12.11.2007
SVERDLOVSK OBLAST REGIONAL BRANCH OF
THE POLITICAL PARTY
"RUSSIAN LABOUR PARTY"
620072, Yekaterinburg, Sirenevii bulvar, 1-313 t./f. +7(343)355-36-51
EUROPEAN COURT
OF HUMAN RIGHTS
12 November 2007
MEMORANDUM
Application no. 43724/05
by SVERDLOVSK OBLAST REGIONAL BRANCH OF THE POLITICAL PARTY "RUSSIAN
LABOUR PARTY" against THE RUSSIAN FEDERATION
lodged on 1 November 2005
I hereby confirm the receipt of the memorandum No 4-155-2-07 of 4 July
2007 filed by the Representative of the Russian Federation at the
European Court of Human Rights. As a response to this memorandum we
respectfully submit the following.
1. "To the question on absence of jurisdiction ratione personae of the
European Court in examination of the application of the applicant."
The statement of the Russian Federation that the Sverdlovsk Oblast
Regional Branch of the Political Party "Russian Labour Party"
("Regional Branch" or "the Sverdlovsk Oblast Regional Branch of the
Political Party "Russian Labour Party") possesses limited legal
capacity is not based on Russian legislation, judicial practice, and
contradicts to the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention").
The legislation of the Russian Federation provides the registered
regional branch of the all-Russian political party with full legal
capacity.
Civil Code of the Russian Federation
Article 48. The Concept of the Legal Person
1. The legal person shall be recognized as an organization, which has
in its ownership, economic management or operative management the
set-apart property and which is answerable by its obligations with
this property and may on its own behalf acquire and exercise the
property and the personal non-property rights, to discharge duties and
to come out as a plaintiff and as a defendant in the court.
The legal persons shall have an independent balance or an estimate.
2...
3. To the legal persons, with respect to which their founders
(participants) shall not have the property rights, shall be referred
the public and religious organizations (the associations), the charity
and other funds, and the amalgamations of the legal persons (the
associations and the unions).
Federal Law On Political Parties
Article 15. The State Registration of a Political Party and Its
Regional Branches
1. A political party and its regional branches shall be subject to
state registration in the compliance with the Federal Law on State
Registration of Legal Persons and Individual Businessmen subject to
the special procedure for state registration of a political party and
regional divisions thereof established by this Federal Law. A
political party and its regional branches shall conduct their
activities in their entirety, including as legal persons, as of the
time of their state registration. The confirmation of state
registration of a political party or a regional division thereof shall
be the document confirming the fact of making an entry on the
political party or the regional division thereof to the Unified State
Register of Legal Persons.
(Federal Law of 08 December 2003 No 169-FZ).
The Court may duly note that the Regional Branch has been acting and
lodging appeals with judicial bodies, including the European Court of
Human Rights, under the Law on Political Parties in its wording of 8
December 2003 No 169-FZ, not in its wording of 25 July 2002 No.
112-FZ, which was provided in the memorandum of the Representative of
the Russian Federation at the European Court of Human Rights.
Under Part 1 of Article 48 of the Civil Code of the Russian Federation
and Part 1 of Article 15 of the Law on Political Parties the Regional
Branch, representatives of the Regional Branch have an independent
right to appeal to judicial bodies of the Russian Federation in order
to protect rights of the Regional Branch. Furthermore, the Regional
Branch may be named independently as either a defendant to, or as a
third party to judicial proceedings initiated by other legal persons
against it. Russian legislation neither limits the right of legal
persons represented in one region of the Russian Federation to appeal
to the European Court of Human Rights ("the European Court") nor does
it subject the right of appeal to the European Court to any
pre-authorization by the corresponding national organization for such
initiatives.
Under Part 5, Article 15 of the Law on Political Parties (in its
wording of 25 July 2002 No 112-FZ) territorial organs of the federal
organ (in the case of Regional Branch this is Chief Bureau of the
Ministry of Justice of the Russian Federation in Sverdlovsk Oblast -
"the Chief Bureau") takes a decision on official registration of the
regional branch of a political party and forwards to the organ
responsible for incorporation of legal persons (Bureau of the Tax
Ministry of the Russian Federation in Sverdlovsk Oblast - "the Tax
Bureau") data and documents which are necessary for inscription in the
Unified State Register of Legal Persons. In five working days, the Tax
Bureau enters a record of the regional branch of the political party
concerned into the state registry of legal persons. The Chief Bureau
then proceeds to issue a certificate of state registration of the
regional branch of the political party concerned which affirms that a
record on new legal person was duly entered into the United State
Register of Legal Persons.
