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REPUBLICAN PARTY OF RUSSIA v. RUSSIA - 12976/07 [2011] ECHR 644 (12 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/644.html
Cite as:
61 EHRR 20,
[2011] ECHR 644,
(2015) 61 EHRR 20
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FIRST
SECTION
CASE OF REPUBLICAN PARTY OF RUSSIA v. RUSSIA
(Application
no. 12976/07)
JUDGMENT
STRASBOURG
12
April 2011
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 Republican
Party of Russia v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 22 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 12976/07) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the Republican Party of Russia (“the
applicant”), on 26 February 2007.
The
applicant was represented by Mr A. Semenov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Ms V.
Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant alleged, in particular, a violation of its right to freedom
of association.
On
3 September 2007 the President of the First Section decided to
communicate the above complaint to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background information
The
Republican Party of Russia was created in November 1990 by
consolidation of the Democratic Wing of the USSR Communist Party and
its subsequent secession from that party.
On
14 March 1991 the Ministry of Justice formally registered the public
association “Republican Party of the Russian Federation”.
Following
changes in domestic legislation, on 27 April 2002 a general
conference of the public association decided on its reorganisation
into a political party by the name of “Republican Party of
Russia”.
On
12 August 2002 the applicant was registered as a party by the
Ministry of Justice.
Its articles of association list among its aims the
nomination of candidates for election to state and municipal bodies
and participation in the activities of those bodies, the development
of civil society in Russia and the promotion of the unity and
territorial integrity of the country and of the peaceful coexistence
of its multi-ethnic population.
B. Refusal to amend the information about the applicant
contained in the Unified State Register of Legal Entities
On
17 December 2005 an extraordinary general conference of the applicant
elected its management bodies. In particular, Mr Zubov was elected
chairman of the Political Council and Mr Sheshenin chairman of the
Executive Committee. In accordance with the articles of association
they became ex officio representatives of the party. The
general conference also decided to change the party’s address
and to create several regional branches.
On
26 December 2005 the applicant asked the Ministry of Justice to amend
the information contained in the Unified State Register of Legal
Entities. In particular, it asked that its new address and the names
of its ex officio representatives be entered in the Register.
On
16 January 2006 the Ministry of Justice refused to make the
amendments because the party had not submitted documents showing that
the general conference had been held in accordance with the law and
with its articles of association.
On
2 March 2006 the applicant re-submitted its request. It produced the
minutes of the conferences of its regional branches at which
delegates to the general conference had been nominated, the list of
the delegates and the minutes of the general conference.
On
4 April 2006 the Ministry of Justice refused for the second time to
register the amendments. It found that the applicant had not
submitted documents confirming the number of its members. Moreover,
the minutes of the Irkutsk, Chelyabinsk and Sverdlovsk regional
conferences did not include the lists of participants. The minutes of
the Arkhangelsk and Yaroslavl regional conferences were flawed
because they indicated that those conferences had been convened at
the initiative of the Novosibirsk regional branch. The Vladimir
regional conference had not actually been held. Some of the
participants at the general conference were not members of the party
or had not been elected delegates. Due to those and other omissions
it was not possible to establish whether the regional conferences had
been quorate and whether the general conference had been legitimate.
The
applicant challenged the refusal before a court. It argued that it
was not required to submit documents confirming the number of its
members. In any event, that information was already in the Ministry’s
possession because the party had submitted it in its annual activity
report in 2005. The Ministry of Justice was not empowered to verify
whether the general conference and the regional conferences were
legitimate. Domestic law required that such verification be conducted
only before the registration of a new party or of amendments to the
articles of association, which was not the case of the applicant. In
any event, the general conference had been convened in accordance
with domestic law and the articles of association. It had brought
together 94 delegates from 51 regional branches. The delegates had
been nominated at regional conferences held in compliance with the
party’s internal rules. The law did not require the minutes of
regional conferences to contain the list of participants. The minutes
had indicated the total number of the members of the regional
branches and the number of participants at the conferences. That
information had been sufficient to establish that the conferences had
been quorate. The applicant conceded that the minutes of the
Arkhangelsk and Yaroslavl regional conferences contained typing
errors, which, however, did not affect the outcome of the voting. The
Ministry of Justice’s finding that the Vladimir regional
conference had never been held had been refuted by the documents. The
finding that some of the participants at the general conference had
not been members of the party or had not been elected delegates was
not supported by any documentary evidence. The applicant lastly
submitted that officials of the regional departments of the Ministry
of Justice who had attended some of the regional conferences had not
noted any breaches of the substantive or procedural rules. The
applicant claimed that the refusal to amend the Register violated its
freedom of association and hindered its activities. In particular,
the Ministry of Justice had refused to register three regional
branches precisely because the Register did not contain the names of
the applicant’s ex officio representatives.
The
Ministry of Justice maintained that the decision of 4 April 2006 had
been lawful. The Ministry was not only entitled, but had a legal
obligation to verify the information submitted by the applicant. The
verification had revealed that the documents produced by the
applicant had not met the legal requirements. In particular, the
minutes of the regional conferences did not all contain the list of
participants. Thirty-three regional conferences had been inquorate.
The applicant had never submitted any information about its local
branches and it was therefore not clear who had nominated delegates
for the regional conferences and whose interests they had
represented. The minutes of the Arkhangelsk and Yaroslavl regional
conferences indicated that the conferences had been convened at the
initiative of the Novosibirsk regional branch. Due to those omissions
it had not been possible to establish whether the delegates to the
general conference had been duly nominated. Moreover, the decision to
convene the general conference had been taken on 1 December 2005,
while some of the regional conferences had taken place in November
2005. As the general conference had been convened in breach of the
procedural rules, it had been illegitimate.
On 12 September 2006 the Taganskiy District Court of
Moscow upheld the decision of 4 April 2006. It held that, under
sections 15, 16, 20 and 38 of the Political Parties Act, the Ministry
of Justice had been empowered to verify the information and documents
submitted by the applicant before registering any amendments to the
Register. The Ministry had found that the documents submitted did not
meet the requirements established by law. The court had no reason to
doubt its findings because they were corroborated by the case
materials and had not been refuted by the applicant. The court held
that the decision of 4 April 2006 had been lawful and had not
violated the applicant’s rights under Article 11 of the
Convention.
In
its appeal submissions the applicant claimed, in particular, that the
Ministry of Justice’s requirement to submit the same documents
as for the initial registration of a party or the registration of
amendments to its articles of association had no basis in domestic
law. Under the Political Parties Act amendments concerning a party’s
address or the names of its ex officio representatives were to
be registered on the basis of a written notification to the
registration authority. The applicant also argued that the Ministry
of Justice had no authority to verify the legitimacy of its general
conference. It insisted that the general conference had been held in
conformity with its articles of association and with domestic law.
On
19 December 2006 the Moscow City Court upheld the judgment on appeal.
It referred to section 32 § 7 of the Non-Profit Organisations
Act and held as follows:
“...A political party requesting to amend the
information [contained in the Register] is to produce the same
documents as required for registration of a party. The list of those
documents is contained in section 16 of the Political Parties Act.
[The applicant’s] argument that the extraordinary
general conference of the party was organised and held in accordance
with the law in force and with its articles of association aims at a
different assessment of documents produced [by the applicant] to [the
Ministry of Justice] for registration. At the same time, [the
Ministry of Justice] and the [District] Court had reasons to conclude
that the submitted documents contained information which did not meet
the legal requirements. The [City] Court agrees with the [District]
Court’s assessment of the evidence.”
C. Dissolution of the applicant
In
2006, in a separate set of proceedings, the Ministry of Justice
conducted an inspection of the applicant’s activities. It
issued thirty-six warnings to the party’s regional branches.
Seven regional branches were dissolved by courts at the Ministry’s
request and the activities of the Moscow regional branch were
suspended. On 28 September 2006 the Ministry prepared the
inspection report mentioning that the applicant had 49 regional
branches, of which 32 had more than 500 members, and that the total
number of party members was 39,970.
On
1 March 2007 the Ministry of Justice asked the Supreme Court of the
Russian Federation to dissolve the applicant. It claimed that the
party had fewer than 50,000 members and fewer than 45 regional
branches with more than 500 members, in breach of the Political
Parties Act.
The
applicant submitted that it met the requirements of the Political
Parties Act because it had 58,166 members and had 44 registered
regional branches with more than 500 members.
On
23 March 2007 the Supreme Court of the Russian Federation ordered the
dissolution of the applicant. It found that the Mari-El, Krasnoyarsk,
Tyumen, Novosibirsk, Murmansk, and Vladimir regional branches had
been dissolved by court decisions in 2006, therefore their members
could not be taken into account. Eight regional branches had fewer
than 500 members, in particular:
– despite
a warning issued by the Ministry, the Ingushetia regional branch did
not submit documents showing the number of its members. According to
the information in the Ministry of Justice’s possession, the
branch had 152 members;
– the
applicant had submitted that the Kalmykiya regional branch had 508
members. However, an inspection had revealed that thirty-seven of
them had never joined the party, four of them were simultaneously
members of other regional branches, the names of three members
appeared twice in the list, and eighteen members did not reside at
the indicated addresses. Therefore, the branch had in fact only 468
members;
– out
of 516 members of the Krasnodar Regional branch eighteen had made a
written declaration that they had never joined the party. Four
members, while refusing to make a written statement, had made oral
statements to that effect;
– the
Arkhangelsk regional branch had 514 members. However, seventeen of
them were under eighteen years of age. Moreover, the party had not
produced individual applications for membership in respect of 100
members;
– 1,036
members of the Samara regional branch had been admitted to the party
in breach of the articles of association. In particular, 791 members
had been admitted by the branch’s political council elected at
an illegitimate general conference. To support its conclusion that
the general conference had been illegitimate the Supreme Court
referred to the judgment of the Taganskiy District Court of Moscow of
12 September 2006 (see paragraph 18 above);
– the
Tambov regional branch had 541 members. However, the membership of
230 of them had not been confirmed. In particular, the party had not
produced individual applications for membership in respect of 177
members, thirty-three members had no residence registration in the
Tambov Region, four members had left the Tambov region, two members
had been younger than eighteen at the time they had joined the party,
three members had not signed their applications for membership, and
thirty-three had declared that they had never joined the party;
– the
Tula Regional branch had 383 members;
– the
Komi-Permyatskiy regional branch had 154 members.
The
court held that it had no reason to doubt the information submitted
by the Ministry. The applicant had never contested before the courts
the information contained in the inspection report or the warnings
issued by the Ministry. The court further found that the Ministry had
not submitted any evidence in support of their conclusions that the
Karachaevo-Cherkesskiy, Altay and St Petersburg regional branches had
fewer than 500 members, therefore the court accepted the number of
members suggested by the applicant. The court also accepted that the
party had several unregistered branches. However, their members could
not be taken into account for establishing the total number of party
members. The court concluded that on 1 January 2006 the applicant had
43,942 members, and 37 regional branches with more than 500 members.
Thus, the applicant did not meet the requirements established by law
and was subject to dissolution.
The
applicant appealed. It submitted that the Ministry’s
submissions had not been supported by any documents. Nor had the
Ministry indicated the names of the people who, in its opinion, had
been admitted to the party in breach of domestic law and the party’s
articles of association. The first-instance court had refused to
admit evidence submitted by the applicant, namely individual
applications for membership and other documents confirming the number
of party members. The court had not taken into account 8,819 members
living in the regions where the branches were not registered,
although they had been admitted to the party at the federal level and
were members of the party itself and not members of its unregistered
regional branches. The Ministry had conducted an inspection in March
2006; it had never verified the number of the applicant’s
members as at 1 January 2006. Moreover, its seven regional
branches had been dissolved later in 2006, therefore on 1 January
2006 they had still been functioning and the applicant had had the
required number of regional branches. Lastly, as domestic law did not
establish the inspection procedure, the inspections had been
arbitrary.
On
31 May 2007 the Appellate Collegium of the Supreme Court upheld the
judgment of 23 March 2007 on appeal. It found that the findings of
the first-instance court had been based on sufficient evidence,
namely the inspection reports compiled by the Ministry of Justice and
its regional departments. The court had taken into account the number
of the party’s members as at 1 January 2006. Individual
applications submitted by the party after that date could not be
taken into account because they could have been written after
1 January 2006 and backdated. Moreover, the applicant had not
challenged the inspection report or the warnings issued by the
Ministry. It was accordingly barred from contesting before the
Supreme Court the facts mentioned in the report and in the warnings.
