CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 juillet 2019

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AZERBAIJAN   (Application no. 27309/14)               JUDGMENT         STRASBOURG     25 July 2019     FINAL   25/10/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Jafarov and Others v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Yonko Grozev,   Ganna Yudkivska,   Síofra O’Leary,   Mārtiņš Mits,   Lәtif Hüseynov,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 2 July 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 27309/14) against the Republic of Azerbaijan lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Azerbaijani nationals, Mr Rasul Agahasan oglu Jafarov ( Rəsul Ağahəsən oğlu Cəfərov ), Mr Emin Rafig oglu Huseynov ( Emin Rafik oğlu Hüseynov ) and Mr Sabuhi Nazir oglu Gafarov ( Səbuhi Nazir oğlu Qafarov ), and the Human Rights Club, an association established in Baku in 2010 (“the applicants”), on 18 March 2014. 2.     The applicants were represented by Ms R. Remezaite, a lawyer based in London. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov. 3.     The applicants alleged, in particular, that their right to freedom of association had been breached owing to the authorities’ repeated refusal to register the association founded by them and grant it legal-entity status. 4.     On 14   October 2015 notice of the complaint under Article 11 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The individual applicants were born in 1984, 1979 and 1974 respectively. At the time of lodging the application, the first and second applicants lived in Baku and the third applicant lived in Mingachevir. It appears that the second and third applicants have since then left Azerbaijan to reside abroad (see paragraph 50 below). 6.     The applicants are human rights defenders. On 10   December 2010 they came together to found the Human Rights Club (HRC), a non ‑ governmental, non-profit, non-political and non-religious human rights organisation. The three founders adopted HRC’s charter, elected the first applicant, Mr Jafarov, as the organisation’s chairman, and decided to apply to the Ministry of Justice for HRC’s State registration as a legal entity in the form of a public association. This is one of the two types of NGOs provided for under domestic law, the other being a foundation. The founding decision stated as follows: “Decided: 1.     To found the public association Human Rights Club. 2.     To adopt the charter of the public association Human Rights Club with the proposed changes and additions. 3.     To define the purpose (aim) of founding the association in the charter as follows: ‘2.1.     The aim of the association is to assist in the protection of human rights and freedoms in Azerbaijan.’ 4.     To establish the following terms of reorganisation of the association in the charter: ‘...’ 5.     To elect Rasul Agahasan oglu Jafarov as chairman of the association and adopt his home address as the legal address of the association. 6.     To authorise the association’s founders to apply to the Ministry of Justice of the Republic of Azerbaijan for its State registration.” 7.     According to the adopted charter, the association’s chairman had the authority to represent the association, enter into agreements on its behalf, issue powers of attorney, organise general assembly and management board meetings, and carry out other functions assigned to him by the general assembly in accordance with the charter. 8.     On 26 July 2011 the applicants submitted an application to the Ministry of Justice for State registration of HRC as a legal entity, as required by domestic law, together with the necessary documents. 9.     On 12 September 2011 the Ministry of Justice returned the registration documents to the applicants without taking a decision on State registration, noting that, contrary to the requirements of Article 5.4.4 of the Law on State registration and the State register of legal entities of 12   December 2003, as in force at the material time (“the Law on State Registration”), the founders had failed to submit copies of their personal identification documents. The letter concluded as follows: “Based on the above and on Article 11.3.1 of the Law [on State Registration], the relevant documents are being returned to you [ müvafiq sənədlər sizə geri qaytarılır ].” 10.     On 23 September 2011 the applicants resubmitted their State registration request, enclosing the additional documents requested. 11.     On 4 November 2011 the Ministry of Justice returned the registration documents again, stating that, contrary to Article 5.4.1 of the Law on State Registration, the decision of 10 December 2010 founding HRC had not been signed by all three founders. The letter concluded as follows: “Based on the above and on Article 11.3.1 of the Law [on State Registration], the documents are being returned unexecuted [ sənədlər icra olunmadan geri qaytarılır ].” 12.     On 15 November 2011 the applicants resubmitted the State registration request for a third time, enclosing a copy of the decision signed by all three founders. 13.     