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Management And Internal Organisation

Fedotov v Russia (decision), 23 November 2004 [ECtHR]

Case no 5140/02

The applicant, Mr Igor Leonidovich Fedotov, is a Russian national who was born in 1957 and lives in the town of Borovichi of the Novgorod Region ...

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background of the case

On 25 March 1996 a meeting of forced migrants residing in the town of Borovichi and in the Borovichi District founded the Borovichi local non-governmental association of forced migrants “Feniks” (“Phoenix” or “the association”) and adopted its Articles of Association. The meeting also elected three members of the board and Mr A. as president of the association. The applicant was one of the founders.

On 30 July 1997 the board convened to terminate the powers of Mr A. and elected the applicant as the acting president of the association.

On 2 February 1998 a conference of members elected Ms K. as a board member.

On 12 October 1998 the board composed of Ms K. and the applicant passed a decision to amend the Articles of Association. In particular, the Articles were amended to read that the applicant, Ms K. and Mr B. had been the founders of the association.

2. Civil proceedings against the applicant 

On 14 September 1999 an acting prosecutor of the Borovichi District lodged a civil claim against the applicant for the protection of the interests of the association members. He submitted that the board had not been competent to remove Mr A. from his office on 30 July 1997, such removal being in the exclusive competence of a general assembly; that the conference of 2 February 1998 had not been convened in accordance with the law and the Articles of Association and had not ratified the applicant's election as the acting president; and, finally, that in making the decision of 12 October 1998 to amend the Articles the board had acted ultra vires. The prosecutor sought annulment of the decisions of 30 July 1997 and 2 February and 12 October 1998 and a declaration that the applicant was not the president of the association.

It appears that the applicant did not attend the court hearings. On 4 July 2000 the Borovichi Town Court ordered that the applicant should be located. At the applicant's appeal, on 9 August 2000 the Novgorod Regional Court quashed the search order of 4 July 2000 on procedural grounds.

On an unspecified date the applicant lodged a counterclaim against the association and four of its members. He sought, in particular, a court declaration to the effect that all decisions and contracts made by the new president and board in 1999-2000 had been void.

On 10 October 2000 the Borovichi Town Court granted the prosecutor's claim. The applicant was not present at the hearing. On 6 December 2000 the Novgorod Regional Court quashed the judgment on procedural grounds and remitted the case.

On unspecified dates in early 2001 the applicant sent several complaints to the Novgorod Regional Court and the Judges' Qualifications Board of the Novgorod Region. He complained, in particular, about delays in the examination of the claim against him, and the judge's failures to entertain his counterclaims and to notify him of court hearings on a regular basis.

On 2 April 2001 the applicant filed with the Town Court a written request (dated 30 March 2001) to adjourn the proceedings for the period of his participation in a fundraising seminar in Moscow between 9 April and 9 May 2001. It is unclear whether he received any response to this request.

On 7 May 2001 the Borovichi Town Court delivered a new judgment. The applicant was not present at the hearing. The court noted that a summons had been sent to the applicant's last known address, which had been the address of the association, and that the applicant had never advised the court of his new address. The court granted the claim in full and annulled the contested decisions of the association.

The applicant appealed against the judgment. 

On 18 July 2001 the Novgorod Regional Court upheld the judgment of 7 May 2001 on the merits. The Regional Court also thoroughly examined the applicant's complaints about the first instance court's alleged failures to summon him to hearings. The court traced all court summons and noted, with reference to specific pages of the case-file, that from 15 October 2000 onwards the summons addressed to the applicant's name and address had been returned with the postman's remarks “[he is] not at home” or “[he] does not live here”. The Regional Court considered that under such circumstances the first instance court was entitled to proceed in the applicant's absence, under Article 111 of the RSFSR Code of Civil Procedure.

On 14 August 2001 the acting president of the Novgorod Regional Court refused the applicant's request for supervisory-review.

...

2.  The applicant complained under Article 11 of the Convention about the domestic courts' judgments to annul the decisions appointing him to the president of the association ...

The Court observes that even though the right to be nominated or elected to the president of an association derives from the status of the association member, a failure to be elected or nominated to that position does not affect this status in any way (see, mutatis mutandis, Novotny v. the Czech Republic, cited above). The applicant's membership of the association was neither terminated nor restricted. In the Court's opinion, the right to freedom of association cannot be construed as comprising the right to hold a specific office within an association.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

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Jurisprudence

Choice of leadership Freedom to decide Ability to establish branches