THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44319/98 by O.V.R. against Russia

The European Court of Human Rights (Third Section) , sitting on 20 June 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr A. Kovler, judges , [Note1]

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 October 1998 and registered on 11 November 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Russian citizen, born in 1971 and living in Severodvinsk , Russia. She is represented before the Court by Mr G.B. Romanovskiy , a lawyer practising in Severodvinsk .

A. Particular circumstances of the case

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

On 16 August 1995 the applicant was granted a general notary licence from the Ministry of Justice. On 10 October 1995 she was appointed notary at the Severodvinsk State notary firm by decision of the Arkhangelsk Regional Department of Justice ( Управление Юстиции Архангельской области ). [1]

On 14 February 1997 the Department of Justice licensed the applicant to open her own private notary practice. Shortly after she had opened her notary office, she was informed by the Arkhangelsk Notary Chamber ( Архангельская Нотариальная Палата ) [2] that she had a statutory obligation to join the Notary Chamber. On 4 March 1997 she applied for membership of the Chamber, pursuant to Articles 2 and 24 of the Notary Act, which provide that every private practising notary must be a member of a Notary Chamber.

The applicant submits that she was informed by the president of the Notary Chamber that she was required to pay a membership entry fee of 500 times the minimum reference tariff ( минимальный размер оплаты труда ), which at the time equalled 40,000,000 roubles (RUR) / (approximately 40,160 FF) [1] . On 17 March 1997 the applicant withdrew her application for membership since she was unable to pay this sum. On 21 March 1997 the members' assembly of the Notary Chamber struck the applicant out of its list.

On 31 March 1997, after the applicant had resigned from membership, she received a copy of the decision of the board of the Notary Chamber, dated 11 March 1997, to admit her as a member. It fixed her membership entry fee at 100 times the minimum reference tariff, equal to 8,349,000 RUR (approximately 8,382 FF). However, she did not reapply for membership.

On 14 April 1997 the Notary Chamber brought an action before the Severodinsk City Court of the Arkhangelsk Region ( Северодвинский городской суд Архангельской Области ) [3] for the applicant’s right to practise as a private notary to be withdrawn because she was no longer a member.

On 18 April 1997 the City Court issued an interim decision by which the applicant was forbidden to exercise the profession of private notary before her case was decided on the merits. The applicant appealed to the Arkhangelsk Regional Court ( Судебная коллегия по гражданским делам Архангельского Областного Суда ) [4] claiming that the Notary Chamber was not entitled to bring the action and that the relevant national legislation breached her right under Article 30 of the Constitution not to be compelled to join or to remain in an association. She also maintained that there was no valid reason for the interim decision, since Article 133 of the Code of Civil Procedure provides that such a decision can only be taken if there is a risk that otherwise it would be impossible to execute the final court decision.

On 15 May 1997 the Regional Court quashed the City Court’s interim decision on the grounds that it was insufficiently motivated and unjustified, and referred the case back to the City Court. On 2 July 1997 the City Court adjourned the proceedings in order to submit to the Constitutional Court the question of the constitutional compatibility of the provisions of the Notary Act whereby a private practising notary is obliged to be a member of a notary chamber. The applicant joined the application, alleging in addition a violation of Article 19 of the Constitution which guarantees equality before the law.

On 25 September 1997 another City Court judge reopened the proceedings despite the fact that the Constitutional Court had not yet rendered its decision. On 14 October 1997 the City Court suspended the applicant’s right to act as private notary on the basis that she was not a member of the Notary Chamber and thus practised her profession in violation of the legislation in force.

The applicant appealed. In January 1998 the Regional Court adjourned the proceedings awaiting the decision of the Constitutional Court.

On 19 May 1998 the Constitutional Court, after a hearing held on 29 April 1998, ruled that compulsory membership of a notary chamber is not contrary to Articles 19 and 30 § 2 of the Constitution. It stated, inter alia , that notary chambers perform important public law functions, which include the supervision of the exercise of private notaries’ professional duties, and the right to address a court with a request to deprive a notary of the right to practise because of a violation of the law. Having regard to these public law functions and duties, the Constitutional Court found that the principle of voluntary membership could not apply to notary chambers. As regards the status of notary chambers, the Constitutional Court added that they were to be considered as non-governmental organisations taking part in State power. Further, it ruled that membership of an chamber should not be subjected to conditions other than those established by law, in particular membership fees the amount of which is not fixed by the notary legislation.

On 4 June 1998, following the Constitutional Court decision, the Regional Court held that the City Court’s decision of 14 October 1997 was in accordance with the law and should remain unchanged.

Subsequently, the Notary Chamber requested the City Court to require the applicant to pay its legal costs (19,991 Roubles). On 28 October 1998 the City Court partly granted this claim and ordered the applicant to pay the Chamber 3,130 Roubles. The applicant did not appeal against that decision.

B. Relevant domestic law

The Notary Act No. 4460-1 of 11 February 1993

Article 2 provides that i n performing notary acts, notaries have equal rights and duties, irrespective of whether they are employed by State notary offices or in private practice. Documents authenticated by notaries are of equal legal validity. It further states that, a notary engaged in private practice must be a member of a notary chamber.

According to Article 24, a notary chamber is a non-profit making organisation, which is a professional association based on the compulsory membership of private practising notaries. Persons who wish to be licensed to conduct notary acts may also be members. Notary chambers shall be formed in each republic within the Russian Federation, in an autonomous region, autonomous areas, territories and regions, and in the cities of Moscow and St. Petersburg. The notary chamber shall be a corporate body and shall organise its work on the principles of self-government. It shall conduct its activities in accordance with the legislation of the Russian Federation, the republics within the Russian Federation, and its statutes. It may engage in business activities insofar as this is necessary for the performance of its statutory tasks. Its property shall not be subject to company property tax. Its statutes shall be adopted by a meeting of its members and shall be registered in accordance with the procedures prescribed for registering the statutes of public organisations.

According to Article 27, the membership fees and other payments by the members of the notary chamber are fixed by the general assembly of the members.

According to Article 34, the implementation of professional duties by notaries employed at State notary offices shall be supervised by State justice bodies, and by notary chambers in the private sector.

The Constitution of the Russian Federation of 12 December 1993

Article 19 of the Constitution provides for the equality of all before the law and courts of law, and equality of rights and liberties.

Article 30 § 2 of the Constitution provides that no one may be coerced into joining any association or into membership thereof.

COMPLAINTS

1. The applicant complains, under Article 11 of the Convention, that the compulsory membership of the regional Notary Chamber, on pain of losing her right to practise as a private notary, was in breach of her right to freedom of association. She alleges that the fees charged were exorbitant, unnecessary and arbitrary, serving no professional purpose, such as professional indemnity insurance. Moreover, given her professional qualifications and her licence to practice, she claims that she should not be required to adhere to a notary chamber at all.

2. Invoking Article 11 in conjunction with Article 14 of the Convention, the applicant complains that she, as a private notary, was subject to the compulsory membership of the Notary Chamber which was not the case when she was a State notary with the same qualifications and licence. Moreover, the various regional notary chambers (of which there are sometimes more than one per region) require different membership fees depending on the decision of the general assembly of members.

3. The applicant further complains that the obligation to join the Notary Chamber placed her in a personally dependent position in relation to this body and amounts to a violation of Articles 4, 5 and 8 of the Convention.

4. Finally, invoking Article 6 of the Convention, the applicant complains that she did not have a fair hearing by an independent and impartial and tribunal in that the national courts were biased, being pressured by the Department of Justice and the Notary Chamber to deprive her of the right to practise her profession.

THE LAW

1. The applicant complains, under Article 11 of the Convention, that the compulsory membership of the regional Notary Chamber on pain of losing her right to practise as a private notary was in breach of her right to freedom of association.

The Court notes that although most of the facts and proceedings complained of relate to a period prior to the entry into force of the Convention with regard to Russia on 5 May 1998, the final judicial decision was taken after that date. Therefore it considers that case as such falls within its competence ratione temporis .

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 Court considers that it cannot, on the basis of the case-file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note2] of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. Invoking Article 11 in conjunction with Article 14 of the Convention, the applicant next complains that she, as a private notary, is subject to the compulsory membership of the Notary Chamber which was not the case when she was a State notary with the same qualifications and licence. Moreover, the various regional notary chambers (of which there are sometimes more than one per region) require different membership fees depending on the decision of the general assembly of members.

Article 14 of the Convention provides

"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 again considers that it cannot, on the basis of the case-file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note3] of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant also complains, under Articles 4, 5 and 8 of the Convention, that the obligation to join the Notary Chamber placed her in a personally dependent position in relation to this body. Article 4 prohibits slavery and forced labour; Article 5 guarantees the right to liberty and security and Article 8 guarantees the right to respect for private and family life, the home and correspondence.

The Court firstly notes that as the applicant has never been deprived of her liberty, Article 5 of the Convention has no application in her case.

The Court further notes that, even assuming that the applicant has complied with Article 35 § 1 of the Convention with regard to her complaints under Articles 4 and 8 of the Convention, the case-file discloses no evidence whatsoever of any appearance of a violation of these provisions.

This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

4. Finally, the applicant complains that the national courts did not consider her case fairly, impartially or independently, as required by Article 6 of the Convention.

The Court first recalls that it is not competent ratione temporis to examine complaints concerning facts which relate to a period prior to the date of the entry into force of the Convention with respect to each Contracting Party. In the light of this principle, it can only examine the applicant’s complaints relating to the proceedings before the national courts after 5 May 1998, which is the date of the entry into force of the Convention with regard to Russia. However, the Court finds the matters of which complaint is made after that date are wholly unsubstantiated and do not disclose any appearance of a violation of Article 6 of the Convention.

It follows that this part of the application is also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint under Article 11 taken alone and in conjunction with Article 14 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa              Registrar              President

[1] Hereafter “the Department of Justice”

[2] Hereafter “the Notary Association”

[1] at the rate of a 1 FF to 996 RUR as established by the Central Bank of Russia for March 1997.

[3] Hereafter “the City Court”

[4] Hereafter “the Regional Court”

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)

[Note2] Change as necessary.

[Note3] Change as necessary.