Freedom of assembly and association (Article 11 of the Convention)
II. RELEVANT DOMESTIC LAW 11. The relevant provisions of Government Ordinance no. 26/2000 on associations and foundations read as follows: Article 1 “ ... (3 ) Political parties, trade unions and religious organisations are not covered by the present ordinance. ” Article 7 “(1) Any of the associates ... may apply for registration of the association in the Register of Associations and Foundations kept by the registry of the court where the association shall have its main office. (2) The following documents shall be attached to the application for registration : ( a) the memorandum of association; ( b) the articles of association; ... ” Article 8 “(1) An association gains legal personality from the moment of its registration in the Register of Associations and Foundations. ( 2 ) Within three days of the registration of the application and of the documents required under Article 7(2), the judge assigned by the president of the court shall examine their lawfulness and shall order the registration of the association by an interlocutory judgment .. .” Article 9 “(1) If the lawful requirements for registration have not been met, the judge shall, after the expiry of the time-limit set out in Article 8(2), summon in chambers the representative of the association and ask him in writing to resolve any irregularities ... ” Article 10 “ (1) If the irregularities have been resolved within the set time-limit, the judge ... shall order the registration of the association. (2) If the irregularities have not been resolved, or the representative of the association is absent without justification after being lawfully summoned, the judge shall reject the application for registration ... ” Article 11 “(1) The interlocutory judgments allowing or dismissing the request for registration are subject to appeal on points of law only ... ” Article 56 “ (1) The association shall be dissolved by a decision of a court of law at the request of an interested party if : ( a) the association ’ s goal or activity has become unlawful or is contrary to public order; ( b) it has achieved its goals by means that are unlawful or contrary to public order; ( c) the association has pursued a different goal from that for which it was founded; ( d) the association has become bankrupt; and ( e) the association has initiated activities requiring preliminary administrative authorisation without having such authorisation ... ” 12. The relevant provisions of Law no. 14/2003 on political parties read as follows: Article 2 “Through their activities political parties promote national values and interests, political pluralism, shape public opinion, take part in elections and in establishing public authorities, and lawfully encourage the participation of citizens in elections. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 13. The applicant complained under Article 11 of the Convention of a violation of his right to freedom of association, arguing that the rejection by the domestic courts of the application for registration of the association founded by him and four other associates had not been necessary in a democratic society and that the courts had failed to provide relevant and sufficient reasons for that restriction. The relevant part of the aforementioned Article reads as follows: “ 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.” A. Admissibility 14. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submission (a) The applicant 15. The applicant contested the Government ’ s claim that the association had been intended to carry out activities that could have been considered to fall within the field of activities of a political party and that he and his co ‑ founders had chosen that form of organisation in order to avoid the special legal provisions regulating political activity. The applicant submitted that he had wished to found an association and not a political party. 16. The applicant contended that the domestic courts had interfered with his right to freedom of association by refusing to register the EcoPolis association, but agreed that the interference had been prescribed by law, namely the relevant Articles of Government Ordinance no. 26/2000. 17. The applicant submitted that although the first-instance court had not identified any irregularities with regard to the association ’ s application for registration and had allowed it, the last-instance court had, as in similar cases that had been brought before the Court against Romania, failed to grant the association any time to modify the provisions of its articles of association which had been considered contrary to Government Ordinance no. 26/2000. The last-instance court had allowed the appeal on points of law by the Public Prosecutor ’ s Office after the initial hearing, in the absence of the association ’ s legal representative and without taking any of the other steps required by Article 9 of Government Ordinance 26/2000. 18. The applicant contended that Article 9 of the Government Ordinance no. 26/2000 did not state clearly whether it applied to appeal proceedings. He further argued that in accordance with that provision he should have been informed in writing of the need to rectify the irregularities in the articles of association pending a new hearing of the case, even though the aforementioned provisions might have been insufficiently clear or compatible with the rule of law and the last-instance court might have considered that they applied only to first-instance court proceedings. He argued that in the case of Argeş College of Legal Advisers v. Romania ( no. 2162/05, § 40, 8 March 2011 ) the Court had already considered that the main purpose of the option provided by Article 9 of Government Ordinance no. 26/2000 had been to give an association applying for registration the opportunity to comply with all the necessary formalities during the registration proceedings, should there be any irregularities in the initial application. 19. The applicant submitted that the last-instance court had rejected the application for registration by relying only on the provisions of the association ’ s memorandum and its articles of association. He considered, however, that the finding that some provisions of the memorandum and articles of association could have amounted to activities specific to political parties had been mere speculation and did not amount to compelling reasons that could have justified the interference with his freedom of association. In the applicant ’ s opinion, the goal of the association had certainly not been one that could have been attributed exclusively to political parties. 