In any event, even according to the party’s submissions it had
only 44 regional branches with more than 500 members instead of 45,
which was in itself a sufficient ground for dissolution.
II. RELEVANT DOMESTIC LAW
A. Legal provisions on political parties
The
status and activities of political parties are governed by the
Political Parties Act (Federal Law no. 95-FZ of 11 July 2001), the
Non-Profit Organisations Act (Federal law No. 7-FZ of 12 January
1996) and the Registration of Legal Entities Act (Federal Law no.
129-FZ of 8 August 2001).
1. Requirements of minimum membership and regional
representation
Membership
of a political party shall be voluntary and individual. Citizens of
the Russian Federation who have attained the age of eighteen may be
members of a political party. Foreign citizens, stateless persons,
and Russian nationals who have been declared incapable by a judicial
decision may not be members of a political party. Admission to
membership of a political party is decided upon on the basis of a
written application by the Russian Federation citizen, in accordance
with the procedure set out in the articles of association. A Russian
Federation citizen may hold membership of only one political party at
once. A member of a political party may be registered only in one
regional branch in the region of his permanent or predominant
residence (section 23 §§ 1, 2, 3 and 6 of the Political
Parties Act).
The Political Parties Act, adopted on 11 July 2001,
introduced the requirements of minimum membership and regional
representation for political parties. Until 20 December 2004
section 3 § 2 of the Political Parties Act required that a
political party should have no fewer than ten thousand members and
should have regional branches with no fewer than one hundred members
in more than one half of Russia’s regions. If those conditions
were fulfilled, it was also allowed to have branches in the remaining
regions provided that each branch had no fewer than fifty members.
On 30 October 2004 a group of deputies of the State
Duma proposed amendments to section 3 § 2 of the Political
Parties Act. In particular, they proposed increasing the minimum
membership of a political party to fifty thousand members and the
minimum membership of a regional branch to five hundred members. An
explanatory note appended to the draft law provided the following
justification for the amendments:
“The proposed draft Federal law is a follow-up to
the reform of the political system started in 2001 and it aims at
strengthening the political parties and involving a wider range of
citizens in the political life of the society and the State.”
The State Duma’s Committee on Public
Associations and Religious Organisations recommended that the
amendments be adopted. The recommendation reads as follows:
“The subject of the proposed Draft law is
extremely important and pertinent.
The experience of [political] party development in
recent years has revealed that the political system in Russia needs
perfection. The state and development of the party system have a
major influence on the effective functioning of the legislative and
executive powers whose mission is to protect citizens’ rights
and create favourable conditions for the development of the country.
This is the rationale of the political reform proposed
by the President of the Russian Federation, which advocates as one of
its main goals the enhancement of the role and prestige of political
parties in contemporary Russia.
Acting as the nexus between civil society and the
authorities and participating in parliamentary elections, large and
authoritative political parties with firm political views, supported
by a large number of voters, reinforce the structure and stability of
the party system.
This [Draft] law proposes increasing the minimum
membership of a party from ten thousand (under the Law now in force)
to fifty thousand members and, for the regional branches, from one
hundred to five hundred members. This is mainly justified by the
consideration that the parliamentary, and consequently democratic,
system cannot function without strong parties.
Many small parties, the so-called quasi parties, having
virtually no political weight or influence on the voters take part in
the elections and enjoy various advantages. During the election
campaign they receive financing from the State budget, have access to
the media and are allocated free airtime on television. And after the
election they disappear from the political scene.
It is enough to note that out of forty-four parties and
political alliances registered at the moment only three parties and
one political alliance have seats in the State Duma. Only three
parties have passed the 3% threshold, while the others have obtained
less than 1% of the votes. This situation places an excessive burden
on the budget and is at variance with the principle of efficient and
careful spending of public funds provided for in Article 34 of the
Budget Code of the Russian Federation.
The dispersal of voters between such [small] parties
results in the instability of the political system which we are
witnessing today in our country.
On the whole, the Draft law aims at streamlining the
existing political system and creating effective, large-scale
political parties having stable branches in the regions, expressing
the genuine interests of substantial groups of voters and capable of
defending them in the present conditions of democratic
transformations in Russia.
In view of the above, the Committee considers it
necessary to support the proposed Draft law.”
On 20 December 2004 section 3 § 2 was amended.
The amended section 3 § 2 required that a political party should
have no fewer than fifty thousand members and should have regional
branches with no fewer than five hundred members in more than one
half of Russia’s regions. It was also allowed to have branches
in the remaining regions provided that each branch had no fewer than
two hundred and fifty members.
The political parties were required to bring the
number of their members into compliance with the amended section 3 §
2 by 1 January 2006. If a party had not complied with that
requirement it had to reorganise itself into a public association
within a year, failing which it would be dissolved (section 2 §§
1 and 4 of the Amending Act, Federal Law no. 168-FZ of 20 December
2004).
On 1 January 2007 the Ministry of Justice announced
that only seventeen political parties out of forty-eight registered
as at February 2004 now met the requirements of minimum membership
and regional representation. Twelve political parties were dissolved
by the Supreme Court in 2007, three political parties reorganised
themselves into public associations, while several more political
parties merged with bigger parties. Fifteen political parties
remained registered by the end of 2007 and were eligible to
participate in the 2 December 2007 elections to the State Duma.
On
5 November 2008 the President, in his address to the Federation
Council, called for the development of democracy, in particular, by
decreasing the minimum membership requirement for political parties.
On 5 December 2009 the President proposed amending
section 3 § 2 of the Political Parties Act by providing for a
gradual decrease in the minimum membership requirement. The
explanatory note contained the following justification for the
proposed amendments:
“The Draft law aims at giving effect to the
President’s address to the Federation Council of the Federal
Assembly of the Russian Federation of 5 November 2008, concerning the
necessity gradually to decrease the minimum membership of political
parties required for their registration and further functioning, as
well as to introduce the requirement of rotation for [management
bodies] of political parties.”
The State Duma’s Committee on Constitutional
Legislation and State Development recommended that the proposed
amendments be adopted. The relevant part of its recommendation reads
as follows:
“The Draft law proposes a gradual decrease in the
[minimum] membership of political parties required for their
establishment, registration and further functioning. Its aim is to
give effect to the measures proposed by the President of the Russian
Federation in his address to the Federation Council of the Russian
Federation of 5 November 2008, with a view to increasing the
level and quality of people’s representation in the
government.”
On 28 April 2009 section 3 § 2 was amended. It
now reads as follows:
“2. ... a political party shall:
before 1 January 2010 – have no fewer than fifty
thousand members, and regional branches with no fewer than five
hundred members in more than one half of Russian regions... It may
also have branches in the remaining regions provided that each branch
has no fewer than two hundred and fifty members...
from 1 January 2010 to 1 January 2012 - have no fewer
than forty-five thousand members, and regional branches with no fewer
than four hundred and fifty members in more than one half of Russian
regions... It may also have branches in the remaining regions
provided that each branch has no fewer than two hundred members...
from 1 January 2012 - have no fewer than forty thousand
members, and regional branches with no fewer than four hundred
members in more than one half of Russian regions... It may also have
branches in the remaining regions provided that each branch has no
fewer than one hundred and fifty members...”
2. State registration of political parties
(a) Registration of Legal Entities Act
In accordance with the Registration of Legal Entities
Act, all legal entities, including political parties, must be
registered in the Unified State Register of Legal Entities. The
Unified State Register of Legal Entities must contain, inter alia,
the following information about each legal entity: its address and
the names of its ex officio representatives. The legal entity
must notify the registration authority of any change in that
information (section 5 §§ 1 and 5).
Section 12 of the Registration of Legal Entities Act
contains a list of documents to be submitted for the initial
registration of a legal entity. Its section 17 § 1 contains a
list of documents to be submitted for the registration of amendments
to the legal entity’s articles of association. Paragraph 2 of
that section provides that to register changes in other information
on the legal entity (such as a change of address or ex officio
representatives), the legal entity must submit a written notification
to the registration authority. The notification must contain a
declaration confirming that the information submitted is authentic
and satisfies the requirements established by law. For that purpose a
standard notification form was to be designed by the Government.
(b) Non-Profit
Organisations Act
42. The Non-Profit Organisations
Act also contains a list of documents to be submitted for the initial
registration of a non-profit organisation (section 13.1 § 4)
and the registration of amendments to its articles of association
(section 23). The Act also provides that a non-profit
organisation must notify the registration authority about any change
concerning its address or its ex officio representatives and
submit confirming documents. The procedures and time-limits are the
same as for the initial registration of a non-profit organisation.
The list of documents to be submitted is determined by the competent
executive authority (section 32 § 7, added on 10 January
2006 and in force from 16 April 2006). The competent executive
authority may refuse registration if the documents submitted do not
comply with statutory requirements (section 23.1 § 1).
(c) Political Parties Act
The Political Parties Act provides that political
parties must be registered in the Unified State Register of Legal
Entities in accordance with the special registration procedure
established by that Act (section 15 § 1). Amendments to the
Register are made pursuant to the decision of a competent executive
authority authorising registration of information about the
establishment, reorganisation or dissolution of a political party or
its regional branches or of other information specified by law
(section 15 § 2). Before registering a political party, the
competent registration authority must verify whether the documents
submitted for registration satisfy the requirements of the Political
Parties Act. The Register must be amended within five days from the
date of the authorisation issued by the registration authority
(section 15 § 5).
Section 16 § 1 of the Political Parties Act
contains an exhaustive list of documents to be submitted for the
registration of a political party established by the founding
congress: (a) an application for registration; (b) the party’s
articles of association; (c) its political programme; (d) copies of
decisions taken by the founding congress, in particular those
concerning the establishment of the political party and its regional
branches, the adoption of its articles of association and its
programme and the election of its management bodies, and containing
information about the delegates present and the results of the votes;
(e) a document confirming payment of the registration fee; (f)
information about the party’s official address; (g) a copy of
the publication announcing the time and place of the founding
congress, and (h) copies of the minutes of regional conferences held
in more than one half of Russia’s regions, mentioning the
number of members of each regional branch. Paragraph 2 of the same
section prohibits State officials from requiring the submission of
any other documents. The documents listed above must be submitted to
the registration authority no later than six months after the
founding congress (section 15 § 3).
The registration authority may refuse registration if
the party has not submitted all necessary documents or if the
information contained in those documents does not meet the
requirements established by law (section 20 § 1).
A political party must notify the registration
authority, within three days, of any change in the information
contained in the Unified State Register of Legal Entities, including
any change in its address or its ex officio representatives.
The registration authority amends the Register within one day of
receipt of the notification (section 27 § 3)
3. Internal organisation of a political party
A
political party’s articles of association must establish, among
other things, the procedure for the election of its management bodies
(section 21 § 2 of the Political Parties Act). Management
bodies of a political party must be re-elected at least every four
years (section 24 § 3). Management bodies must be elected by a
secrete vote at a general conference assembling delegates from
regional branches established in more than one half of Russia’s
regions. The election must be conducted in accordance with the
procedure established by the party’s articles of association
and the decision must be taken by a majority of those present and
voting (section 25 §§ 1, 4 and 6).
4. Participation in elections
Until 14 July 2003 candidates in elections to State
bodies could be nominated by political parties, electoral blocks or
by self-nomination. Since legislative amendments introduced on 11
July 2001 entered into force on 14 July 2003, candidates in
elections to State bodies may be nominated by political parties only
(section 36 § 1 of the Political Parties Act as in force from 14
July 2003).
A political party wishing to participate in elections
to the State Duma must submit its list of candidates to the electoral
commission. It must also submit a certain number of signatures of
support. Parties who currently have seats in the State Duma are
absolved from the requirement to submit signatures of support. Until
3 June 2009 a political party had to submit signatures from no
fewer that 200,000 enfranchised citizens domiciled in at least twenty
Russian regions. The legal provision currently in force requires a
political party to submit signatures from no fewer than 150,000
enfranchised citizens domiciled in more than one half of Russian
regions. The number of signatures required will be decreased to
120,000 after the parliamentary elections of December 2011 (section
39 of the State Duma Elections Act (Federal Law no. 51-FZ of 18 May
2005)).