On 28 December 2011 the Ministry of Justice returned the registration documents for a third time, stating that, contrary to Article 5.4.1 of the Law on State Registration, the powers of the association’s “legal representative” ( qanuni təmsilçi ) were not specified in the decision of 10   December 2010 founding HRC. The full text of the letter stated as follows: “Your request for State registration of the public association Human Rights Club has been examined. We note that, contrary to Article 5.4.1 of the Law [on State Registration], the powers of the legal representative are not specified in the decision founding the organisation and adopting its charter. Based on the above and on Article 11.3.1 of the Law [on State Registration], the documents are being returned [ sənədlər geri qaytarılır ].” 14.     On 16 January 2012 the applicants lodged an action against the Ministry of Justice with Baku Administrative Economic Court No. 1, arguing that the Ministry had unlawfully refused to register HRC. In particular, they argued that appointment of a legal representative was optional under Article 5.4.1 of the Law on State Registration and, since no such representative had ever been appointed by the founders, the Ministry of Justice’s latest decision of 28 December 2011 had been unlawful and unsubstantiated. Moreover, the applicants relied on Article 8 of the Law on State Registration, which required that all “deficiencies” ( çatışmazlıqlar ) in registration documents be identified at once and notified to applicants (see paragraph 35 below). The applicants asked the court to recognise that the denial of State registration to HRC had constituted a violation of their rights under Article 58 of the Constitution (right to association) and Article 11 of the Convention, and to order the Ministry of Justice to register HRC. 15.     On 14 February 2012 Baku Administrative Economic Court No.   1 declared the complaint inadmissible on the grounds that two of the founders (Mr Huseynov and Mr Gafarov) had failed to submit evidence that they had applied to the Ministry of Justice. 16.     On 2 March 2012 the applicants appealed against that decision, arguing that the first-instance court’s finding had been incorrect. 17.     On 13 April 2012 the Baku Court of Appeal allowed the applicants’ appeal and remitted the case for examination on the merits. 18.     By a decision of 25 September 2012 Baku Administrative Economic Court No. 1 terminated the proceedings, finding that the complaint had to be considered withdrawn because the applicants had failed to appear at the preliminary hearings of 19 July and 25 September 2012. 19.     On 7 November 2012 the applicants submitted an information request to the court, requesting proof that they had been duly informed of the preliminary hearings. 20.     By a decision of 6   December 2012 Baku Administrative Economic Court No. 1 resumed the proceedings, finding that the applicants had not received notice of the time and place of the aforementioned preliminary hearings and that therefore their complaint could not be considered withdrawn. 21.     In written submissions to the court (as summarised in the first ‑ instance court’s judgment described in paragraph 23 below), the Ministry of Justice reiterated the content of its letters of 12 September, 4   November and 28 December 2011 and noted that its decisions to return the registration documents had been properly substantiated in those letters by reference to the relevant statutory provisions. The Ministry further argued that there had been no breach of the applicants’ right to freedom of association, because it had been open to them to rectify the deficiency mentioned in the Ministry’s latest letter and resubmit the corrected documents for registration. 22.     No representatives of the Ministry of Justice appeared at the oral hearing before the first-instance court, or at any of the oral hearings before the higher courts during the appeals subsequently brought by the applicants (described below). All the courts examined the case in the defendant’s absence. 23.     By a judgment of 19 February 2013 Baku Administrative Economic Court No. 1 dismissed the applicants’ complaint, finding summarily that their claim was unfounded and that the Ministry of Justice’s actions had been lawful because its letters returning the registration documents made reference to the relevant statutory provisions. The judgment did not specifically address the applicants’ arguments concerning the unlawfulness of the Ministry’s actions under the relevant provisions of the Law on State Registration. 24.     On 5 April 2013 the applicants appealed against the first-instance judgment, reiterating their arguments. In particular, they pointed out that Article 5.4.1 of the Law on State Registration had not required them to appoint a legal representative and that therefore the Ministry of Justice’s refusal to register HRC had been groundless. They further noted that, pursuant to Article 8 of the above-mentioned Law, when examining the registration documents, the Ministry of Justice had been required to identify all non-substantial deficiencies and notify the founders of them at once. Instead, each time it had returned the registration documents, the Ministry had incorrectly relied on Article 11.3.1 of the Law, which was not applicable to their situation. 25.     