12.11.2007
REVIEW OF THE RELEVANT CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS
ON ARTICLE 11
(Appendis 9)
A) Historical Consideration and Context of Article 11
The European Convention on Human Rights ["the Convention"], signed on
November 4, 1950 is the the first comprehensive international legal
instrument safeguarding human rights. The Preamble of the Convention
clearly establishes a connection between the Convention and democracy
in affirming that human rights and fundamental freedoms "are best
maintained on the one hand by an effective political democracy and on
the other by a common understanding and observance of the Human Rights
upon which they depend."
The rights enshrined in Article 11 form part of the "fundamental
freedoms" referred to in the Preamble of the Convention. The travaux
prparatoires^ for Article 11 of the Convention clearly reflect the
importance given to these rights at the very outset of what has since
become the European human rights system. The European Court of Human
Rights ["the Court"] has itself reaffirmed since that "the Convention
was designed to maintain and promote the ideals and values of a
democratic society.^
A cursory review of the Court's treatment of Article 11 issues
indicates an increase in such cases in recent years; whereas only
three cases were considered by the Court in the seventies, the number
of Article 11 cases rose to 15 in the nineties, and now include more
than 50 cases since 2000.
B) The special circumstances of the Russian Federation
The Russian Federation only became a party to the European Convention
on Human Rights on May 5, 1998. Since then however, the Russian
Federation has amassed the greatest number of pending cases filed
against any respondent State before the Court; 19,300 complaints in
total representing 21.5% of all pending cases before the Court as at
January 1, 2007.^
With respect to the protection of freedom of association within the
Russian Federation, several independent non-governmental
organizations, including Amnesty International and Human Rights Watch,
have consistently expressed particular concern over the adequacy of
protection afforded for such fundamental freedoms. The European Court
has indeed itself confirmed failures on the part of the Russian
Federation to adequately protect the right to freedom of association
within the scope of Article 11 of the Convention in recently decided
cases.^
Within this existing socio-political context, the provision of ongoing
protection of the right to freedom of association by the Russian
Federation, in conformity with Article 11 of the Convention, must be
taken into account in determining the present matter before the Court
- particularly with respect to assessing the risk of "chilling
effects" on other-related Convention rights such as the freedom of
expression.
As the Court has duly noted:
Notwithstanding its autonomous role and particular sphere of
application, Article 11 must also be considered in light of Article
10. The protection of opinions and the freedom to express them is one
of the objectives of the freedoms of assembly and association as
enshrined in Article 11. That applies all the more in relation to
political parties in view of their essential role ensuring pluralism
and democracy.^
C) The relevant facts in the present case relevant to art. 11
The present debate before the Court revolves around the refusal of a
regional political party, the Sverdlovsk Oblast Regional Branch of the
Political Party "Russian Labour Party" ["Regional Branch"] to produce
original signed membership applications, upon demand, to state
officials, the Sverdlovsk Regional Department of the Ministry of
Justice based on a disputed interpretation of Clause "a" of Part 1 of
Article 38 of the Federal Law On Political Parties.
D) The European Court's analysis of art. 11
Article 11 - Freedom of assembly and association
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.
The European Court's analysis of alleged breaches of freedom of
association in respect of Article 11 guarantees under the Covenant is
established: the Court first determines (1) whether there was "an
interference" with the exercise of the right to freedom of
association, and (2) whether the interference was justified insofar as
it was "prescribed by law," pursued one or more of the legitimate aims
set out in paragraph 2 of Article 11 and was "necessary in a
democratic society" for the achievement of those aims.^
1. Was there an interference?
As the Court has clearly stated, Article 11 of the Convention, "[...]
safeguards associative life against unjustified State interference."^^
A demand by state authorities compelling production of original signed
membership applications for a political party, under sanction of law,
qualifies unequivocally as an interference within the scope of Article
11 of the Convention.
This issue of interference with the right to freedom of association is
uncontroversial in the present matter before the Court, though the
characterisation of the lawful basis or the justification for such
interference remains in dispute between the parties.
2. Was the interference justified?
(a) "Prescribed by law"?
In a recently decided Article 11 case, the Court reiterated that "a
norm cannot be regarded as a "law" unless it is formulated with
sufficient precision to enable the citizen - if need be, with
appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail
[...]."^
The particular provision of law at issue in this case, Clause "a" of
Part 1 of Article 38 of the Federal Law On Political Parties, does not
explicitly authorize or empower state authorities to demand production
of original signed membership application forms for a political party,
under sanction of law. Rather it grants vague powers to authorities
not more often than once a year to "familiarize themselves with the
documents of political parties and their regional branches which
confirm... the number of members of each regional branch of political
party."
The Court may duly note that, as drafted, the provision relied upon by
the respondent, Russian Federation is vague ab initio and engenders
significant risks for arbitrary and unjustified interference with
Article 11 guarantees.
The facts of this particular case are revealing insofar as state
authorities, under the auspices of interpreting and applying criteria
to confirm the number of members of regional branches of political
parties, demanded production of individual signed membership
application forms to the party, whereas upon initial registration, the
minutes of common meetings on the issue of admission of citizens to
the party were previously deemed sufficient for registration of the
political party by state authorities.
Refusal of the Regional Branch to produce the individual signed
membership application forms of would-be members and members was
legitimately premised on protecting the privacy of information
contained in such application forms and is consistent with a
reasonable understanding that original membership applications were
not foreseeable, in the circumstances, as having to be provided to
state authorities upon demand.
