Lexploria

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

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BAISAN AND LIGA APARARII DREPTURILOR OMULUI DIN ROMANIA (LEAGUE FOR THE DEFENCE OF HUMAN RIGHTS IN ROMANIA) v. ROMANIA

BAISAN AND LIGA APARARII DREPTURILOR OMULUI DIN ROMANIA (LEAGUE FOR THE DEFENCE OF HUMAN RIGHTS IN ROMANIA) v. ROMANIA

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