Capacities to be Enjoyed by Non-Governmental Organizations

Koretskyy and Others v Ukraine, 3 April 2008 [ECtHR]

Case no 40269/02

39. The Court recalls that it has consistently held the view that a refusal by the domestic authorities to grant legal entity status to an association of individuals amounts to an interference with the applicants’ exercise of their right to freedom of association (see, for example, Gorzelik and Others v. Poland [GC], no. 44158/98, § 52, 17 February 2004; Sidiropoulos, cited above, § 31; and APEH Üldözötteinek Szövetsége and Others v. Hungary (dec.), no. 32367/96, 31 August 1999).

40. Even assuming that, as the Government submitted, the Civic Committee could have carried out its activities without the State registration, the Court considers that the Civic Committee’s ability to function properly without legal entity status would have been impeded. In this context, the Court notes that under section 20 of the Associations of Citizens Act only registered associations had a right to participate in civil law relations, acquire property, hold public meetings, disseminate information, and so on.

41. In these circumstances, the refusal to give the Civic Committee the status of a legal entity amounted to an interference by the authorities with the applicants’ exercise of their right to freedom of association.

42. As regards the applicants’ contention that the existence of the criminal and administrative legal regulations prohibiting any activities of non-legalised associations constituted a separate interference with their Article 11 rights, the Court observes that in the present case the applicants were negatively affected by the refusal to register the Civic Committee, rather than by the provisions of law discouraging them from carrying out its activities. The fact that the applicants were prohibited, under a risk of being prosecuted, from pursuing the activities of their association could not be divorced from the authorities’ refusal to register it (see, mutatis mutandis, Bączkowski and Others v. Poland, no. 1543/06, §§ 67-68, ECHR 2007‑...).

(c)  Justification for the interference

43. The Court must now determine whether the refusal to register the Civic Committee, in view of the grounds on which it was based, satisfied the requirements of paragraph 2 of Article 11 of the Convention, that is whether it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” (see, among many authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 104, ECHR 1999‑III).

i. Compliance with the requirement of “lawfulness"

44. At the outset, the Court notes that the reason on which the Kyiv City Justice Department mainly relied for their refusal to register the Civic Committee and which was subsequently confirmed by the courts was the inconsistence of certain provisions of its articles of association with the relevant national legislation. The applicants stated that they had made some changes to the articles of association and submitted their revised version to the City Department. The Government contested that submission.

45. The Court does not find it necessary to resolve this particular issue, since, even assuming that the amended version of the articles of association was submitted to the City Department, the applicants only partially accepted the changes suggested by the latter. In particular, they insisted that, contrary to the position of the authorities, the following provisions of the articles of association should have remained in their text:

(a)  that the Civic Committee with local status could have representative offices or representatives in other cities and towns of Ukraine;

(b)  that the Executive Board of the Civic Committee could exercise everyday administrative functions;

(c)  that the Civic Committee could carry out publishing activities on its own, as well as propagate its activities, lobby solutions for environmental protection with the authorities, and carry out expert examinations in this field; and

(d)  that the Civic Committee could engage volunteers in its activities as members of the Civic Committee.

The courts of three instances came to the conclusion that the above provisions of the Civic Committee’s articles were contrary to the law and, thus, the refusal to register it was well-founded.

46. Even assuming that the law was construed by the courts correctly and the present interference had a formal basis in the national law, the Court recalls that the expression “prescribed by law” in the second paragraph of Article 11 of the Convention does not only require that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question (see, for instance, Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I).

47. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – 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. For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise. The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Maestri, cited above).

48. The Court observes that according to section 16 of the Associations of Citizens Act “the registration of an association may be refused if its articles of association or other documents submitted for the registration contravene the legislation of Ukraine”. The Act does not specify whether that provision refers only the substantive incompatibility of the aim and activities of an association with the requirements of the law, in particular with regard to the grounds for the restrictions on the establishment and activities of associations contained in section 4 of the same Act, or also to the textual incompatibility of the articles of association with the relevant legal provisions. Given the changes to the text of the Civic Committee’s articles on which the authorities were insisting in the present case, the Court notes that the provision at issue allowed a particularly broad interpretation and could be read as prohibiting any departure from the relevant domestic regulations of associations’ activities. Thus, the Court finds that the provisions of the Associations of Citizens Act regulating the registration of associations are too vague to be sufficiently “foreseeable” for the persons concerned and grant an excessively wide margin of discretion to the authorities in deciding whether a particular association may be registered. In such a situation, the judicial review procedure available to the applicants could not prevent arbitrary refusals of registration.