By a judgment of 15 May 2013 the Baku Court of Appeal dismissed the appeal and upheld the first-instance court’s judgment. It gave the following legal assessment: “As can be seen from the decision of the assembly of the founders of the public association Human Rights Club, dated 10 December 2010, [R.A.] Jafarov, [E.R.] Huseynov and [S.N.] Gafarov founded the public association Human Rights Club, adopted its charter, elected Rasul Jafarov as the association’s chairman and appointed the founders of the association as legal representatives representing its interests in connection with State registration. ... The first-instance court concluded in its judgment that the defendant’s decisions to return the association’s State registration documents had been substantiated by the relevant provisions of the Law [on State Registration], that the refusal by the defendant to adopt an administrative act had not been unlawful and that it had not resulted in a violation of the applicants’ rights. The court considers the conclusion reached by the first-instance court lawful and reasoned. The court notes that the [State registration] of legal entities on the territory of the Republic of Azerbaijan is regulated by the Law [on State Registration]. Under the provisions of [that] Law (Article 11.3.1), State registration of an organisation wishing to obtain legal-entity status may be refused if the documents submitted to [the Ministry of Justice] are in contradiction to the Constitution of the Republic of Azerbaijan, [that] Law or other legislation. As can be seen from the defendant’s letter, contrary to Article 5.1.1 [ sic – 5.4.1] of the above-mentioned Law, the powers of the legal representative were not specified in the decision founding the organisation and adopting its charter.” 26.     The appellate court then noted that the return by the defendant of the registration documents for rectification and the failure of the applicants to rectify the documents and reapply for State registration could not be considered a breach of their rights under Article 58 of the Constitution or Article 11 of the Convention. 27.     On 12 June 2013 the applicants appealed to the Supreme Court, reiterating their legal arguments. 28.     By a decision of 18 September 2013, served on the applicants on 14   October 2013, the Supreme Court dismissed the appeal and upheld the Baku Court of Appeal’s judgment. Without addressing any of the applicants’ legal arguments in detail, the Supreme Court found that the appellate court’s conclusion had been correct. 29.     In the meantime, HRC conducted its activities as an unregistered NGO and carried out a number of projects which, according to the applicants, received wide attention and support both at national and international level. 30.     In August 2014 Mr Rasul Jafarov was arrested and in April 2015 convicted on charges of illegal entrepreneurship, large-scale tax evasion and abuse of power, for receiving allegedly unregistered grants and donations, including those received for various HRC projects. The circumstances relating to his arrest and detention were examined in Rasul Jafarov v.   Azerbaijan (no. 69981/14, 17   March 2016), where the Court found violations of Article 5 §§ 1 and 4 of the Convention and Article 18 in conjunction with Article 5 of the Convention. II.     RELEVANT DOMESTIC LAW A.     1995 Constitution 31.     Article 58 of the Constitution provides: Article 58 – Right to association “I.     Everyone is free to associate with others. II.     Everyone has the right to establish any association, including political party, trade union and other public association or to join an already existing association. Freedom of activity of all associations is guaranteed. ...” B.     2000 Civil Code 32.     Articles 47, 48 and 49 of the Civil Code, as applicable at the material time, provided as follows: Article 47 – Charter of a legal entity “47.1.     The charter of a legal entity, approved by its founders, is the founding document of the legal entity. A legal entity established by one founder operates on the basis of a charter approved by the founder. 47.2.     The charter of a legal entity shall specify the name of the legal entity, its address, the procedure for the management of its activities, and the procedure for its liquidation. The charter of a non-commercial legal entity shall specify the scope and purposes of its activities. ...” Article 48 – State registration of a legal entity “48.1.     A legal entity shall be subject to State registration with the relevant executive authority. Data on State registration, including the company name for a commercial legal entity, shall be entered into the State register of legal entities generally available to the public. 48.2.     State registration of a legal entity may be refused only in the cases stipulated by the Law [on State Registration]. A refusal or an avoidance of State registration may be appealed against to a court. ...” Article 49 – Bodies of a legal entity “49.1.     A legal entity shall acquire civil rights and undertake civil obligations through its bodies, which shall act in accordance with the law and the charter. The procedure for the election or appointment of a legal entity’s bodies shall be specified by the charter. 49.2.     A legal entity may acquire civil rights and undertake obligations through its participants and representatives [ təmsilçi ]. 49.3.     