20. The applicant argued that the Government ’ s claim that the dismissal of the registration under Government Ordinance no. 26/2000 had not prevented him from making an application for registration of a political party was absurd, given that he and his co-founders had intended to establish an association and that the application for registration had contained the legal grounds for the application. Moreover, if they had considered it necessary, the domestic courts could have asked the interested parties to debate the necessity of changing the legal classification of the application. 21. The applicant also contended that the fact that the domestic courts had considered that the principles promoted by the association had been very general and had given rise to the possibility of their being classified as belonging to the domain of political parties could not have amounted to sufficient and compelling evidence of a threat to national security or to public safety and order. There had also been no similarity between the activities listed by the founding members of the association in the organisation ’ s articles of association and the activities carried out by political parties as defined by Law no. 14/2003 on political parties. 22. The applicant contested the Government ’ s submission that the measure in question had purported to prevent a possible abuse by the association in acting as a political party and had been aimed at upholding the rules regulating political parties. In so far as the association had not existed before and neither it nor its founding members had engaged in activities of a political nature, the refusal of the registration appeared disproportionate to the aim pursued and had been unnecessary in a democratic society. That was all the more so since Government Ordinance no. 26/2000 allowed the State authorities to dissolve any association which had pursued goals that were different from the ones for which it had been founded. (b) The Government 23. The Government submitted that the applicable legal provisions had allowed the domestic courts to refuse the registration of associations in certain circumstances. Those rules had been accessible, foreseeable in respect of their effects and compatible with the rule of law. The domestic courts had made their own assessment of the application for registration and had rejected it because they had considered that the goal of the association and the means to be employed to achieve them had been characteristic of political parties, which could not have been registered under the legal framework relied on by the applicant. 24. The Government contended that the interference had pursued a legitimate goal, namely the protection of the domestic legal order, and had aimed to prevent a possible abuse of the law by the association acting as a political party. 25. The Government acknowledged that the applicant ’ s intention could not have been confirmed by reference to the actual conduct of the association, as it had never been registered. They also acknowledged that the goal of founding a political party had not been explicitly stated in the memorandum of association and that any unstated intention that the applicant might have had as regards political activity would have depended on a combination of future events. However, they contended that the memorandum of association had afforded the organisation broad-ranging means with which to accomplish its goals without having had to expressly mention a desire to register as a political party. Thus, behind its innocuous appearance as an ordinary association, the organisation had de facto thought of itself as being a political party. Consequently, the domestic courts had refused the association ’ s registration and had based their reasoning on the realities behind the appearance. 26. The Government also argued that by reviewing the compliance of the application for registration with the relevant domestic rules regulating that field, the domestic courts had simply exercised their power to review the lawfulness of the application and to reject any ambiguous or misleading clause that could have potentially led to an abuse of the law. They also contended that the dismissal of the association ’ s application for registration under Government Ordinance no. 26/2000 had not deprived the organisation of the possibility of submitting another application for registration as a political party under Law no. 14/2003 on political parties. The fact that the domestic courts had decided that the latter legislation had been applicable in respect of the association ’ s application for registration could not have been considered an infringement of the applicant ’ s right of freedom of association, as the applicant had not been free to choose the domestic rules applicable to his association. 27. The Government submitted that the domestic courts had not imposed a general ban on the registration of the association. Therefore, the applicant had the option of either modifying the association ’ s articles or of applying for its registration as a political party. 28. The Government argued that in accordance with the Court ’ s case ‑ law the State ’ s margin of appreciation could include a right to interfere with an association ’ s internal organisation and functioning in the event of non-compliance with reasonable legal formalities applying to its establishment, functioning or internal organisational structure. Consequently, they contended that the domestic courts ’ refusal to register the association had met a pressing social need and had been proportionate. 29. The Government argued that, as in the case of Gorzelik and Others v. Poland ( [GC], no. 44158/98, ECHR 2004-I ), the authorities had not prevented the applicant from forming an association to express and promote the distinctive features of a union, but from creating a legal entity which through registration under Government Ordinance no. 26 /2000, given its stated goal, would inevitably have become entitled to special status under the law applicable to political parties. 2. The Court ’ s assessment (a) General principles 30. The Court reiterates that in matters of freedom of association, the right enshrined in Article 11 includes the right to form an association in order to act collectively in a field of mutual interest (see The Argeş College of Legal Advisers, cited above, § 31, and Gorzelik and Others, cited above, § § 88-93). 31. The Court further reiterates that the way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. The Court has repeatedly referred to the direct relationship that exists between democracy, pluralism and freedom of association, and it has established the principle that only convincing and compelling reasons can justify restrictions on freedom of association. All such restrictions are subject to rigorous supervision by the Court (see, among many other authorities, Association of Victims of Romanian Judges and Others v. Romania, no. 47732/06, § 25, 14 January 2014, and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 4 1342/98, 41343/98 and 41344/98, §§ 86 ‑ 89, ECHR 2003 ‑ II ). Consequently, in determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision, embracing both the law and the decisions applying it, including those given by independent courts (see Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, § 49, ECHR 2012). 32. In its scrutiny, the Court ’ s task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion; it must therefore look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see The Argeş College of Legal Advisers, cited above, § 33, and Partidul Comuniștilor (Nepecerişti) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005 ‑ I ). (b) The application of those principles in the instant case (i) Existence of interference 33. In so far as the Government ’ s submissions may be understood to amount to a claim that the refusal of the domestic courts to register the EcoPolis association had not interfered with the applicant ’ s right to freedom of association, the Court observes that it has already established that such a refusal by the authorities amounted to an interference with the aforementioned right of the association or of its founding members (see Association of Victims of Romanian Judges and Others, cited above, § 20; The Argeş College of Legal Advisers, cited above, § 3 4; and Gorzelik and Others, cited above, § § 88-93). Consequently, notwithstanding the Government ’ s submission, the Court has no reason to hold otherwise. ( ii) Justification of the interference 34. The Court is satisfied that the interference in question was prescribed by law, namely by Government Ordinance no. 26/2000, and that it pursued a legitimate aim, namely the protection of public order. 35. It must therefore proceed to examine whether the interference at issue, namely the refusal by the domestic courts to register the association, met a “pressing social need” and was “proportionate to the legitimate aims pursued”. 36. The Court notes in this connection that, in so far as the association in question had not been active before applying for registration, the national courts based their refusal of the application for registration solely on an assessment of whether the memorandum and articles of association submitted to them complied with the provisions of Government Ordinance no. 26/2000. The Court will therefore rely on these documents as the basis for assessing whether the interference in question was necessary (see, among other authorities, Refah Partisi (the Welfare Party) and Others, cited above, § 116, and Association of Victims of Romanian Judges and Others, cited above, § 28 ). 37. The Court observes from the reasons put forward by the Bucharest County Court that the main problem with the registration of the association was the provisions of its memorandum and articles of association, which used general concepts and led the last-instance court to believe that the organisation wanted to carry on activities that could have been perceived as belonging to the field of activity of political parties, which by their nature could not have been registered under the provisions of Government Ordinance no. 2 6/2000. In that decision, the County Court had regard to the association ’ s goal and to part of Article 7 (defining the objectives of the association ) of its articles of association. 38. The Court further notes that Articles 9 and 10 of Government Ordinance no. 26/2000 provided that the judge reviewing an application for registration could allow some time for the person making the application to remedy any irregularities affecting the registration after that person had been summoned and been asked in writing to do so. This option was explicitly provided by law for first- instance court proceedings, although no express provisions had been made in respect of appeal proceedings. 39. The Court reiterates that the main purpose of the aforementioned legal provision was to allow an association making an application for registration to comply with all the necessary formalities during the registration proceedings, should there be any irregularities in the initial application (see The Argeş College of Legal Advisers, cited above, § 4 0 ). 40. In the applicant ’ s case, the first-instance court did not identify any irregularity in respect of the association ’ s application for registration and therefore allowed it. Following the appeal on points of law lodged by the Public Prosecutor ’ s Office, the last-instance court identified some irregularities in the application. However, it does not appear from the evidence available in the case file that the applicant was either summoned in chambers, or asked in writing to remedy those irregularities. Given that the national law aimed to give associations a chance to remedy any irregularities during the registration process, the decision of the last-instance court to dismiss the application for registration without allowing the applicant any time or giving him an opportunity to remedy the deficiencies found by the court appears to contradict the purpose and spirit of the law (see, mutatis mutandis, The Argeş College of Legal Advisers, cited above, § 40). 41. The Court notes that the last-instance court ’ s statements seem to have been based on mere suspicions regarding the true intentions of the association ’ s founders and the activities it might have engaged in once it had begun to function (see, mutatis mutandis, Sidiropoulos and Others v. Greece, 10 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ IV, and Bozgan v. Romania, no. 35097/02, § 23, 11 October 2007). The provisions of the association ’ s founding instruments gave no indication that its goal was the setting up of a political party or that it had intended to involve itself in political activities (contrast Bota v. Romania (dec.), no. 24057/03, 12 October 2004). Also, there is no evidence in the case file that the association ’ s founding members had intended to use their association as a de facto political party. Their organisation, had it been founded as an association, would have not been able to take part in the elections and in establishing public authorities, i.e. in the activities, mentioned in Article 2 of Law no. 14/2003 (see paragraph 12 above). Therefore, the Court sees no need to speculate whether the said Law defines any field of activity as an exclusive domain of political parties, which an association is not allowed to enter, and whether the goal and objectives of the applicant ’ s association as described by its memorandum and articles of association could have had any attributes that entered that hypothetical domain. 