European Court of Human Rights

 

 

THIRD SECTION

CASE OF PREOBRAZHENIYE ROSSII AND OTHERS v. RUSSIA

(Application no. 78607/11)

 

 

 

 

JUDGMENT

STRASBOURG

24 May 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Preobrazheniye Rossii and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          María Elósegui, President,
          Andreas Zünd,
          Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 78607/11) 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”) on 6 December 2011 by Preobrazheniye Rossii, a public association, and two Russian nationals, Mr Sergey Vasilyevich Kabanov and Mr Daniil Yuriyevich Girich, born in 1979 and 1980 respectively and living in Kemerovo (“the applicants”). The applicants were represented by Mr A.V. Rakhmilovich, a lawyer practising in Moscow;

the decision to give notice of the complaint concerning the applicant organisation dissolution to the Russian Government (“the Government”), initially represented by Mr G. Matyushkin and Mr M. Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the parties’ observations;

the Russian Government’s objection to the examination of the application by a Committee and to the Court’s decision to reject it;

 

Having deliberated in private on 3 May 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The case concerns the dissolution of the applicant organisation, a public association registered in 2001 in the Kemerovo region and eventually becoming “the all-Russia charitable public organisation ‘Preobrazheniye Rossii’” (charter amendments registered in 2008) carrying out its activities in 65 regions of the country. The second applicant was its vice president, and the third applicant was a member of its management board. Its objectives included providing support to disadvantaged individuals, such as drug and alcohol addicts, ex-convicts and the homeless, by their voluntary involvement in cultural, educational and labour activities, rehabilitation and social adaptation. In particular, it organised charitable events and created so called “rehabilitation centres” in which people in need could stay free of charge. During their stay people worked to provide cleaning and loading services to third parties, from which the applicant organisation financed itself.

2.  On 8 April 2010 the Ministry of Justice, after carrying out a review of the organisation activities from February 2007 to February 2010, issued a warning inviting it to rectify certain breaches of law before 20 May 2010. On 15 September 2010, considering that the warning had not been complied with, the Ministry instructed the organisation to do so by 10 November 2010. On 15 November 2010 the Ministry suspended the organisation’s activities until 20 March 2011.

3.  On 22 November 2010 the organisation submitted documents to the Ministry aimed to show that it had rectified some of the breaches. It argued that the remaining requirements had not been based on law. No reply followed. On 15 March 2011 it made repeated submissions which were also left unanswered. It unsuccessfully appealed against the suspension order (the Supreme Court’s judgment of 6 April 2011, as upheld by the Cassation Panel of the Supreme Court on 7 June 2011).

4.  On 23 March 2011 the Ministry applied to the Supreme Court seeking dissolution of the organisation on the grounds that it had failed to comply with the warning and instruction, and that it had organised events in breach of the decision suspending its activities. The organisation (represented by the second applicant) disputed the Ministry’s arguments noting that the alleged violations had either been rectified or not based on law, and that they in any event could not be considered serious enough to justify its dissolution.

5.  On 8 June 2011 the Supreme Court granted the Ministry’s request and dissolved the organisation relying on the Public Associations Act. On 16 August 2011 the Cassation Panel of the Supreme Court dismissed the organisation’s appeal and upheld the judgment, stating that the organisation had “repeatedly” and “grossly” violated the national laws (and had not rectified the violations) as follows.

6.  Firstly, an unregistered logo resembling the coat of arms of Moscow (depicting St George killing the dragon) had been used on the stamp and letterheads without the Moscow government’s permission. Flyers, photo or video materials featuring the logo had still been disseminated in 2011.

On 2 September 2010 the organisation management board decided to stop using the unauthorised logo. On 1 February 2011 the general assembly warned the organisation members that using the logo was unacceptable and would be sanctioned by up to the exclusion from the organisation. On 11 May 2011 the general assembly approved a modified logo which was submitted to the Ministry for registration. On 3 June 2011 the Ministry refused to register the modified logo for failure to comply with formal requirements.

The organisation argued that all instances of using the unauthorised logo had been established by the court solely on the basis of submissions of the Ministry or its regional offices and were unproven. In any event, they concerned only nine out of 65 regions in which it operated and had been committed in violation of the decisions taken by the organisation.

7.  Secondly, membership records, charity programs and details of their financing had not been submitted to the Ministry.

On 1 August 2010 the general assembly confirmed the list of the members of the organisation, based on previous applications for membership and membership records kept by the management board. The record of the general assembly was submitted to the Ministry in 2010. In May 2011 the Ministry received two lists of the organisation members, as of 1 August 2008 and 11 May 2011, and records of the management board meetings on the admission and exclusion of members.

In 2007 the organisation submitted to the Ministry its program for 2007‑11 with an estimate of incoming resources and expenditure. In 2010 it reported actual resources and expenditure in 2009. In May 2011 it submitted more detailed information concerning the expenditure.

The court stated that the record of the general assembly of 1 August 2010 did not contain the list of those present and that, under the charter, the management board (and not the general assembly) was responsible for admitting new members. The charity program for 2007-11 did not contain an estimate of expenditure and the additional document submitted in May 2011 had not been approved by the general assembly.

8.  Thirdly, commercial activities, such as cleaning and loading services, not commensurate with the aims indicated in the charter had been conducted, and “social services” for helping disadvantaged individuals had been provided without creating special organisations for those purposes.

The organisation argued that it had financed itself by rendering cleaning and loading services which people staying in its centres were able to voluntarily perform as part of their rehabilitation. This, as well as helping disadvantaged individuals as part of its charitable activities, were commensurate with the aims set forth in its charter and did not require the creation of separate entities. The mentioning of “social services” had been excluded from the charter. However, on 27 May 2011 the Ministry had refused to register the amendments.

9.  Lastly, activities had been carried out despite the suspension order, namely an open call on its website in November 2010 for the best letter in its support to the Minister of Justice, charity event “Feed the Hungry” (distribution of hot meals) in Vladimir on 6 and 13 March 2011 and unspecified events to mark Children’s Day in March 2011.

The organisation argued that those activities did not constitute “public events” prohibited in case of the suspension.

10.  The applicants complained that the dissolution had breached Article 11 of the Convention.

THE COURT’S ASSESSMENT

I.              ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

11.  The Court notes firstly that the Government referred to reviews of the applicant organisation activities by various authorities other than the Ministry of Justice (finding violations of tax, fire safety and other regulations) and to judgments delivered either before or after the facts complained of in the present application in respect of one of the organisation regional offices or the criminal acts of the organisation founder and several members committed in the Kemerovo region. However, the Court’s task in the present case is to assess whether the dissolution of the organisation, sought by the Ministry of Justice and ordered by the Supreme Court, complied with Article 11. In doing so it must review the relevant decisions and reasons adduced for it (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 68, ECHR 2009). The information not referred to in the reasoning justifying the dissolution is therefore out of the scope of the present case. Secondly, there is nothing in that reasoning which would indicate that the applicant organisation had engaged in an activity aimed at the destruction of the rights set forth in the Convention. The Government’s objection that the application constituted an abuse of the right of petition for the purposes of Article 17 of the Convention should therefore be dismissed (see Vona v. Hungary, no. 35943/10, §§ 36-39, ECHR 2013). As to the Government’s arguments that the complaints lodged by the second and third applicants were inadmissible since they had not been parties to the proceedings concerning the dissolution and that after the dissolution they had founded new public associations with similar aims, the Court considers that, being vice-president and member of the management board, the applicants were directly affected by the dissolution of the organisation (see Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 84, ECHR 2009) and can therefore claim to be victims of the alleged violation.

12.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

13.  The general principles applicable in the present case have been summarised recently in Adana TAYAD v. Turkey, no. 59835/10, §§ 27‑28, 21 July 2020, and Croatian Golf Federation v. Croatia, no. 66994/14, §§ 85‑98, 17 December 2020.

14.  The applicant organisation’s dissolution constituted an interference with its right to freedom of association. The Court is prepared to accept that it was a lawful measure aimed at protecting the rights of others (see, mutatis mutandis, Tebieti Mühafize Cemiyyeti and Israfilov, cited above, § 66, and Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, § 53, 12 June 2014). It also notes that initially less drastic measures were taken, and the organisation undertook some actions to rectify a number of the breaches of law identified by the Ministry. Relevant information on those steps was submitted to the Ministry. It follows from the case-file that the Ministry left those arguments unanswered and did not assist the organisation in clarifying what else was required of it in order to ensure its compliance with the Ministry’s requirements (see paragraph 3 above, in particular).

15.  Those arguments were also not sufficiently addressed by the Supreme Court by way of a reasoned decision. The court did not explain in its judgments why it was not possible to achieve the legitimate aim pursued by means other than the dissolution. Its analysis focused on the legality of the contested measure without its proportionality having been assessed in any meaningful manner. It did not examine the existence and extent of any harm caused by the identified breaches of law or the possibility of their rectification. It did not analyse the impact of the dissolution on the organisation’s socially important activities targeting vulnerable groups and the rights of its members. No reasons were given for its failure to follow the Constitutional Court’s binding interpretation of the relevant legal provisions issued as early as 2003 in judgment no. 14-P (see Biblical Centre of the Chuvash Republic, cited above, § 38) or to differentiate with the series of its own decisions to which the organisation referred in its appeal (decision of 4 March 2008 and other similar decisions adopted in 2009-10). In sum, the authorities failed to carry out a balancing exercise meeting the criteria laid down in the Court’s case-law under Article 11.

16.  The Court considers that the reasons invoked by the authorities for the dissolution of the applicant organisation were not determined by any “pressing social need”, nor were they “convincing and compelling” to justify it. That being so, the interference cannot be deemed necessary in a democratic society as asserted by the Government.

17.  There has accordingly been a violation of Article 11 of the Convention.

II.           APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The second and third applicants claimed 25,000 euros (EUR) each in respect of non-pecuniary damage. The second applicant also claimed EUR 4,340 in respect of legal costs incurred before the Court.

19.  The Government contested the claims.

20.  The Court awards the applicants jointly EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable. The sum is to be paid to the second applicant (Mr Kabanov) who will be responsible for making it available to the third applicant (Mr Girich).

21.  Having regard to the documents in its possession, the Court considers it reasonable to award the second applicant the sum claimed for legal costs in the proceedings before the Court, plus any tax that may be chargeable.

22.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 11 of the Convention;

3.      Holds

(a)  that the respondent State is to pay, within three months, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, to the second and third applicants jointly, in respect of non‑pecuniary damage,

(ii) EUR 4,340 (four thousand three hundred and forty euros) to the second applicant, plus any tax that may be chargeable to him, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 24 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                                 María Elósegui
          Deputy Registrar                                                      President