The Regional Branch applied to the Chief Bureau with necessary
documentation for registration of the Regional Branch as a legal
person. The Chief Bureau forwarded these documents to the Tax Bureau.
On 17 September 2002 the Tax Bureau issued еру Certificate of
registration of the legal person to the Regional Branch (66 No
003024110). On 19 September 2002, the record of incorporation
designating the Regional Branch as a legal person was entered into the
United State Register of Legal Persons under the registration No.
1026600001064. On 19 September 2002, the Chief Bureau issued the
Certificate of state registration of a regional branch of a political
party under the no. 3586 which was forwarded to the Regional Branch.
Part 1 of Article 48 of Civil Code of the Russian Federation "The
Concept of the Legal Person" and Part 1 of Article 15 of the Federal
Law On Political Parties grants the Regional Branch, as a separate
legal person, the right to exercise both property (pecuniary) and
personal non-property (non-pecuniary) rights in its own name, to bear
responsibility in its own name, and to act as either a plaintiff and
defendant in court proceedings. This full legal capacity existed from
the moment of its incorporation, that is to say, as of 19 September
2002.
Pursuant to these legislated provisions, the Regional Branch has been
accordingly exercising its rights as a separate legal entity,
including the right to appear before the courts, on the regular basis.
Moreover, due to conduct of the government of the Russian Federation,
particularly the Chief Bureau, the Regional Branch has been named as a
defendant in a number of cases before the courts. For example, the
Chief Bureau filed legal proceedings against the Regional Branch on
two previous occasions (see judgments enclosed to the initial
application to the European Court of Human Rights, in particular,
decision of the Sverdlovsk Oblast court of 21 July 2003 on suspension
of judicial proceedings in the case of the Chief Bureau vs. the
Regional Branch on liquidation of the Regional Branch; judgment of
Sverdlovsk Oblast court of 29 July 2004 on the case of the Chief
Bureau vs. the Regional Branch on suspension of the Regional Branch's
activity).
Moreover, the Chief Bureau (the "Chief Bureau" has since been renamed
the Bureau of the Federal Registration Service in Sverdlovsk Oblast)
has currently recognized regional branches of political parties as
legal persons through its ongoing conduct. The judgment in absentia of
12 July 2007 of Federal Court of Kirovskii District of Yekaterinburg
on the case of the Bureau of the Federal Registration Service in
Sverdlovsk Oblast brought against the Sverdlovsk Regional Branch of
the Party of Russian Unity and Consent on suspension of the Party's
activity as a legal person (see appendix 3). It follows from this
judgment that the government of the Russian Federation recognizes
regional branches of political parties as independent legal persons
with full standing before the courts.
Under Article 1 of the Convention any person, including
non-governmental organizations, under the jurisdiction of any High
Contracting Party, have the right to appeal to the European Court of
Human Rights in respect of violations of Convention rights. The
European Commission of Human Rights determined that non-governmental
organizations, which were incorporated on the regular basis under the
legislation of a High Contracting Party, have an unequivocal
Convention right to appeal to the European Court of Human Rights
(Report on the session of the European Commission of Human Rights
DH(54)3, p. 8).
Thus, under applicable Russian legislation, Russian judicial practice,
and practice of the European Commission of Human Rights, the Regional
Branch is a full legal person entitled to appeal to judicial instances
claiming violations of rights on its own behalf.
2. "To the Question on the Termination of Proceedings by the European
Court of Human Rights on the Basis of Subclause "a" of Clause 1 of
Article 37 of the Convention."
Subclause "a" of Clause 1 of Article 37 of the Convention states that
the European Court of Human Rights may strike an application out of
its list of cases where the circumstances lead to the conclusion that
the applicant does not intend to pursue his application.
The Regional Branch has initiated the present application before the
European Court of Human Rights and fully intends to pursue its
application on the merits. Arguments of the respondent, Russian
Federation, are based on substitution of the applicant.
On 12 May 2005, the executive committee of the Regional Branch duly
authorised lodging an appeal to the European Court of Human Rights,
and the application to the Court was filed on 1 November 2005. While
the Russian Ministry of Justice registered the change of the name of
the Russian Labour Party to the name of "Patriots of Russia" on 25
July 2005, the Sverdlovsk Oblast Regional Branch of the Political
Party "Patriots of Russia" was only incorporated on 30 January 2006.
It follows from the official documents issued by state organs of the
Russian Federation itself that the present application to the European
Court was lodged during the period when the Party was called the
"Russian Labour Party." It also follows that the Sverdlovsk Oblast
Regional Branch of the Political Party "Russian Labour Party" did not
conduct any meetings whereby any decision was made to rename the
Regional Branch, nor did the Regional Branch receive any official
documents from state organs renaming the Regional Branch.
As of today, the Sverdlovsk Oblast Regional Branch of the Political
Party "Russian Labour Party" has not conducted any meeting or
conference on the issue of changing its name from the Sverdlovsk
Oblast Regional Branch of the Political Party "Russian Labour Party"
to "Patriots of Russia." State registration organs have not presented
the Regional Branch with any claims in this regard, nor have they
appealed to the judicial organs in any similar fashion.
On several occasions, the head of the Regional Branch, S. I. Beliaev,
attempted to seek a judicial resolution of the dispute with Bureau of
Federal Registration Service in Sverdlovsk Oblast. The latter,
however, on its own initiative and without any documents from the
Regional Branch, proceeded unilaterally to register the change of the
name of the Regional Branch, and misinformed tax organs which
subsequently altered the Unified State Register of Legal Persons.
Unfortunately, judicial organs within the Russian Federation have
omitted or refused to consider the applications on the merits.
For example, on 4 October 2006, proceedings initiated by the Head of
the Sverdlovsk Oblast Regional Branch of the Political Party "Russian
Labour Party" S. I. Beliaev to declare the unlawfulness of conduct a
of the Chief Bureau of the Federal Registration Service of the
Ministry of Justice in Sverdlovsk Oblast for making unilateral changes
in the incorporation documents of the Regional Branch of the Political
Party "Patriots of Russia" were discontinued (ostavleno bez
dvizheniia) by the Federal Court of Kirovskii District of
Yekaterinburg. On 3 November 2006, the Federal Court of Kirovskii
District of Yekaterinburg returned the application to S. I. Beliaev.
On 6 March 2007, cassation instance of the Sverdlovsk Oblast Court
upheld the decision of the Federal Court of Kirovskii District of
Yekaterinburg. The decision of Sverdlovsk Oblast court was not handed
to the applicant. On 31 July 2007, the Head of the Sverdlovsk Oblast
Regional Branch of the Political Party "Russian Labour Party," S. I.
Beliaev applied to Kirovskii District Court of Yekaterinburg with a
proceeding seeking to declare actions of the Bureau of Federal
Registration Service in Sverdlovsk Oblast in registering changes in
incorporation documents of the Sverdlovsk Regional Branch of the
Political Party "Russian Labour Party" as unlawful. The case has not
been considered yet.
Despite the fact that state organs have severely interfered with the
internal affairs of the Political Party and its Regional Branch
through illicit conduct (in registering the change of the name without
the decision of the common meeting of the Regional Branch, in issuing
new incorporation documents to Zmeev Boris Nikolaevich, deputy of
Legislative Assembly of Sverdlovsk Oblast elected from the list of
Communist Party of the Russian Federation. Mr. Zmeev neither has been
accepted as a member of the Regional Branch, nor has he been elected
as the head of the Regional Branch), and ongoing posturing by the
Russian government which threatens to the security of party activists,
the Sverdlovsk Oblast Regional Branch of the Political Party "Russian
Labour Party" fully intends to pursue this application on its merits
before the European Court of Human Rights.
3. To the question, raised in the observations of the Representative
of the Russian Federation at the European Court of Human Rights, on
admissibility of the application on the basis of Part 3 of Article 35
of the Convention and to the question, raised by the European Court of
Human Rights, on violation of Article 11 of the Convention, having
regard to the fact that the applicant was issued a warning for its
failure to produce original membership applications on the request of
the Justice Department.
The objection of the Government to the admissibility of the present
application on the basis of Part 3 of Article 35 of the Convention and
the Russian Federation's answer to the question of the European Court
of Human Rights in relation to violations of Article 11 of the
Convention are based on the same premise. The Government of the
Russian Federation asserts that it had a right to demand individual
applications of citizens on joining the party, and that its
interference with the right of freedom of association was based on
existing legislation.
The arguments of the Russian Federation are premised upon an unlawful
interpretation of Clause "a" of Part 1 of Article 38 of the Federal
Law On Political Parties. Under para. 2 of Article 11 of the
Convention "no restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law." The Government of
the Russian Federation such a legislative restriction is contained in
Clause "a" of Part 1 of Article 38 of the Federal Law On Political
Parties, which grants authorities with the right 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 Regional Branch does not deny the right of the authorities (the
Chief Bureau) "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."
However, the Regional Branch maintains that documents which confirm
the number of members of political party include party documentation
limited to the minutes of common meetings on the issue of admission of
citizens to the party.
Individual applications to become a member of a party per se do not
confirm the number of members of a political party. The fact that a
citizen may apply for party membership does not guarantee automatic
acceptance to membership in the party. General meetings of the
Regional Branch can dismiss individual applications for membership.
Therefore, the number of membership applications does not (and could
not) coincide with the number of actual party members. The Chief
Bureau's mere interpretation of legislation concerned, resulted in a
demand for particular documents when carrying out inspection of the
activities of the Regional Branch. The conduct of the Chief Bureau may
be construed as an undue intrusion into the role of the legislator in
this regard. The Legislator merely obliged political parties to inform
authorities about the number of party members, but left the form of
the requisite information to be defined by party organs.
On many occasions the European Court of Human Rights has confirmed
that non-governmental organizations have a right to deny citizens
party membership (so-called negative aspects of the right to
association). In this regard, the judgment of 27 February 2007 on the
case of Associated Society of Locomotive Engineers and Firemen (ASLEF)
v. the United Kingdom could be mentioned. In this case, the labour
union expelled one of its members, Mr. Lee, due to Mr. Lee's active
membership in a far-right political party (which held a position which
contradicted the objectives of the union). Mr. Lee appealed his
expulsion to the Employment Tribunal. After certain hearings, the
union was forced to accept Mr. Lee back. The European Court of Human
Rights ruled that the United Kingdom violated Article 11 of the
Convention due to national legislation which restricted the right of
labour unions to define the conditions of their membership. In other
words, the European Court held that the right of a non-governmental
organization not to grant its membership to a particular person has
certain priority over the right of an individual to be a member of an
organization.
Thus, when conducting an inspection, the Chief Bureau has a right to
demand only those documents which could serve as evidence of the
number of party members. The Regional Branch duly provided the Chief
Bureau with minutes of general meetings. At the moment of initial
registration of the Regional Branch, the Chief Bureau regarded the
minutes of common meetings as documents which verified the number of
party members as sufficient. But at the time of the inspection in
question, the Chief Bureau did not deem the minutes of meetings
sufficient and proceeded to insist on the production of individual
applications which contain personal data. From the moment of initial
incorporation until the moment of the contested inspection of the
Regional Branch, the membership of the Regional Branch did not change
in numbers; the Regional Branch thus submitted the minutes of the
general meeting on acceptance of citizens to the members of the party
for inspection purposes.
The coercive demand of the government of the Russian Federation to the
Regional Branch to produce individual applications is not based on the
law; it is a veiled attempt to interfere with the internal activity of
the Regional Branch and its membership. This fact is confirmed by the
text of observations of the government of the Russian Federation
submitted to this Court. It follows from the Russian Federation's
observations that the purpose of the demand to produce individual
applications is not mere examination of the number of members but
rather identification of persons (see P. 14 of the Observations), and
to "check of personal data of [party] members and then signatures"
(see P. 15 of the Observations). The fact that personal data of the
party members is accessible to the Government leads to the situation
where party members fear that government authorities would make
illicit use of personal data provided in order to intimidate them. The
demand for individual applications by Russian government authorities
is a violation of Article 11 of the Convention. The review of the
case-law of the European Court of Human Rights on the "chilling
effect" issue was stated in the initial application.
