The denial of recognition of legal representative to human rights NGOs violated the right of association. Lack of clarity in the legislation and inadequacy of the national courts in its interpretation.

JUDGMENT

Jafarov and others v. Azerbaijan 25.07.2019 (no. 27309/14)

see here

SUMMARY 

The case concerned the authorities’ repeated refusal to register a non-governmental organisation
set up to defend human rights in Azerbaijan. The authorities’ ultimate reason for the refusal was the
NGO founders’ failure to specify the powers of a “legal representative” in their founding document.

The NGO founders, applicants in this case, contested the refusals before the domestic courts,
without success.

The Court found in particular that the domestic law on registration was not clear and open to
various interpretations, in particular regarding the term “legal representative” and the situations
where the law required his or her powers to be specified.

The courts should have used the assessment of the applicants’ case as an opportunity to clarify the
provision in question, however, they had simply upheld the authorities’ actions as lawful, without
any detailed reasoning. They had thus avoided the crux of the applicants’ well-founded arguments:
that appointing a legal representative was optional under the law and that, as they had chosen not
to appoint one, they could not be penalised for failing to specify what that person’s powers were;
and that the authorities had failed to comply with the registration procedure.

COMMENT

The ECtHR requires national courts to interpret the vague and ambiguous (and non-qualitative) legislation in order to find a solution to the issues raised.

PROVISIONS

Article 11

THE PRINCIPAL FACTS 

The applicants are Rasul Agahasan oglu Jafarov, Emin Rafig oglu Huseynov, and Sabuhi Nazir oglu
Gafarov, three Azerbaijani nationals who were born in 1984, 1979, and 1974 respectively; and an
association they founded in Baku in 2010 called the Human Rights Club (HRC).

In the document founding their association, the applicants elected Mr Jafarov as chairman and
decided to apply to the Ministry of Justice for registration as a public association with the status of a
legal entity.

Throughout 2011 they made three applications for registration to the Ministry, which were returned
each time because they had not complied with various legal formalities. The Ministry’s third and last
decision, in December 2011, cited the applicants’ failure to specify the powers of a “legal
representative” in their founding document as the reason for refusing registration.

The applicants subsequently went to court, arguing that the law did not require the appointment of
a legal representative and that, as they had chosen not to appoint one, they could not be penalised
for failing to specify what his or her powers were. They also complained that the Ministry had failed
to comply with the registration procedure, which required notification of all alleged errors or
omissions after the first review and not in sequence, as had been the case for their applications.

However, the courts, ultimately the Supreme Court in 2013, upheld the Ministry’s actions as lawful.

THE DECISION OF THE COURT …

Without State registration HRC could not obtain the status of a legal entity and associated rights
such as obtaining funding, opening a bank account or hiring employees, meaning it could not
function properly. The Court therefore considered that the Ministry of Justice’s repeated rejection of
the registration requests had interfered with the applicants’ right to freedom of association.

The Court went on to examine whether that interference had been justified within the meaning of
Article 11 of the Convention, and in particular whether it had been “prescribed by law”.

Firstly, it considered that the relevant law, the Law on State Registration, as applied and interpreted
at the time, had not provided a precise definition of the term “legal representative” used in the
context of a legal entity. Nor was it clear in what circumstances such a person could be considered to
have been appointed.

In the applicants’ case, the Ministry of Justice had never officially clarified who it considered to be
the “legal representative” of HRC. Indeed, there was a discrepancy between the Government’s
position before the Strasbourg Court, according to which the legal representative was Mr Jafarov,
HRC’s chairman, and the Baku Court of Appeal’s finding that all three founders were legal
representatives collectively. Moreover, the Ministry had interpreted the relevant provision as
requiring the applicants to mention the “legal representative” in their founding decision and specify
his or her powers, despite the fact that the provision stated in plain language that these were
requirements only if they had actually chosen to appoint such a person.

In a situation where the law was not clear and was open to various interpretations, the domestic
courts should have given a reasonable definition of the term “legal representative” and the
situations where the law required his or her powers to be specified. However, by and large the
courts had limited themselves to upholding the Ministry’s actions as lawful without any detailed
reasoning, thus avoiding the crux of the applicants’ arguments.

The Court therefore found that the law, as in force and applied at the time, had failed to protect
against arbitrary application by the authorities, and had not met the “quality of law” requirement of
the Convention.

Furthermore, it found that the Ministry had not complied with the requirements of domestic law on
the registration procedure. Instead of notifying the applicants of all the omissions in its application
after the first review, as required by law, it had found a new omission after each successive request.
The provision requiring that deficiencies in applications for registration be identified all in one
review had not therefore been applied correctly in the applicants’ case, resulting in an unlawful
delay and de facto preventing the applicants’ association from obtaining legal-entity status.

The result had been an unlawful refusal by the national authorities to register the association.
Accordingly, the interference with the applicants’ right to freedom of association had not been
“prescribed by law”, in violation of Article 11.

Just satisfaction (Article 41)

The Court held that Azerbaijan was to pay all the applicants jointly 4,500 euros (EUR) in respect of
non-pecuniary damage and EUR 2,040 in respect of costs and expenses.

 

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