CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 septembre 2003

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Ress , President ,   Mr   I. Cabral Barreto ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   K. Traja ,   Mr   A. Kovler, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 19 February 1999, Having regard to the partial decision of 21 March 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant is the People's Democratic Party Vatan (“Vatan”) registered with the Ministry of Justice of Russia on 29 April 1994. It is represented before the Court by   Mr M. Minachev, Vatan's President, working in Moscow. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 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 Bashkortostan; 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 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 '350 th 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 1350 th 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, archaeologists and scientists of the region 1.     Messieurs 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 350 th 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.     Messieurs 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 should 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 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 1350 th 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. Vatan 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 its 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 350 th anniversary of Simbirsk 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 350 th 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 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 an extract from the minutes of the Branch's General Meeting of 12   October 1997, in which the Sember peoples were allegedly called on 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 Charter 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, 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, contending 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 Charter as was required by the Law on Public Associations. Relevant domestic law 1.     Constitution of the Russian Federation adopted by referendum on 12   December 1993 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 14 “The public associations in the Russian Federation may be created in a form of all-Russian, interregional, regional and local public associations... The interregional public association carries out its charter activities in less then a half of the Russian Federation constituent regions and sets up its regional structural units - organisations, divisions, branches and representative offices.” 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 ...” Vatan's constitutional documents Vatan's registration certificate sates that it was registered with the Ministry of Justice of Russia on 29   April 1994 as an “interregional public association”. The relevant provisions of Vatan's charter read as follows: “Charter of the People's Democratic Party Vatan ... 1.1   People's Democratic Party Vatan is a political party ... 1.2   Vatan carries out its activities on the territory of the Russian Federation, where regional organisations are created (Omsk, Ulyanovsk [the region where the Branch is registered], Nizhniy Novgorod Regions, Moscow, Bashkortostan, Mordovia and Chuvashskaya Republics)... 3.4   All party organisations are autonomous in taking decisions concerning local matters, in so far as they do not conflict with the party's Charter or its Programme. 4.1   Vatan is set up for the protection of citizens of Tartar origin, of citizens of other origin, of their political, economic, social and cultural rights and freedoms in order to promote their active participation in the governing the state and social affairs. 4.2   To achieve its goals Vatan pursues the following objectives: -     participating as prescribed by law in the structures of state legislative and executive bodies through nominating its candidates, to express political will of its members; -     promoting creation of ethnic districts, circuits, country councils in the places of compact settlement of tartars in the Russian Federation; -     carrying out organisational activities, agitation, propaganda and other information activities for educational and pedagogical purposes, promotes the return of the Arabic written language; -     organising lectures, seminars, talks, round table discussions, mass and collective actions and other events, in accordance with law and with the party's goals and objectives; ... -     representing its members' interests before the state bodies and public institutions; ... 5.1   The party's set up has territorial structure. The primary party's units, associated in the district, town, circuit and regional organisations, form the party's base. 5.2   The regional organisations are set in accordance with administrative and territorial division of the Russian Federation and draw up their action programmes in accordance with the local features, elect the delegates for the party's Congress (Kurultay); in accordance with law, they participate in the structures of local authorities. The regional organisations establish themselves as legal persons in accordance with a procedure prescribed by law. If this is the case, they adopt their own Charter, which shall not be contrary to the party's Charter and its Programme, and register it in accordance with law.” 5.3   Primary and regional organisations are independent in decision making under the party's Charter and its Programme. They carry out their activities pursuant to the general Party documents, the decisions of the party's Congress (Kurultay) and their own decisions, in so far as they comply with the party's Charter and its Programme. 6.7   The party's President is in charge of the party's general management between the meetings of the party's Congress (Kurultay), ..., he speaks on party's behalf, ... represents the party without power of attorney in any state bodies and public institutions, ... The Branch's registration certificate sates that it was registered with the Ulyanovsk Regional Department of the Ministry of Justice of the Russian Federation on 12 August 1994 as a “local public association”. The relevant provisions of the Branch's charter read as follows: “Charter of the Simbirsk (Ulyanovsk) Regional Organisation of the People's Democratic Party Vatan ... 