CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 octobre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                    Application No. 28973/95                by Constantin BAISAN                for "Liga Apararii Drepturilor Omului din România"                (the League for the Defence of Human Rights                in Romania)                against Romania        The European Commission of Human Rights sitting in private on 30 October 1997, the following members being present :             Mr    S. TRECHSEL, President           Mrs   G.H. THUNE           Mrs   J. LIDDY           MM    E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs   M. HION           MM    R. NICOLINI                A. ARABADJIEV             Mr    M. de SALVIA, Secretary to the Commission ;   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms ;        Having regard to the application introduced on 30 January 1997 by Constantin BAISAN for "Liga Apararii Drepturilor Omului din România" (the League for the Defence of Human Rights in Romania) against Romania and registered on 25 October 1997 under file No. 28973/95 ;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission ;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission ;   -     the observations submitted by the respondent Government on      9 January 1997 and the observations in reply submitted by the      applicant on 9 March 1997 ;        Having deliberated ;        Decides as follows :   THE FACTS        The facts of the case, as submitted by the parties, may be summarised as follows.        The second applicant (Liga Pentru Apararea Drepturilor Omului în România, or the League for the Defence of Human Rights in Romania) is an association founded on 2 April 1993 in Piatra-Neamt. It is represented before the Commission by the first applicant, its President, Constantin BAISAN, a Romanian national residing in Piatra- Neamt.   A.    Particular circumstances of the case        On 16 October 1993, the applicant and other persons created the 'League for the Defence of Human Rights in Romania'.   The applicant was elected President of the association.        On an unspecified date, and according to Law no. 24/1921 on legal personality, the applicant association requested the Ministry of Justice to issue an opinion on the granting of legal personality to the applicant association.        By letter of 12 November 1993, the Ministry of Justice informed the first applicant that he should obtain the consent of the 'League for the Defence of Human Rights', established in Bucharest, ['Bucharest League' hereinafter], an association bearing a name similar to that of the applicant association and already registered as a legal person.        According to the applicant, the Bucharest League offered to grant the applicant association the necessary consent, on condition that the applicant association should affiliate to it. According to the applicant, this proposal was made orally, as the Bucharest League refused to answer in writing.        On 24 April 1994, the applicant association, represented by the first applicant, applied to the Regional Court of Neamt for registration under Law no. 21 of 6 February 1924. The application was accompanied by a list of the founding members, the minutes of the founding meeting, a list of the persons elected as office-holders, a document entitled 'Statute of the association' and the letter from the Ministry of Justice of 12 November 1993 (II/21172/1993).        On 8 September 1994, the Regional Court of Neamt dismissed the applicant association's application. The court noted that it had not presented the agreement of the Ministry in charge of the domain within which the association's aims fell (in this case the Ministry of Justice), as required by Law no. 21/1924.        On 21 December 1994, the applicant association's appeal was dismissed by the Court of Appeal of Bacau on the following grounds :        "[...] The above-mentioned provisions are mandatory, and as the      applicant could not obtain the agreement required by Article 3      of Law no. 21/1924, the application was lawfully dismissed.        The applicant requested the agreement of the Ministry of Justice,      but the latter, by letter no. II/21172/1993, informed it that it      should obtain the agreement of the League for the Defence of      Human Rights based in Bucharest already registered as a legal      person. At the hearing of 8 September 1994, the legal      representative informed the court that he had not obtained that      agreement; he did not present it to the Appeal Court either. It      follows that the applicant's appeal is manifestly ill-founded."        On 13 April 1995, the Supreme Court of Justice dismissed the applicant association's appeal, on the ground that the latter had not obtained the agreement of the "League for the Defence of Human Rights" in Bucharest, as suggested by the Ministry of Justice.     B.    Relevant domestic law        Romanian Constitution of 1991                             Article 37        "(1) Cetatenii se pot asocia liber în partide politice, în      sindicate si în alte forme de asociere.        (2) Partidele sau organizatiile care, prin scopurile ori prin      activitatea lor, militeaza împotriva pluralismului politic, a      principiilor statului de drept ori a suveranitatii, a      integritatii sau a independentei României sunt neconstitutionale.        [...]        (4) Asociatiile cu caracter secret sunt interzise."   < translation >        "(1) Citizens are allowed to associate freely in political      parties, trade unions and in other forms of association.        (2) Political parties or organisations which, in their scope or      activity militate against democratic pluralism, the principles      of the rule of law or against the sovereignty, integrity or the      independence of Romania are contrary to the Constitution.        [...]        (4) Secret associations are forbidden."     Article 49        "(1) Exercitiul unor drepturi sau al unor libertati poate fi      restrâns numai prin lege si numai daca se impune, dupa caz,      pentru : apararea sigurantei nationale, a ordinii, a sanatatii      ori a moralei publice, a drepturilor si a libertatilor      cetatenilor; desfasurarea instructiei penale; prevenirea      consecintelor unor calamitati naturale ori ale unui sinistru      deosebit de grav.    (2) Restrângerea trebuie sa fie      proportionala cu situatia carea determinat-o si nu poate      atinge existenta dreptului sau a    libertatii."   < translation >        "(1) The exercise of certain rights or freedoms can be restricted      only by law   and only if necessary in the following situations:      for the defence of national security   and public safety, for the      protection of public health or morals or for the protection of      the rights and freedoms of citizens, for the proper conduct of      criminal proceedings, for the prevention of adverse consequences      of natural disasters or of certain extremely serious accidents.        (2) The restriction must be proportionate to the situation which      has determined it and cannot affect the existence of the right      or freedom."        Law no. 21 of 6 February 1924 :                             Article 3        "Asociatiunile [...] fara scop lucrativ sau patrimonial nu pot      dobândi personalitate juridica decât pe temeiul unei deciziuni      motivate a tribunalului civil în circumscriptia caruia s-a      constituit.        Aceasta deciziune nu se poate da decât la cererea celor      interesati [...] dupa ce s-a cerut avizul ministerului în      competenta caruia cade scopul asociatiunii [...]"   < translation >        "Non-profit-making associations [...] cannot obtain legal      personality unless there is a reasoned judgment of the civil      court in whose district the association was created.        This judgment can be pronounced only at the request of the      interested parties [...] after the opinion of the Ministry in      charge of the domain within which the association's aims fall has      been requested [...]"                             Article 4        "Persoana juridica va avea fiinta numai de la data înscrierii      deciziunii de recunoastere ramasa definitiva, în registrul      special care va fi tinut în acest scop la grefa fiecarui tribunal      civil."   < translation >        "Legal personality is established as of the date of registration      of the final judgment in the special register kept for this      purpose by the competent court."Article 89        "Tribunalul cerceteaza în camera de consiliu daca actele depuse      pentru asociatii [...] îndeplinesc conditiile si formele      prevazute în legea de fata. Concluziile ministerului competent      si ale reprezentantului ministerului public sunt obligatorii si      hotarârea se va pronunta în sedinta publica fata cu acestia.      Neprezentarea concluziilor ministerului competent se considera      în favoarea constituirii persoanei juridice."   < translation >        "The court examines in camera whether the associations'      Memorandum and Articles of Association [...] fulfil the      substantive and formal conditions laid down by the present Law.      The conclusions of the competent Ministry and of the      representative of the State Counsel' Office (Ministerului Public)      are obligatory, and the decision shall be pronounced in their      presence.   The non-presentation of conclusions by the competent      Ministry shall be considered to be in favour of the creation of      the legal person."        Implementing Regulations of Law no. 21/1924 :                             Article 11        "Tribunalul constatând ca formele si cerintele articolelor de mai      sus sunt îndeplinite, va cere prin adresa avizul ministerului în      competenta caruia cade scopul asociatiei sau asezamântului [...]"   < translation >        "The court, where it considers that the substantive and formal      conditions of the above articles have been fulfilled, shall      request, in writing, the opinion of the Ministry in charge of the      domain within which the association's aims fall [...]"                           Article 12 para. 2        "Avizul ministerului va cuprinde informatiile necesare asupra      utilitatii asociatiei [...] cât si daca actul constitutiv si      statutele contin toate dispozitiile necesare scopului si o buna      administrare a fondurilor."   < translation >        "The opinion of the Ministry shall contain the necessary      information as to the need for the association [...], and shall      deal with the question whether the association's founding act and      the statutes contain all the necessary provisions on the intended      activities and the proper administration of the funds."   COMPLAINTS        The applicants allege that the refusal of the domestic courts to grant the applicant association legal personality is contrary to Article 11 of the Convention. They complain that neither the opinion of the Bucharest League for the Defence of Human Rights nor that of the Ministry of Justice requested by the domestic courts were required by law as a precondition for such grant.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 30 January 1995 and registered on 25 October 1995.        On 16 October 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 9 January 1997. The applicants replied on 9 March 1997.     THE LAW        The applicants allege that the refusal of the domestic courts to grant the applicant association legal personality is contrary to Article 11 (Art. 11) of the Convention.        