CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 mars 2002

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Ress , President ,   Mr   I. Cabral Barreto ,   Mr   P. Kūris ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa - Nikolovska ,   Mr   A. Kovler , judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged   on 19 February 1999, Having deliberated, decides as follows: THE FACTS The applicant is the People’s Democratic Party Vatan registered with the Ministry of Justice of Russia on 29 April 1994. It is represented before the Court by   Ms L. Alekseyeva, a human rights activist working in Moscow.     A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The Vatan was established to support the renascence of the Tartar nation and to protect Tartars’ political, socio-economic and cultural rights. The name “Tartar” applies to the peoples of Turkic origin speaking a language which belongs to the Ural-Altaic languages family. Four-fifths of Tartars (about 5.5 million people) live in the Russian Federation: the majority in the Republic of Tatarstan and the Republic of Bashkortastan; the rest are distributed in the Ural Mountains and in the Volga region. The Tartars profess Islam as their faith. The Ulyanovsk regional branch of the Vatan (“the Branch”) was registered on 12 August 1994 with the Regional Department of Justice. On 12 October 1997 the Branch made an appeal (“the appeal”) to the peoples of the Volga Region, to all oppressed peoples of the empire, to the Ulyanovsk Regional and City authorities, to historians, students of local lore, archaeologists and scientists, entitled “Prevention and cancellation of the forthcoming Sabbath arranged by reactionary forces –’the war party’- the so-called ‘350th anniversary of the founding of the town of Simbirsk’ which is in fact an approximate date of the colonisation of Shekhry Sember”. The appeal contained the following statements: “To the indigenous population of the Volga Region: tartars, chuvash, erzya, moksha, mari, bashkir. 1. Never allow desecration or mockery of the memory of your ancestors; do not allow the reactionary Nazi forces to celebrate the date of colonisation of Sember. Shekhri Sember is a thousand-year-old town of your glorious ancestors. In the town centre, on Simbirskaya Hill and in the outskirts lie their graves – do not allow them to be defiled. Be prepared for the anniversary of the colonisation of Shekhri Sember. On the ancestors’ Memorial Day, 31 May 1998 at 9 a.m., all come out to our sacred Sember Hill – to the ancestors’ graves – between the Memorial and Lenin square. A trip to the ancestors’ graves and the ruins of the Shekhri Kalman will also be available and everyone who wishes will have an opportunity to turn to Islam. Let us stand up for the honour and dignity of our peoples. Let us celebrate the 1350th Anniversary of Shakhry Sember in a dignified manner, inshallah . 2. Who knows how much loss, humiliation, suffering, deprivation and sacrifice our peoples have endured: racial discrimination, employment discrimination, ban on education in our native language, forced service in the occupiers’ army. 3. Seek the legitimisation of indigenous languages. Seek the holding of fair municipal elections on the national community basis. Seek education for every child in the national language from primary to higher education. Seek satellite channels broadcasting from Kazan, Ufa, Cheboksary, Saransk, Yoshkar-Ola, Tashkent, Bishkek, Alma-Aty, Ankara, Istanbul, Teheran, Riyadh, Mecca. 4. Indigenous peoples idel-uras-seber-krym iort , and in particular semberile and even American Indians – you are the heirs of the great Islamic culture. Come back to Islam. There will be more than a thousand million of us. To the Ulyanovsk Regional administration, to Mister Goryachev and Mister Marusin personally, to historians, students of local lore, archeologists and scientists of the region 1. Misters Goryachev and Marusin and their subordinates, Do not fall under influence of pseudo-historians, the “war party” from Moscow, the local liberal democratic party, pseudo-scientists and Nazis. Stop the Sabbath in celebration of the 350th anniversary of the colonisation of Simbirsk. Even the colonisation date is intentionally confusing. The real colonisation date is the end of May 1666 –1999 is a good round figure of colonisation – 333 years. Do not stir up the Russian population against the indigenous peoples of the Volga Region – you will not succeed. God be with us, inshallah. 2. Misters Goryachev, Marusin and local governors, stop wasting our regional budget on the creation of monuments to the apostate and traitor of his peoples, a baptised Tartar Bogdan Khitrovo..., following the directions of the war party in Moscow. The money saved on the Sabbath shall be invested in founding of Volga peoples’ University and the creation of TV broadcasting in the local languages. Bring back national language education to each child. 3. On the sacred Sember Hill between the Memorial and Lenin Square, on the burial place of our sacred ancestors, restore the remembrance tombstone destroyed by your administration. Restore or allow to be restored the main temple Shekhri Sember on Sember Hill. 4. Mister Goryachev, have the courage to apologise on behalf of all your predecessors to the peoples of the Region for the centuries of humiliation, suffering, deprivation and sacrifices, since you are their successor. Someone must put an end to it. 5. It is of no use to hide, and it is common knowledge that there are only 10 million Russians, with the remaining 130 million being Russian speakers who do not remember their ancestors and ethnic origin. Deprivation of historical and ethnic roots, of memory and the motherland is the sad result of the violence whose aim is to create a monoethnic and monolingual empire. We, the peoples of the Volga Region, were, are, and always will be, inshallah. Given his 30 years’ experience in the national liberation movement, his courage, his knowledge of the region and his understanding of people, the Ulyanovsk Regional Branch of the Vatan empowers Iskhan Nailbek Mikey to be at the head of the national liberation fight and to form a brigade of well-tried, encouraged and resistant people. Let us shorten the arms of the war party in Moscow! Free the empire’s peoples! Decolonise Russia! Bring national language education to all children! These are the common slogans of all Islamic peoples captured by Moscow.” On 19 May 1998 the Branch requested the mayor of Ulyanovsk to authorise a ceremony dedicated to the 1350th anniversary of the founding of Sember. On 22 May 1998 the mayor gave permission for the ceremony to take place in the places of worship belonging to religious organisations and in cemeteries. On 31 May 1998 the Branch held a memorial ceremony in the city centre. The applicant maintains that the ceremony took place in the ancient Moslem cemetery. On 3 June 1998 the prosecutor of the Ulyanovsk region applied to the Ulyanovsk Regional Court for the Branch’s activities to be suspended on the ground that the Party’s activity violated Article 13 § 1 of the Constitution. On 13 July 1998 the Ulyanovsk Regional Court granted the prosecutor’s request and suspended the activities of the Branch for six months. The court took into consideration, in particular, the appeal of 12 October 1997 and mentioned the following references: (1) the State institutions responsible for the celebration of the 350th anniversary of Simbirk were referred to as “Nazis”; (2) the Russian Federation was referred to as “the enemy of humankind”; (3) Russian citizens were referred to as “Russian speakers who do not remember their ancestors and historical-ethnic origin”. The court also stressed that the appeal contained a call “to de-colonise nations captured by Moscow – Shaitan Kala, the Russian empire”. It was noted by the court that the defendant requested the Ulyanovsk City and Regional Administration “to stop the Sabbath celebrating the 350th anniversary of Simbirsk’s colonisation” and “to stop wasting the regional budget". The court emphasised in the judgment that the Branch’s secretary, Mikeyev, was empowered to lead the national liberation fight and form a team of well-tried, encouraged, devoted and resistant people. The court took into consideration the minutes of the Branch’s election and report conference of 26 May 1996 which allegedly contained a call to recognise the independence of the Republic of Chechnya and to return the Volga Region peoples to Islam. The court also relied on the extract from the minutes of the Branch’s General Meeting of 12 October 1997, in which the Sember peoples were allegedly called to join the Tartar Muslims in their national liberation fight. A further reference was made to the Annual Report of the Branch’s activities which allegedly contained calls to “decolonise Russia”, to form military forces “on the basis of confessions”, to “abolish the neo-imperialistic emblem because it contains crosses and passports because they give no indication of ethnic origin”. The court pointed out that the Branch, in breach of the mayor’s permit, had held the memorial ceremony of 31 May 1998 in the centre of Ulyanovsk. The Regional Court stated as follows: “...the Ulyanovsk Regional Branch of Vatan openly calls for violation of the integrity of Russia, for violent alteration of the fundamentals of constitutional governance, the creation of an Islamic State in the Volga Region. The Branch proclaims the idea of a national liberation fight and calls for the formation of “a brigade of well-tried, encouraged and resistant people”. The activities and opinions of the Branch’s leaders and members are of an extreme nationalist nature, inciting people to national and religious discord and depreciating the Russian speaking population and non-adherents of Islam.” The court concluded that the activities of the Branch did not correspond to the purposes declared in its Articles of Association and violated § 16 of the Law on Public Associations, which prohibits the establishment and the activities of public associations whose aims and actions are directed at the violent alteration of the fundamentals of constitutional governance, violation of the integrity of the Russian Federation and undermining the security of the state, the forming of armed units, the incitement to social, racial, national and religious strife and held it necessary to grant the prosecutor’s appeal and to suspend the Branch’s activities for 6 months. Ipso jure, the Branch was prohibited from holding meetings, demonstrations and other public actions, taking part in elections, disposing of its bank accounts other than for payment of expenses incurred in the course of normal activities, payment of labour contracts, damages and fines. The Branch challenged the judgment of 13 July 1998 before the Supreme Court of Russia, indicating that the Regional Court had misinterpreted the meaning of the appeal, which reflected the history of Tartars and that there had been no incitement to national or religious strife or anything which might disgrace the dignity of Russians. The Branch insisted that the ceremony of 31 May 1998 had been held at the site of the ancient Moslem cemetery. On 3 September 1998 the Supreme Court upheld the Regional Court’s decision. An application for supervisory review was dismissed by the same court on 13 October 1998.     On 12 January 2000, by a decision of the Ulyanovsk Regional Court, the Branch was put into liquidation at the request of the Department of Justice of the Ulyanovsk Regional Administration, as the Branch had failed to re-register its Articles of Association as was required by the Law on Public Associations.   Relevant domestic law 1.     Constitution of Russia Article 13 § 5 “Creation and activity of social associations shall be prohibited, if their aims and actions are directed to the violent change of the foundations of the constitutional system, the breach of integrity of the Russian Federation, the undermining of the security of the state, the creation of military units not provided for by the Constitution of the Russian Federation and federal laws, the fomenting of social, racial, national and religious strife.” Article 28 “Every person shall be guaranteed the right to freedom of conscience, freedom of religion, including the right to profess, either alone or in community with others, any or no religion, to freely choose, have and disseminate religious or other convictions and to act according to them.” Article 29 § 1 “Every person shall have the right to freedom of thought and speech.” Article 29 § 2. “Propaganda and agitation instigating social, racial, national or religious hatred and strife shall not be allowed. The propaganda of social, racial, national, religious or language exclusiveness shall be banned.” Article 30 § 1 “Every person shall have the right to freedom of association, including the right to establish trade unions to protect his interests. Free activity of public associations shall be guaranteed.”     Article 31. “Citizens of the Russian Federation shall have the right to meet peacefully, without arms, and to organise discussions, meetings and demonstrations, as well as processions and pickets.” 2. Federal Law on Public Associations, No. 82 - FZ of 19 May 1995 Article 16 “The formation and activity of public associations whose purposes or actions are directed towards the forcible change of the foundations of the constitutional system and a violation of the integrity of the Russian Federation, the subversion of the security of the State, the creation of armed formations, or the incitement to social, racial, national and religious hatred, are prohibited.” Article 42 § 1 “The activity of an association can be suspended by a court decision in the case of infringement of the norms of the Constitution of the Russian Federation, or infringement of the constitutions (statutes) of the subjects of the Russian Federation, or the laws of the Russian Federation.” Article 43   “A court’s decision to suspend the activities of a public association for a certain period shall include the suspension of its right of assembly, its right to hold meetings, rallies, demonstrations and (or) other public actions, to participate in elections, to dispose of its bank accounts other than for payment of expenses incurred in the course of normal activities, payment of labour contracts, damages and fines ...” COMPLAINTS 1.     The applicant party complains that the court decisions to suspend the activities of its regional branch violated its freedom to hold opinions and to impart information and ideas; its freedom of association and the party members’ right to manifest their religion. The applicant refers to Articles 9, 10 and 11 of the Convention. 2.     Referring to Article 14 of the Convention, the applicant complains generally of discrimination. 3.     The applicant party also complains that the courts which dealt with the case were not impartial within the meaning of Article 6 § 1 of the Convention. THE LAW 1.     Referring to Articles 9, 10 and 11 of the Convention, the applicant maintains that the fact that the activities of the applicant party’s regional Branch were suspended infringed the party members’ right to manifest their religion, the party’s freedom to hold opinions and to impart information and ideas, and the party’s freedom of association. The applicant party complains generally that it has suffered discrimination contrary to Article 14 of the Convention. Article 9 of the Convention provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 10 of the Convention reads as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Article 11 of the Convention reads: “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.” Article 14 of the Convention provides as follows: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." The Court considers that it cannot, on the basis of the present state of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.   2.     Under Article 6 § 1 of the Convention the applicant party alleges that the court proceedings which led to the suspension of the Branch’s activities involved a breach of the principle of “fairness”. In particular, it alleges that the courts which decided the case were not impartial because they were influenced by the regional administration and the media. Article 6 § 1, in so far as relevant, reads as follows: “ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The Court must determine whether the above provision is applicable to the present case, i.e. whether the proceedings concerned “a determination of...civil rights and obligations”. The Court notes that the proceedings before the Ulyanovsk Regional Court and before the Supreme Court of Russia were focused exclusively on the question whether the association could pursue its political activities. The Court has held on a number of occasions that proceedings which determine political rights do not fall within the ambit of Article 6 § 1 (see Refah Partisi (Prosperity Party) and others v. Turkey , nos. 4130/98 and others, 3 October 2000, unreported) It is true that the suspension of the association’s activities had certain economic consequences for the branch; in particular, it restricted the branch’s right to dispose of its bank accounts other than for payment of expenses incurred in the course of normal activities, payment of labour contracts, damages and fines. In this context the Court recalls that Article 6 § 1 of the Convention has been held to apply where the subject matter of proceedings is "pecuniary" in nature and is founded on an alleged infringement of rights which are likewise pecuniary, or where the outcome of the proceedings is directly decisive for private rights and obligations (see the Balmer-Schafroth and others v. Switzerland judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, §§   32). However, in the present case the restriction of the applicant’s right to dispose of its bank savings was no more than a secondary and indirect result of the court decision. Moreover, the question of financial consequences of the suspension of the Branch’s activities was not raised during the court proceedings. The Court therefore finds that the proceedings which ended with the decision of the Supreme Court of 3 September 1998 did not determine the applicant association’s civil rights, and therefore do not fall within the ambit of Article 6 § 1. It follows that that this part of the application must be rejected as incompatible ratione materiae pursuant to Article 35 § 3 of the Convention.   For these reasons, the Court unanimously Decides to adjourn the examination of the applicant party’s complaint that the court decision to suspend the activities of its regional branch violated its freedom to hold opinions and to impart information and ideas and its freedom of association and the party members’ right to manifest their religion and the complaint about discrimination; Declares inadmissible the remainder of the application.     Vincent Berger   Georg Ress   Registrar   President