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" III (42665/06) - "


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16.11.2012

 

    EUROPEAN COURT OF HUMAN RIGHTS COUR EUROPEENNE DES DROITS DE L HO

   FIRST SECTION

   Applications nos 23818/04 and 42665/06

   SROO SUTYAZHNIK against Russia

   and SROO SUTYAZHNIK against Russia

   lodged on 19 May 2004 and 7 October 2006 respectively

   STATEMENT OF FACTS

   1.  The  applicant  is a non-profit public association SROO Sutyazhnik
   ("applicant  association").  It is represented before the Court by its
   president, Mr S. I. Belyayev.

   2.  The  facts of the case, as submitted by the applicant association,
   may be summarised as follows.

   1.  Events  related  to  re-registration  of the applicant association
   {application no. 23818/04, lodged on 19 May 2004)

   3.  The  applicant association was registered on 29 August 1994 by the
   Sverdlovsk  Regional  Justice Department of the Ministry of Justice of
   the  Russian  Federation ("Justice Department"). In 1995 a new Federal
   Law  On  non-governmental  organisations  came  into  force.  The  Law
   required that all NGOs established before 1995 be re-registered before
   1  July  1999. On multiple occasions the applicant association applied
   to  the  Justice  Department  seeking  rc-rcgistration,  however,  the
   applications were unsuccessful.

    4. The  applicant association brought an action before the commercial
       courts  against the Justice Department seeking a judicial order to
       re-register  the  association.  The  decisions  in  the  applicant
       association's  favour given by the trial and cassation courts were
       annulled  and  the  proceedings  were discontinued on 26 September
       2000  by  the  Presidium  of  the  Supreme Commercial Court of the
       Russian Federation. The Presidium ruled that the commercial courts
       lacked  jurisdiction  to consider disputes concerning registration
       of non-profit organisations.

   2   SROO  SUTYAZHNIK  (II)  v.  RUSSIA  AND  SROOSUTYAZHNIK  (III)  V.
   RUSSIA-STATEMIiN'I' OF FACTS AND QUESTIONS

   5.  Shortly thereafter the applicant association challenged before the
   courts  of  general jurisdiction the refusal of the Justice Department
   to  re-register  it.  On 10 April 2002 the Kirovskiy District Court of
   Yekaterinburg ruled in favour of the applicant association and ordered
   re-registration by the Justice Department.

   6.  On  17  May 2002 the Government of the Russian Federation issued a
   decree,  which  transferred  the  management  of the register of legal
   entities  from  the  Ministry  of  Justice  and its territorial bodies
   (justice  departments) to the Ministry of Taxation and its territorial
   bodies from 1 July 2002.

   7.  The  applicant association on 26 June 2002 submitted the documents
   necessary for re-registration to the Justice Department. By the letter
   of  24  July  2002  the  Justice  Department  informed  the  applicant
   association  that  the  judgment  in  its favour could not be enforced
   because an appeal against it was pending,

   8.  On  1  August  2002 the Sverdlovsk Regional Court upheld the trial
   court's judgment on appeal.

   9.  On  2 September 2002 the Kirovskiy District Court of Yekaterinburg
   issued  a  writ  of  execution  ordering  the  Justice  Department  to
   re-register the applicant association.

   10.  On 5 November 2002 the president of the applicant association, Mr
   S.  I,  Belyayev,  forwarded  the  writ  of execution to the Bailiffs'
   Service for enforcement. He attached to his letter the new articles of
   association  of  the  applicant  association  and  also  informed  the
   bailiffs   that   the   remainder   of  the  documents  necessary  for
   re-registration had been already filed with the Justice Department,

   11.   On  23  December  2002  the  Bailiffs*  Service  terminated  the
   enforcement  proceedings. It was stated that the Justice Department is
   unable  10  comply  with  the  judgment  because  from 1 July 2002 the
   registration  of  legal  entities  was  entrusted  to  the Ministry of
   Taxation and its territorial bodies. The applicant association was not
   informed of this decision.

   12. SROO Sutyazhnik was incorporated in the register of legal entities
   by  the  Ministry  of  Taxation  on  19  August 2002 as a legal son
   registered before 1 July 2002.

   13.  The  applicant  association  unaware of the bailiffs' decision to
   terminate  the proceedings lodged complaints regarding non-enforcement
   of  the judgment with the Bailiffs1 Service and the Justice Department
   On  23  January  2004  and  28  January  2004 respectively the Justice
   Department and the Bailiffs' Service informed SROO Sutyazhnik that the
   enforcement  proceedings  were  terminated  without enforcement due to
   absence  of  powers  to  perform  re-rcgistration  on  the side of the
   Justice Department.

   14.  The  applicant association lodged an action alleging unlawfulness
   of termination of enforcement proceedings by the Bailiffs* Service. On
   1  March  2004  the Kirovskiy District Court of Yekaterinburg ruled in
   its  favour  in  part  and  found termination of the proceedings to be
   unlawful.  The judgment was upheld by the Sverdlovsk Regional Court on
   10 June 2004.

   Upon  a number of subsequent requests of SROO Sutyazhnik on 20 October
   2004  the  Justice  Department  issued  an  order  to  re-register the
   applicant association, annul the registration certificate of 1994, and
   transfer the file to the Ministry of Taxation for incorporation of the
   data into the register of legal entities.

