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KORETSKYY AND OTHERS v. UKRAINE - 40269/02 [2008] ECHR 253 (3 April 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/253.html
Cite as:
[2008] ECHR 253,
(2014) 59 EHRR 5,
59 EHRR 5
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FIFTH
SECTION
CASE OF KORETSKYY AND OTHERS v. UKRAINE
(Application
no. 40269/02)
JUDGMENT
STRASBOURG
3 April
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the
Convention. It may be subject to editorial
revision.
In the case of Koretskyy and Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Volodymyr
Butkevych,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
judges,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 11 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 40269/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by four Ukrainian nationals, Mr Sergiy Petrovych
Koretskyy, Mr Andriy Vasylyovych Tolochko, Mr Andriy Mykolayovych
Gorbal, and Mr Oleksiy Grygorovych Lobytskyy (“the
applicants”), on 12 September 2002.
The
applicants were represented by Mr T. Shevchenko, a lawyer practising
in Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
On
13 March 2006 the Court decided to give notice of the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
Mr
Koretskyy was born in 1955, Mr Tolochko and Mr Lobytskyy were
born in 1975, and Mr Gorbal was born in 1978. All the applicants live
in Kyiv.
On 7 June 2000 the applicants and two other
persons founded an association named “Civic Committee for the
Preservation of Wild (Indigenous) Natural Areas in Bereznyaky”
(“Громадянський
Комітет за
збереження
дикої (корінної)
природи Березняків”,
the “Civic Committee”). Mr Koretskyy was elected as
the Civic Committee's head.
On
27 July 2000 the applicants filed an application for the
State registration of the Civic Committee together with a copy of its
articles of association with the Kyiv City Department of Justice (the
“City Department”).
The Civic Committee's articles read, in so far as
relevant, as follows:
1. General provisions
“1.1. The Civic Committee ... (hereafter –
the Committee) is a voluntary association of citizens,
non-governmental organisations, and other legal entities, which unite
their efforts in joint activities [aiming at the] preservation of
wild (indigenous) natural systems in cities and towns.
1.2. The Committee is a non-governmental, non-profit
organisation.
...
1.4. The activities of the Committee are to be carried
out on the territory of Kyiv. The Committee may have representative
offices in other cities and towns of Ukraine.
...”
2. Principles of the Committee's activities
“2.1. The Committee's activities shall be based on
the principles of:
a) democracy;
b) legality;
c) self-government;
d) equality of members;
e) openness;
f) combination of local actions with global thinking;
g) active creative initiative of the broader community.”
3. Aim of the Committee
“3.1. The Committee was founded with the aim of
protecting natural systems from their complete destruction in the
process of urbanisation and from their replacement by artificial
biomes in the process of urban development and growth.
3.2. The aim of the Committee is to preserve the
remaining indigenous natural areas on the territory of the
contemporary residential area of Bereznyaky.”
4. Tasks and areas of activities of the Committee
“4.1. The Committee ... shall have the task of
taking concrete action to raise awareness among urban planners,
members of bodies of local self-government, and the general public
about ... the difference between indigenous natural systems and
artificial natural systems in cities and towns, of the possible
consequences of the loss of samples of natural ecosystems, as well as
[the task of] coordinating joint activities of public authorities,
non-governmental organisations, and the general public [aimed at] the
prevention of such consequences, the result of which should be the
preservation of indigenous biomes as natural samples.
4.2. According to [its] aim and tasks the Committee
shall perform its activities in the following areas:
a) collection of information concerning the indigenous
nature of Bereznyaky;
b) collection and study of world experience of
coexistence of cities and natural systems;
c) creation and development of a publicly accessible
electronic database;
d) cultural, educational, publishing, and informational
activities;
e) lobbying of issues connected with the preservation of
natural ecosystems with the national and local authorities;
...”
5. Rights of the Committee
“5.1. ... the Committee shall have the right:
a) to take part in civil law relations, to acquire
pecuniary and non-pecuniary rights;
...
d) to [disseminate] propaganda, and [carry out]cultural
and educational activities;
...
h) to set up entities and organisations, to set up
media, and to perform publishing activities;
i) to carry out non-governmental ecological expert
examinations;
...