Article 11 (Art. 11) of the Convention provides :        "1.   Everyone has the right to freedom of peaceful assembly and      to freedom of association with others, including the right to      form and to join trade unions for the protection of his      interests.        2.    No restrictions shall be placed on the exercise of these      rights other than such as are prescribed by law and are necessary      in a democratic society in the interests of national security or      public safety, for the prevention of disorder or crime, for the      protection of health or morals or for the protection of the      rights and freedoms of others. This Article shall not prevent the      imposition of lawful restrictions on the exercise of these rights      by members of the armed forces, of the police or of the      administration of the State."        The Government do not contest that the refusal of the courts to grant the applicant association legal personality constitutes an interference with its right to freedom of association. However, they claim that this interference was in accordance with the law and was necessary for the protection of the rights and freedoms of the "League for the Defence of Human Rights" (Liga pentru Apararea Drepturilor Omului), established in Bucharest.        The Government submit that the activity of defending human rights is not within the competence of a specific ministry, but the general practice since 1989 has been that the Ministry of Justice is competent to provide the opinion required by Law No. 21/1924. The Ministry's opinion is not binding on the judges. In the present case, the refusal of the applicant association to comply with the requirements expressed by the Ministry of Justice in its letter of 12 November 1993, that is, to obtain the agreement of the Bucharest League, was considered by the judges as interfering with the rights of the Bucharest League. The Government submit that the refusal to register was based on Article 49 of the Romanian Constitution and was therefore necessary in order to protect the interest of the Bucharest League.        Lastly, the Government point out that the applicant association can, at any time, request registration if it decides to change its name.        The applicants consider that neither the opinion of the Bucharest League nor that of the Ministry of Justice requested by the domestic courts were required by law as a precondition for registration. Therefore, the refusal of the courts to register the applicant association is contrary to their freedom of association.        The Commission notes that the first question which arises in this case is whether the fact that the applicant association was unable to register prevented it from pursuing its objectives and thus constituted any interference with the applicant's right to freedom of association (cf., e.g., No. 18874/91, Dec. 12.1.94, D.R. 76, p. 44).        However, the Commission considers that this question can remain unanswered, because, even supposing that there was an interference, that interference would have been justified under paragraph 2 of Article 11 (Art. 11) of the Convention, for the following reasons.        Restrictions on the exercise of the right guaranteed by this Article are permitted if they are "prescribed by law" and "necessary in a democratic society" to achieve one of the legitimate aims listed in Article 11 para. 2 (Art. 11-2).        In this case the Commission notes that the provisions of the Romanian Constitution combined with the provisions of Law No. 21 of 6 February 1924 and its implementing Regulations empower the courts to refuse registration in certain cases. These provisions were accessible, foreseeable in their effects and compatible with the pre-eminence of the rule of law.        As to the legitimacy of the interference, the Commission considers that the aim pursued by the authorities was the protection of the rights and freedoms of others which is one of the legitimate aims set out in Article 11 para. 2 (Art. 11-2) of the Convention.        With regard to the necessity of the measure, the Commission recalls that this implies "a pressing social need" and that States have a margin of appreciation in this area (cf. Eur. Court HR, Handyside v. United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).        The Commission notes that the domestic courts, pursuant to the relevant legal provisions, indicated to the applicants that they should obtain, as the Ministry of Justice had suggested, the agreement of the League for the Defence of Human Rights based in Bucharest, already registered as a legal person.        As the applicants did not obtain this agreement, nor did they apply for registration under a different name, the Commission considers that the refusal of the courts to register the applicant association cannot be regarded as unreasonable, having regard in particular to the possibility of confusion between the applicant association's name and that of the Bucharest League.        Therefore, the Commission considers that the refusal to register the association can be regarded as a necessary measure in a democratic society, having regard to the margin of appreciation States enjoy.        It follows that, in so far as there was an interference with the applicants' right to freedom of association, the interference was justified under Article 11 para. 2 (Art. 11-2) of the Convention (cf. also No. 18874/91, Dec. 12.1.94, D.R. 76-A, p. 44).        The application must therefore be rejected as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.             M. de SALVIA                         S. TRECHSEL          Secretary                            President       to the Commission                    of the Commission