49. Nevertheless, in the particular circumstances of the case, the Court does not find it necessary to decide whether the above considerations alone can serve a basis for finding a violation of Article 11 of the Convention. It notes that there are certain elements of the case which are closely linked to the issue of the quality of the law applied in the present circumstances, which require the Court to continue the examination of the case and to turn to the question whether the interference pursued one or more legitimate aims and was “necessary in a democratic society”. In particular, the Court must verify whether the specific restrictions on the activities of associations, listed at paragraph 45 above, correspond in principle to a “pressing social need” and, if so, whether they are proportionate to the aims sought to be achieved (see Gorzelik and Others, cited above, §§ 94‑105).

ii.  Whether the interference pursued legitimate aim and was “necessary in a democratic society”

50. The Court notes that the Government’s main argument, as regards the necessity of the interference, was that the State enjoyed the exclusive right to regulate independently the activities of non-governmental organisations on its territory. Thus, in their view, the refusal to register the Civic Committee was necessary in order to ensure the well-functioning of the system of State registration of associations.

51. In this context, the Court finds it necessary to reiterate that the State’s power to protect its institutions and citizens from associations that might jeopardise them must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom (see Gorzelik and Others, cited above).

52. The Court observes that neither the courts’ decisions nor the Government’s submissions in the present case contain an explanation for, or even an indication of the necessity of the existing restrictions on the possibility of associations to distribute propaganda and lobby authorities with their ideas and aims, their ability to involve volunteers as members or to carry out publishing activities on their own. Furthermore, the Court does not see why the managing bodies of such associations are, according to the authorities, prohibited from carrying out everyday administrative activities, even if such activities are essentially of an economic character.

53. As regards the territorial limitation of the activities of associations with local status, the Court notes that, even if this restriction can be said to be aimed at maintaining the well-functioning of the system of State registration of associations, it does not discern any threat to that system in that local associations could have their branch offices in other cities and towns of Ukraine, especially given the burdensome requirement for associations wishing to have pan-Ukrainian status to set up local branches in the majority of the twenty-five regions of Ukraine.

54. On the whole, the Court notes that the materials contained in the case file, including the parties’ submissions, show that the Civic Committee intended to pursue peaceful and purely democratic aims and tasks. There is no indication, and it has not been suggested by the domestic courts or the Government, that the association would have used violent or undemocratic means to achieve its aims. Nevertheless, the authorities used a radical, in its impact on the applicants, measure which went so far as to prevent the applicants’ association from even commencing its main activities.

55. In these circumstances, the Court considers that the restrictions applied in the present case did not pursue a “pressing social need” and, accordingly, the reasons invoked by the authorities to refuse the registration of the Association were not relevant and sufficient. That being so, the interference cannot be deemed necessary in a democratic society.

(d)  Overall conclusions

56. In the light of the foregoing and the conclusions reached with regard to the requirement of “lawfulness”, the Court considers that the interference with the applicants’ freedom of association was not justified.

57. Thus, that there has been a violation of Article 11 of the Convention.

58. The Court does not find it necessary in the circumstances to determine whether the fact that the authorities made changes and amendments to the text of the articles of association, thereby indicating the provisions which they thought were not in compliance with the law and proposing the wording which, according to them, would satisfy the existing legal requirements, raises a separate issue under Article 11 of the Convention.

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Rights enjoyed as legal persons Not to be subject to discrimination Rights not conferred Other rights To lobby and not to be subject to territorial restrictions To freedom of expression To apply to the European Convention on Human Rights To the successful attainment of ends To be treated as a political party To challenge administrative decisions