THIRD SECTION

Application no. 47732/06 ASOCIAŢIA VICTIMELOR MAGISTRAŢILOR DIN ROMNIA and others against Romania lodged on 14 August 2006

STATEMENT OF FACTS

The first applicant is an association whose registration in the Romanian Register of Associations and Foundations was refused; it therefore has no legal personality. Its name in Romanian is “ Asociaţia Victimelor Magistraţilor d in România ” (the Association of Victims of Magistrates from Romania). The application on its behalf was lodged by Ms R. Neagu, the association ’ s appointed President.

The other nine applica nts, Ms Rodica Neagu, Mr Virgil Radu, Mr Valentin Turigioiu, Mr C. Gheo rghe Lupan, Ms Viorica Alda, Mr Eugen Neagu, Ms Maria Nicolau, Ms Domnica Turigioiu and Ms Valerica Åžugubete, are the founders of the association. They are all Romanian nationals who reside in Bucharest .

Ms Neagu, the second applicant and the President of the Association, is representing all the applicants before this Court.

A. The circumstances of the case

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

On 28 June 2005 the applicant association lodged an application with the Bucharest Fourth District Court of First Instance, seeking to be granted legal personality and to be registered as an association in the Register of Associations and Foundations kept by that court. In support of its claim, the applicant association appended a document issued by the Ministry of Justice confirming that the name chosen for the association was available, as well as a copy of its charter and statute, which, in its relevant parts, reads as follows:

“The goal of the association is to protect the rights and the legitimate interests of its members before all domestic authorities with the capacity to administer, supervise and/or enact justice.

The objectives of the association are:

- to support and promote the relationship between its members and those authorised by law to protect their rights and interests;

- to monitor the activity of the Romanian justice system with the purpose of reporting to the authorities in charge all injustice, irregularities or illegalities committed by Romanian magistrates;

- to present in the media cases of manifest unfairness or partiality in the application of the law, in so far as the public has the right to be aware of any negative aspects of the activities of the Romanian justice system;

- to support its members in their undertakings before any international court;

- to organise any form of protest (marches, public gatherings, picketing), with prior authorisation from the authorities and in accordance with the law;

- to signal the gravity and the public danger represented by an impartial or an incompetent judicial system;

- to create a database of all cases in which its members are involved before the authorities;

- to cooperate with the legislative organs by providing them with ideas, projects, proposals, etc. with a view to improving the functioning of the Romanian judicial system.”

The association was founded by the other nine applicants before this Court; the Board of the association was made up of five persons, Ms R. Neagu being its President.

On 30 November 2005 the court dismissed the request, essentially holding that the goal of the association was in breach of Section 40 § 2 of the Romanian Constitution, and stating that “an organisation which, by its aims or activity, militates against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania shall be unconstitutional”. The court noted as follows:

“In its statute, the applicant [association] starts from the premise that a group of persons who think of themselves as victims of magistrates as a result of having their own cases brought before the judicial authorities want to form an association which would promote their interests, notably by using any legal means for making public alleged injustice, irregularity or illegality, and also by lawfully protesting against all of these aspects.

Such a premise, revealed also by the name of the association, is profoundly unconstitutional in that a group of persons are stating proprio motu that a judgment can be unfair, can be irregular or an expression of illegality. All these aspects incite to non-compliance with courts ’ judgments and represent a form of fighting against one of the State ’ s powers, namely the judiciary. ...

The infringement is prescribed by law ... in so far as, because of its aims, the association is not constitutional.

The measure aims to protect public order and the rights of others . ...

The measure is necessary in so far as at present the image of the justice system is a matter of national interest, any attack against the courts being therefore an issue of particular gravity, which justifies the refusal to grant legal personality to an association that wants to promote an unfavourable image of justice, having regard to the fact that none of its members has the capacity to note ( calitatea sǎ constate ) any “injustice, irregularity or illegality committed by the magistrates” because only the State authorities appointed to make inquires in that regard have competence to pronounce a conclusion on such matters.

The court did not consider it necessary to give the claimant the opportunity to remedy the impugned irregularity by modifying its statute, as prescribed by Article 9 of GO no. 26/2000, in so far as it considered that any modification of the aim of the association so as to make it constitutional would alter the very essence of the association.

The first applicant appealed against the judgment before the Bucharest County Court. He stressed that, according to its statute, all the association ’ s activities were to be conducted so as to be in compliance with the law and therefore its aim could not b e regarded as unconstitutional.

On 16 February 2006 the Bucharest County Court dismissed the appeal, upholding the reasoning given by the first-instance court. The court referred also to the provisions in the applicant association ’ s statute, according to which the Board of the association was competent to accept or reject a membership request on the basis of its own assessment of whether the aspiring member was or was not a victim of a breach of rights in a trial before a magistrate. Such competence was unlawful in so far as the Board thus exercised discretion in assessing whether there were breaches of rights, legitimate interests and/or law by the magistrates. In claiming to have such competence, the Board was attempting to substitute itself for the internal and international institutions empowered to make such assessments, which was unconstitutional, illegitimate and unlawful.

Furthermore, the court held that the statute did not comply with the legal requirements concerning the disposal of the association ’ s assets in the case of its dissolution. The statute prescribed that in case of dissolution, the disposal of the assets would be decided by the General Assembly, while the law required that it should be set down in the statute itself.

B. Relevant domestic law

Section 40 § 2 of the Romanian Constitution provi des that

“an organisation which, by its aims or activity, militates against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania shall be unconstitutional” .

The relevant legal texts concerning the registration of an association in the Romanian Register for Associations and Foundations, as cited in the judgments of The Argeş College of Legal Advisers v. Romania , no. 2162/05 , §§ 18-19, 8 March 2011, and Bozgan v. Romania , no. 35097/02, § 11, 11 October 2007, prescribe as follows:

Article 9 of GO no. 26/2000 on associations and foundations provides that the judge in charge of reviewing the legality of a request for registration and its supporting documents is to scrutinise the request within three days of the date it was lodged. If within this deadline the judge concludes that the documents submitted do not comply with the legal requirements, the representative of the association is to be summoned for a hearing held in private and one week will be granted in order for these irregularities to be remedied. When the deadline is reached, if the judge concludes that the irregularities have been remedied, he must take note of this in an interlocutory judgment and order the registering of the association in the Register of Associations and Foundations. If the irregularities have not been remedied, the request for registration is dismissed (Article 10).

Article 12 provides for an association to be registered in the Register of Associations and Foundations only when the judgment allowing the request for registration becomes final. Article 33 of the same Act provides that any changes to the statute of an association which has acquired legal personality and been registered must be recorded in the Register of Associations and Foundations according to a procedure that is similar to the one for registering an association.

The same Ordinance provides that an association may be dissolved by a judicial decision if its goals prove to be contrary to law or public order, or if they are achieved by unlawful means or means co ntrary to public order (Article 56).

COMPLAINTS

The applicants complain under Article 11 of the Convention that their right to the freedom of association was infringed by the authorities ’ refusal to register the association in accordance with the relevant domestic law.

Invoking Articles 6 and 14 of the Convention, the applicants complained that the impugned proceedings had been unfair in so far as the domestic courts had been partial and had discriminated against them in comparison with other associations, whose registration had been allowed.

QUESTIONS

1. Has there been an interference with the applicants ’ freedom of association, within the meaning of Article 11 § 1 of the Convention?

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