5.2. In order to fulfil its tasks the Committee shall
have the right to carry out the necessary economic (“господарську”)
and other commercial activities by means of establishing legal
entities.”
6. Membership of the Committee
“6.1. Membership in the Committee may be
individual, collective, honorary, as well as [through] voluntary
participation (“в якості
волонтерів”);
...
6.4. Citizens of Ukraine and other States who share the
ideology and participate in certain projects and actions [of the
Committee] for free, may become volunteers of the Committee;
...”
7. Organisational structure and management of the
Committee
“...
7.11. The Executive Board of the Committee shall be
responsible for the financial administration of projects, the
accounting of the Committee, and manage everyday administrative
(“господарчу”)
and financial activities to ensure the implementation of projects.
...”
On
an unspecified date the application and articles of association were
returned to the applicants and they were advised to make changes to
the text, which were noted down by the City Department in the same
documents. In particular, several sentences and paragraphs were
crossed out, including paragraphs 3.1, 5.1 (d), and 6.4. Some other
parts of the articles were rephrased or amended, like, for instance,
the word “lobbying” in paragraph 4.2 (e) was replaced by
“submission of propositions” and the phrase “to
carry out non-governmental ecological expert examinations” in
paragraph 5.1 (i) was reformulated to the effect that the Civic
Committee could carry out ecological expert examination on a
“voluntary basis”.
According
to the applicants, on 6 September 2000 they submitted the
redrafted version of the articles of association, in which the
Department's corrections were only partially accepted. The Government
denied this.
By
letter of 18 September 2000, the City Department informed
the applicants of its refusal to register the Civic Committee on the
ground that its articles had not been drafted in accordance with the
domestic law. In particular, the Civic Committee's status was
not indicated; the provision that the Civic Committee could have
representative offices in other cities and towns of Ukraine did not
correspond to the provision that its activities were to be carried
out on the territory of Kyiv; the articles listed two aims of the
organisation instead of one aim and tasks; the Executive Board of the
Civic Committee was entrusted with economic (“господарські”)
functions while section 24 of the Associations of Citizens Act
envisaged that the economic activities of an association could only
be carried through separate legal entities which it could establish
for that specific purpose; and the provisions that the Civic
Committee could carry out publishing activities on its own and
involve volunteers in its activities as members were contrary to the
same law. Finally, the applicants had not taken into account all the
corrections made to the text of the articles of association and they
had submitted a copy of the document showing that they had paid
registration fees, while the original was required.
In
a letter of 20 September 2000, received by the City
Department on 25 September 2000, Mr Koretskyy, acting
on behalf of the Civic Committee as its head, stated that the
Department had not taken into account the amended version of the
Civic Committee's articles lodged with it on 6 September 2000.
He asked the Department to reconsider its decision in the light of
the amended version of the articles of association, the additional
copies of which he could submit if the Department wished.
By
letter of 24 October 2000, the City Department acknowledged
receipt of the applicants' letter of 20 September 2000 and,
referring to its letter of 18 September 2000, informed them
that the articles of association could not be examined if they had
not been re-drafted in compliance with the law. The Department also
informed them that its refusal to register the Civic Committee could
be challenged before the courts.
The
applicants continued to carry out certain activities of the Civic
Committee, in particular, publishing articles on its behalf in
various newspapers.
On
30 November 2000 the applicants lodged a complaint with the
Pecherskyy District Court of Kyiv, seeking the annulment of the City
Department's decision not to register the Civic Committee. They
alleged a violation of their right to form an association and the
right to freely choose its aims and areas of activities. They also
argued that the reasons for the refusal to register their association
had been based on an incorrect interpretation and application of the
relevant law by the City Department. Furthermore, according to them,
the City Department had failed to take into account the amended
version of the articles of association, which they annexed to their
complaint to the court.
On
13 March 2001 the court rejected the applicants' complaint
as unsubstantiated. On 28 August 2001 the Kyiv City Court
of Appeal upheld the first-instance court's decision.
The
courts held that the refusal to register the Civic Committee had been
lawful, since the articles of association contained textual
discrepancies with the relevant provisions of the domestic
legislation. In particular, the aim of the Civic Committee was not
defined correctly and did not correspond to the requirements of
sections 3 and 13 of the Associations of Citizens Act. The provisions
of paragraphs 1.4, 5.1, and 7.11 of the articles of association
authorising the Executive Board of the Civic Committee to carry out
“everyday administrative and financial” activities and
envisaging that the Civic Committee could perform publishing
activities were not in compliance with sections 9 and 24 of that law.
The wording of paragraphs 6.1 and 6.4 of the articles of association
as regards the participation of volunteers in the Civic Committee's
activities contravened the principle of equality of members of an
association embodied in section 6 of the law.
The
courts also noted that the applicants had failed to submit a
corrected version of the articles of association, while the versions
they had filed with the courts had not been drafted in compliance
with the law.
On
14 March 2002 a panel of three judges of the Supreme Court
rejected the applicants' request for leave to appeal in cassation,
finding no grounds for examination of the case by the Civil Cases
Chamber of the Supreme Court.
On
7 July 2002 the applicants decided to liquidate the Civic
Committee and discontinued its activities.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine of 26 June 1996
The
relevant provisions of the Constitution of Ukraine read as follows:
Article 19
“The legal order in Ukraine is based on the
principles according to which no one shall be forced to do what is
not envisaged by legislation.
State and local self-government bodies and their
officials are obliged to act only on the grounds, within the limits
of authority, and in the manner envisaged by the Constitution and the
laws of Ukraine.”
Article 36
“Citizens of Ukraine have the right to freedom of
association in political parties and non-governmental organisations
for the exercise and protection of their rights and freedoms and for
the satisfaction of their political, economic, social, cultural and
other interests, with the exception of restrictions established by
law in the interests of national security and public order, the
protection of the health of the population or the protection of
rights and freedoms of other persons.
...”
Article 37
“The founding and activities of political parties
and non-governmental organisations are prohibited if their programme
goals or actions are aimed at the liquidation of the independence of
Ukraine, the change of the constitutional order by violent means, the
violation of the sovereignty and territorial indivisibility of the
State, the undermining of its security, the unlawful seizure of Sate
power, the propaganda of war, violence, the incitement of
inter-ethnic, racial, [or] religious enmity, and encroachments on
human rights and freedoms and the health of the population.
Political parties and non-governmental organisations
shall not have paramilitary formations.
...
The prohibition of the activities of associations of
citizens shall be exercised only through judicial procedure.”
B. Criminal Code of 1960 (repealed as of 1
September 2001)
Article
187-8 of the Code provides:
“Leadership of an association of citizens which
was not legalised in the order envisaged by law, or the legalisation
of which was refused, or which was dissolved by a court decision, but
which continues to act, as well as participation in the activities of
such associations within a year following the application of the
administrative sanction for the same offence, -
shall be punishable by the deprivation of liberty for a
term of up to five years.”
With
the entry into force of the new Criminal Code on 1 September 2001,
the above offence was decriminalised.
C. Code on Administrative Offences of 1984
Article
186-5 of the Code reads:
“Leadership of an association of citizens which
was not legalised in the order envisaged by law, or the legalisation
of which was refused, or which was dissolved by a court decision, but
which continues to act, as well as participation in the activities of
such associations -
shall be punishable by a fine [in the amount] of
twenty-five to one hundred and thirty times the statutory non-taxable
monthly income.”
D. Associations of Citizens Act of 16 June 1992
24. The
relevant provisions of the Act read as follows:
Section 3. Non-governmental organisation
“A non-governmental organisation is an association
of citizens for the satisfaction and protection of their lawful
social, economic, creative, age-related, national and cultural,
sporting and other mutual interests.”
Section 4. Restrictions on the establishment and
activities of associations
“Associations shall not be legalised, or the
activities of legalised associations shall be prohibited through
judicial procedure if their aim is:
to change the constitutional order by violent means and
the territorial integrity of the State by any illegal means;
to undermine State security by means of activities in
favour of foreign States;
to propagate war, violence or brutality, fascism and
neo-fascism;
to incite national and religious enmity;
to restrict generally recognised human rights.