Until 2005 the 450 seats in the State Duma were
distributed between those political parties whose electoral lists
obtained more than 5% of the votes cast. The State Duma Elections Act
of 18 May 2005 increased the electoral threshold to 7% (section 82 §
7 of the State Duma Elections Act). In accordance with recent
amendments to the State Duma Elections Act introduced on 12 May 2009,
a political party whose electoral list wins between 6% and 7% of the
votes cast receives two seats in the State Duma, while a party which
wins between 5% and 6% of the votes cast receives one seat (section
82.1 of the State Duma Elections Act).
5. Public financing of political parties
Political parties which take part in elections and
obtain more that 3% of the votes cast are entitled to receive public
financing to reimburse their electoral expenses. The amount of public
financing received by each party is proportionate to the number of
votes obtained by it (section 33 §§ 1, 5 and 6 of the
Political Parties Act).
6. State control over political parties
Once a year a political party must submit to the
competent authorities a report on its activities, indicating, in
particular, the number of members of each of its regional branches
(section 27 § 1 (b)).
The competent authorities monitor compliance by
political parties and their regional and other structural branches
with Russian laws, as well as the compatibility of political parties’
activities with the regulations, aims and purposes set out in their
articles of association. The authorities concerned have the right to
study, on an annual basis, the documents of political parties and
their regional branches confirming the existence of regional branches
and the number of their members, and to issue warnings to political
parties and their regional branches if they pursue activities
incompatible with their articles of association. The party or
regional branch may challenge such warnings before a court. The
authorities have the right to apply to a court for the suspension of
the activities or the dissolution of a political party or its
regional branch (section 38 § 1).
A political party may be dissolved by the Supreme
Court of the Russian Federation if it does not comply with the
minimum membership requirement or the requirement to have regional
branches in more than one half of Russian regions (section 41 §
3).
B. Case-law of the Constitutional Court of the Russian Federation
On 1 February 2005 the Constitutional Court delivered
its Ruling no. 1-P in a case lodged by the Baltic Republican
Party, a regional party which was dissolved because it did not
satisfy the requirements of minimum membership and regional
representation. In its application to the Constitutional Court it
complained that the above requirements under section 3 § 2
of the Political Parties Act were incompatible with the Constitution.
The Constitutional Court declared that section 3 § 2 as in
force until 20 December 2004 was compatible with the Constitution. It
held as follows:
“3. The Constitution of the Russian
Federation provides for the multiparty system (Article 13 § 3)
and for the right to freedom of association and freedom of activities
of public associations (Article 30 § 1) ... It does not,
however, specify the territorial level – all-Russian,
interregional, regional or local – on which political parties
may be founded. Similarly, it does not contain an explicit ban on the
creation of regional parties. Accordingly, the requirement in section
3 § 2 of [the Political Parties Act] that political parties may
be created and operated only on the federal (all-Russian) level is a
limitation of the constitutional right to freedom of association in
political parties. Such limitations are permissible only if they are
necessary in order to protect constitutionally guaranteed values
(Article 55 § 4 of the Constitution of the Russian Federation).
3.1. ...[The Political Parties Act]
guarantees the right to freedom of association in political parties
(section 2) and provides that political parties are established for
the purpose of ensuring participation by Russian citizens in the
political life of their society. Their mission is to form and
articulate citizens’ political will, to take part in public and
political actions, elections and referenda, as well as to represent
citizens’ interests in State and municipal bodies (section 3 §
1). According to the substance of [the Political Parties Act],
political parties are created to ensure Russian citizens’
participation in the political life of the entire Russian Federation
rather than in one of its parts. Their vocation is to form the
political will of the multinational Russian people as a whole and to
articulate nationwide interests first and foremost. Their aims should
not be associated with the interests of certain regions only. At the
same time, when carrying out their activities directly in the
regions, political parties must combine nationwide and regional
interests...
The federal legislator ... made the acquisition (and
retention) of the status of a political party conditional, firstly,
on a public association expressing the interests of a considerable
number of citizens irrespective of their region of residence and,
secondly, on its carrying out activities in the entire territory of
the Russian Federation or most of it. Such structuring of the
political scene is aimed at preventing the division of the political
forces and the emergence of numerous artificial small parties
(especially during electoral campaigns) created for a short duration
and therefore incapable of fulfilling their mission ... in the
country’s political system.
3.2. ... In the contemporary conditions where
Russian society has not yet acquired solid experience of democratic
existence and is faced with serious challenges from separatist,
nationalist and terrorist forces, the creation of regional political
parties – which would inevitably be interested in vindicating
mainly their own purely regional or local interests – might
result in a breach of the territorial integrity and unity of the
political system and undermine the federative structure of the
country.
The legal line between regional political parties and
political parties based in fact on ethnic or religious affiliation
would be blurred. Such parties ... would inevitably strive to assert
mainly the rights of their respective ethnic and religious
communities, which at the present stage of historic development would
distort the process of forming and articulating the political will of
the multinational people which is the bearer of sovereignty and the
only source of power in the Russian Federation.
Moreover, taking into account the complex [federal]
structure of the Russian Federation, the establishment of regional
and local political parties in each region of the Federation might
lead to the rise of numerous regional party systems. This might turn
the emerging party system ... into a destabilising factor for the
developing Russian democracy, popular sovereignty, federalism and the
unity of the country, and weaken the constitutional protection of
people’s rights and freedoms, including the right to freedom of
association in political parties and the equal right of all citizens
to establish a political party and participate in its activities in
the entire territory of the Russian Federation.
3.3. Thus, the requirement contained in [the
Political Parties Act] that the status of a political party may be
acquired only by nationwide (all-Russian) public associations pursues
such constitutionally protected aims as the creation of a real
multiparty system, the legal institutionalisation of political
parties in order to assist the development of the civil society, and
... the formation of large, nationwide political parties. This
requirement is also necessary in the contemporary historical
conditions of developing democracy and rule of law in the Russian
Federation for the purpose of protecting constitutional values and,
above all, securing the unity of the country. The above limitation is
temporary in character and must be abolished as soon as the
circumstances justifying it become different.
4. Although it provides for a multiparty
system and guarantees the right to freedom of association in
political parties and the freedom of their activities, the
Constitution of the Russian Federation does not set any requirements
concerning the number of parties, or any membership requirements. Nor
does it prohibit establishing a minimum membership requirement for
political parties. It is the role of the federal lawmaker to
establish those requirements in such a way that, on the one hand, the
[required minimum] membership and territorial scale of activities of
political parties are not excessive and do not encroach on the very
essence ... of the citizens’ right to freedom of association
and, on the other hand, [the political parties] are capable of
fulfilling their aims and mission as nationwide (all-Russian)
political parties. In other words, the lawmaker must be guided by the
criteria of reasonable sufficiency ensuing from the principle of
proportionality.
When deciding on the minimum membership and the
territorial scale of the activities of political parties the lawmaker
has a wide discretion, taking into account that this issue is to a
considerable degree based on political expediency. This follows from
the fact that there exist different solutions to the issue in the
legislation of other countries (the minimum membership requirement
for political parties is considerably higher or lower than that
contained in section 3 of [the Political Parties Act])...
Defining the minimum-membership requirement for
political parties in [the Political Parties Act], the lawmaker
apparently proceeded from the necessity for a political party to have
considerable support in society. Such support is required to fulfil
the main mission of a political party in a democratic society, namely
forming and articulating the political will of the people. The
requirements such as contained in section 3 § 2 of [the
Political Parties Act] [as in force until 20 December 2004] are not
in themselves incompatible with the Constitution of the Russian
Federation. These quantitative requirements might become incompatible
with the Constitution if their enforcement results in the practical
impossibility for the citizens to exercise their constitutional right
to freedom of association in political parties, for example if, in
breach of the constitutional principle of the multiparty system, they
permit the establishment of one party only.
5. The principle of political pluralism
guaranteed by Article 13 of the Constitution of the Russian
Federation may be implemented not only through a multiparty system
and establishment and the activities of political parties with
various ideologies. Therefore the forfeiture by interregional,
regional and local public associations ... of the right to be called
a political party does not mean that such associations are deprived
of the right to participate in the political life of society at the
regional and local levels. Nor have their members been deprived of
the right to freedom of association.
... public associations have the majority of the rights
guaranteed to political parties... The provision of [the Political
Parties Act] that a political party is the only kind of public
association that may nominate candidates in elections to State bodies
(section 6 § 1) does not mean that other public associations,
including regional and local ones, ... are deprived of the right to
nominate candidates for elections to municipal bodies or the right to
initiate regional or local referenda...
6. It follows from the above that, taking into account
the historical conditions of development of the Russian Federation as
a democratic and federative State governed by the rule of law,
sections 3 § 2 and 47 § 6 of [the Political Parties Act]
setting out the requirements for political parties and providing for
the forfeiture by interregional, regional and local public
associations of the status of political parties ... cannot be
considered as imposing excessive limitations on the right to freedom
of association. The above requirements do not prevent citizens of the
Russian Federation from exercising their constitutional right to
freedom of association by creating all-Russian political parties or
joining them, or from defending their interests and achieving their
collective goals in the political sphere at the interregional,
regional and local levels by creating public associations ... and
joining them...”
On 16 July 2007 the Constitutional Court delivered
Ruling no. 11-P in a case lodged by the Russian Communist Labour
Party in which section 3 § 2, as amended on 20
December 2004, was challenged. The Constitutional Court declared that
the minimum membership requirement contained in that section was
compatible with the Constitution. It held as follows:
“3.1... [The aim of the minimum membership
requirement] is to promote the consolidation process, to create
prerequisites for the establishment of large political parties
voicing the real interests of the social strata, and to secure fair
and equal competition between political parties during elections to
the State Duma.
The Federal Law of 18 May 2005 [the State Duma Elections
Act] reformed the electoral system ... In accordance with that law
all 450 members of the State Duma are to be elected from electoral
lists submitted by political parties. The seats in the State Duma are
distributed between the political parties which pass the threshold
[of 7%] in terms of the number of votes cast for their respective
electoral lists. The introduction of the threshold ... prevents
excessive parliamentary fragmentation and thus ensures normal
functioning of the parliament and buttresses the stability of the
legislature and the constitutional foundations in general...
[As a result of the reform] political parties become the
only collective actors of the electoral process...
The reform of the electoral system requires that the
legal basis for the functioning of the multiparty system be adjusted
so that the party system is capable of reconciling the interests and
needs of society as a whole and of its various social and regional
strata and groups, and of representing them adequately in the State
Duma. The State Duma is an organised form of representation of the
will and interests of the multiethnic population of the Russian
Federation. That will and those interests can be expressed only by
large, well-structured political parties.
This is one of the reasons for changing the requirements
imposed on political parties, including the minimum membership
requirement for parties and their regional branches. These
requirements are dictated by the characteristics proper to each stage
of development of the party political system. They do not create
insurmountable obstacles for the establishment and activities of
political parties representing various political opinions, are not
directed against any ideology and do not prevent discussion of
various political programmes. The State guarantees equality of
political parties before the law irrespective of the ideology, aims
and purposes set out in their articles of association.
3.2. ... when setting out the minimum membership
requirements for political parties the federal legislator must take
care, on the one hand, that those requirements are not excessive and
do not impair the very essence of the right to freedom of
association, and must ensure, on the other hand, that the political
parties are able to pursue the aims and purposes set out in their
articles of association exclusively as national (all-Russian)
political parties. The national legislature must be guided by the
criteria of reasonable sufficiency and proportionality.
... the quantitative requirements will be incompatible
with the Constitution only if the constitutional right to associate
in political parties becomes illusory as a result of their
application...
...the federal legislature is entitled to set out
membership requirements for political parties in the light of current
historical conditions in the Russian Federation. Those requirements
can be changed in one way or the other because they are not arbitrary
but objectively justified by the ... aims in the sphere of
development of the political system and maintenance of its
compatibility with the basic constitutional foundations of the
Russian Federation. They do not abolish, diminish or
disproportionately restrict the citizens’ constitutional right
to associate in political parties.
3.3. ... Political parties are created to ensure the
involvement of citizens of the Russian Federation in the political
life of Russian society by means of forming and expressing their
political will, participating in public and political activities,
elections and referenda, and representing the citizens’
interests in State and municipal bodies. Therefore, the legislator
rightfully determined [the minimum membership] by reference to a
political party’s real ability to represent the interests of an
important portion of the population and to accomplish its public
functions...
The [minimum membership] requirements... are not
discriminatory because they do not prevent the emergence of diverse
political programmes, they are applied in an equal measure to all
public associations portraying themselves as political parties,
irrespective of the ideology, aims and purposes set out in their
articles of association, and they do not impair the very essence of
the citizens’ right to freedom of association. Their
application in practice shows that the constitutional right to
associate in political parties remains real... (according to
information from [the Ministry of Justice], on 1 January 2007
seventeen political parties out of thirty-three had confirmed their
compliance with the new legal requirements, three political parties
had decided on a voluntary basis to reorganise themselves into public
associations...).
The members of political parties which do not comply
with the legal requirements established by the Political Parties Act
have a choice ... between increasing the number of members of their
party to reach the required minimum, reorganising their party into a
public association..., founding a new party or joining another
[existing] political party...”
III. RELEVANT INTERNATIONAL MATERIALS
A. Guidelines by the Venice Commission
The
Guidelines on prohibition and dissolution of
political parties and analogous measures (Doc. CDL-INF(2000)1),
adopted by the European Commission for Democracy through Law (“the
Venice Commission”) on 10 January 2000, read as
follows:
“The Venice Commission,
...
Has adopted the following guidelines:
1. States should recognise that everyone has the right
to associate freely in political parties. This right shall include
freedom to hold political opinions and to receive and impart
information without interference by a public authority and regardless
of frontiers. The requirement to register political parties will not
in itself be considered to be in violation of this right.
...
3. Prohibition or enforced dissolution of
political parties may only be justified in the case of parties which
advocate the use of violence or use violence as a political means to
overthrow the democratic constitutional order, thereby undermining
the rights and freedoms guaranteed by the constitution. The fact
alone that a party advocates a peaceful change of the Constitution
should not be sufficient for its prohibition or dissolution.
...
5. The prohibition or dissolution of
political parties as a particularly far-reaching measure should be
used with utmost restraint. Before asking the competent judicial body
to prohibit or dissolve a party, governments or other state organs
should assess, having regard to the situation of the country
concerned, whether the party really represents a danger to the free
and democratic political order or to the rights of individuals and
whether other, less radical measures could prevent the said danger.
6. Legal measures directed to the prohibition
or legally enforced dissolution of political parties shall be a
consequence of a judicial finding of unconstitutionality and shall be
deemed as of an exceptional nature and governed by the principle of
proportionality. Any such measure must be based on sufficient
evidence that the party itself and not only individual members pursue
political objectives using or preparing to use unconstitutional
means.
7. The prohibition or dissolution of a
political party should be decided by the Constitutional court or
other appropriate judicial body in a procedure offering all
guarantees of due process, openness and a fair trial.”
The Venice Commission made the following
recommendations in its Guidelines and explanatory
report on legislation on political parties: some specific issues
(Doc. CDL-AD(2004)007rev of 15 April 2004):
“...
B. Registration as a necessary step for recognition of
an association as a political party, for a party’s
participation in general elections or for public financing of a party
does not per se amount to a violation of rights protected
under Articles 11 and 10 of the European Convention on Human Rights.
Any requirements in relation to registration, however, must be such
as are ‘necessary in a democratic society’ and
proportionate to the objective sought to be achieved by the measures
in question. Countries applying registration procedures to political
parties should refrain from imposing excessive requirements for
territorial representation of political parties as well as for
minimum membership. The democratic or non-democratic character of the
party organisation should not in principle be a ground for denying
registration of a political party. Registration of political parties
should be denied only in cases clearly indicated in the Guidelines on
prohibition of political parties and analogous measures, i.e. when
the use of violence is advocated or used as a political means to
overthrow the democratic constitutional order, thereby undermining
the rights and freedoms guaranteed by the constitution. The fact
alone that a peaceful change of the Constitution is advocated should
not be sufficient for denial of registration.
C. Any activity requirements for political parties, as a
prerequisite for maintaining the status as a political party and
their control and supervision, have to be assessed by the same
yardstick of what is ‘necessary in a democratic society’.
Public authorities should refrain from any political or other
excessive control over activities of political parties, such as
membership, number and frequency of party congresses and meetings,
operation of territorial branches and subdivisions.
D. State authorities should remain neutral in dealing
with the process of establishment, registration (where applied) and
activities of political parties and refrain from any measures that
could privilege some political forces and discriminate others. All
political parties should be given equal opportunities to participate
in elections.
E. Any interference of public authorities with the
activities of political parties, such as, for example, denial of
registration, loss of the status of a political party if a given
party has not succeeded in obtaining representation in the
legislative bodies (where applied), should be motivated, and
legislation should provide for an opportunity for the party to
challenge such decision or action in a court of law.
F. Although such concern as the unity of the country can
be taken into consideration, Member States should not impose
restrictions which are not “necessary in a democratic society”
on the establishment and activities of political unions and
associations on regional and local levels.
G. When national legislation provides that parties lose
their status of a political party if they do not succeed to take part
in elections or to obtain representation in legislative bodies, they
should be allowed to continue their existence and activities under
the general law on associations.
...
a. Registration of political parties
10. The already mentioned study on the
establishment, organisation and activities of political parties
conducted in 2003 by the Sub-Commission on Democratic Institutions
has shown that many countries view registration as a necessary step
for recognition of an association as a political party, for
participation in general elections or for public financing. This
practice – as the Venice Commission has stated before in its
Guidelines on Prohibition and Dissolution of Political Parties –
even if it were regarded as a restriction of the right to freedom of
association and freedom of expression, would not per se amount to a
violation of rights protected under Articles 11 and 10 of the
European Convention on Human Rights. The requirements for
registration, however, differ from one country to another.
Registration may be considered as a measure to inform the authorities
about the establishment of the party as well as about its intention
to participate in elections and, as a consequence, benefit from
advantages given to political parties as a specific type of
association. Far-reaching requirements, however, can raise the
threshold for registration to an unreasonable level, which may be
inconsistent with the Convention. Any provisions
in relation to registration must be such as are necessary in a
democratic society and proportionate to the object sought to be
achieved by the measures in question.
b. Activity requirements for political
parties and their control and supervision
11. Similar caution must be applied
when it comes to activity requirements for political parties as a
prerequisite for maintaining their status as a political party and
their control and supervision. Far-reaching autonomy of political
parties is a cornerstone of the freedoms of assembly and association
and the freedom of expression as protected by the European Convention
on Human Rights. As the European Court of Human Rights has stated,
the Convention requires that interference with the exercise of these
rights must be assessed by the yardstick of what is ‘necessary
in a democratic society’. The only type of necessity capable of
justifying an interference with any of those rights is, therefore,
one which may claim to spring from ‘democratic society’.
In particular, control over the statute or charter of a party should
be primarily internal, i.e. should be exercised by the members of the
party. As regards external control, the members of a party should
have access to a court in case they consider that a decision of a
party organ violates its statute. In general, judicial control over
the parties should be preferred over executive control.
12. Another important aspect is that of
equal treatment of parties by public authorities. In the case of
registration procedure (if it is foreseen by national legislation)
the State should proceed carefully in order to avoid any possible
discrimination of political forces which might be considered as
representing an opposition to the ruling party. In any case, clear
and simple procedures should exist to challenge any decision and/or
act of any registration authority in a court of law.
...
d. Political parties and elections
16. The main objective of political
parties is participation in the public life of their country.
Elections are essential for the fulfilment of this task; therefore
the principle of equality between parties is of utmost importance. In
recent years some new democracies claim that the stability of
government and the good functioning of parliament can be achieved
through limiting the number of parties participating in elections.
This suggestion seems to be in contradiction with European standards
applicable to electoral process.
...
18. In recent years the role of a multitude of political
parties as associations expressing the will of many different parts
of society is being reconsidered in a positive way.
“Preventing an excessive number of
parties through the electoral system would seem to be the most
effective and least objectionable method as far as political rights
are concerned. The general trend is to avoid restricting the number
of parties by tinkering with the terms and conditions governing
registration, because refusal to register a party is often a
convenient way for the authorities to get rid of a competitor who is
irksome rather than insignificant”[CDL-EL(2002)1, ch. II.4.1].
19. In some Member States parties can lose their status
of “political party” if they do not have any candidates
elected in national elections. If the provisions of Articles 10 and
11 are to be applied with due regard to what is ‘necessary in a
democratic society’, they should be allowed to continue their
activities under the general law on associations.
e. Parties on local and regional levels
20. Member states should not restrict the right of
association in a political party to the national level. There should
be a possibility to create parties on regional and local levels since
some groups of citizens might want to associate in groups limiting
their action to local and regional levels and to local and regional
elections. However, certain new democracies consider such extensive
approach to the freedom of association premature in the light of
their effort to preserve the unity of the State. Such concern can be
understood, but before any restrictions are imposed, the principle of
proportionality and the yardstick of what is ‘necessary in a
democratic society’ should be considered thoroughly.”
The Report
on the participation of political parties in elections (Doc.
CDL-AD(2006)025, of 14 June 2006) states as follows:
“15. Political parties are, as some Constitutions
and the European Court of Human Rights have expressly admitted,
essential instruments for democratic participation. In fact, the very
concept of the political party is based on the aim of participating
“in the management of public affairs by the presentation of
candidates to free and democratic elections”. They are thus a
specific kind of association, which in many countries is submitted to
registration for participation in elections or for public financing.
This requirement of registration has been accepted, considering it as
not per se contrary to the freedom of association, provided
that conditions for registration are not too burdensome. And
requirements for registration are very different from one country to
another: they may include, for instance, organisational conditions,
requirement for minimum political activity, of standing for
elections, of reaching a certain threshold of votes. However, some
pre-conditions for registration of political parties existing in
several Council of Europe Member States requiring a certain
territorial representation and a minimal number of members for their
registration could be problematic in the light of the principle of
free association in political parties.”
Further,
in the report entitled “Comments on the Draft law on political
parties of Moldova” endorsed by the Venice Commission at its
71st plenary session (Doc. CDL-AD(2007)025, of 8 June 2007), the
Venice Commission criticised the requirements contained in the
Moldovan Draft Law that a political party have no fewer than five
thousand members in at least half of the territorial administrative
units, with no fewer than 150 members domiciled in each of the
aforementioned territorial administrative units. It found those
requirements to be unusually high as compared to other democracies in
Western Europe and almost impossible to fulfil for any local
association. In another report on Moldova the Venice Commission
criticised the statutory requirement that political parties submit
membership lists for review every year. The relevant part of that
report, entitled Joint Recommendations on the electoral law and the
electoral administration in Moldova of the European Commission for
Democracy through Law and the Office for Democratic Institutions and
Human Rights of the OSCE (Doc. CDL-AD(2004)027, of 12 July 2004) read
as follows:
“51. Moldova has gone too far in registering
political opinions, in that the membership lists have to be submitted
for review every year.
It is difficult to find a justification for
this. Once a party is registered and has run for elections, the
results of the elections could be sufficient evidence of its
support. Only the need for renewed registration of such
parties, which never gained support during elections, is admissible.
Submitting membership lists to the government if a party has won
seats in Parliament in a number of municipalities or rayons, seems at
best unnecessarily bureaucratic, at worst, abusive.
52. Moreover, the requirement of support across the
country discriminates regionally based parties.”
The Venice Commission has also adopted a Code of Good
Practice in Electoral Matters (Doc. CDL-AD(202)23, of 30 October
2002). The Explanatory Report to the Code of Practice reads, in so
far as relevant, as follows:
“63. Stability of the law is crucial to
credibility of the electoral process, which is itself vital to
consolidating democracy. Rules which change frequently – and
especially rules which are complicated – may confuse voters.
Above all, voters may conclude, rightly or wrongly, that electoral
law is simply a tool in the hands of the powerful, and that their own
votes have little weight in deciding the results of elections.
64. In practice, however, it is not so much
stability of the basic principles which needs protecting (they are
not likely to be seriously challenged) as stability of some of the
more specific rules of electoral law, especially those covering the
electoral system per se, the composition of electoral
commissions and the drawing of constituency boundaries. These three
elements are often, rightly or wrongly, regarded as decisive factors
in the election results, and care must be taken to avoid not only
manipulation to the advantage of the party in power, but even the
mere semblance of manipulation.
65. It is not so much changing voting systems
which is a bad thing – they can always be changed for the
better – as changing them frequently or just before (within one
year of) elections. Even when no manipulation is intended, changes
will seem to be dictated by immediate party political interests.”
B. Comparative law materials
The Court conducted a comparative study of the
legislation of twenty-one Member States of the Council of Europe.
Thirteen of those States impose a minimum membership requirement on
political parties. In particular, in order to obtain registration
political parties are required to prove that they have a certain
number of founding members. The required minimum membership ranges
from 30 in Turkey and 100 in Croatia to 5,000 in Moldova and 25,000
in Romania. Five countries (Austria, France, Germany, Italy and
Spain) do not impose any minimum membership requirement on political
parties. Three more countries, while not setting a membership
requirement as such, make registration of a political party
conditional on producing a certain number of signatures of support
(5,000 in Finland and Norway and 10,000 in Ukraine). In only two
countries is there a statutory requirement that a political party
establish regional branches in a certain number of regions (in more
than one half of the regions in Ukraine and in all regions in
Armenia). The legislation of two more countries requires political
parties to have members domiciled in a certain number of regions (no
fewer than one hundred and fifty members in more than one half of the
regions in Moldova and no fewer than seven hundred members in at
least eighteen regions in Romania).
It must also be noted that out of the twenty-one countries studied by
the Court the legislation of only two countries (Latvia and Ukraine)
restricts the right to nominate candidates for elections to political
parties or their coalitions. The legislation of all the other
countries examined allows the nomination of election candidates by
associations of citizens or by self-nomination.
The Court also studied a report adopted by the Venice
Commission, on the establishment, organisation and activities of
political parties on the basis of the replies to the questionnaire on
the establishment, organisation and activities of political parties
(Doc. CDL-AD (2004)004, of 16 February 2004), which, in so far as
relevant, reads as follows:
“1. This report has been prepared from the
replies to the Questionnaire on Establishment, Organisation and
Activities of Political Parties, which was adopted by the
Sub-Commission on Democratic Institutions (Venice, 13 March 2003,
CDL-DEM(2003)1rev). The questionnaire is a follow-up to a similar
document, which was sent out earlier, as part of preparations for the
adoption of Guidelines and Report on the Financing of Political
Parties (Venice, 9-10 March 2001, CDL-INF(2001)8).
2. This time 42 countries responded. They are
listed here in alphabetical order:
Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium,
Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech
Republic, Estonia, Finland, France, Georgia, Germany, Greece,
Hungary, Ireland, Italy, Japan, Republic of Korea, Kyrghyz Republic,
Latvia, Liechtenstein, Lithuania, Luxembourg, “The Former
Yugoslav Republic of Macedonia”, Malta, The Netherlands,
Poland, Romania, The Russian Federation, Slovakia, Slovenia, Spain,
Sweden, Switzerland, Turkey, Ukraine and The United Kingdom.
...
1.4 Does the law distinguish between political
parties on the local, the regional and the national level?
14. The majority of
responding countries do not distinguish between political parties on
different levels of government, no matter whether the governmental
system of the country is unitary, federal or other; Austria,
Greece, Finland, France, Italy, Japan, Luxembourg, Malta and
Spain may be
mentioned as examples. There are exceptions, however. Canada
distinguishes between political
parties on the federal and on the provincial level. Georgia
prohibits explicitly
establishment of political parties on the grounds of regional or
territorial basis. Germany does
not include political activities on the local level as aiming at
taking part in the forming of the will in the representation of the
people, i.e. the whole of
the people; associations which are politically active on the local
level only, therefore, do not fall within the concept of political
party in the sense of the Constitution and the German legislation on
political parties.
...
2.2 What are the substantive and
procedural requirements to establish a political party?
22. A number of countries have a specific legal
framework for the activities of political parties and their
establishment.
– in general
– concerning its political programme
– concerning founding members or concerning
other individuals, who in some way have to support the establishment
(and their number, citizenship, geographical distribution etc.)
23. Some countries impose on political parties an
obligation to go through a registration process. Almost all countries
mentioned in the first group in paragraph 2.1 have to go through a
registration process or at least through deposition of their articles
of association with the competent authorities of their country. This
process is justified by the need of formal recognition of an
association as a political party. Some of these additional
requirements can differ from one country to another:
...
d)
minimum membership (Azerbaijan, Bosnia and Herzegovina, Canada,
Croatia, Czech Republic, Estonia, Georgia, Germany, Greece,
Kyrgyzstan, Latvia, Lithuania, Russian Federation, Slovakia and
Turkey);
...
i)
signatures attesting certain territorial representation (Moldova,
Russian Federation, Turkey and Ukraine);
...
24. After these requirements are met, a competent
body (Ministry of Justice, for example) proceeds with official
registration. In the case of such countries as, for example, Austria
and Spain, the Charter (articles of association) are just submitted
to the competent authority in order to be added to a special State
register.
...
3.6 Is a political party required to maintain
national, regional or local branches or offices?
48. There are no requirements in law to maintain
branches or offices in a particular way in Andorra, Austria, Belgium,
Canada, Estonia, Finland, France, Georgia, Hungary, Italy, Latvia,
Liechtenstein, Luxembourg, Sweden and Switzerland. Romania requires
political parties to maintain a head office, Ireland requires
headquarters and Turkey, a national office in Ankara. Germany
requires parties to maintain regional branches, and in the United
Kingdom a party must state whether it intends to operate in the
United Kingdom as a whole, in part of the United Kingdom or at a
local level; however, this is no more than a statement of intention,
and the law does not appear to impose a legal obligation on the party
to carry out this statement of intention. In Ukraine, within six
months from the date of registration a political party shall secure
the formation and registration of its regional, city and district
organisations in most regions of Ukraine, in the cities of Kyiv and
Sevastopol and in the Autonomous Republic of the Crimea.
...
4.2 Is it mandatory for political parties, e.g. as a
prerequisite for maintaining registration or for access to public
financing,
- to present individual candidates or lists of
candidates for general elections on the local, regional or national
level?
- to participate in local, regional or national
election campaigns?
- to get a minimum percentage of votes or a certain
number of candidates elected in local, regional and national
elections?
- to conduct other political activities specified by
law?
52. Regulations on the participation of
political parties in the political process of the country are more
diverse in the case of States where there is a requirement for party
registration. However, financing from public sources is subject to
detailed legislation in most countries. Such general trends can be
observed in countries for party registration and party financing:
(a) only parties participating in general
elections, which attain a certain threshold can receive public
funding (Austria, Belgium, Bosnia and Herzegovina, Canada, Czech
Republic, Estonia, “the Former Yugoslav Republic of Macedonia”,
France, Georgia, Germany, Greece, Japan, Liechtenstein, Lithuania,
Luxembourg, the Netherlands, Poland, Russian Federation, Spain,
Slovenia, Sweden);
(b) registration is revoked if a party:
(1) does not take part in a certain number of
elections (Armenia);
(2) does not receive a minimum number of
votes (Armenia); or
(3) fails to prove a minimum membership
and/or regional representation (Estonia, Moldova, Ukraine);
(c) The party is removed from the official
list of parties but can continue to exist as an association if it
does not take part in a certain number of elections (Finland)...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION ON
ACCOUNT OF THE REFUSAL TO AMEND THE STATE REGISTER
The
applicant complained under Article 11 of the Convention about the
refusal to amend the information about its address and ex officio
representatives contained in the Unified State Register of Legal
Entities. 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
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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
(a) The applicant
The
applicant submitted that the refusal to amend the State Register had
been unlawful. In particular, the requirement to submit the same
documents as for the registration of a newly established political
party had no basis in domestic law. It followed from the wording of
section 16 of the Political Parties Act containing a list of
documents to be submitted to the registration authority (see
paragraph 44 above) that it applied only to cases of initial
registration of a political party immediately after its establishment
by the founding congress. Section 27 § 3 of that Act established
a simplified notification procedure for registration of amendments to
the information contained in the Register (see paragraph 46 above).
The Registration of Legal Entities Act also differentiated between
initial registration of a legal entity and registration of amendments
to the Register, providing for an authorisation procedure in the
former case and a notification procedure in the latter (see paragraph
41 above). It followed that the applicant had been unlawfully and
arbitrarily required to submit, for verification by the registration
authority, the documents enumerated in section 16 of the Political
Parties Act. It had however complied with that unlawful requirement
and produced the necessary documents.
The
applicant disputed the domestic authorities’ finding that the
documents thus produced were defective. It asserted in particular
that the general conference of 17 December 2005 which had elected its
ex officio representatives and decided to change its official
address had been convened and held in accordance with the procedure
established by domestic law and its articles of association. The
domestic authorities’ findings to the contrary had been
arbitrary and irreconcilable with the available evidence.
Further,
the applicant submitted that the refusal to amend the information
about its address and ex officio representatives had disrupted
its activities. The term of office of the previous ex officio
representatives had expired in April 2006. As the authorities had
refused to register the new ex officio representatives duly
elected at the general conference, the applicant had become unable to
function properly. It could not establish new regional branches,
submit annual reports or other documents requested by the
authorities, or re-submit a request for registration of amendments to
the Register, as all those actions required the signatures of the ex
officio representatives. Moreover, it had not been the first time
that the authorities had invalidated the decisions adopted at the
applicant’s general conferences. The extraordinary general
conference of 17 December 2005 had been convened because the domestic
authorities had refused to recognise the decisions adopted at the
previous general conference. Finally, the authorities’ finding
that the general conference of 17 December 2005 had been illegitimate
had served as a basis for the dissolution of several of the
applicant’s regional branches and the ultimate dissolution of
the applicant itself. For the above reasons, the applicant considered
that the authorities’ refusal to amend the Register had
amounted in fact to dissolution in disguise.
(b) The Government
The
Government submitted that the interference with the applicant’s
rights had been lawful. The Political Parties Act established a
special authorisation procedure for registration of political
parties. The requirement to obtain a registration authorisation was
justified by the special status and role of political parties. The
Political Parties Act did not differentiate between types of
registration. The same rules therefore applied to the registration of
a newly established political party and to the registration of any
amendments to the information contained in the Register. In all cases
a political party had to submit the documents specified in section 16
of the Political Parties Act (see paragraph 44 above) and the
registration authority had competence to verify those documents and
decide whether to authorise or refuse registration (see sections 15 §
5, 29 § 1 and 38 § 1 of the Political Parties Act in
paragraphs 43, 45 and 53 above). The fact that those provisions
allowed different interpretations was not contrary to the Convention.
Many laws were inevitably couched in terms which, to a greater or
lesser extent, were vague and whose interpretation and application
were questions of practice. The role of adjudication vested in the
courts was precisely to dissipate such interpretational doubts as
remained, taking into account the changes in everyday practice (the
Government referred to Rekvényi v. Hungary [GC], no.
25390/94, § 34, ECHR 1999 III, and Gorzelik and Others
v. Poland [GC], no. 44158/98, § 65, ECHR 2004 I). The
Government concluded that domestic provisions governing registration
of political parties met the requirements of accessibility and
foreseeability. In any event, the applicant had applied to the
domestic authorities for instructions as to the registration
procedure to be followed and had received detailed explanations. It
was also significant that the lawfulness of the refusal of
registration had been examined and confirmed by the domestic courts.
Given that it was in the first place for the national authorities,
and notably the courts, to interpret domestic law, it was not the
Court’s task to substitute its own interpretation for theirs in
the absence of arbitrariness (they referred to Tejedor García
v. Spain, 16 December 1997, § 31, Reports of Judgments
and Decisions 1997 VIII).
As
to the justification for the refusal of registration, the Government
submitted that the domestic authorities had refused registration of
amendments to the Register because the documents produced by the
applicant were flawed with substantive defects. Their perusal had
revealed that the general conference which had elected the ex
officio representatives and decided to change the official
address of the applicant had been illegitimate. In particular, the
delegates who had taken part in that conference had not been elected
in accordance with the procedure prescribed by law and the
applicant’s articles of association. The minutes of that
conference could not therefore serve as a basis for amending the
State Register. The refusal to amend the Register aimed at furthering
democracy within the applicant party and protecting the rights of its
members to participate in the regional and general conferences and
thereby take part in the decision-making process.
The
Government further disputed the applicant’s allegations that
the refusal to amend the Register had obstructed its activities and
had led to its dissolution. They submitted that the applicant had
been active in 2006 and 2007. In particular, it had taken part in the
regional elections, had submitted an annual activity report according
to which it had spent more than a million roubles in 2006, and its
representatives had participated in the dissolution proceedings. As
for the dissolution, it had been ordered on different grounds which
were not in any way related to the refusal of registration. Nor had
the refusal of registration aimed at disrupting the applicant’s
activities. The domestic authorities had simply exercised legitimate
control over the applicant’s compliance with the registration
procedure established by domestic law. They argued that the applicant
had an obligation to respect domestic law and the domestic
authorities were entitled, and had an obligation, to watch over its
compliance with statutory requirements and procedures. In particular,
it had been necessary to verify whether the applicant’s general
assembly had been convened and held in accordance with domestic law
and its articles of association in order to protect its members from
taking arbitrary decisions in breach of democratic procedures.