4. Violations of the Right to a Fair Trial (Article 6(1) of the
Convention)
The European Court may duly note that both the Federal Court of
Kirovskii District (in its decision of 3 March 2005), and the
Sverdlovsk Oblast Court (in its decision of 12 May 2005) failed to
address the applicant's main arguments which were explicit in
alleging violations of the right of freedom of association enshrined
in Article 11 of the Convention.
The Court may note further that the Sverdlovsk Oblast Court also
failed to address the applicant's specific appeal argument alleging a
separate violation of the Article 6 Convention guarantee to a fair
trial insofar as the lower court decision appealed from (issued in
the name of the Federal Court of Kirovskii District) was irregularly
delivered by a judge of another Federal Court (the Federal Court of
Leninskii District).
a). National Courts' failure to take into account the Applicant's
arguments presented before them based on Article 11 of the
Convention.
The European Court of Human Rights has consistently confirmed that in
order to meet standards of fair trial under the Article 6 of the
Convention "the national courts must [...] indicate with sufficient
clarity the grounds on which they based their decision (see
Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A
no. 252, para 33; Van de Hurk v. the Netherlands, judgment of 19
April 1994, Series A no. 288 at para 61; Hiro Balani v. Spain,
judgment of 09 December 1994, Series A no. 303-B, at para 28: Ruiz
Torija v. Spain, judgment of 9 December 1994, Series A no. 303-A, at
para 30.).
Where an application is based on rights enshrined in the Convention,
national courts are obliged to "conduct a proper examination of the
submissions, arguments and evidence adduced by the parties" (Kraska
v. Switzerland, judgment of 19 April 1993, Series A no. 254-B, para
30). The European Court of Human Rights has confirmed that the
refusal by the highest court to consider the main argument of the
appeal was a violation of the right to a fair trial under Article 6
of the Convention (Hiro Balani v Spain, judgement of 9 December 1994,
Series A, no. 303-B).
The manifest failure to examine the applicant's main arguments
alleging specific Article 11 Convention violations - by both the
Federal Court of Kirovskii District and Sverdlovsk Oblast Court
constitute a refusal or omission to "conduct a proper examination of
the submissions, arguments and evidence adduced by the parties." As
such, these respective failures by Russian national tribunals qualify
as two separate and distinct violations of Article 6(1) Convention
guarantees to a fair trial in respect of the applicant, Regional
Branch.
This is the firm position of the European Court of Human Rights that
"Effective implementation of the European Convention on Human Rights
at national level is crucial for the operation of the Convention
system. In line with its subsidiary character the Convention is
intended to be applied first and foremost by the national courts and
authorities" (Foreword by the Registrar on the occasion of the 100th
issue of the Case-Law of the Court Information Note No 100
August/September 2007).
b). Consideration of the case by a court composed not in accordance
with the law.
For reasons unexplained by the respondent, Russian Federation, the
decision issued by a national tribunal, the Federal Court of
Kirovskii District (3 March 2005) was delivered by the judge of
another federal court (Proniaeva G. A. of the Federal Court of
Leninskii District). This irregular composition of the tribunal when
called upon to decide the applicant's rights raises concerns related
to protections afforded by Article 6(1) of the Convention.
In a previous case against the Russian Federation, the European Court
of Human Rights affirmed that "the phrase "established by law" covers
not only the legal basis for the very existence of a "tribunal" but
also the composition of the bench in each case."(Posokhov v. Russia
of 4 March 2003 at para. 37).
While the ground for the judge of the Federal Court of Leninskii
District to consider the case duly brought before the Federal Court
of Kirovskii District was an order No 49-k issued by the Head of
Judicial Department, it cannot consequently be said that the
irregular composition of the Federal Court of Kirovskii District to
have been done in accordance with law. In accordance with Part 3 of
Article 6 of the Law of the Russian Federation On the Status of
Judges in the Russian Federation federal judge is appointed to a
particular district court by a decree of the President of the Russian
Federation upon nomination made by Chief Justice of the Supreme Court
of the Russian Federation, and upon recommendation by the
Qualification Board of Judges in accordance with public competition.
