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
Поделиться в социальных сетях:
Добавить комментарий: