Communicated on 22 March 2016
THIRD SECTION
Applications nos. 35949/11 and 58282/12
Nikolay ALEKSEYEV and MOVEMENT FOR MARRIAGE EQUALITY against Russia and Nikolay ALEKSEYEV and Others against Russia
lodged on 20 May 2011 and 20 August 2012 respectively
STATEMENT OF FACTS
I. APPLICATION NO. 35949/11
A. The circumstances of the case
The first applicant, Mr Nikolay Aleksandrovich Alekseyev, is a Russian national who was born in 1977 and lives in Moscow. He is the founder and the executive director of the second applicant, Movement for Marriage Equality, an autonomous nonprofit organisation operating in Moscow. The applicants are represented before the Court by Mr D. Bartenev, a lawyer practising in St Petersburg.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In November 2009 the first applicant decided to create an autonomous nonprofit organisation called Movement for Marriage Equality with the aims of defending human rights in the sphere of marriage relations, of combatting discrimination on the grounds of sexual orientation and gender identity and of promoting equality for gays, lesbians, bisexuals and transsexuals, in particular through legalisation for same-sex marriage.
On 14 December 2009 the first applicant submitted an application to register the second applicant with the Moscow department of the Federal Registration Service of the Ministry of Justice (hereafter “the Moscow registration authority”).
On 12 January 2010 the Moscow registration authority refused to register the second applicant, finding that its articles of association were incompatible with Russian law. In particular, the second applicant’s aims described in paragraph 3.1 of the articles of association were incompatible with section 2 § 2 of the Nonprofit Organisations Act and Article 12 of the Family Code (see below). Moreover, the second applicant’s rights set out in paragraph 5.1 of its articles of association were those belonging to public associations. Paragraph 11.1 stating that the organisation could cease its activities in a case where it was to be reorganised was incompatible with the Civil Code, which provided that a reorganisation did not always result in a cessation of activities. Paragraphs 12.1 to 12.3 provided that changes could be made to the second applicant’s articles of association instead of to its constitutional documents. Some clauses contained in paragraph 7.1 describing the second applicant’s sources of income were also incompatible with the law. The application for registration mentioned only one founder of the second applicant, while its articles of association mentioned that it had been founded by citizens. There was a mistake in the address indicated in the application for registration.
On 5 April 2010 the first applicant challenged the refusal before the Gagarinskiy District Court of Moscow. He submitted, in particular, that the refusal to register the second applicant violated his freedom of association guaranteed by Article 30 of the Russian Constitution and Article 11 of the Convention. He argued that the second applicant’s aims were compatible with section 2 § 2 of the Nonprofit Organisations Act. It pursued the social aim of promoting equality and combatting discrimination, and the aim of defending human rights, specifically the right to marry for gays, lesbians, bisexuals and transsexuals. As regards the alleged incompatibility with Article 12 of the Family Code, the fact that the second applicant intended to promote an amendment to that Article to legalise same-sex marriage could not serve as grounds for refusing its registration. He also argued that the remaining grounds for the refusal of registration had not had any basis in law. Paragraph 5.1 of the articles of association did not mention any activities that were prohibited by law to nonprofit organisations. Paragraph 11.1 only mentioned the possibility of ceasing activities in the case of a reorganisation in accordance with Russian law, it did not provide for an automatic cessation of activities. Paragraphs 12.1 to 12.3 provided that changes could be made to the second applicant’s articles of association which was its only constitutional document. Paragraph 7.1 did not mention any sources of income prohibited by law. Furthermore, although the first applicant admitted that there had indeed been a discrepancy between the application for registration mentioning one founder and the articles of association mentioning “founders” in the plural, that had been a technical error that could be easily corrected through a special procedure provided for by law. Lastly, he argued that the address indicated in the application had been correct.
On 20 July 2010 the Gagarinskiy District Court dismissed the first applicant’s complaint. It held that section 2 § 2 of the Nonprofit Organisations Act enumerating permissible aims for nonprofit organisations was open-ended. It followed that a nonprofit organisation could pursue any aims except for making profit provided they were compatible with public order and morality. The court further held as follows:
“[The second applicant pursues aims] incompatible with basic morality as it aims to promote legalisation of same-sex marriage and to increase the number of citizens belonging to sexual minorities, thereby undermining the conceptions of good and evil, of sin and virtue established in society. If these aims are attained it may trigger a public reaction and result in a decrease in the birth rate.”
The District Court further held that in accordance with national tradition, reflected in Article 12 of the Family Code, marriage was a union of a man and a woman with the aim of giving birth to and raising children. The second applicant’s aim of promoting legalisation of same-sex marriage was therefore incompatible with the established morality, with the State policy of protecting the family, motherhood and childhood and with national law. The District Court noted that that finding did not breach Russia’s international obligations because, in particular, Article 12 of the Convention provided that the right to marry was to be exercised in accordance with national laws.
The District Court also found that the other grounds for the refusal of registration advanced by the Moscow registration authority had been lawful and justified.
On 20 December 2010, following an appeal by the applicants, the Moscow City Court upheld that judgment.
B. Complaints
The applicants complain under Articles 10 and 11 of the Convention, taken alone and in conjunction with Article 14 of the Convention, about the refusal to register the second applicant and of discrimination on grounds of sexual orientation. They argued, in particular, that the refusal to register the second applicant was based on the Russian authorities’ conviction that homosexuality was immoral and a sin and that associations defending the rights of homosexuals should not be therefore allowed to exist.
II. APPLICATION NO. 58282/12
A. The circumstances of the case
The first applicant, Mr Nikolay Aleksandrovich Alekseyev, is a Russian national who was born in 1977 and lives in Moscow. The second applicant, Mr Aleksandr Sergeyevich Naumchik, is a Russian national who was born in 1982 and lives in Moscow Region. The third applicant, Mr Kirill Sergeyevich Nepomnyashchiy, is a Russian national who was born in 1981 and lives in Krasnoyarsk Region. They are the founders of the fourth applicant, Sochi Pride House, a public movement operating in Krasnodar. The applicants are represented before the Court by Mr D. Bartenev, a lawyer practising in St Petersburg.
In October 2011 the first, second and third applicants decided to create Sochi Pride House with the aims of developing sport activities for gays, lesbians, bisexuals and transsexuals, of combating homophobia in professional sports, of creating positive attitudes towards LGBT sportspeople, and of providing a forum for the latter during the Sochi Olympic Games.
On 19 October 2011 they submitted an application for registration of the fourth applicant with the Krasnodar department of the Federal Registration Service of the Ministry of Justice (hereinafter “the Krasnodar registration authority”).
On 16 November 2011 the Krasnodar registration authority refused to register the fourth applicant, finding that its articles of association were incompatible with Russian law. In particular, the name of the fourth applicant contained words that did not exist in the Russian language, in breach of section 1 § 6 of the State Language Act (see below). The articles of association did not indicate which type of organisation the fourth applicant was. Paragraph 4.2 mentioned, in breach of the domestic law, that legally incapacitated persons could not be members. The application for registration contained several mistakes.
On 6 December 2011 the applicants challenged the refusal before the Pervomayskiy District Court of Krasnodar. They argued, firstly, that it was the usual practice to give public associations original names containing words in a foreign language. In particular, according to official data, there were eleven registered associations whose names contained the word “pride” and more than forty associations with the word “house” as part of their names. Moreover, the expression “pride house” did not have an adequate equivalent in Russian. Secondly, paragraph 1.1 of the articles of association indicated the fourth applicant’s organisational type: a public movement. The remaining mistakes were minor and should not serve as a ground for refusing registration.
On 20 February 2012 the Pervomayskiy District Court dismissed the applicants’ complaint. It upheld the grounds for the refusal of registration cited by the Krasnodar registration authority, finding that they had been lawful and justified. The court also held as follows:
“The aims of combating homophobia and creating positive attitudes towards LGBT sportspeople are incompatible with basic morality as they may lead to increasing the number of citizens belonging to sexual minorities, thereby undermining the conceptions of good and evil, of sin and virtue established in society ...
The court does not see any reason to order that the respondent register [the fourth applicant] because its constitutional documents do not comply with the requirements of Russian law and its aims are incompatible with basic morality and the State policy of protecting the family, motherhood and childhood. Its activities amount to propaganda of a non-traditional sexual orientation, which may undermine national security, cause social and religious hatred and enmity and undermine the sovereignty and territorial integrity of the Russian Federation by decreasing its population. They are therefore extremist in nature.”
The applicants did not attend the pronouncement of the judgment. The written text of the judgment was deposited with the court’s registry on 5 March 2012.
On 19 March 2012 the applicants dispatched by post a short version of their appeal submissions against the judgment of 20 February 2012.
On 25 March 2012 they dispatched by post a complete version of their appeal submissions.
On 28 March 2012 the Pervomayskiy District Court returned the short version of the appeal submissions to the applicants, finding that the appeal had been lodged on 26 March 2012, that is to say outside the one-month time-limit established by law. The applicants had not proved that they had received a copy of a reasoned version of the judgment with a delay.
On 4 April 2012 the Pervomayskiy District Court returned the complete version of the appeal submissions, finding that the appeal had been lodged out of time.
The applicants appealed against the decisions of 28 March and 4 April 2012. They submitted that under Article 321 § 2 of the Code of Civil Procedure the one-month time-limit for lodging an appeal had started to run on the day when a written copy of the first-instance judgment was made available to the parties. A written copy of the judgment of 20 February 2012 had been deposited with the court’s registry on 5 March 2012. Therefore the time-limit for lodging an appeal had expired on 5 April 2012. In any event, even if the time-limit had started to run on the date the judgment had been pronounced, they had still complied with the time-limit as they had dispatched the appeal submissions by post on 19 March 2012, that is to say less than a month after the pronouncement of the judgment of 20 February 2012. They submitted a copy of the postal invoice confirming the dispatch date.
On 24 July 2012, following an appeal by the applicants, the Krasnodar Regional Court upheld the decision of 28 March 2012, finding that it had been lawful, well-reasoned and justified.
It appears that a subsequent appeal by the applicants against the decision of 4 April 2012 was never been examined.
B. Complaints
The applicants complain under Article 11 of the Convention, taken alone and in conjunction with Article 14 of the Convention, about the refusal to register the fourth applicant and of discrimination on grounds of sexual orientation. They argued, in particular, that the refusal to register the fourth applicant was based on the Russian authorities’ conviction that homosexuality was immoral and a sin and that associations defending the rights of homosexuals should not be therefore allowed to exist.
The applicants complain, under Article 6 of the Convention, that the refusal to examine their appeal on the merits breached their right of access to a court.
Common QUESTIONS
1. Did the refusals to register the applicant organisations interfere with the applicants’ rights under Article 11 of the Convention? Was the interference prescribed by law? Was it “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention?
2. Can the applicant organisations claim to be victims of the alleged discrimination on account of sexual orientation, contrary to Article 14 of the Convention, taken together with Article 11 (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 72 and 87, ECHR 2000‑VII, and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 88, 31 July 2008; see also, mutatis mutandis, L’Erablière A.S.B.L. v. Belgium, no. 49230/07, §§ 25-29, ECHR 2009‑...)?
3. Did the applicants suffer discrimination on account of sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 11?
Case-specific QUESTION
As regards application no. 58282/12, given that the applicants’ appeal against the judgment of 20 February 2012 was not examined on the merits, has the applicants’ “right of access to a court” guaranteed by Article 6 § 1 been respected?
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