Judge Proniaeva G. A. was not appointed by the President of the
Russian Federation to be a judge in the Federal Court of Kirovskii
District of Yekaterinburg. There were neither nomination by Chief
Justice of the Supreme Court of the Russian Federation nor
recommendation by the Qualification Board of Judges nor public
competition.
On the basis of stated above we submit that:
the European Court of Human Rights has jurisdiction ratione personae
to examine the application of the Sverdlovsk Oblast Regional Branch
of the Political Party "Russian Labour Party" on violation of its
rights provided by Article 11 of the Convention;
there is no ground for discontinuation of the proceedings under Clause
"а" of Part 1 of Article 37 of the Convention;
there is no ground to consider the application inadmissible under the
Part 3 of Article 35 of the Convention;
the Russian Federation violated Article 11 of the Convention;
the Russian Federation violated Article 6(1) of the Convention;
it is not possible to settle the case at this stage of the proceedings
due to the Russian Federation's refusal to settle the case.
We ask:
to hold that the respondent State is to pay the applicant EUR 5,000
(five thousand euros) in respect of non-pecuniary damage;
to hold that the respondent State is to pay the applicant legal
expenses which result due to participation of R. Kachanov, A. Burkov,
representatives of the applicant, in the proceedings before the
European Court of Human Rights;
The Head of the Sverdlovsk Oblast
Regional Branch of the Political Party
"Russian Labour Party" S. I. Beliaev
Appendices
1. The Certificate of state registration of the Sverdlovsk Oblast
Regional Branch of the Political Party "Russian Labour Party",
issued by Chief Bureau of the Ministry of Justice of the Russian
Federation in Sverdlobsk Oblast on 19 September 2002 (No 3586).
2. The Certificate of state registration of the Sverdlovsk Oblast
Regional Branch of the Political Party "Russian Labour Party" as a
legal person, issued by the Bureau of Tax Ministry in Sverdlovsk
Oblast on 17 September 2002 (66 No 003024110).
3. The judgment in absentia of 12 July 2007 by the Federal Court of
Kirovskii District of Yekaterinburg on the case of the Bureau of
the Federal Registration Service in Sverdlovsk Oblast against
Sverdlovsk Regional Branch of the Party of Russian Unity and
Consent on suspension of the Party's activity as a legal person.
4. The decision of 4 October 2006 by the Federal Court of Kirovskii
District of Yekaterinburg on discontinuation of proceedings
(opredelenie ob ostavlenii zaiavlenia bez dvizheniia) on the
application by the Head of the Sverdlovsk Oblast Regional Branch
of the Political Party "Russian Labour Party" S. I. Beliaev on
recognition as unlawful of the decision of the Chief Bureau of the
Federal Registration Service of the Ministry of Justice in
Sverdlovsk Oblast on making changes in the incorporation documents
of the Regional branch of the Political Party "Patriots of
Russia".
5. The decision of 3 November 2006 by the Federal Court of Kirovskii
District of Yekaterinburg on the return of the application on
recognition as unlawful of the decision of the Chief Bureau of the
Federal Registration Service of the Ministry of Justice in
Sverdlovsk Oblast on making changes in the incorporation documents
of the Regional Branch of the Political Party "Patriots of Russia"
to S. I. Beliaev.
6. The application of 31 July 2007 by the Head of the Sverdlovsk
Oblast Regional Branch of the Political Party "Russian Labour
Party" S. I. Beliaev before the Federal Court of Kirovskii
District of Yekaterinburg for recognition of unlawful action by
the Bureau of Federal Registration Service in Sverdlovsk Oblast
for registering changes in incorporation documents of the
Sverdlovsk Regional Branch of the Political Party "Russian Labour
Party."
7. The Power of Attorney.
8. Review of the relevant case-law of the European Court of Human
Rights on Article 11.
9. The Russian language memorandum.
8
10.
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