
Supreme Court constituted an extraord inary remedy which was not required
to be exhausted, within the meaning of Article 35 § 1 of the Convention,
prior to lodging an application with the Court (see Babayev, cited above).
40. In such circumstances, the Court considers that the Constitutional
Court constituted a remedy which lack ed adequate accessibility. In
particular, the applicant could not be required to exhaust a remedy which, as
a precondition of accessibility, obliged the applicant to attempt to exhaust
another remedy which was found to be ineffective within the meaning of
Article 35 § 1 of the Convention.
41. For the reasons above, the Court rejects the Government’s objection.
42. Having regard to the above conclu sions, the Court further notes that
the complaint is not inadmissible on a ny other grounds and that it is not
manifestly ill-founded within the m eaning of Article 35 § 3 of the
Convention. It must therefore be declar ed admissible in the part relating to
the events that took place after 15 April 2002.
ISMAYILOV v. AZERBAIJAN JUDGMENT 11
1. The parties’ submissions
43. The Government argued that there had been no interference with the
applicant’s freedom of association, noti ng that the Ministry had not formally
refused to register the associati on. Instead, it merely returned the
association’s foundation documents to th e founders so that the latter could
rectify the deficiencies a nd ensure that they complied with the requirements
of the domestic law. The Government contended that, although “a refusal to
register a public association might be re garded as a violation of the right to
freedom of association, a delayed re sponse to [an application for state
registration] is not a vi olation of this right”.
44. Moreover, the Government argued that the lack of the status of a
legal entity did not prevent the associat ion from continuing its activities. In
this connection, they note d that the association had published a book as a
part of its actual activity even without a status of a legal entity.
45. The Government further submitted that the founders “did not comply
with the duty of diligence” during the registration process, as the public
association’s constituent documents ha d not been prepared in accordance
with the requirements of the law. Even if the Ministry had committed
procedural errors, they had not amounted to a violation of the applicant’s
rights under Article 11.
46. The applicant argued that the delay in responding to the founders’
registration requests, which had been significantly beyond the time-limits
set by the domestic law, had constitute d an interference with, and a violation
of, his right to freedom of association. The applicant maintained that such a
delay was in breach of the domestic law.
47. The applicant also noted that, without acquiring the status of a legal
entity through state regist ration, the association had been unable to function
properly and to engage in its primary activities. As for the book to which the
Government referred, the applicant noted that the book had not been
published by the Public Associati on “Humanity and Environment”. He
stated that he was one of the co-a uthors of the book, and the name of the
unregistered association was mentioned ne xt to his name simply to show his
occupation and activities in the field of non-governmental organisations.
2. The Court’s assessment
48. The Court has found previously th at the failure by the Ministry of
Justice to reply, within the statutory time-limits, to requests for state
registration of a public a ssociation, 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
12 ISMAYILOV v. AZERBAIJAN JUDGMENT
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 founde rs 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, ther e has been an interference with the
exercise of his right to freedom of association.
49. Such interference will not be jus tified under the terms of Article 11
of the Convention unless it was “presc ribed 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 C ourt 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
of 6 February 1996 set a ten- day time-limit for the Ministry
to issue a decision on the state registra tion of a legal entity or refusal to
register it. Where the legal ent ity’s foundation documents contained
rectifiable deficiencies, the Ministry could return the documents to the
founders within the same ten-day tim e-limit with instructions for their
rectification. After the registration request was resubmitted following a
rectification, the law provided for a fi ve-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 requ est 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 Minist ry 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 Fe bruary 1996 did not afford sufficient
protection against delays in the stat e registration procedure caused by the
Ministry’s failure to respond to regi stration requests within the statutory
Ramazanova and Others , cited above, § 66).
54. Having found that the Ministry of Justice breached the statutory
time-limit for issuing the formal respons e 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 Artic le 11 § 2 of the Convention.
ISMAYILOV v. AZERBAIJAN JUDGMENT 13
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
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
57. The applicant also complained that, contrary to Article 6 § 1 of the
Convention, the domestic courts had not been independent and impartial.
He noted that, in accordance with th e law applicable at the time of the
events in question, the selection of candidates for judicial positions in
Azerbaijan was made by the Judicial Legal Council under the President of
the Republic of Azerbaijan, presided ove r by the Minister of Justice. The
applicant alleged that, in such circ umstances, the judges of the domestic
courts could not be indepe ndent and impartial in the proceedings against the
Ministry of Justice, because their s ubsequent reappointment to the courts
would depend on the discretion of the Mini ster of Justice as the Chairman of
the Judicial Legal Council. Furthermor e, in conjunction with Article 6 § 1,
the applicant complained under Article 13 of the Convention that the
domestic courts could not be considered as an effective remedy because
they had never ruled against the Minist ry of Justice in cases concerning
delays in registration of non-governmental organisations.
58. The Court notes that these complaints are essentially the same as
those raised before the Court in the case of
Asadov and Others v. Azerbaijan
no. 138/03, 12 January 2006). In that case, the Court found that the
complaints were manifestly ill-founde d. In the absence of any substantially
new arguments or evidence submitted in the present case, the Court does not
find any reason to deviate from its reasoning in the
Asadov and Others case.
59. It follows that these complaints are manifestly ill-founded and must
be rejected in accordance with Ar ticle 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
14 ISMAYILOV v. AZERBAIJAN JUDGMENT
1. Pecuniary damage
61. The applicant claimed 20,000 euro s (EUR) in respect of pecuniary
damage. He argued that, as a result of the Ministry’s failure to register the
association for several years, the associ ation’s founders had not been able to
secure any financial re sources for its activity.
62. The Government submitted that this claim was unsubstantiated.
63. The Court cannot speculate whethe r the applicant would indeed have
been able to secure any funding for his association if it had been registered
in a timely manner, and if so, in what amount. The Court, therefore, rejects
the applicant’s claim in respect of pecuniary damage.
2. Non-pecuniary damage
64. The applicant claimed EUR 10,000 in respect of non-pecuniary
65. The Government contested this claim.
66. In the Court’s view, the delay in the state registration procedure must
have been frustrating for the appl icant as the co-founder of the public
association. Nevertheless, the amount claimed is excessive. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards the applicant EUR 1,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
67. The applicant also claimed EUR 2,000 for the costs and expenses
incurred before the domestic courts and the Court. He claimed that this
amount also included translation, postal, fax and photocopy expenses.
Although he was unable to produce ev idence proving these expenses, he
argued that they were actually incurred and reasonable.
68. The Government asked the Court to reject this claim for lack of
69. According to the Court’s case-la w, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been shown
that these have been actually and ne cessarily incurred and were reasonable
as to quantum. In the present case, rega rd being had to all the information in
the Court’s possession and the above crit eria, as well as the fact that the
applicant was not represented by a la wyer in the domestic proceedings and
that he has received the sum of EU R 850 in legal aid from the Council of
Europe, the Court finds that there is no call to award the applicant any
additional amount under this head.
ISMAYILOV v. AZERBAIJAN JUDGMENT 15
C. Default interest
70. The Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, TH E COURT UNANIMOUSLY
1. Declares the complaint concerning the applicant’s right to freedom of
association admissible and the remainder of the application
2. Holds that there has been a violation of Article 11 of the Convention;
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in
respect of non-pecuniary damage, to be converted into the national
currency at the rate applicable at the date of settlement, plus any tax that
may be chargeable on this amount;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
4. Dismisses the remainder of the applican t’s claim for just satisfaction.
Done in English, and notified in writing on 17 January 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis