SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65659/01 by THE PRESIDENTIAL PARTY OF MORDOVIA against Russia

The European Court of Human Rights (Second Section) , sitting on 9 September 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr C. Bîrsan , Mr M. Ugrekhelidze , Mr A. Kovler, judges , and Mr T.L . Early , Deputy Section Registrar ,

Having regard to the above application lodged on 12 September 2000,

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 Presidential Party of Mordovia - Президентская партия Мордовии (“the applicant”) - is a public association based in Mordovia, an autonomous republic in west central Russia. It is represented before the Court by its president, Mr Vasiliy Guslyannikov.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Founding of the applicant party and application for re-registration

On 15 March 1994 the applicant was registered with the Ministry of Justice of Mordovia as a “Mordovian all-republican socio-political association - the Presidential Party of Mordovia” ( Республиканская общественно - политическая организация республики Мордовия – Президентская Партия Мордовии ) .

On 14 April 1995 the State Duma adopted a new Federal Law on Public Associations ( Федеральный Закон « Об общественных объединениях – “the Law on Associations”) which came into force on 19 May 1995. Article 52 of the Law on Associations obliged public associations registered before 19 May 1995 to amend their articles of association in compliance with the Law on Associations and to renew their registration by 1 July 1999.

On 30 June 1999 the applicant applied to the Ministry of Justice of Mordovia for re-registration. It presented Articles of Association which contained the following provisions:

“2. The Party's objectives

2.1. The party's aims are:

- assisting in the formation of a free democratic society in the Republic of Mordovia and Russia;

- strengthening Russia's unity;

- fighting against the separatism of the Republic of Mordovia;

- strengthening of the separation of the executive, legislative and judicial powers;

- creating a strong executive power headed by the directly elected President of the Republic of Mordovia and integrated in the executive power of the Russian Federation;

- building a highly developed market economy;

- striving to achieve the individual's social protection.

In order to meet these objectives the party carries out the following activities:

2.1.1. participating in presidential, parliamentary and local elections in the Republic of Mordovia by selecting and nominating candidates and assisting in their electoral campaigns.

2.1.2. carrying out programmes and initiatives directed at professional training, providing assistance to members of parliament and party members in the fields of economy, law, administration, mass-media and arts to support the preparation and holding of electoral campaigns.

2.1.3. developing a scheme to select a list of candidates and establish the liability to the party of its members of parliament.

2.1.4. holding the preliminary election of candidates for elections.

2.1.5. supporting the party groups in parliament.

2.1.6. assisting individuals, public and private organisations, research and educational bodies in their activities concurring with the party's aims.”

On 30 June 1999 the Minister of Justice of the Republic of Mordovia refused the application. The reasons were indicated in a letter sent to the president of the party on the same day. The Minister noted that Article 21 of the Law on Associations and Article 1 of the Law of the Republic of Mordovia on Becoming an All-Republican Public Association ( Закон Республики Мордовия « О приобретении общественным объединением регионального ( республиканского ) статуса » ) provides that, in order to obtain the title “all-republican”, an association should have branches in more than a half of the districts and cities of the Republic. Therefore, on applying for registration, an association should present documents to prove the establishment of such branches. The applicant failed to do so. The Minister further mentioned that, according to Article 12.1 of the Law on Associations, the articles of a political association should provide for the following objectives: the participation in the political life of society through influencing and generating the citizens' political will, participation in elections to the State bodies and local government by nominating candidates and organising their electoral campaign and taking part in the setting-up and activities of the said bodies. The Minister stated that these objectives were absent in the applicant's Articles of Association.

On 8 July 1999 the applicant filed a new application for re-registration with the Ministry of Justice of the Republic of Mordovia.

The following statement was added to Article 2 of its Articles of Asociation:

“2.1. The main objective of the party is participation in the political life of society through influencing and generating the citizens' political will, participation in elections to the State authorities and local government by nominating candidates and organising their electoral campaign, and taking part in the setting-up and activities of the said bodies.”

In a covering letter, the president of the applicant party contested the validity of the refusal of the previous application for re-registration. First, he drew the Minister's attention to the fact that the requirement to prove the establishment of branches enshrined in Article 21 of the Law on Associations applied exclusively to international, all-Russian or inter-regional public associations. Secondly, he questioned the compatibility of the Law of the Republic of Mordovia on Becoming an All-Republican Public Association with the Constitution of the Russian Federation, the Constitution of the Republic of Mordovia, the Federal Law on Public Associations and the International Covenant on Civil and Political Rights. Thirdly, he insisted that both the original and the amended versions of the applicant's Articles of Association contained provisions concerning the applicant's participation in the political life of society and in elections.

In a letter of 19 July 1999, the Deputy Minister of Justice of the Republic of Mordovia informed the applicant that it had missed the deadline for re-registration. The applicant was also informed about the possibility to challenge the previous refusal of re-registration before a court.

2. Liquidation of the applicant party

In August 1999 the Ministry of Justice of the Republic of Mordovia, relying on Article 52 of the Law on Associations, applied to the Leninsky District Court of Saransk for the liquidation of the applicant party on the ground that it had failed to re-register. The applicant's president filed a counter-claim: he complained about the arbitrary refusal of re-registration and requested an order to oblige the Ministry of Justice to renew the registration.

On 29 December 1999 the Leninsky District Court of Saransk dismissed the request for the applicant's liquidation. The court examined the applicant's Articles of Association and pointed out that the applicant intended to participate in the presidential, parliamentary and local elections in the Republic of Mordovia by nominating candidates and organising their campaigns. The court considered that these activities amounted to “participation in the political life of society” and found the applicant's Articles of Associations satisfactory for the purposes of Article 21.1 of the Law on Associations. The court further took into consideration the alleged failure by the applicant to establish branches in more than a half of the districts and cities of the Republic of Mordovia. The court noted that this requirement, enshrined in Articles 14 and 21 of the Law on Associations, applied only to all-Russian, inter-regional and international public associations. Therefore the court found the Law of the Republic of Mordovia on Becoming an All-Republican Public Association, which prescribes the establishment of branches in order to be registered as a Mordovian all-republican association, to be contrary to the Law on Associations. The court concluded that the applicant's request for re-registration complied with the relevant law, that the refusal to re-register was unlawful and ordered the Ministry of Justice of the Republic of Mordovia to renew the applicant's registration.

The Minister of Justice of the Republic of Mordovia appealed this judgment.

On 14 March 2000 the Supreme Court of the Republic of Mordovia quashed the judgment of 29 December 1999 and substituted its own decision. The court noted that the first instance court had wrongly considered the applicant's activities listed in Article 2.1.1 of its Articles of Association as “participation in the political life of society” for the purpose of Article 12.1 of the Law on Associations. The court stressed that all the objectives listed in Article 12.1 of the Law must be indicated in a party's articles of association. According to the applicant's Articles of Association the party intended to participate in presidential, parliamentary and local elections in the Republic of Mordovia by nominating candidates and organising their campaigns. In the court's opinion, the applicant thereby failed to declare the statutory objectives of participating in the political life of society, through influencing and generating the citizens' political will, and taking part in the setting-up and activities of State bodies and local government. The court confirmed the Ministry of Justice's refusal to re-register the applicant and, in accordance with Article 52 of the Law on Associations, put it into liquidation. This decision became final on the same day.

3. Permission to register

On 20 August 2002, after communication of the case to the respondent Government by the Court, the acting President of the Supreme Court of the Republic of Mordovia brought on his own motion an application for supervisory review in respect of the decision of 14 March 2000.

On 5 September 2002 the Presidium of the Supreme Court of the Republic of Mordovia granted the application by quashing the decision of 14 March 2000 and upholding the judgment of the Leninsky District Court of Saransk dated 29 December 1999. The latter judgment declaring the refusal to re-register unlawful and requiring the Ministry of Justice of the Republic of Mordovia to re-register the Presidential Party of Mordovia entered into force.

On 29 October 2002 the Department of the Ministry of Justice of the Russian Federation in respect of the Republic of Mordovia filed a request with the President of the Leninsky District Court of Saransk. It sought instructions concerning the enforcement of the judgment of 29 December 1999. The Department of the Ministry of Justice of the Russian Federation in respect of the Republic of Mordovia reported that, following legislative changes, it could not re-register the Presidential Party of Mordovia pursuant to the judgment. Firstly, on 17 May 2002 the competence to register legal persons had been transferred to the tax authorities. Secondly, the law “on political parties” of 11 July 2001 changed the requirements for establishing political parties, of which the application of the Presidential Party of Mordovia had not taken account.

On 30 October 2002 the Leninsky District Court of Saransk examined the request and held the execution of the judgment of 29 December 1999 to be terminated. The court accepted both reasons preventing the party's re-registration pursuant to the judgment. It took into account that the applicant's president, Vasiliy Guslyannikov, had consented to the termination of the enforcement proceedings, having accepted that no regional political parties could be created under the new law.

B. Relevant domestic law

The Federal Law on Public Associations, No. 82-FZ of 19 May 1995

Article 52

“The articles of public associations registered before the entry into force of this Federal Law shall be amended in compliance with the said Federal Law [...].

State re-registration of public associations registered before the entry into force of this Federal Law shall be carried out before 1 July 1999.”

Article 12.1

“A political public association is a public association whose articles of association must provide for the participation in the political life of society through influencing and generating the citizens' political will, participation in elections to the State bodies and local government by nominating candidates and organising their electoral campaign, and taking part in the setting-up and activities of the said bodies.”

COMPLAINT

The applicant complains that the refusal to renew its registration violated its right to freedom of association, guaranteed by Article 11 of the Convention.

THE LAW

The applicant claims that the authorities' refusal to re-register it as a political party was contrary to domestic law and was not necessary in a democratic society. It thus constituted an unjustified interference with its freedom of association, contrary to Article 11 of the Convention, which insofar as relevant provides as follows:

“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, ...

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. ...”

The Government refer to the proceedings which took place after the Court had communicated the application to the Russian authorities. They consider that the applicant's Convention rights have been restored since the decision to refuse re-registration has been annulled and registration ordered. Accordingly, the applicant may no longer claim to be a victim of the alleged violation. They state that there was no violation of the applicant's rights under Article 11 of the Convention and request the Court to dismiss the application as manifestly ill-founded and as being incompatible with the Convention, since the applicant has lost its victim status.

The applicant denies that its rights have been restored by the domestic proceedings invoked by the Government. It maintains that, while the violation of its rights has been acknowledged by the ruling of the Presidium of the Supreme Court of the Republic of Mordovia, no redress was afforded. The applicant contends that the party has been unable to function for three years and was thus prevented from taking part in the elections to the Parliament of the Republic of Mordovia. This could not be remedied by a belated registration. Moreover, the final decision to renew the applicant's registration was declared unenforceable by the Leninskiy District Court of Saransk on 30 October 2002. It was established, and the applicant does not dispute this, that the original application for registration, despite being confirmed by the court, could no longer be maintained by the applicant as regional political parties have ceased to be recognised by law. The applicant therefore claims to have retained its victim status.

The Court recalls that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see e.g. Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003).

In the instant case, even if the ruling of the Supreme Court of the Republic of Mordovia could be said to be an acknowledgement, in substance, that the applicant's freedom of association was unjustifiably restricted, the Court considers that it did not provide adequate redress, as required by the Court's case-law. Even assuming that a three-year ban can in principle be remedied by an act of registration, this did not occur in the present case. The Court notes that the conditions which formerly permitted the applicant to have itself registered as a political party ceased to exist in the meantime under new legislation and the present day permission to register is therefore a priori devoid of any practical consequences.

The Court therefore agrees with the applicant that the quashing of the refusal to renew the applicant's registration cannot be viewed as depriving the applicant of its victim status under the Convention.

The Court considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of its merits. The Court concludes therefore that the case is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa Deputy Registrar President