Strasbourg finds that Ukraine violated the right of freedom of association
In an important judgment on 3 April in the case of Koretskyy and others v. Ukraine, the European Court of Human Rights found that Ukraine had violated Article 11 of the European Convention on Human Rights over the refusal of a department of the Ministry of Justice to register the association “Civic Committee for the Preservation of Wild (Indigenous) Natural Areas in Bereznyaky”.
At a press conference held in the UNIAN information agency, the claimants and their lawyer Taras Shevchenko stated that the Courts ruling created a vital precedent of importance not only for Ukraine.
The judgment is indeed pivotal both in highlighting problems as far as freedom of association is concerned, and demonstrating clearly to the Ukrainian authorities that such irregularities are in violation of the European Convention.
“At the beginning of the year 2000, aware of the rights guaranteed us under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms we resolved to attempt to put these rights into practice. We decided to create a civic organization, not “as is done” according to unwritten practice in Ukraine, but an organization that we really need and that will achieve the aims we set and be effective”.
We created the “Civic Committee for the preservation of the wild (indigenous) nature in Bereznyaky”. Our task was to prevent disaster looming in Kyiv. We stated the aim for the formation and functioning of the new organization in the Act of Association openly, not hiding behind standard clichés and not concealing the essence behind general phrases. This was a test for state registration agencies of their ability to work in conformity with international norms for a democratic society”
The Civic Committees application for registration was turned down. At the end of November 2000 the applicants lodged a complaint with the Pechersky District Court in Kyiv and then later with the Supreme Court. .
Since human rights organizations have on many occasions pointed to the same problems, it is worth presenting the applicants objections in detail.
“The applicants argued that the refusal to register the Civic Committee had not been in accordance with the law, that it had not pursued a legitimate aim and had not been necessary in a democratic society. The applicants also alleged that their case concerned several aspects of the national legislation and administrative practice which run counter to the principles embodied in Article 11 of the Convention.
29. First, the Ukrainian legislation, namely, sections 14(1) and 27(3) of the Associations of Citizens Act, Article 186-5 of the Code on Administrative Offences and Article 187-8 of the Criminal Code of 1960, contained a ban on any activities of an association which was not formally legalised. This had the effect of restricting the applicants freedom of association, since they were at a risk of being prosecuted for their involvement in the activities of the Civic Committee. The risk was very high given the arbitrary manner in which the registration had been refused. According to the applicants, such a restriction on their right to freedom of association was not justified.
30. Secondly, they submitted that the prohibition in the national law for an association to act beyond the territory in respect of which it was registered was not necessary in a democratic society. Although there was a possibility of registering the Civic Committee as having pan-Ukrainian status, this would necessitate setting up local branches in the majority of the regions of Ukraine, which was an insurmountable obstacle for the applicants.
31. Thirdly, the authorities interpretation of the principle of equality of members of an association, contained in section 6 of the Associations of Citizens Act, as precluding the involvement of volunteers in its activities was wrong. In any event, such a restriction was against the principles of a democratic society.
32. Fourthly, the exclusion of certain activities which the applicants envisaged in the articles of association, in particular, propaganda, lobbying, publishing, expert examinations and so on, was not in compliance with the national law and was not justified. Also, there was nothing in the text of the articles of association which could form a basis for the authorities conclusion that the Civic Committee intended to perform economic or commercial activities. This conclusion was based on the incorrect interpretation of the functions of the Civic Committees Executive Board and, in particular, its task to manage the everyday administrative (“господарча діяльність”) and financial activities of the Civic Committee, which were completely different form the activities classified as “economic” (“господарська діяльність”), since the former were merely aimed at ensuring the necessary material and technical conditions for the Civic Committees everyday activities.
33. Finally, the applicants stated that the practice of making changes and amendments to the texts of articles of association by the authorities, without an associations consent, as had happened in their case, had no basis in the law and ran counter to the Article 11 guarantees.
“The Government argued that there had been no violation of Article 11 of the Convention, since the refusal to register the applicants association had been lawful and necessary to ensure the well-functioning of the system of State registration of associations.
35. They also submitted that the Ukrainian legislation envisaged two ways of legalising an association, namely, the notification of the authorities and State registration. The applicants could have followed the former procedure, which was less complicated than the registration procedure. Otherwise, the applicants had to comply with the relevant requirements of the national legislation in order for their association to become a legal entity.
2. The Courts assessment
(a) General principles
38. The right to form an association is an inherent part of the right set forth in Article 11 of the Convention. The ability to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an associations aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions
(b) Existence of interference
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
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 Committees 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.
(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”
While there was disagreement between the parties as to whether the applicants had endeavoured to change some of the inconsistencies of certain provisions of its articles of association with the relevant national legislation, the Court did not dwell on this, since the Civic Committee would nonetheless have retained the following provisions in the articles of association:
“(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 Committees 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
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 Committees 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”
52. The Court observes that neither the courts decisions nor the Governments 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.