A person acting on behalf of a legal entity, including any person represented in the legal entity’s governing bodies (board of directors and executive body), shall have a duty to act conscientiously, in a professional manner and logically for the benefit of the legal entity he or she represents, be loyal to the interests of the legal entity and all of its participants, hold the interests of the legal entity above his or her own interests and be prudent. ...” 33.     The Civil Code did not contain a specific separate definition of the term “legal representative” ( qanuni təmsilçi ) in the context of a legal entity. Article 49.2 (cited above) referred to a “representative” ( təmsilçi ) of a legal entity, without defining the term. Likewise, the Civil Code used both terms (“legal representative” and “representative”), without specifically defining them, in various other contexts relating to various civil relationships: for example, a legal representative of an incapacitated person (Article 379.1.4), a legal representative of a debtor (Article 443.9 and 448.3), and representatives of owners of parts of residential buildings acting on their behalf in owners’ general assemblies (Article 236.4). 34.     The Civil Code contained more detailed provisions and definitions concerning “representatives in transactions” ( əqdlərdə təmsilçi ) and “commercial representatives” ( kommersiya təmsilçisi ), as well as the procedure for their authorisation, in the following Articles: Article 359 – Definition of representation in transactions “359.1.     A transaction may also be concluded through a representative. A transaction concluded by one person (representative [ təmsilçi ]) on behalf of another person (represented) in accordance with authority based on a power of attorney, a legal provision or an act of an authorised State or municipal body, shall directly create, change or terminate the civil rights and obligations of the represented person. Authority may also be evident from the conditions of a representative’s activities (retail salesman, cashier, etc.). ...” Article 361 – Commercial representation “361.1.     A person representing businesspersons on a permanent and independent basis when concluding agreements in a business context shall be considered a commercial representative [ kommersiya təmsilçisi ] ...” Article 362 – Power of attorney “362.1.     A power of attorney is an authority given by one person to another for the purpose of representation before third parties. ... 362.2.     A power of attorney for concluding agreements requiring notarisation shall be notarised. ... 362.5.     A power of attorney on behalf of a legal entity shall be deemed issued when it is signed by its chief officer or another person authorised to do so by its charter, and sealed with the organisation’s seal.” C.     Law on State Registration 35.     Article 5 of the Law on State Registration (including Article 5.4.1, before it was amended on 24 January 2012), provided as follows: Article 5 – Request for State registration of an organisation wishing to obtain legal ‑ entity status “5.1.     An organisation wishing to obtain legal-entity status shall submit an application to the relevant executive authority [the Ministry of Justice]; 5.2.     The application shall be signed by the founder (or, if there are several, by all the founders) or by persons authorised to represent [him, her or them] in the relevant manner and shall be approved by a notary; ... 5.4.     The following documents shall be attached to the application: 5.4.1.     Founding documents – the charter of the organisation wishing to obtain legal ‑ entity status approved by its founder (founders) or his or her (their) authorised representative [ onun (onların) səlahiyyətli nümayəndəsi ], and the decision founding the organisation and adopting its charter (the decision shall include the intention by its founders to establish the organisation wishing to obtain legal-entity status; the terms of reorganisation of a new legal entity established by way of a merger, separation or division; adoption of the charter; if appointed, [information on] the legal representative [ qanuni təmsilçi ] and his or her powers; as well as other issues considered necessary by the founders; and this decision shall be signed by all the founders); ... 5.4.6.     if a legal representative is appointed [ qanuni təmsilçinin təyin edildiyi halda ], a copy of his or her identification documents; ...” 36.     The relevant part of Article 8 of the Law on State Registration provided as follows: Article 8 – Procedure for State registration of a non-commercial organisation wishing to obtain legal-entity status “8.1.     State registration of a non-commercial organisation wishing to obtain legal ‑ entity status, as well as a branch of representation of a foreign non-commercial legal entity, shall, as a general rule, be carried out within forty   days. 8.2.     The relevant executive authority [the Ministry of Justice] accepts for examination the application for State registration and the required accompanying documents and, within thirty days, verifies their compliance with the Constitution of the Republic of Azerbaijan, this Law and other legislative acts of the Republic of Azerbaijan. If during the examination there arises a need for an additional review in exceptional cases, this period can be extended for another thirty days. 8.3.     