...”
Section 6. Principles of the establishment and
activities of associations
“Associations shall be established and shall act
on a voluntary basis and on the principles of equality of their
members (participants), self-government, legality and openness. They
shall be free to choose the direction of their activities.
Restrictions on the activities of associations may be
introduced only by the Constitution and the laws of Ukraine.”
Section 9. Status of associations
“Associations shall have pan-Ukrainian, local or
international status.
Pan-Ukrainian associations include associations the
activities of which cover the entire territory of Ukraine and which
have local branches in the majority of the regions [of Ukraine].
Local associations include associations the activities
of which cover the territory of the respective
administrative-territorial unit or region. Associations shall
designate the territory of their activities independently.
A non-governmental organisation shall be international
if its activities cover the territory of Ukraine and of at least one
other State.
...”
Section 13. Articles of association (charter of
associations)
“An association shall act on the basis of its
articles of association.
The articles of association shall include:
1) the name of the association (which shall differ from
the names of existing associations), its status and address;
2) the aim and tasks of the association;
3) the conditions of and rules governing the granting of
membership of the association, [and of] termination of membership;
4) the rights and duties of the members (participants)
of the association;
5) the rules governing the founding and activities of
the bodies of the association, local branches and their powers;
6) the sources of, and rules governing the use of, funds
and other assets of the association, rules governing reporting,
control, and conducting economic and other commercial activities
necessary to fulfil the tasks [of the association];
7) the procedure for changing and amending the articles
of association;
8) the procedure for the liquidation of the association
and settlement of property related issues connected with its
liquidation.
The articles of association may contain other provisions
concerning the peculiarities of the founding and activities of the
association.
The articles of association shall not contradict the
legislation of Ukraine.”
Section 14. Legalisation of associations
“Legalisation (official recognition) of an
association shall be compulsory and may be effected through the
(association's) registration or the notification of [its] foundation.
The activities of an association which has not been legalised or
which has been dissolved by a court decision shall be illegal.
In the event of its registration the association shall
become a legal entity.
Political parties and international non-governmental
organisations shall be registered by the Ministry of Justice.
Legalisation of a non-governmental organisation shall be
carried out by the Ministry of Justice, local bodies of State
executive power, [or] executive committees of village and town
councils.
If the activities of a local non-governmental
organisation cover the territory of two or more administrative
territorial units, its legalisation shall be carried out by the
relevant higher authority.
The local bodies of State executive power and the
executive committees of village and town councils shall register the
local branches of registered pan-Ukrainian and international
associations, provided such registration is envisaged by the articles
of association of these associations.
The body [of State power] responsible for the
legalisation [of associations] shall make an act of legalisation
(official recognition) of an association public through the media.”
Section 15. Registration of associations
“The founders of associations shall submit an
application for their registration...
The application for registration shall be accompanied by
the articles of association, minutes of the constituent meeting
(conference) or general meeting of founders, information about the
composition of the central [managing] bodies, information about local
branches, documents confirming the payment of registration fees, save
for cases when a non-governmental organisation is exempted from the
payment of registration fees in accordance with the laws of Ukraine.
...
The application for the registration shall be dealt with
within two months following the receipt of the documents. If
necessary, the body performing the registration shall verify the data
contained in the submitted documents. The applicant shall be informed
in writing about a decision to register or about a refusal to
register within ten days.
...”
Section 16. Refusal to register [associations]
“The registration of an association may be refused
if its articles of association or other documents submitted for the
registration contravene the legislation of Ukraine.
A decision refusing the registration shall contain
reasons for the refusal. This decision may be challenged before the
courts.
The body [of State power] responsible for the
registration shall make public the refusal to register an association
through the media.”
Section 17. Notice of founding [of associations]
“Non-governmental organisations and their unions
may be legalised by giving written notice to the Ministry of Justice,
local bodies of State executive power, [or] executive committees of
village and town councils.”