42. As regards the Government ’ s arguments that the decision of the last ‑ instance court had not deprived the organisation of the possibility of making another application for registration as a political party under Law no. 14/2003 on political parties, the Court notes that the applicant expressly stated in his submissions before it that he and his co-founders had acted with the sole purpose of registering an association and not a political party. Likewise, in so far as the Government suggested that the association could have made a second application for registration after amending its articles of association, the Court observes that it has already established that imposing such a duty on the applicant would have amounted to a disproportionate burden given that the domestic legislation had allowed for the possibility of having the potential irregularities remedied during the course of the first set of registration proceedings (see Bozgan, cited above, § 29 ). 43. Furthermore, the Court also notes that domestic law provides for the possibility of dissolving an association should it be demonstrated that the association ’ s goal or activity has become unlawful or contrary to public order or that the association has achieved its goals by means that were unlawful or contrary to public order (see The Argeş College of Legal Advisers, cited above, § 42 ). 44. In the light of the foregoing considerations, the Court is not convinced that the factual circumstances of the present case are similar to those in the case of Gorzelik and Others ( cited above ), where the applicants had refused to amend the provisions of the articles of association without any perceptible practical purpose other than preparing the ground for enabling their association and its members to benefit from the electoral privileges afforded by Polish election laws even after the authorities had notified them during the registration process that the registration of their association would not be possible in the absence of such amendments. Therefore, the Court cannot accept the Government ’ s submission that the conclusion reached by the Court in that case also applies to the present one. 45. Taking into account all of the above, the Court considers that the reasons invoked by the authorities for refusing registration of the EcoPolis association were not guided by any “pressing social need”, nor were they convincing and compelling. Consequently, a measure as radical as the refusal to register the association, taken even before the association had started operating, appears disproportionate to the aim pursued (see Association of Victims of Romanian Judges and Others, cited above, § 34 ). 46. That being so, the interference cannot be deemed necessary in a democratic society. 47. There has accordingly been a violation of Article 11 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage. He argued that the decision of the last-instance court had prevented him from founding a non-profit, non-governmental organisation and from pursuing his calling as an environmental activist by developing new projects in that field. The decision of the last-instance court had caused him feelings of uncertainty about the possibility of carrying out activities benefiting the community and had infringed his right to dignity and honour in so far as his desire to help the community had been met by the authorities ’ suspicion that he had intended to breach the law. The authorities had also continued to disregard his right to freedom of association, in spite of the Court ’ s repeated findings of a violation of Article 11 in Romanian cases. The clemency showed by the Court in previous cases, when it had considered that the mere finding of a violation amounted to sufficient just satisfaction for an applicant, had failed to improve the authorities ’ behaviour. 50. The Government contended that, in line with the Court ’ s case-law, the finding of a violation provided sufficient just satisfaction for the applicant. In that connection, they submitted that if the Court found a violation of the Convention provisions in the present case, the relevant civil procedure rules allowed the applicant to lodge an extraordinary appeal to review proceedings ( revizuire ) in order to ask the domestic courts to restore the situation that had existed before the alleged breach of the Convention. 51. The Court considers that the applicant must have suffered non ‑ pecuniary damage as a result of the infringement of his right guaranteed by Article 11 of the Convention, which cannot be made good by the mere finding of a violation. Consequently, making an assessment on an equitable basis, the Court awards the applicant EUR 4, 50 0 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 52. The applicant also claimed EUR 1,847 for the costs and expenses incurred before the Court to be paid directly to his representative. These included EUR 1,697 in lawyer ’ s fees (charged at between EUR 5 and EUR 120 per hour depending on the complexity of the tasks performed by the lawyer) and EUR 150 for secretarial and mailing expenses. The applicant submitted an agreement between him and his counsel and a breakdown of the number of hours worked by the lawyer on the case. 53. The Government submitted that the amount of costs and expenses claimed by the applicant was speculative and excessive. They argued that the applicant had not produced any relevant documents in order to substantiate his claims and that therefore he was not entitled to an award in respect of costs and expenses. 54. In accordance with the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the complexity of the issues, the lawyer ’ s work and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 8 00 in respect of costs and expenses, to be paid directly into the bank account indicated by the applicant ’ s representative. C. Default interest 55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 11 of the Convention, finding that the reasons invoked by the Romanian authorities for refusing registration of the association were not guided by any pressing social need, nor were they convincing and compelling. Consequently, a measure as radical as the refusal to register the association, taken even before the association had started operating, appeared disproportionate to the aim pursued.