If the submitted documents are found to contain deficiencies [ çatışmazlıqlar ] that cannot serve as a basis for the refusal of State registration, the relevant executive authority [the Ministry of Justice] shall return the documents to the applicant and fix an additional twenty ‑ day period for rectification of those deficiencies. Any deficiencies [in the registration documents] that cannot serve as a basis for the refusal [of State registration] shall be identified and notified to the applicant for rectification at once. 8.4.     No later than ten days after the submitted documents have been examined or after the deficiencies identified in those documents have been rectified, the relevant executive authority [the Ministry of Justice] shall issue to the applicant a certificate on State registration or give a written notice of refusal of State registration (specifying and explaining the legal provisions which serve as a basis for the refusal). 8.5.     If no response refusing State registration is given within the period specified in this Article, the organisation shall be considered to have been granted State registration. In such cases, the relevant executive authority [the Ministry of Justice] shall issue a State registration certificate to the applicant within ten days.” 37.     The relevant part of Article 11.3 of the Law on State Registration, as in force at the relevant time, provided as follows: Article 11 – Ensuring legality in the application of the law “... 11.3.     State registration of an organisation ... wishing to obtain legal-entity status ... may be refused only in the following cases: 11.3.1.     if the documents submitted to the relevant executive authority [the Ministry of Justice] are in contradiction to the Constitution of the Republic of Azerbaijan, this Law or other legislation; 11.3.2.     if the purposes, tasks or activity forms of the organisation wishing to obtain legal-entity status are in contradiction to the legislation; 11.3.2-1.     if the charter of a non-governmental organisation provides for usurpation of the competences of the State or local self-administration authorities or functions relating to State supervision or inspection; 11.3.3.     if there is a breach of the legal requirements concerning the protection of company names or if there is a non-commercial organisation registered under the same name, or if the name of a non-governmental organisation contains names of State authorities of the Republic of Azerbaijan or names of prominent Azerbaijani public figures (in the absence of permission by their close relatives or heirs); 11.3.4.     if the deficiencies identified by the relevant executive authority [the Ministry of Justice] in the founding documents have not been rectified within the time period specified in Article 8.3 of this Law.” D.     Amendments to the Law on State Registration made after the events of the present case 38.     Under the new version of Article 5.4.1, as amended on 24 January 2012, there was no requirement to include information on the legal representative and his or her powers in the founding decision. 39.     By an amendment of 23 May 2017, the following definition of a “legal representative” was added to Article 2 of the Law on State Registration: “2.0.14.     legal representative [ qanuni təmsilçi ] – a person or persons having powers to represent an organisation in accordance with its charter or regulations; ...” 40.     By a further amendment of 6 December 2018, the words “if appointed” were deleted from Article 5.4.6, while Article 5.2 was amended to read as follows: “5.2.     The application shall be signed by the founder (or, if there are several, by all the founders), legal representative (legal representatives) or by persons authorised to represent them in the relevant manner and shall be approved by a notary; ...” E.     Law on non-governmental organisations (public associations and foundations) of 13 June 2000 (“the Law on NGOs”) 41.     The relevant provisions of the Law on NGOs, as in force at the material time, provided as follows: Article 12 – Establishment of a non-governmental organisation “12.1.     A non-governmental organisation may be established through foundation or reorganisation of an existing non-governmental organisation. 12.1-1. ... 12.2.     Establishment of a non-governmental organisation through foundation shall be carried out by a decision of the founder (founders). In such cases, a founding assembly shall be held and the charter of the organisation adopted. ...” Article 16 – State registration of non-governmental organisations “16.1.     State registration of non-governmental organisations shall be carried out by the relevant executive authority [the Ministry of Justice] in accordance with the Law [on State Registration]. 16.2.     A non-governmental organisation shall obtain legal-entity status only after its State registration. ...” Article 25 – Principles of governing a public association “25.1.     The structure and composition of a public association, powers, procedure for formation and term of office of its governing bodies, and rules for decision-making and representing the public association shall be determined by the public association’s charter in accordance with this Law and other laws. ...” Article 26 – Executive body of a public association “26.1.     