Section 20. Rights of registered associations
“To accomplish the goals and tasks set out in the
articles of association, registered associations shall enjoy the
[following] rights:
to take part in civil law relations, to acquire
pecuniary and non-pecuniary rights;
to represent and protect their lawful interests and the
lawful interests of their members (participants) before public and
non-governmental bodies;
to take part in political activities, hold public events
(meetings, demonstrations etc.);
to provide ideological, organisational, and financial
support to other associations, to assist in their founding;
to found entities and organisations;
to receive information necessary for the fulfilment of
their tasks from State and local self-government bodies;
to disseminate information and to propagate their ideas
and aims;
to found media.
Non-governmental organisations shall have the right to
found enterprises necessary for the fulfilment of their tasks.
...”
Section 24. Economic and other commercial activities
[of associations]
“To accomplish the goals and tasks set out in the
articles of association, registered associations may carry out the
necessary economic and other commercial activities by means of
establishing separate legal entities, founding enterprises in
accordance with the procedure envisaged by the legislation.
...”
Section 27. Liability for violations of the
legislation
“Leadership of the association which was not
legalised in the order envisaged by law, or the legalisation of which
was refused, or which was dissolved by a court decision, but which
continues to act, as well as participation in the activities of such
associations shall be punishable by administrative or criminal law.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
applicants complained about the refusal of the authorities to
register their association. They relied on 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.”
A. Admissibility
The
Government did not raise any objection as to the admissibility of the
application.
The
Court considers that it raises issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring it inadmissible.
B. Merits
1. The parties' submissions
(a) The applicants
The
applicants argued that the refusal to register the Civic Committee
had not been in accordance with the law, that it had not pursued a
legitimate aim and had not been necessary in a democratic society.
The applicants also alleged that their case concerned several aspects
of the national legislation and administrative practice which run
counter to the principles embodied in Article 11 of the
Convention.
First,
the Ukrainian legislation, namely, sections 14(1) and 27(3) of
the Associations of Citizens Act, Article 186-5 of the Code on
Administrative Offences and Article 187-8 of the Criminal Code
of 1960, contained a ban on any activities of an association which
was not formally legalised. This had the effect of restricting the
applicants' freedom of association, since they were at a risk of
being prosecuted for their involvement in the activities of the Civic
Committee. The risk was very high given the arbitrary manner in which
the registration had been refused. According to the applicants, such
a restriction on their right to freedom of association was not
justified.
Secondly, they submitted that the prohibition in the
national law for an association to act beyond the territory in
respect of which it was registered was not necessary in a democratic
society. Although there was a possibility of registering the Civic
Committee as having pan-Ukrainian status, this would necessitate
setting up local branches in the majority of the regions of Ukraine,
which was an insurmountable obstacle for the applicants.
Thirdly,
the authorities' interpretation of the principle of equality of
members of an association, contained in section 6 of the Associations
of Citizens Act, as precluding the involvement of volunteers in its
activities was wrong. In any event, such a restriction was against
the principles of a democratic society.
Fourthly,
the exclusion of certain activities which the applicants envisaged in
the articles of association, in particular, propaganda, lobbying,
publishing, expert examinations and so on, was not in compliance with
the national law and was not justified. Also, there was nothing in
the text of the articles of association which could form a basis for
the authorities' conclusion that the Civic Committee intended to
perform economic or commercial activities. This conclusion was based
on the incorrect interpretation of the functions of the Civic
Committee's Executive Board and, in particular, its task to manage
the everyday administrative (“господарча
діяльність”)
and financial activities of the Civic Committee, which were
completely different form the activities classified as “economic”
(“господарська
діяльність”),
since the former were merely aimed at ensuring the necessary material
and technical conditions for the Civic Committee's everyday
activities.
Finally, the applicants stated that the practice of
making changes and amendments to the texts of articles of association
by the authorities, without an association's consent, as had happened
in their case, had no basis in the law and ran counter to the
Article 11 guarantees.
(b) The Government
The Government argued that there had been no violation
of Article 11 of the Convention, since the refusal to register
the applicants' association had been lawful and necessary to ensure
the well-functioning of the system of State registration of
associations.