The
Government also stressed that the refusal of registration had not
been definitive. The applicant had had an opportunity to correct the
identified defects in the documents and re-submit its request for
registration. In particular, a new general conference could have been
convened at the request of one third of its regional branches and
that conference could have elected new ex officio
representatives for the applicant. However, the applicant had failed
to take any steps to convene a new general conference and remedy the
defects identified by the domestic authorities.
Finally,
the Government referred to the cases of Cârmuirea Spirituală
a Musulmanilor din Republica Moldova v. Moldova ((dec.),
no. 12282/02, 14 June 2005) and Baisan for “Liga
Apararii Drepturilor Omului din România” (the League for
the Defence of Human Rights in Romania) v. Romania ((dec.), no.
28973/95, 30 October 1997), in which the refusal to register an
association which had failed to observe the registration procedure
had been found to be compatible with Articles 9 and 11 of the
Convention.
2. The Court’s assessment
(a) General principles
The
Court reiterates that the right to form an association is an inherent
part of the right set forth in Article 11. That citizens should be
able 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 (see Sidiropoulos and
Others v. Greece, judgment of 10 July 1998, Reports of
Judgments and Decisions 1998-IV, § 40).
Freedom of association is however not absolute and it
must be accepted that where an association, through its activities or
the intentions it has expressly or implicitly declared in its
programme, jeopardises the State’s institutions or the rights
and freedoms of others, Article 11 does not deprive the State of the
power to protect those institutions and persons. Nonetheless, that
power 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. In
determining whether a necessity within the meaning of paragraph 2 of
these Convention provisions exists, the States have only a limited
margin of appreciation, which goes hand in hand with rigorous
European supervision embracing both the law and the decisions
applying it, including those given by independent courts (see
Gorzelik and Others, cited above §§ 94 and 95;
Sidiropoulos, cited above, § 40; and Stankov and the
United Macedonian Organisation Ilinden v. Bulgaria,
nos. 29221/95 and 29225/95, § 84, ECHR 2001-IX).
When
the Court carries out its scrutiny, its task is not to substitute its
own view for that of the relevant national authorities but rather to
review the decisions they delivered in the exercise of their
discretion. This does not mean that it has to confine itself to
ascertaining whether the respondent State exercised its discretion
reasonably, carefully and in good faith; it must look at the
interference complained of in the light of the case as a whole and
determine whether it was “proportionate to the legitimate aim
pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”.
In so doing, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in the Convention and, moreover, that they based
their decisions on an acceptable assessment of the relevant facts
(see United Communist Party of Turkey and Others v. Turkey, 30
January 1998, § 47, Reports of Judgments and Decisions
1998 I, and Partidul Comunistilor (Nepeceristi) and Ungureanu
v. Romania, no. 46626/99, § 49, ECHR 2005-I
(extracts)).
The Court has also confirmed on a number of occasions
the essential role played in a democratic regime by political parties
enjoying the freedoms and rights enshrined in Article 11 and also in
Article 10 of the Convention. Political parties are a form of
association essential to the proper functioning of democracy. In view
of the role played by political parties, any measure taken against
them affects both freedom of association and, consequently, democracy
in the State concerned (Refah Partisi (the Welfare Party) and
Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and
41344/98, § 87, ECHR 2003 II, and United Communist Party
of Turkey, cited above, § 25).
(b) Application to the present case
The
Court observes that on 17 December 2005 the applicant held a general
conference which elected its managers and ex officio
representatives and decided to change its official address. It
subsequently applied to the registration authority with a request to
amend the State Register, as required by domestic law. The
registration authority ordered that the applicant should submit the
same set of documents as required for the registration of a newly
established political party. It then refused to amend the Register,
finding, on the basis of the documents submitted by the applicant,
that the general conference had been illegitimate.
It
was not disputed between the parties that the refusal to amend the
State Register amounted to an interference with the applicant’s
rights under Article 11 of the Convention (compare
Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01, § 123,
14 June 2007). The Court accepts the applicant’s argument that
the refusal to register its ex officio representatives
adversely affected its activities. By refusing to give effect to the
decisions of the general conference of 17 December 2005 and
recognise the ex officio representatives elected at that
conference, the public authorities undoubtedly created serious
difficulties in the applicant’s everyday life. Although there
is no evidence to support the applicant’s claim that its
activities were virtually paralysed as a result of the refusal to
amend the Register, there can be no doubt that they were severely
disrupted by the inability of the applicant’s ex officio
representatives to act on its behalf.
It
remains to be ascertained whether the interference with the
applicant’s rights was “prescribed by law”,
“pursued a legitimate aim” and was “necessary in a
democratic society”.
The
Court will first examine the applicant’s argument that the
registration authority’s requirement to submit the same set of
documents as for the registration of a newly established political
party and its refusal to amend the State Register on account of
irregularities in those documents had no basis in domestic law. It
reiterates in this connection that according to its settled case-law,
the expression “prescribed by law” requires that the
impugned measure should have a basis in domestic law and also that
the law be formulated with sufficient precision to enable the citizen
to foresee the consequences which a given action may entail and to
regulate his or her conduct accordingly (see, as a classic authority,
Sunday Times v. the United Kingdom (no. 1), judgment of
26 April 1979, Series A no. 30, § 49).
The
Court observes that domestic law is far from precise as to the
procedure to be followed in cases of registration of amendments to
the State Register. In contrast to the very detailed provisions
governing procedure for registration of a newly established party,
the procedure for registration of amendments is not determined. The
Political Parties Act and the Registration of Legal Entities Act do
not specify which documents, save for a simple notification, are to
be submitted by the political party for registration of amendments
and does not expressly mention the registration authority’s
power to verify these documents and refuse registration (see
paragraphs 41 and 46 above).
To
justify the requirement to submit the same set of documents as for
the registration of a newly established political party and the
powers of the registration authority to refuse registration if those
documents were incomplete or flawed, the domestic courts referred to
section 32 § 7 of the Non-Profit Organisation Act (see paragraph
42 above). The Court however notes that § 7 was added to section
32 on 10 January 2006 and entered into force on 16 April 2006,
while the refusals to amend the Register had been made on 16 January
and 4 April 2006. The Court is struck by the domestic courts’
reliance on a provision which was not in force at the material time
and which could not therefore serve as a lawful basis for the refusal
to amend the State Register.
Given
that no other legal document or provision establishing the procedure
for amending the Register was referred to in the domestic
proceedings, the Court is unable to find that the domestic law was
formulated with sufficient precision enabling the applicant to
foresee which documents it would be required to submit and what would
be the adverse consequences if the documents submitted were
considered defective by the registration authority. The Court
considers that the measures taken by the registration authority in
this case lacked a sufficiently clear legal basis.
In
view of the above conclusion, it would be unnecessary to examine
whether the interference was proportionate to any legitimate aim
pursued. However, in the present case the Court will nevertheless
point out that it cannot but disagree with the Government’s
argument that the interference with the applicant’s freedom of
association was “necessary in a democratic society”.
The
ground for the refusal to amend the Register was the registration
authority’s finding that the general conference of 17 December
2005 had been convened and held in breach of the procedure prescribed
by the applicant’s articles of association. The Court accepts
that, in certain cases, the States’ margin of appreciation may
include a right to interfere – subject to the condition of
proportionality – with an association’s internal
organisation and functioning in the event of non-compliance with
reasonable legal formalities applying to its establishment,
functioning or internal organisational structure (see, for example,
Ertan and Others v. Turkey (dec.), no. 57898/00, 21 March
2006; Cârmuirea ..., cited above; and Baisan ...,
cited above) or in the event of a serious and prolonged internal
conflict within the association (see Holy Synod of the Bulgarian
Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria,
nos. 412/03 and 35677/04, § 131, 22 January 2009). However, the
authorities should not intervene in the internal organisational
functioning of associations to such a far-reaching extent as to
ensure observance by an association of every single formality
provided by its own charter (see Tebieti Mühafize Cemiyyeti
and Israfilov v. Azerbaijan, no. 37083/03, § 78, ECHR
2009 ...).
In
the present case the registration authority discovered irregularities
in the election of regional delegates for the general conference,
finding for example that some regional conferences had been convened
by unauthorised persons or bodies, some other regional conferences
had been inquorate, minutes of several regional conferences did not
mention the names of participants and some of the participants were
not members of the applicant. The Court sees no justification for the
registration authority to interfere with the internal functioning of
the applicant to such an extent. It notes that domestic law did not
provide for any detailed rules and procedures for convening regional
conferences or electing delegates for the general conference. Nor did
it establish any requirements as to the minutes of such conferences.
The Court considers that it should be up to an association itself to
determine the manner in which its conferences are organised.
Likewise, it should be primarily up to the association itself and its
members, and not the public authorities, to ensure that formalities
of this type are observed in the manner specified in its articles of
association (see Tebieti Mühafize Cemiyyeti and Israfilov,
cited above, § 78, see also the Venice Commission Guidelines
and explanatory report on legislation of political parties: specific
issues in paragraph 58 above). In the absence of any complaints from
the applicant’s members concerning the organisation of the
general conference of 17 December 2005 or the regional conferences
preceding it, the Court is not convinced by the Government’s
argument that the public authorities’ interference with the
applicant’s internal affaires was necessary in the aim of
protecting the rights of the applicant’s members.
In
view of the above, the Court concludes that by refusing to amend the
State Register, the domestic authorities went beyond any legitimate
aim and interfered with the internal functioning of the applicant in
a manner which cannot be accepted as lawful and necessary in a
democratic society.
There
has therefore been a violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION ON
ACCOUNT OF THE APPLICANT’S DISSOLUTION
The
applicant complained of its dissolution for failure to comply with
the requirements of minimum membership and regional representation.
It relied on Article 11 of the Convention.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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
(a) The applicant
The
applicant submitted, firstly, that the requirements of minimum
membership and regional representation were not justified under the
second paragraph of Article 11. In particular, they were unreasonable
and did not pursue any legitimate aim. The imposition of such
requirements on political parties could not be justified by the
interests of national security or public safety. Nor were they
necessary for the prevention of disorder or crime or for the
protection of the rights and freedoms of others.
Further,
the applicant disputed the findings made by the domestic authorities
and courts. It argued that the inspections of its membership
situation had been carried out by the authorities in a perfunctory
manner. The inspections had been unsystematic and had not followed
any uniform methodology or clearly defined set of rules established
by law. The applicant’s members had been questioned over the
phone about their membership status and some of them had been
intimidated by the authorities. The authorities had required the
regional branches to produce countless documents, different for each
regional branch. The dissolution proceedings had not been adversarial
as the applicant had been denied an opportunity to submit evidence
showing the number of its members. The applicant insisted that it had
63,926 members and 57 regional branches, 51 of which had more than
500 members. It had therefore complied with the statutory
requirements of minimum membership and regional representation.
The applicant finally submitted that its dissolution
had not only violated its freedom of association, but had also
restricted its freedom to participate in elections, as under Russian
law political parties were the only type of public association
entitled to nominate candidates in elections to State bodies.
(b) The Government
The
Government submitted that the interference had been prescribed by
law, namely by the amended section 3 § 2 and section 41 of the
Political Parties Act and section 2 of the Amending Act (see
paragraphs 33, 34 and 54 above). In particular, the above provisions
required that, by 1 January 2006, all political parties should
increase their membership to 50,000 persons and the membership of
their regional branches to 500 persons. It also followed from those
legal provisions that if a party had not increased its membership it
had to reorganise itself into a public association or be dissolved.
The applicable domestic law was accessible and formulated in clear
terms so that the applicant had been able to foresee that failure to
comply with the above requirements would lead to its dissolution.