A public association’s executive body may be a collegial or sole body. It (he or she) shall carry out ongoing management of the public association’s activities and report to the public association’s supreme governing body. 26.2.     A public association’s executive body shall open branches and representative offices. 26.3.     The powers of a public association’s executive body shall include dealing with all issues which do not form part of the exclusive competence of the public association’s other governing bodies in accordance with this Law, other laws and the public association’s charter.” F.     Law on Grants of 17 April 1998 (“the Law on Grants”) 42.     The relevant provision of the Law on Grants, as in force at the material time, provided as follows: Article 3 – Recipient “1.     A grant beneficiary is a recipient in respect of a donor. 2.     The following may be a recipient: - The Azerbaijani State as the relevant executive authority; - Municipal authorities; - Resident and non-resident legal entities, their branches, representative offices and departments carrying out activities in the Republic of Azerbaijan, whose main objective, according to their articles of association, is charitable activities or implementation of projects and programs that may be the subject of a grant, and which are not aimed at direct generation of profit resulting from the grant; and - Individuals in the Republic of Azerbaijan. ...” III.     RELEVANT INTERNATIONAL DOCUMENTS 43.     The following are extracts from the European Commission for Democracy through Law (Venice Commission) Opinion on the compatibility with human rights standards of the legislation on non ‑ governmental organisations of the Republic of Azerbaijan, adopted by the Venice Commission at its 88 th Plenary Session (Venice, 14-15 October 2011): “ A.     Registration of NGOs a)     The need for registration 54.     Under the Azerbaijani legislation, NGOs must be registered to acquire legal personality. The Venice Commission reiterates that to make it mandatory for an association to register need not in itself be a breach of the right to freedom of association. 55.     The importance of the acquisition of a legal personality for NGOs has been stressed by the ECtHR, according to which “the most important aspect of the right to freedom of association is that citizens should be able to create a legal entity in order to act collectively in a field of mutual interest. Without this, that right would have no practical meaning”. 56.     As the Venice Commission already holds in another context, domestic law may require some kind of registration of associations, and failure to register may have certain consequences for the legal status and legal capacity of the association involved. 57.     However, the Venice Commission recalls that such a legal requirement may not be an essential condition for the existence of an association, as that might enable the domestic authorities to control the essence of the exercise of the freedom of association. 58.     While NGOs can operate without legal personality, on an informal basis, the acquisition of the personality is the precondition for various benefits. It is important to underline that only registered NGOs can be recipients of grants under the 1998 Law on Grants , and only they can enjoy tax preferences under the 2000 Tax Code. Since grants are the main source of revenues for many NGOs, the act of registration is far from being a mere formality devoid of any practical importance. 59.     The Azerbaijani registration system has been over the past years repeatedly criticised by international organisations, NGOs and scholars. a.a)     A lengthy and complicated procedure 60.     The main deficiencies relate to the fact that the registration of NGOs is a lengthy and complicated procedure, whose outcomes are somewhat difficult to predict. Recorded practice shows that some of the NGOs which applied for registration have never got formal decision, and those that have got it, often needed to wait for an extensive period of time. 61.     The registration is currently ensured by the Ministry of Justice under a rather complicated procedure which is regulated by the 2000 Law on NGOs and the 2003 Law on State Registration and the State Registry of Legal Entities ... State registration of NGOs is also dealt with in the Civil Code (Articles 47 and 48). 62.     Registration as a rule shall be carried out by the relevant executive power within 30 days. In exceptional cases, when there is necessity for further investigation during the check, the period can be prolonged for additional 30 days (Art. 8 of the Law on State Registration). While the time-limit is rather long compared to the regulation in other countries of the Council of Europe, it could be accepted, were it meticulously respected and were the extension of the period truly reserved for “exceptional cases”. Yet, several studies realised by the OSCE show that this is not always the case and that the applications of many NGOs, especially human rights NGOs, are for some reasons or even without any reasons treated as “exceptional”. 63.     The Azerbaijani authorities should strive to reduce the number of cases treated in this way and they should also, ideally in an amendment to the 2003 law, define the features of an “exceptional case”. 64.     