FIFTH SECTION

Application no. 34014/04 UNTU FOOTBALLERS OF UKRAINE against Ukraine lodged on 20 September 2004

STATEMENT OF FACTS

The applicant organisation, Footballers of Ukraine, is a trade union operating on a national basis ( Всеукраїнська національна профспілка « Футболісти України » ) which was registered as a non-governmental organisation ( громадська організація ) by the Ministry of Justice of Ukraine in 2000. It is represented before the Court by Mr Oleg Pechorny , the Head of the Coordinating Council of the union, Mr Valeriy Kuruluk and Ms Natalya Pan, lawyers practicing in Ukraine .

A. The circumstances of the case

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

In April 2003 the General Prosecutor ’ s Office brought an action on behalf of the State against the Ministry of Justice of Ukraine in the Kyiv Commercial Court, seeking invalidation of the applicant ’ s Statute, of the applicant ’ s registration certificate and the exclusion of the applicant from the Unified State Register of Enterprises and Organisations of Ukraine.

The General Prosecutor ’ s Office stated that the registration of the Footballers of Ukraine trade union had to be annulled for the following reasons:

( i ) its registration as a nationwide trade union had not been effectuated according to the Article 11 of the Trade Unions Act;

(ii) after January 2001 the applicant organisation became a member of the International Federation of Professional Footballers ( FIFPro ) [1] . However, the applicant organisation had failed to re-register itself with the Ministry of Justice as an “international organisation”, in breach of Article 34 of the Non-Governmental Organisations Act.

The General Prosecutor ’ s Office concluded that the unlawful registration of the applicant organisation violated the interests of Ukraine because it made it impossible for the State to guarantee the fulfilment of the labour and social rights of the trade union ’ s members.

The applicant organisation challenged the action. It stated that it was an NGO, acting independently of employers. That explained why the applicant organisation did not have any affiliates in Ukrainian professional football clubs. The applicant organisation admitted that it became a member of FIFPro in January 2001. However, as stated in Article 3 of the NGO Legalisation Procedure Rules, in order to re-register an NGO as an “international organisation” one was required to submit additional documents proving that the NGO would operate in at least one foreign country. The applicant organisation declared that it was not operating in any country other than Ukraine and submitted that re-registration was not therefore necessary. The applicant organisation drew attention to the fact that the General Prosecutor ’ s Office had brought the action on behalf of the State. However, the applicant organisation disputed that its registration violated the rights and interests of the Ukrainian State or made it impossible for the State to protect the labour and social rights of its members. The applicant organisation underlined that it had been founded in order to protect the labour and social rights of its members, who were active professional football players, former football players and disabled footballers.

On 10 June 2003 the Kyiv Commercial Court ruled that the claims of the General Prosecutor ’ s Office were groundless and were to be rejected.

On 19 June 2003 the Association of Ukrainian football clubs and the Professional Football League of Ukraine, acting as a third party admitted to the proceedings on ... , filed an appeal with the Kyiv Commercial Court of Appeal, claiming, inter alia , that the court of first instance had failed to show whether all 987 members, as at the time of registration of the applicant organisation, were actually working as footballers.

On 25 November 2003 the Kyiv Court of Appeal ruled that the applicant organisation had:

(a) breached the requirements of the Trade Unions Act and the NGO Act concerning the obligation to provide information about the number of members and the number of organisational units in other regions of Ukraine that it had;

(b) unlawfully failed to re-register its legal status as an “international organisation” after becoming a member of the FIFPro ; and

(c) breached the right of the State to ensure the social protection of its citizens by creating an independent trade union.

The court quashed the decision of the Kyiv Commercial Court and allowed the appeal. The court annulled the applicant organisation ’ s articles of association and its certificate of registration. The Ministry of Justice of Ukraine , as a respondent, was ordered to exclude the applicant organisation from the list of officially registered non-governmental associations.

The Ministry of Justice, acting as one of the respondent in the case as a State body that allegedly unlawfully registered application organisation, lodged an appeal in cassation with the Higher Commercial Court. On 16 March 2004 the Higher Commercial Court rejected the appeal in cassation and upheld the ruling of the Kyiv Commercial Court of Appeal given on 25 November 2003.

The Ministry of Justice and the applicant lodged a further appeal in cassation with the Supreme Court. They argued that ... On 17 June 2004 the Supreme Court found no grounds to review the case in cassation, upholding the lower courts ’ decisions.

B. Relevant domestic law and practice

The relevant provisions of Ukrainian law in respect of registration of non-governmental organisations can be found in the case of Koretsky y and Others v. Ukraine (no. 40269/02, §§ 20 -24, 3 April 2008).

COMPLAINTS

Relying on Article 11 of the Convention, the applicant organisation complains that the respondent State violated the right to form and to join trade unions for the protection of one ’ s interests, as its registration was annulled by the domestic court without any legitimate explanation.

The applicant organisation alleges that the State authorities breached Article 6 § 1 of the Convention, which guarantees the right to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.

The applicant organisation further complains under Article 10 of the Convention of a violation of its freedom of expression. Lastly, citing Article 13 of the Convention, the applicant organisation complains that it had no effective remedy against the interference with its rights protected by the Convention.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant organisation ’ s freedom of association, in particular its right to operate as a trade union, within the meaning of Article 11 § 1 of the Convention?

2. If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?

[1] The Fédération Internationale des Associations de Footballeurs Professionn els (English - International Federation of Professional Footballers ) with its headquarters in Hoofddorp , the Netherlands , usually known by the abbreviation FIFPro , is a worldwide representativ e organisation for professional football players .