To justify the imposition of the requirements of
minimum membership and regional representation on political parties,
the Government referred to their special status and role as
associations taking part in elections and representing citizens’
interests in State bodies. They argued that those requirements
pursued the legitimate aim of protecting the constitutional
foundations of the Russian Federation and the rights and legitimate
interests of others. Their “necessity” had been confirmed
by the Constitutional Court (see paragraphs 55 and 56 above). In
particular, the requirements of minimum membership and regional
representation promoted the process of consolidation of political
parties, created prerequisites for the establishment of large, strong
parties, prevented excessive parliamentary fragmentation and thereby
ensured normal functioning of the parliament and furthered the
stability of the political system. The above requirements were not
discriminatory because they did not prevent the emergence of diverse
political programmes and were applied in equal measure to all
political parties, irrespective of their ideology, aims and purposes
set out in their articles of association. Nor did they impair the
very essence of the citizens’ right to freedom of association,
as political parties which did not meet that requirement had an
opportunity to reorganise themselves into public associations. The
Government also argued that the special features of the social and
political situation prevailing in contemporary Russia had to be taken
into account when determining whether the statutory requirements
imposed on political parties were justified (they referred to Igor
Artyomov v. Russia (dec.), no. 17582/05, 7 December 2006).
The
Government further submitted that freedom of association was not
absolute. Political parties had an obligation to respect domestic law
and the authorities were entitled to watch over their activities to
ensure that they were compatible with statutory requirements. As the
applicant had breached the requirements of minimum membership and
regional representation, and had thereby violated the rights and
interests of those parties that complied with the requirements, it
had been necessary to dissolve it. The dissolution had not been
automatic as the applicant had been given a choice between bringing
the number of its members and regional branches into compliance with
the amended law to retain its status as a political party or
reorganising itself into a public association. However, it had failed
to make use of that choice and had therefore become subject to
dissolution. It was also noteworthy that the applicant had not been
dissolved or banned on account of extremist activities. It was
therefore possible for it to establish a new party under the same
name. The applicant’s members could either establish a new
party or join another existing party.
Finally,
the Government submitted that the dissolution proceedings had been
fair and adversarial, and the domestic courts had examined and
assessed the evidence submitted by the parties and made reasoned
findings.
2. The Court’s assessment
It
is common ground between the parties that the applicant’s
dissolution amounted to interference with its rights under Article 11
of the Convention. It is not contested that that the interference was
“prescribed by law”, notably sections 3 § 2 and 41 §
3 of the Political Parties Act and section 2 §§ 1 and
4 of the Amending Act (see paragraph 33, 34 and 54 above).
The
Court further observes that several aims were relied upon by the
Government and the Constitutional Court to justify the applicant’s
dissolution for failure to comply with the requirements of minimum
membership and regional representation, namely protecting the
democratic institutions and constitutional foundations of the Russian
Federation, securing its territorial integrity and guaranteeing the
rights and legitimate interests of others (see paragraphs 55, 56 and
97 above). It considers that the defence of territorial integrity is
closely linked with the protection of “national security”
(see, for example, United Communist Party of Turkey, cited
above, § 40), while the protection of a State’s democratic
institutions and constitutional foundations relates to “the
prevention of disorder”, the concept of “order”
within the meaning of the French version of Article 11 encompassing
the “institutional order” (see Basque Nationalist
Party – Iparralde Regional Organisation v.
France, no. 71251/01, § 43, ECHR 2007 VII, and, mutatis
mutandis, Gorzelik and Others, cited above, § 76).
The Court is prepared to accept that the contested statutory
requirements and the applicant’s dissolution for failure to
comply with them were intended to protect national security, prevent
disorder and guarantee the rights of others, and therefore pursued
legitimate aims set out in the second paragraph of Article 11 of the
Convention.
It remains to be ascertained whether the interference
“was necessary in a democratic society”. The Court
reiterates that in view of the essential role played by political
parties in the proper functioning of democracy, the exceptions set
out in paragraph 2 of Article 11 are, where political parties are
concerned, to be construed strictly; only convincing and compelling
reasons can justify restrictions on such parties’ freedom of
association (see case-law cited in paragraphs 76 to 78 above). It is
also significant that the interference at issue in the present case
was radical: the applicant party was dissolved with immediate effect.
Such a drastic measure requires very serious reasons by way of
justification before it can be considered proportionate to the
legitimate aim pursued; it would be warranted only in the most
serious cases (see The United Macedonian Organisation
Ilinden – PIRIN and Others v. Bulgaria, no. 59489/00, §
56, 20 October 2005, with further references).
The
Court notes at the outset that the applicant, created in 1990, was
one of the oldest Russian political parties. There was nothing in its
articles of association or programme to suggest that it was not a
democratic party. It was never claimed that during its seventeen
years of existence it ever resorted to illegal or undemocratic
methods, encouraged the use of violence, aimed to undermine Russia’s
democratic and pluralist political system or pursued objectives that
were racist or likely to destroy the rights and freedoms of others.
The sole reason for its dissolution was its failure to comply with
the requirements of minimum membership and regional representation.
The
Court must ascertain whether the applicant’s dissolution for
failure to comply with the above requirements was proportionate to
the legitimate aims advanced by the Government. It will, however,
first examine whether the opportunity to reorganise into a public
association, provided for in the domestic law, counterbalanced the
negative effects of the interference.
(a) Possibility of reorganising into a
public association
The
Court takes note of the Government’s argument that the
applicant had been given an opportunity to reorganise itself into a
public association. However, it has already found it unacceptable
that an association should be forced to take a legal shape its
founders and members did not seek, finding that such an approach, if
adopted, would reduce the freedom of association of the founders and
members so as to render it either non-existent or of no practical
value (see Zhechev v. Bulgaria, no. 57045/00, § 56,
21 June 2007).
The
Court reiterates that political parties have a special status. The
only type of association which can come to power, political parties
have the capacity to influence the whole of the regime in their
countries. By the proposals for an overall societal model which they
put before the electorate and by their capacity to implement those
proposals once they come to power, political parties differ from
other organisations which intervene in the political arena (see Refah
Partisi, cited above, § 87).
It is significant that in Russia political parties
are the only actors in the political process capable of nominating
candidates for election at the federal and regional levels. A
reorganisation into a public association would therefore have
deprived the applicant of an opportunity to stand for election. Given
that participation in elections was one of the applicant’s main
aims specified in its articles of association (see paragraph 10
above), the status of a public association would not correspond to
its vocation. The Court accepts that it was essential for the
applicant to retain the status of a political party and the right to
nominate candidates for elections which that status entailed.
The
Court must next ascertain, against this background, whether the
applicant’s dissolution for failure to comply with the
requirements of minimum membership and regional representation may be
considered necessary in a democratic society. It will examine the two
requirements in turn.
(b) Failure to comply with the minimum
membership requirement
The first ground for the applicant’s
dissolution was its failure to comply with the minimum membership
requirement, which was introduced for the first time in 2001, when
political parties were required to have no fewer than 10,000 members.
In 2004 the required minimum membership was increased to 50,000
persons. In 2009 domestic law was again amended to provide for a
gradual decrease of minimum membership to 40,000 persons by 1 January
2012. The minimum membership of a regional branch was also changed on
the same occasions (see paragraphs 30 to 39 above).
The
Court notes that the minimum membership requirement is not unknown
among the member States of the Council of Europe. The legislation of
at least thirteen States establishes a minimum membership requirement
for political parties (see paragraph 62 above). However, even if no
common European approach to the problem can be discerned, this cannot
in itself be determinative of the issue (see Christine Goodwin v.
the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002 VI).
The Court notes that the required minimum membership applied in
Russia is quite the highest in Europe. In order to verify that it is
not disproportionate, the Court must assess the reasons advanced by
the legislator and the Constitutional Court to justify it.
The
explanatory notes to the draft law on political parties, the
resolutions by the State Duma’s committees, and the rulings of
the Constitutional Court (see paragraphs 31, 32, 55 and 56) justify
the introduction of the minimum membership requirement and its
subsequent increase by the necessity to strengthen political parties
and limit their number in order to avoid disproportionate expenditure
from the budget during electoral campaigns and prevent excessive
parliamentary fragmentation and, in so doing, promote stability of
the political system.
The
Court is not convinced by those arguments. It notes that in Russia
political parties do not have an unconditional entitlement to benefit
from public funding. Under domestic law only those political parties
that have taken part in the elections and obtained more than 3% of
the votes cast are entitled to public financing (see paragraph 51
above). The existence of a certain number of minor political parties
supported by relatively small portions of the population does not
therefore represent a considerable financial burden on the State
treasury. In the Court’s view, financial considerations cannot
serve as a justification for limiting the number of political parties
and allowing the survival of large, popular parties only.
As
to the second argument, related to the prevention of excessive
parliamentary fragmentation, the Court notes that this is achieved in
Russia through the introduction of a 7% electoral threshold (see
paragraph 50 above), which is one of the highest in Europe (see Yumak
and Sadak v. Turkey [GC], no. 10226/03, §§ 64 and 129,
8 July 2008). It is also relevant in this connection that a political
party’s right to participate in elections is not automatic.
Only those political parties that have seats in the State Duma or
have submitted a certain number of signatures to show that they have
wide popular support (200,000 signatures at the relevant time,
recently decreased to 150,000 signatures) may nominate candidates for
elections (see paragraph 49 above). In such circumstances the Court
is not persuaded that to avoid excessive parliamentary fragmentation
it was necessary to impose additional restrictions, such as a high
minimum membership requirement, to limit the number of political
parties entitled to participate in elections.
The
Court is also unable to agree with the argument that only those
associations that represent the interests of considerable portions of
society are eligible for political party status. It considers that
small minority groups must also have an opportunity to establish
political parties and participate in elections with the aim of
obtaining parliamentary representation. It has already held that,
although individual interests must on occasion be subordinated to
those of a group, democracy does not simply mean that the views of
the majority must always prevail: a balance must be achieved which
ensures the fair and proper treatment of minorities and avoids any
abuse of a dominant position (see Gorzelik and Others, cited
above, § 90). The voters’ choice must not be unduly
restricted and different political parties must be ensured a
reasonable opportunity to present their candidates at elections (see,
mutatis mutandis, Yumak and Sadak, cited above, §
108).
Further,
the Court observes that domestic law requires that political parties
not only prove their compliance with the minimum membership
requirement at the moment of their establishment and registration,
but that they should subsequently submit annual reports to the
registration authority, not only concerning their activities but also
confirming their membership situation (see paragraph 52 above). The
authorities also have power to conduct inspections once a year and
issue warnings or start dissolution proceedings if a political party
has an insufficient number of members (see paragraphs 53 and 54
above). The Court is unable to discern any justification for such
intrusive measures subjecting political parties to frequent and
comprehensive checks and a constant threat of dissolution on formal
grounds. If these annual inspections are aimed at verifying whether
the party has genuine support among the population, election results
would be the best measure of such support.
The
Court also notes the uncertainty generated by the changes in the
minimum membership requirement in recent years (see paragraph 109
above). The obligation to bring the number of their members in line
with the frequently changing domestic law, coupled with regular
checks on the membership situation, imposed a disproportionate burden
on political parties. In this regard, the Court takes note of the
opinion of the Venice Commission that altering the terms and
conditions for obtaining and retaining the status of a political
party may be seen as affording an opportunity of unjustifiably
dissolving political parties (see paragraph 58 above). It also refers
to the Venice Commission Code of Practice, which warns of the risk
that frequent changes to electoral legislation will be perceived,
rightly or wrongly, as an attempt to manipulate electoral laws to the
advantage of the party in power (see paragraph 61 above).
The
Court observes in this connection that the introduction and the
subsequent increase of the minimum membership requirement was one of
the aspects of the political reform started in 2001, whose other
measures consisted, in particular, of raising the electoral threshold
from 5% to 7% and banning electoral blocks and independent candidates
from participating in elections (see paragraphs 48 and 50 above).
There can be little doubt that all those measures had an evident
impact on the opportunities for various political forces to
participate effectively in the political process and thus affected
pluralism. In particular, the fact that only fifteen political
parties out of forty-eight were able to meet the increased minimum
membership requirement (see paragraph 35 above) demonstrates the
effect of such an increase.
The Court reiterates that where the authorities introduce significant
restrictions on the rights of political parties, and in particular
where such changes have a detrimental impact on the opposition, the
requirement that the Government produce evidence to demonstrate that
the amendments were justified is all the more pressing (see, mutatis
mutandis, Tănase v. Moldova [GC], no. 7/08, §
169, ECHR 2010 ...). In the present case, no convincing
explanation has been provided for increasing the minimum membership
requirement.