The European Court of Human Rights has found delays in the registration process in cases against Azerbaijan to amount to a de facto refusal to register an association. The significant delays in the registration procedure, when attributable to the Ministry of Justice amounted to an interference with the exercise of the right of the association’s founders to freedom of association.” 44.     The following are extracts from the Venice Commission Opinion on the Law on NGOs, as amended, adopted by the Venice Commission at its 101 st Plenary Session (Venice, 12-13 December 2014): “ III.     Legal framework A.     National Legal Framework ... 2.     The Law on Non-Governmental Organisations 20.     The Law on Non-Governmental Organisations , adopted in 2000 and as amended, regulates the establishment, operation, management and termination of non ‑ governmental organizations (NGOs) as well as the relations between these organizations and state bodies. ... 26.     There is no special law regulating human rights NGOs such as associations of human rights defenders; they therefore fall into the ambit of the Law on NGOs. 3.     Other Domestic Acts 27.     The Law on NGOs has been implemented or complemented by other laws and executive decrees. In 2003, a Law on State Registration and the State Registry of Legal Entities was adopted. This law contains details on the registration of various legal entities, including NGOs, and provides a list of reasons on the basis of which registration could be denied. The Law has been amended several times since its adoption, usually in parallel with the Law on Non-Governmental Organisations. ... IV.     Analysis of the Law on Non-Governmental Organisations, as Amended ... Specific comments A.     Establishment/Registration of NGOs 43.     According to Article 12, par. 1, of the Law on NGOs, “an NGO may be formed as a result of its foundation as well as reorganization of an existing NGO” . In order to acquire legal personality, NGOs have to register under the procedure regulated by the 2003 Law on State Registration and the State Registry of Legal Entities . While public associations may operate without legal personality, on an informal basis, branches and representations of foreign NGOs may not. Moreover, the acquisition of legal personality is a precondition for various benefits. Most importantly, only registered NGOs can, on behalf of the legal personality, open a bank account, buy property, receive grants under the 1998 Law on Grants , and enjoy tax preferences under the 2000 Tax Code . 44.     Mandatory registration for associations in order to acquire legal personality is not as such in breach of the right to freedom of association, as the Commission has observed in its 2011 Opinion. However, registration should not be an essential condition for the existence of an association, as that might enable domestic authorities to control the essence of the exercise the right to freedom of association. Moreover, the procedure of registration of NGOs in Azerbaijan has been criticised for its lengthy and cumbersome nature. 45.     In the cases of Ramazanova and Others (2007) and Ismaylov [sic – Ismayilov ] (2008), the ECtHR found Azerbaijan in violation of Article 11 ECHR (freedom of association) due to unlawful delays in State registration of an NGO. The Court considered in Ramazanova and Others that the significant delays in the state registration of the applicant association, which resulted in its prolonged inability to acquire the status of a legal entity, amounted to interference by the authorities with the applicants’ exercise of their right to freedom of association. ... ... 46.     The recent amendments have failed to address most of these shortcomings. The registration is still a lengthy and cumbersome process, though this is linked more to the implementation of the legislation than to its content. According to the recent expert reports, the applicants are often required by the registering department to submit additional documentation not required under the national legislation; they often receive repeated requests for corrections of the documents, although such requests must be submitted at once (Article 8(3) of the Law on Registration); the deadline for issuing the decision on the registration is not always respected (as was found in the above-mentioned judgments in Ramazanova and Others and Ismaylov [sic – Ismayilov ] of the ECtHR); and the automatic registration, in case the Ministry of Justice does not respond to the applications within the statutory time-limit (Art.   8(5) of the Law on Registration), does not seem to be respected. Moreover, the registration is still possible only in Baku, be it that the documents may be sent by mail and plans to introduce computer-based registration and establish a single information network of registry authorities are reportedly being considered.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 45.     The applicants complained under Article 11 of the Convention that the repeated refusals to register their association and grant it legal-entity status had amounted to a violation of their right to freedom of association. Article 11 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.” A.     Admissibility 46.     The Court notes that the application is not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 47.     