   16.  On  27 October 2004 the Ministry of Taxation informed the Justice
   Department  that  the  applicant  association  was incorporated in the
   register  of legal entities on 19 August 2002 and that the Federal Law
   On  registration  of  legal entities of 2001 did not allow to insert a
   specific re-registration record in the register.

   17.   On  10  November  2004  the  Justice  Department  informed  SROO
   Sutyazhnik   that  it  fully  enforced  the  judgment.  The  applicant
   association   disagreed  and  requested  issuance  of  a  registration
   certificate.  The  Justice Department on 16 December 2004 replied that
   issuance  of a re-registration certificate is not possible, because no
   relevant record was inserted in the register of legal entities.

   18.  SROO  Sutyazhnik  challenged in court the inaction of the Justice
   Department  concerning  issuance  of the certificate. On 18 March 2005
   the  Kirovskiy  District  Court  of  Yekaterinburg  ruled  against the
   applicant   association.   The   District  Court  reasoned  that  SROO
   Sutyazhnik  was  effectively  re-registered  on  19  August  2002,  no
   inaction  of  the  state  bodies  could  be  established, and that the
   plaintiff  failed  to  demonstrate  that  absence  of the registration
   certificate  impeded  the  daily  operation  of  the  association. The
   judgment  was  upheld  on  30  August  2005 by the Sverdlovsk Regional
   Court.

   19.  In  the  meantime,  on  11  May  2005  the  applicant association
   requested  and received the certificate of state registration from the
   Justice Department.

   2.  Events  related  to  re-organization  of the applicant association
   (application no. 42665/06, lodged on 7 October 2006)

   20.  On  28  February  2003  the  general  assembly of SROO Sutyazhnik
   decided  to  adopt  changes  to  the  articles  of  association and to
   re-organize  itself  into an international public association, because
   its  representation was established and registered in the State of New
   York.

   21.  On  19 March 2003 an application was forwarded to the Ministry of
   Justice  along  with  supporting documents, including 1994 versions of
   the articles of association and the registration certificate>> and the
   certificate   of  19  August  2002  verifying  incorporation  of  SROO
   Sutyazhnik in the register of legal entities.

   22.  On  29  April 2003 the Ministry of Justice informed the applicant
   association  that the requested changes to the articles of association
   and  the  legal  status of association may not be recorded, because it
   failed   to  supply  the  articles  of  association  and  registration
   certificate  issued  after 1 July 1999. Further the letter slated that
   the applicant association was due to be liquidated.

   23. SROO Sutyazhnik challenged the decision of the Ministry of Justice
   in  court  and  sought  an  order  to  proceed with registration of an
   international  public  association  and  incorporation of the relevant
   records  in  the register of legal entities by the territorial body of
   the Ministry of Taxation.

   24. The relevant subsequent events in 2003-2005 are summarized in S:S:
   13-19 above.

   25.  On  26  December 2005 the Tverskoy District Court of Moscow ruled
   against the applicant association. The District Court reasoned that

   SROO  Sutyazhnik  at  the  moment  it  filed  an  application with the
   Ministry  of  Justice in 2003 did not have the articles of association
   adopted  after  1  July 1999 and registration certificate issued after
   the  same date. Effectively, these documents were available for filing
   after 11 May 2005, and thus the Ministry of Justice properly concluded
   that  (he  application for reorganization into an international public
   association could not be accepted,

   26.On  11  April  2006  the  Moscow  City Court upheld the judgment on
   appeal.

   COMPLAINTS

   The  applicant  association  complains  under  Article  6  S: 1 of the
   Convention about lengthy non-enforcement of the judgement ordering its
   re-registration.

   Further,  the  applicant  association  complains  under  Article 11 in
   conjunction  with  Article  6  S: 1 of the Convention that the lengthy
   non-enforcement  of the abovemeniioned judgment unduly interfered with
   the  freedom of association by preventing it from obtaining the status
   of  a  registered  association  and  precluded  reorganization into an
   international public association.

   Also,  the  applicant  association  submitted  other  complaints under
   Articles  and 11 of the Convention.

   QUESTIONS TO THE PARTIES

   1.  Have the judgment given in (he applicant associations1 favour been
   fully  enforced?  If  yes, what is the date of the full enforcement of
   the

   judgment?

   2.  Having  regard  to the manner in which the judgment to re-register
   the SROO Sutyazhnik wag being enforced, has there been an interference
   with  the  applicant  association's freedom of association, within the
   meaning   of   Article   It   S:  1  of  the  Convention,  as  regards
   -registration  of  SROO  Sutyazhnik?  If  so,  was that interference
   prescribed by law and necessary in tei-ms of Article  S: 2?

   3.  Has  there  been  an interference with the applicant association's
   freedom  of  association, within the meaning of Article 11 S: 1 of the
   Convention, as regards the attempt to re-organize SROO Sutyazhnik into
   an  international  public  association?  If  so, was that interference
   prescribed by law and necessary in terms of Article 11 S: 2?

   4.  In  the circumstances of the case, did the actions of the national
   authorities  regarding  re-registration  and  re-organization  of SROO
   Sutyazhnik  comply  with  the  requirements  of  Article 6 S: 1 of the
   Convention taken in conjunction with Article 11 of the Convention?

   5. Having regard to the manner in which the judgment to reregister the
   applicant  association  was  being  enforced,  can it be said that the
   applicant  has  suffered a significant disadvantage within the meaning
   of Article 35 S: 3(b) of the Convention?


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