They also submitted that the Ukrainian legislation
envisaged two ways of legalising an association, namely, the
notification of the authorities and State registration. The
applicants could have followed the former procedure, which was less
complicated than the registration procedure. Otherwise, the
applicants had to comply with the relevant requirements of the
national legislation in order for their association to become a legal
entity.
Furthermore,
the system of State registration of associations is performed by
bodies of different levels of authority. While the local departments
of justice are responsible for the registration of associations the
activities of which are limited to a particular locality, the higher
authorities within the Ministry of Justice are competent to register
an association the activities of which cover more than one
administrative territorial unit.
Thus,
the Kyiv City Department of Justice could not register an association
the status of which was unclear or if the articles of association
were not drafted in compliance with the law.
2. The Court's assessment
(a) General principles
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. Certainly States have a right to
satisfy themselves that an association's aim and activities are in
conformity with the rules laid down in legislation, but they must do
so in a manner compatible with their obligations under the Convention
and subject to review by the Convention institutions (see
Sidiropoulos and Others v. Greece, judgment of 10 July 1998,
Reports of Judgments and Decisions 1998-IV, pp. 1614 15,
§ 40; The United Macedonian Organisation Ilinden and Others
v. Bulgaria, no. 59491/00, § 57, 19 January
2006; The Moscow Branch of the Salvation Army v. Russia,
no. 72881/01, § 59, ECHR 2006 ...; and Ramazanova
and Others v. Azerbaijan, no. 44363/02, § 54, 1
February 2007).
(b) Existence of interference
The Court recalls that it has consistently held the
view that a refusal by the domestic authorities to grant legal entity
status to an association of individuals amounts to an interference
with the applicants' exercise of their right to freedom of
association (see, for example, Gorzelik and Others v. Poland
[GC], no. 44158/98, § 52, 17 February 2004;
Sidiropoulos, cited above, § 31; and APEH
Üldözötteinek Szövetsége and Others v.
Hungary (dec.), no. 32367/96, 31 August 1999).
Even
assuming that, as the Government submitted, the Civic Committee could
have carried out its activities without the State registration, the
Court considers that the Civic Committee's ability to function
properly without legal entity status would have been impeded. In this
context, the Court notes that under section 20 of the
Associations of Citizens Act only registered associations had a right
to participate in civil law relations, acquire property, hold public
meetings, disseminate information, and so on.
In
these circumstances, the refusal to give the Civic Committee the
status of a legal entity amounted to an interference by the
authorities with the applicants' exercise of their right to freedom
of association.
As
regards the applicants' contention that the existence of the criminal
and administrative legal regulations prohibiting any activities of
non-legalised associations constituted a separate interference with
their Article 11 rights, the Court observes that in the present
case the applicants were negatively affected by the refusal to
register the Civic Committee, rather than by the provisions of law
discouraging them from carrying out its activities. The fact that the
applicants were prohibited, under a risk of being prosecuted, from
pursuing the activities of their association could not be divorced
from the authorities' refusal to register it (see, mutatis
mutandis, Bączkowski and Others v. Poland, no.
1543/06, §§ 67-68, ECHR 2007 ...).
(c) Justification for the interference
The
Court must now determine whether the refusal to register the Civic
Committee, in view of the grounds on which it was based, satisfied
the requirements of paragraph 2 of Article 11 of the Convention,
that is whether it was “prescribed by law”, pursued one
or more legitimate aims and was “necessary in a democratic
society” (see, among many authorities, Chassagnou and Others
v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 104,
ECHR 1999 III).
i. Compliance with the requirement of
“lawfulness”
At
the outset, the Court notes that the reason on which the Kyiv City
Justice Department mainly relied for their refusal to register the
Civic Committee and which was subsequently confirmed by the courts
was the inconsistence of certain provisions of its articles of
association with the relevant national legislation. The applicants
stated that they had made some changes to the articles of association
and submitted their revised version to the City Department. The
Government contested that submission.