The applicants submitted that the repeated returns of their applications for State registration of HRC, resulting in a significant delay of a definitive decision to register or refuse to register, had amounted to an interference with their right to freedom of association. Although the law applicable at the material time had not explicitly prevented the operation of unregistered NGOs, possession of legal-entity status enabled an NGO to function effectively by allowing it to open a bank account, seek and receive funding as an organisation, hire employees as a legal entity, acquire an official stamp and other prerequisites essential for the proper and effective functioning of the NGO. The registration of an NGO allowed it to render its work more professional and sustainable. By failing to register HRC the respondent State had prevented the applicants from running it effectively. 48.     The interference had not been prescribed by law. Under the relevant provisions of the Law on State Registration, the appointment of a legal representative was optional. In response to the Government’s argument concerning the lawfulness of the interference (see paragraph 52 below), the applicants maintained that Mr Rasul Jafarov had been elected as chairman of HRC and that his powers in that capacity had been stipulated in the association’s charter. Within the meaning of the relevant law, a chairman was not a “legal representative”. A legal representative was an external person authorised by power of attorney to act on behalf of an association. In the present case, the founders had not appointed a legal representative upon founding HRC. Since appointment of a legal representative was optional and one had not been appointed, there was no basis in domestic law for the Ministry of Justice to return the registration documents on the grounds that they lacked information on the legal representative and his or her powers. 49.     Moreover, the Ministry of Justice had breached the provisions of Article 8.3 of the Law on State Registration by failing to identify all alleged deficiencies in the documents at once, instead repeatedly returning the documents, each time demanding a different type of rectification. 50.     The applicants further argued that, in the present case, the interference had not pursued any legitimate aims, because the actual purpose behind the authorities’ avoidance of registering HRC had been to prevent them from carrying out their human rights work. They supported this argument by pointing to the fact that one of the co-founders of HRC, Mr Rasul Jafarov, had been arrested in August 2014 and subsequently convicted and sentenced to six and a half years’ imprisonment on charges of illegal entrepreneurship, tax evasion and abuse of power, for, inter alia , allegedly illegally receiving funding for his human rights work in the absence of HRC’s State registration (for more details, see Rasul Jafarov v.   Azerbaijan , no. 69981/14, 17   March 2016). His arrest and conviction had been part of a series of arrests and convictions of a number of NGO activists and human rights defenders that had taken place at around the same time. The applicants further noted that the other two co-founders, Mr Emin Huseynov and Mr Sabuhi Gafarov, had been forced to leave the country, fearing the same persecution. The former is the subject of a separate complaint in Huseynov v.   Azerbaijan (no. 1/16, communicated on 16 April 2018). 51.     Lastly, the applicants argued that, in any event, the interference in the present case had not been necessary in a democratic society. 52.     The Government submitted that Article 5.4.1 of the Law on State Registration provided that, if appointed, the powers of the legal representative had to be indicated in the decision founding the association. In the decision of 10 December 2010 founding the association, the applicants had appointed Mr Rasul Jafarov as the association’s legal representative but they had failed to stipulate his powers. The Government argued that the applicants had in fact refused to bring HRC’s constituent documents in line with the statutory requirements and had sought to obtain registration on the basis of documents contradicting those requirements. The Government maintained that the Ministry of Justice had given lawful reasons for its decisions to return the documents for rectification. 53.     They also pointed out that the law had not prevented NGOs from functioning without State registration. Therefore, HRC could engage in its activities and even enter into various contracts, such as rent premises, open a bank account, and so on, in the absence of registration and without obtaining legal-entity status. 2.     The Court’s assessment (a)     General principles 54.     The right to form an association is an inherent part of the right set forth in Article 11 of the Convention. The ability 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. 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, among other authorities, Gorzelik and Others v. Poland [GC], no. 44158/98, § 88, ECHR   2004 ‑ I; The United Macedonian Organisation Ilinden and Others v.   Bulgaria (no. 2) , no. 34960/04, § 33, 18 October 2011; and “Orthodox   Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)” v. the former Yugoslav Republic of Macedonia , no.   3532/07, §   94, 16 November 2017). (b)     Whether there was interfer