1.1   Simbirsk Regional Organisation of the People's Democratic Party Vatan is a political party's organisation ... 2.5   Membership of the party may be terminated ... by the Simbirsk Regional Committee for non-compliance with the party's Charter and its Programme, which decision is subject to appeal to the party's higher organs, including the Central Co-ordination Board [Vatan's governing body according to §   1.5 of its charter]. 4.1   The Simbirsk Regional Organisation of the People's Democratic Party Vatan is set up for the protection of citizens of Tartar origin, of citizens of other origin, of their political, economic, social and cultural rights and freedoms in order to promote their active participation in the governing the state and social affairs. 4.2   To achieve its goals the Simbirsk Regional Organisation of the People's Democratic Party Vatan sets the following objectives: -     participating as prescribed by law in the set up of state legislative and executive bodies through nominating its candidates to express political will of its members; -     promoting creation of ethnic districts, circuits, country councils in the places of compact settlement of tartars in the Russian Federation; -     carrying out organisational activities, agitation, propaganda and other information activities for educational and pedagogical purposes, promotes the return of the Arabic written language; -     organising lectures, seminars, talks, round table discussions, mass and collective actions and other events, in accordance with law and with the party's goals and objectives; -     representing its members' interests before the state bodies and public institutions. 6.6   During the intervals between the [Branch's] conferences the Regional Committee of the People's Democratic Party Vatan shall be in charge of the [Branch's] activities.” COMPLAINTS Vatan 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. It refers to Articles 9, 10, 11 and 14 of the Convention. THE LAW The applicant, a political party, complains that the suspension of its regional branch's activities amounted to violation of the party members' rights to manifest their religion guaranteed by Article   9 of the Convention, the party's freedom to hold opinions and to impart information and ideas guaranteed by Article   10 of the Convention, and its freedom of association guaranteed by Article   11 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 provides: “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 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 contest the applicant party's standing as a victim of the alleged violations of the Convention. They submit that the applicant party and the party in respect of which the disputed measure was taken are two different legal entities. They refer to the fact that the applicant, the nationwide People's Democratic Party Vatan (“Vatan”), was registered with the Ministry of Justice of Russia while the Ulyanovsk Regional Organisation of the People's Democratic Party Vatan (“the Branch”) was registered as a legal person with the Department of Justice of the Ulyanovsk Region. The Government further refer to §§ 5.1, 5.2 and 5.3 of Vatan's charter which provide that “the party's organisation has a territorial structure”, with regional branches “drawing up their action programme in accordance with the local features, being independent in decision making”. The Government rely generally on Vatan's charter and the Branch's charter claiming that Vatan's regional branches are autonomous. They invoke Article   48 of the Russian Civil Code which provides that a legal person exercises its rights and carries out its obligations independently, and that it has standing before a court as a party to proceedings. They emphasise that Vatan's charter contained no express provision authorising Vatan to act on behalf of its regional branch in court proceedings. They further maintain that the impugned court decisions concerned the Branch only and that Vatan's own interests have not been affected by the suspension of the Branch's activities. They thus conclude that the applicant cannot claim to be a victim of the alleged violations of the Convention, for a lack of direct concern. The applicant does not accept the Government's objection and maintains that the Branch forms an integral part of it as it belongs to Vatan's regional network, whether or not it is registered as a separate entity. The applicant claims to be a nationwide party, an “organisation covering the entire party's network”. The application to the Court was submitted by the party's president, defined by the applicant as “the entire party's superior”. The applicant invokes §§   1.1 and 6.7 of Vatan's charter which entitle the party's president to “represent the party as a whole”. The applicant argues that although Vatan's charter contains no express indication of the Branch's subordination to the “party's central organs”, it is implicit in the Branch's charter. The applicant invokes in particular §   2.5 which allows an appeal to the “party's higher organs, including the Central Co-ordination Board [Vatan's governing body according to §   1.5 of its charter]” against termination of an individual's party membership. The applicant alleges that this provision demonstrates “the party's unity” and subordination between Vatan and the Branch. The applicant further alleges that the suspension of the Branch resulted in the winding up of Vatan's activities in the Ulyanovsk region, in a deterioration of the party's position in the region, and, ultimately, in a reduction of the party's popularity. In so far as the Government argue that the applicant has no standing as a victim, the Court considers that the examination of the Government's preliminary objection in this respect should take place together with the examination of the merits of the case. As regards the complaints under Articles 9, 10, 11 and 14, the Court considers, in the light of the parties' submissions, that the complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article   35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Court unanimously Joins to the merits the Government's preliminary objection concerning the applicant's standing as a victim; Declares the remainder of the application admissible, without prejudging the merits of the case. Vincent Berger   Georg Ress   Registrar   President