The
Court does not find it necessary to resolve this particular issue,
since, even assuming that the amended version of the articles of
association was submitted to the City Department, the applicants only
partially accepted the changes suggested by the latter. In
particular, they insisted that, contrary to the position of the
authorities, the following provisions of the articles of association
should have remained in their text:
(a) that
the Civic Committee with local status could have representative
offices or representatives in other cities and towns of Ukraine;
(b) that
the Executive Board of the Civic Committee could exercise everyday
administrative functions;
(c) that
the Civic Committee could carry out publishing activities on its own,
as well as propagate its activities, lobby solutions for
environmental protection with the authorities, and carry out expert
examinations in this field; and
(d) that
the Civic Committee could engage volunteers in its activities as
members of the Civic Committee.
The courts of three instances came to the conclusion that the above
provisions of the Civic Committee's articles were contrary to the law
and, thus, the refusal to register it was well-founded.
Even
assuming that the law was construed by the courts correctly and the
present interference had a formal basis in the national law, the
Court recalls that the expression “prescribed by law” in
the second paragraph of Article 11 of the Convention does not only
require that the impugned measure should have some basis in domestic
law, but also refers to the quality of the law in question (see, for
instance, Maestri v. Italy [GC], no. 39748/98, § 30,
ECHR 2004 I).
The
law should be accessible to the persons concerned and formulated with
sufficient precision to enable them – if need be, with
appropriate advice – to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may
entail. For domestic law to meet these requirements, it must afford a
measure of legal protection against arbitrary interferences by public
authorities with the rights guaranteed by the Convention. In matters
affecting fundamental rights it would be contrary to the rule of law,
one of the basic principles of a democratic society enshrined in the
Convention, for a legal discretion granted to the executive to be
expressed in terms of an unfettered power. Consequently, the law must
indicate with sufficient clarity the scope of any such discretion and
the manner of its exercise. The level of precision required of
domestic legislation – which cannot in any case provide for
every eventuality – depends to a considerable degree on the
content of the instrument in question, the field it is designed to
cover and the number and status of those to whom it is addressed (see
Maestri, cited above).
The Court observes that according to section 16 of the
Associations of Citizens Act “the registration of an
association may be refused if its articles of association or other
documents submitted for the registration contravene the legislation
of Ukraine”. The Act does not specify whether that provision
refers only the substantive incompatibility of the aim and activities
of an association with the requirements of the law, in particular
with regard to the grounds for the restrictions on the establishment
and activities of associations contained in section 4 of the same
Act, or also to the textual incompatibility of the articles of
association with the relevant legal provisions. Given the changes to
the text of the Civic Committee's articles on which the authorities
were insisting in the present case, the Court notes that the
provision at issue allowed a particularly broad interpretation and
could be read as prohibiting any departure from the relevant domestic
regulations of associations' activities. Thus, the Court finds that
the provisions of the Associations of Citizens Act regulating the
registration of associations are too vague to be sufficiently
“foreseeable” for the persons concerned and grant an
excessively wide margin of discretion to the authorities in deciding
whether a particular association may be registered. In such a
situation, the judicial review procedure available to the applicants
could not prevent arbitrary refusals of registration.
Nevertheless, in the particular circumstances of the
case, the Court does not find it necessary to decide whether the
above considerations alone can serve a basis for finding a violation
of Article 11 of the Convention. It notes that there are certain
elements of the case which are closely linked to the issue of the
quality of the law applied in the present circumstances, which
require the Court to continue the examination of the case and to turn
to the question whether the interference pursued one or more
legitimate aims and was “necessary in a democratic society”.
In particular, the Court must verify whether the specific
restrictions on the activities of associations, listed at paragraph
45 above, correspond in principle to a “pressing social need”
and, if so, whether they are proportionate to the aims sought to be
achieved (see Gorzelik and Others, cited above, §§
94 105).
ii. Whether the interference pursued
legitimate aim and was “necessary in a democratic society”
The
Court notes that the Government's main argument, as regards the
necessity of the interference, was that the State enjoyed the
exclusive right to regulate independently the activities of
non-governmental organisations on its territory. Thus, in their view,
the refusal to register the Civic Committee was necessary in order to
ensure the well-functioning of the system of State registration of
associations.
