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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