In this respect, this Court may conclude that the interference was not
duly prescribed by law and deem a violation of Article 11 accordingly.
(b) Legitimate aim
In the present matter, the Russian Federation submits that the
interference in question pursued several aims insofar as it was meant
to further "public order and to prevent disorders, to protect the
rights and freedom of other persons."
The Court may note however, that state authorities ab initio, and
subsequent decisions of national tribunals called upon to interpret
the aims of Clause "a" of Part 1 of Article 38 of the Federal Law On
Political Parties in this matter, altogether failed to address
Article 11 Convention concerns. In the case of national tribunals
which were presented with explicit arguments alleging breach of
Article 11 Convention rights^ - the failure of these tribunals to
altogether even address these explicit Article 11 arguments made by
the applicant at the time, makes it problematic for the Russian
Federation to make credible assertions as to the legitimate aims of
the interference ex post facto before this Court.
The European Court is now called upon to assess whether the mere
allegation of these particular aims ex post facto by the Russian
Federation in the present proceeding can be reconciled with previous
failures of its national tribunals to address explicit Article 11
concerns duly argued before them.
(c)"Necessary in a democratic society"?
The European Court has set out strict requirements as to the
"necessity" of the interference with freedom of association in a
demoncratic society in the following manner:^
The Court points out that the right to form an association is an
inherent part of the right set forth in Article 11, even if that
Article only makes express reference to the right to form trade
unions. 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. Certainly States have a right to satisfy themselves
that an association's aim and activities are in conformity with the
rules laid down in legislation, but they must do so in a manner
compatible with their obligations under the Convention and subject to
review by the Convention institutions.
Consequently, the exceptions set out in Article 11 are to be construed
strictly; only convincing and compelling reasons can justify
restrictions on freedom of association. In determining whether a
necessity within the meaning of Article 11 S: 2 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.
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 under Article 11 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 Article 11
and, moreover, that they based their decisions on an acceptable
assessment of the relevant facts (see, the United Communist Party of
Turkey and Others judgment cited above, p. 22, S:S: 46 and 47).
[emphasis added]
It is clear from the European Court's case-law that the burden of
proving the "necessity" of the interference with Article 11 rights in
a democratic society falls upon the respondent, Russian Federation,
and that only "only convincing and compelling reasons can justify
restrictions on freedom of association."
There is, however, no indication provided by the respondent, Russian
Federation to suggest that any of its national authorities even
proceeded to determine whether the contested requirement to produce
individual signed membership application forms of would-be members and
members of the applicant's Regional Branch was in conformity with the
principles embodied in Article 11 of the Convention.
In particular, the complete silence of the respondent's judicial
authorities when formally presented with explicit Article 11
Convention arguments by the Regional Branch in previous proceedings
before them is relevant insofar as allows the European Court to infer
prima facie that state authorities altogether failed to exercise their
discretion reasonably, carefully, and in good faith - contrary to the
requirements of Article 11.
Moreover, in respect of the "relevant and sufficiency" of the coercive
demand for production of individual signed membership application
forms of would-be members and members of the applicant's political
party, the respondent, Russian Federation cannot reasonably explain
the inconsistency with the previous practice of state authorities in
accepting minutes of common meetings on the issue of admission of
citizens to the party concerned to satisfy requirements initial
registration.
Given these manifest deficiencies, it is submitted that the
respondent, Russian Federation has failed to demonstrate any
"necessity" to justify its interference with Article 11 rights of
freedom of association in the present matter.
The Head of the Sverdlovsk Oblast
Regional Branch of the Political Party
"Russian Labour Party" S. I. Beliaev
12 Novembre 2007
^Preparatory work on article 11of the European Convention on Human
Rights, Strasbourg, December 9, 1974, CDH (74) 39, p.19.
^See Kjeldsen, Busk Madsen and Pedersen v. Demnark, Judgment of
7/12/76, Series A no.23, S:53.
^European Court of Human Rights, Pending Cases (01/01/2007)
[1]http://www.echr.coe.int/NR/rdonlyres/660CF094-7878-4E9D-A83D-006534
5DA057/0/pendingCasesGraph.pdf
^See Presidential Party of Mordovia v. Russia, no. 65659/01 Judgment
of 05/10/2004, Moscow Branch of the Salvation Army v. Russia, no.
72881/01, Judgment of 5/10/2006, and recently Church of Scientology
Moscow v. Russia, no. 18147/02, Judgment of 05/04/07.
^Freedom and Democracy Party (ZDEP) v. Turkey, no. 23885/94 Judgment
of 5/10/2006 at S: 37.
^As most recently formulated and applied by the Court in Zhechev v.
Bulgaria , no. 57045/00 Judgment of 21/06/2007, and Schneider v.
Luxemburg, no. 2113/04 Judgment of 10/07/2007.
^Moscow Branch of the Salvation Army v. Russia, no. 72881/0, Judgment
of 05/10/2006 at S: 58.
^Parti nationaliste basque - Organisation rgionale d'Iparralde v.
France, no. 71251/01, Judgment of 07/06/2007at S: 40.
^Federal Court of Kirovskii District in its decision of 3 March 2005
and Sverdlovsk Oblast Court in its decision of 12 May 2005.
^Case of Sidiropoulos and others v. Greece, no. 26695/95, Judgment of
10/07/1998 at S: 40.
Ссылки
1. http://www.echr.coe.int/NR/rdonlyres/660CF094-7878-4E9D-A83D-0065345DA057/0/pendingCasesGraph.pdf
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