In
this context, the Court finds it necessary to reiterate that the
State's power to protect its institutions and citizens from
associations that might jeopardise them must be used sparingly, as
exceptions to the rule of freedom of association are to be construed
strictly and only convincing and compelling reasons can justify
restrictions on that freedom (see Gorzelik and Others, cited
above).
The
Court observes that neither the courts' decisions nor the
Government's submissions in the present case contain an explanation
for, or even an indication of the necessity of the existing
restrictions on the possibility of associations to distribute
propaganda and lobby authorities with their ideas and aims, their
ability to involve volunteers as members or to carry out publishing
activities on their own. Furthermore, the Court does not see why the
managing bodies of such associations are, according to the
authorities, prohibited from carrying out everyday administrative
activities, even if such activities are essentially of an economic
character.
As
regards the territorial limitation of the activities of associations
with local status, the Court notes that, even if this restriction can
be said to be aimed at maintaining the well-functioning of the system
of State registration of associations, it does not discern any threat
to that system in that local associations could have their branch
offices in other cities and towns of Ukraine, especially given the
burdensome requirement for associations wishing to have pan-Ukrainian
status to set up local branches in the majority of the twenty-five
regions of Ukraine.
On
the whole, the Court notes that the materials contained in the case
file, including the parties' submissions, show that the Civic
Committee intended to pursue peaceful and purely democratic aims and
tasks. There is no indication, and it has not been suggested by the
domestic courts or the Government, that the association would have
used violent or undemocratic means to achieve its aims. Nevertheless,
the authorities used a radical, in its impact on the applicants,
measure which went so far as to prevent the applicants' association
from even commencing its main activities.
In
these circumstances, the Court considers that the restrictions
applied in the present case did not pursue a “pressing social
need” and, accordingly, the reasons invoked by the authorities
to refuse the registration of the Association were not relevant and
sufficient. That being so, the interference cannot be deemed
necessary in a democratic society.
(d) Overall conclusions
In
the light of the foregoing and the conclusions reached with regard to
the requirement of “lawfulness”, the Court considers that
the interference with the applicants' freedom of association was not
justified.
Thus,
that there has been a violation of Article 11 of the Convention.
The
Court does not find it necessary in the circumstances to determine
whether the fact that the authorities made changes and amendments to
the text of the articles of association, thereby indicating the
provisions which they thought were not in compliance with the law and
proposing the wording which, according to them, would satisfy the
existing legal requirements, raises a separate issue under Article 11
of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
Mr S.
Koretskyy claimed 6,000 euros (EUR) and the other applicants claimed
EUR 3,000 each in respect of pecuniary and non-pecuniary damage.
They stated that, given his managerial responsibilities in respect of
the Civic Committee and his professional experience in the field of
ecology of more than thirty years, Mr S. Koretskyy's moral
suffering because of the violation of his rights under Article 11
of the Convention had been greater than that of the other applicants.
The applicants did not specify the nature of the pecuniary damage
they had allegedly suffered.
The
Government maintained that the applicants' claims were
unsubstantiated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this part of
the claim. On the other hand, the Court notes that the applicants
must have suffered some distress and anxiety on account of the
uncertainty and despair they experienced and accordingly, ruling on
equitable basis, as required by Article 41 of the Convention, awards
each applicant EUR 1,500 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicants also claimed EUR 1,600 for the cost of legal advice
concerning the proceedings before the Court. They submitted a copy of
the bill issued in this connection by their lawyer.
The
Government contested this claim.
According
to the Court's case-law, 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 necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicants the requested sum of EUR 1,600
for costs and expenses in the proceedings before the Court.
C. Default interest
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, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
11 of the Convention;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following sums, to be converted into the
national currency of the respondent State at the rate applicable on
the date of payment:
(i) EUR 1,500
(one thousand five hundred euros) to each applicant in respect of
non-pecuniary damage;
(ii) EUR 1,600
(one thousand six hundred euros) to the applicants jointly for costs
and expenses;
(iii) plus
any tax that may be chargeable to the applicants on the above
amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants'
claims for just satisfaction.
Done in English, and notified in writing on 3 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