In
the light of the above considerations, the Court is unable to accept
the view that any minimum membership requirement would be justified
unless it permitted the establishment of one political party only
(see paragraph 55 above). In the Court’s opinion, a minimum
membership requirement would be justified only if it allowed the
unhindered establishment and functioning of a plurality of political
parties representing the interests of various population groups. It
is important to ensure access to the political arena for different
parties on terms which allow them to represent their electorate, draw
attention to their preoccupations and defend their interests (see,
mutatis mutandis, Christian Democratic People’s Party
v. Moldova, no. 28793/02, § 67, ECHR 2006-II).
Turning
back to the particular circumstances of the applicant’s case,
the Court notes that the applicant had existed and participated in
elections since 1990. It adjusted its membership and went through a
re-registration procedure following the introduction of a minimum
membership requirement in 2001. It was dissolved in 2007, however,
after a drastic five-fold increase of the minimum membership
requirement. The Court considers that such a radical measure as
dissolution on a formal ground, applied to a long-established and
law-abiding political party such as the applicant, cannot be
considered “necessary in a democratic society”.
(c) Insufficient number of regional
branches
The
second reason for the applicant’s dissolution was the
authorities’ finding that it did not have a sufficient number
of regional branches with more than 500 members, as required by the
legal provisions then in force.
The
requirement that a political party should have regional branches in
the majority of the Russian regions was, like the minimum membership
requirement, introduced for the first time in 2001 (see paragraph 30
above). It follows from the Ruling of the Constitutional Court of 1
February 2005 (see paragraph 55 above) that its rationale was to
prevent the establishment, functioning and participation in elections
of regional parties, which, according to the Constitutional Court,
were a threat to the territorial integrity and unity of the country.
Accordingly, the Court has to examine whether the ban on regional
political parties is compatible with the Convention.
The
Court has previously emphasised that there can be no justification
for hindering a public association or political party solely because
it seeks to debate in public the situation of part of the State’s
population, or even advocates separatist ideas by calling for
autonomy or requesting secession of part of the country’s
territory. In a democratic society based on the rule of law,
political ideas which challenge the existing order without putting
into question the tenets of democracy, and whose realisation is
advocated by peaceful means, must be afforded a proper opportunity of
expression through, inter alia, participation in the political
process. However shocking and unacceptable the statements of an
association’s leaders and members may appear to the authorities
or the majority of the population and however illegitimate their
demands may be, they do not appear to warrant the association’s
dissolution. A fundamental aspect of democracy is that it must allow
diverse political programmes to be proposed and debated, even where
they call into question the way a State is currently organised,
provided that they do not harm democracy itself (see Tănase,
cited above, § 167; The United Macedonian Organisation
Ilinden – PIRIN and Others, cited above, §§
57-62; United Communist Party of Turkey, cited above, §
57; and Socialist Party and Others v. Turkey, 25 May
1998, §§ 45 and 47, Reports 1998-III).
The
Court has also found that a problem might arise under the Convention
if the domestic electoral legislation tended to deprive regional
parties of parliamentary representation (see Yumak and Sadak,
cited above, § 124). It is therefore important that
regional parties should be permitted to exist and stand for election,
at least at the regional level.
The
Court also refers to the guidelines of the Venice Commission, which
found the requirement of regional or territorial representation for
political parties to be problematic and recommended that legislation
should provide for the possibility of creating parties on a regional
or local level (see paragraphs 58 and 59 above).
Further,
the Court observes that very few Council of Europe member States
prohibit regional parties or require that a political party should
have a certain number of regional or local branches (see paragraphs 62
and 64 above). Georgia is the only country that explicitly prohibits
regional political parties. Two countries, Ukraine and Armenia,
require that a political party have a certain number of regional
branches, while two more countries, Moldova and Romania, require
political parties to have members domiciled in a certain number of
regions. The Court considers that a review of practice across Council
of Europe member States reveals a consensus that regional parties
should be allowed to be established. However, notwithstanding this
consensus, a different approach may be justified where special
historical or political considerations exist which render a more
restrictive practice necessary (see Tănase, cited above,
§ 172, and, mutatis mutandis, Refah Partisi,
cited above, § 105).
The
Court takes note of the Constitutional Court’s reference to
Russia’s special historico-political context characterised by
the instability of the newly established political system facing
serious challenges from separatist, nationalist and terrorist forces
(see paragraph 55 above). The Court emphasises the special position
of Russia, which relatively recently set out on the path of
democratic transition. The Court accepts that there was likely to be
a special interest in ensuring that, upon the collapse of the Soviet
Union and the onset of democratic reform in 1991, measures were taken
to secure stability and allow the establishment and strengthening of
fragile democratic institutions. Accordingly, the Court does not
exclude that in the immediate aftermath of the disintegration of the
Soviet Union a ban on establishing regional political parties could
be justified.
However,
the Court finds it significant that the ban was not put in place in
1991 but in 2001, some ten years after Russia had started its
democratic transition. In the circumstances, the Court considers the
argument that the measure was necessary to protect Russia’s
fragile democratic institutions, its unity and its national security
to be far less persuasive. In order for the recent introduction of
general restrictions on political parties to be justified,
particularly compelling reasons must be advanced. However, the
Government have not provided an explanation of why concerns have
recently emerged regarding regional political parties and why such
concerns were not present during the initial stages of transition in
the early 1990s (see, for similar reasoning, Tănase, cited
above, § 174).
The
Court considers that with the passage of time, general restrictions
on political parties become more difficult to justify. It becomes
necessary to prefer a case-by-case assessment, to take account of the
actual programme and conduct of each political party rather than a
perceived threat posed by a certain category or type of parties (see,
mutatis mutandis, Tănase, cited above, §
175, and Ādamsons v. Latvia, no. 3669/03, § 123,
24 June 2008). In the Court’s opinion, there are means of
protecting Russia’s laws, institutions and national security
other than a sweeping ban on the establishment of regional parties.
Sanctions, including in the most serious cases dissolution, may be
imposed on those political parties that use illegal or undemocratic
methods, incite to violence or put forward a policy which is aimed at
the destruction of democracy and flouting of the rights and freedoms
recognised in a democracy. Such sanctions are concerned with
identifying a credible threat to the national interest, in particular
circumstances based on specific information, rather than operating on
a blanket assumption that all regional parties pose a threat to
national security.
The
present case is illustrative of a potential for miscarriages inherent
in the indiscriminate banning of regional parties, which is moreover
based on a calculation of the number of a party’s regional
branches. The applicant, an all-Russian political party which never
advocated regional interests or separatist views, whose articles of
association stated specifically that one of its aims was promotion of
the unity of the country and of the peaceful coexistence of its
multi-ethnic population (see paragraph 10 above) and which was never
accused of any attempts to undermine Russia’s territorial
integrity, was dissolved on the purely formal ground of having an
insufficient number of regional branches. In those circumstances the
Court does not see how the applicant’s dissolution served to
achieve the legitimate aims cited by the Government, namely the
prevention of disorder or the protection of national security or the
rights of others.
(d) Overall conclusion
In
view of the foregoing, the Court finds the domestic courts did not
adduce “relevant and sufficient” reasons to justify the
interference with the applicant’s right to freedom of
association. The applicant’s dissolution for failure to comply
with the requirements of minimum membership and regional
representation was disproportionate to the legitimate aims cited by
the Government. There has accordingly been a violation of Article 11
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant further complained under Article 6 § 1 of the
Convention that the dissolution proceedings had been unfair. However,
having regard to all the materials in its possession, the Court finds
that they do not disclose any appearance of a violation of Article 6.
It follows that this complaint must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. 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
The
applicant claimed 5,990,140.98 Russian roubles (RUB) in respect of
pecuniary damage, of which RUB 1,996,669.78 represented the expense
of holding its general conference of 17 December 2005, while the
remaining RUB 3,993,471.2 represented expenses that would be required
to establish a new political party.
The
Government submitted that there was no causal link between the
complaints lodged by the applicant and the claims in respect of the
expenses incurred in connection with the general conference. The
claims relating to the establishment of a new political party were
hypothetical and not supported by any documents.
The
Court observes that the applicant did not submit any claim for
non-pecuniary damage. As regards the pecuniary damage alleged, it
does not discern any causal link between the violations found and the
applicant’s expenditure on the organisation of the general
conference. The claims relating to the establishment of a new
political party are speculative and are not supported by any
documents. The Court therefore rejects the claim for pecuniary
damage.
B. Costs and expenses
Relying
on legal fee agreements, the applicant claimed RUB 433,500 for
the legal fees incurred before the domestic courts and RUB 250,000
for those incurred before the Court.
The
Government submitted, in respect of the expenses allegedly incurred
before the domestic courts, that the legal fee agreements produced by
the applicant related to the proceedings concerning the dissolution
of the applicant’s regional branches. They were not therefore
connected with the applicants’ complaints. The claim for the
expenses incurred in connection with the proceedings before the Court
was excessive.
The
Court reiterates that legal costs and expenses are only recoverable
in so far as they relate to the violation found (see Van de Hurk
v. the Netherlands, 19 April 1994, § 65, Series A no. 288).
It accepts the Government’s argument that the documents
produced by the applicant in support of its claims for legal fees
incurred before the domestic courts did not relate to the proceedings
examined in the present case. It therefore rejects this part of the
claim. On the other hand, regard being had to the documents in its
possession, the Court considers it reasonable to award the sum of
6,950 euros (EUR) in respect of the legal fees incurred in the
proceedings before the Court, plus any tax that may be chargeable to
the applicant on that amount.
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
Declares by a majority the complaints concerning
the refusal to amend the State Register and the applicant’s
dissolution admissible and the remainder of the application
inadmissible;
Holds by six votes to one that there has been a
violation of Article 11 of the Convention on account of the
authorities’ refusal to amend the State register;
Holds unanimously that there has been a
violation of Article 11 of the Convention on account of the
applicant’s dissolution;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,950 (six
thousand nine hundred and fifty euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
converted into Russian roubles at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of
Judge Kovler is annexed to this judgment.
N.A.V.
S.N.
PARTLY DISSENTING OPINION OF JUDGE KOVLER
I
share the Chamber’s final conclusion that there has been
violation of Article 11 of the Convention on account of the
applicant’s dissolution, and I share also the main part of its
arguments concerning this conclusion. But I cannot agree with the
position of the majority on the first issue – the refusal of
the Ministry of Justice to register the amendments of the information
contained in the Unified State Register of Legal Entities because of
various omissions, including the party’s failure to submit
certain documents, thereby leaving it open to doubt whether the
general conference had been held in accordance with the law and with
its articles of association (§ 15).
Leaving
aside the problem of the quality of the law regulating political
parties’ activities - dura lex, sed lex - I would point
out that the respondent Government stressed that the refusal to
register the party had not been definitive and the applicant could
have corrected the identified defects in the documents and
re-submitted its request for registration. In some similar situations
concerning religious organisations (for example, Church of
Scientology Moscow v. Russia, no. 18147/02, judgment of 5 April
2007, and The Moscow Branch of the Salvation Army v. Russia,
no. 72881/02, judgment of 5 October 2006), or a local political
organisation (Presidential Party of Mordovia v. Russia, no.
65659/01, judgment of 5 October 2004), the organisations concerned
did renew their applications, exhausting domestic procedures in full
lest there be any doubt. The problem of the registration of the
amendments of an existing political organisation could have been
resolved at this stage had the organisation in question been more
respectful of the procedural requirements. The applicant party
preferred to challenge the refusal before a court after the second
attempt, and the national courts found that the documents submitted
did not meet the requirements established by law.
The
Court has declared inadmissible applications having circumstances
similar to the instant case (such as Baisan
and Liga Apararii Drepturilor Omului din România
v.
Romania,
no. 28973/95, Dec. 30 October 1995, and Carmuirea
Spirituala a Musulmanilor din Republica Moldova v. Moldova, no.
12282/02,
Dec. 14 June 2005) because the applicants failed to observe the
requirements of the national legislation. Unfortunately, in the
present case the Chamber did not follow the Court’s case-law
but declared this issue admissible and went on to find a violation of
Article 11 of the Convention.
However,
I agree with my colleagues that the sanction – the party’s
dissolution after 15 years of existence because of its alleged
failure (disputed by the applicant) to comply with minimum membership
and regional representation requirements – was hasty and
disproportionate, and that the domestic authorities did not adduce
“relevant and sufficient” reasons to justify the
interference with the applicant’s right to freedom of
association.
