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Судебное дело "Свердловское областное региональное отделение политической партии «Российская партия труда» против России (43724/05)"


Обзор прецедентной практики Европейского суда по правам человека по ст. 11 Конвенции относительно фактов дела (приложение к меморандуму заявителя на английском языке)

 

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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15.05.2015г. распоряжением Минюста РФ СРОО "Сутяжник" включена в реестр иностранных агентов.