AS TO THE ADMISSIBILITY OF
Application No. 28973/95
by Constantin BAISAN
for "Liga Apararii Drepturilor Omului din România"
(the League for the Defence of Human Rights
in Romania)
against Romania
The European Commission of Human Rights sitting in private on
30 October 1997, the following members being present :
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission ;
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms ;
Having regard to the application introduced on 30 January 1997
by Constantin BAISAN for "Liga Apararii Drepturilor Omului din România"
(the League for the Defence of Human Rights in Romania) against Romania
and registered on 25 October 1997 under file No. 28973/95 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission ;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission ;
- the observations submitted by the respondent Government on
9 January 1997 and the observations in reply submitted by the
applicant on 9 March 1997 ;
Having deliberated ;
Decides as follows :
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The second applicant (Liga Pentru Apararea Drepturilor Omului în
România, or the League for the Defence of Human Rights in Romania) is
an association founded on 2 April 1993 in Piatra-Neamt. It is
represented before the Commission by the first applicant, its
President, Constantin BAISAN, a Romanian national residing in Piatra-
Neamt.
A. Particular circumstances of the case
On 16 October 1993, the applicant and other persons created the
'League for the Defence of Human Rights in Romania'. The applicant was
elected President of the association.
On an unspecified date, and according to Law no. 24/1921 on legal
personality, the applicant association requested the Ministry of
Justice to issue an opinion on the granting of legal personality to the
applicant association.
By letter of 12 November 1993, the Ministry of Justice informed
the first applicant that he should obtain the consent of the 'League
for the Defence of Human Rights', established in Bucharest, ['Bucharest
League' hereinafter], an association bearing a name similar to that of
the applicant association and already registered as a legal person.
According to the applicant, the Bucharest League offered to grant
the applicant association the necessary consent, on condition that the
applicant association should affiliate to it. According to the
applicant, this proposal was made orally, as the Bucharest League
refused to answer in writing.
On 24 April 1994, the applicant association, represented by the
first applicant, applied to the Regional Court of Neamt for
registration under Law no. 21 of 6 February 1924. The application was
accompanied by a list of the founding members, the minutes of the
founding meeting, a list of the persons elected as office-holders, a
document entitled 'Statute of the association' and the letter from the
Ministry of Justice of 12 November 1993 (II/21172/1993).
On 8 September 1994, the Regional Court of Neamt dismissed the
applicant association's application. The court noted that it had not
presented the agreement of the Ministry in charge of the domain within
which the association's aims fell (in this case the Ministry of
Justice), as required by Law no. 21/1924.
On 21 December 1994, the applicant association's appeal was
dismissed by the Court of Appeal of Bacau on the following grounds :
"[...] The above-mentioned provisions are mandatory, and as the
applicant could not obtain the agreement required by Article 3
of Law no. 21/1924, the application was lawfully dismissed.
The applicant requested the agreement of the Ministry of Justice,
but the latter, by letter no. II/21172/1993, informed it that it
should obtain the agreement of the League for the Defence of
Human Rights based in Bucharest already registered as a legal
person. At the hearing of 8 September 1994, the legal
representative informed the court that he had not obtained that
agreement; he did not present it to the Appeal Court either. It
follows that the applicant's appeal is manifestly ill-founded."
On 13 April 1995, the Supreme Court of Justice dismissed the
applicant association's appeal, on the ground that the latter had not
obtained the agreement of the "League for the Defence of Human Rights"
in Bucharest, as suggested by the Ministry of Justice.
B. Relevant domestic law
Romanian Constitution of 1991
Article 37
"(1) Cetatenii se pot asocia liber în partide politice, în
sindicate si în alte forme de asociere.
(2) Partidele sau organizatiile care, prin scopurile ori prin
activitatea lor, militeaza împotriva pluralismului politic, a
principiilor statului de drept ori a suveranitatii, a
integritatii sau a independentei României sunt neconstitutionale.
[...]
(4) Asociatiile cu caracter secret sunt interzise."
< translation >
"(1) Citizens are allowed to associate freely in political
parties, trade unions and in other forms of association.
(2) Political parties or organisations which, in their scope or
activity militate against democratic pluralism, the principles
of the rule of law or against the sovereignty, integrity or the
independence of Romania are contrary to the Constitution.
[...]
(4) Secret associations are forbidden."
Article 49
"(1) Exercitiul unor drepturi sau al unor libertati poate fi
restrâns numai prin lege si numai daca se impune, dupa caz,
pentru : apararea sigurantei nationale, a ordinii, a sanatatii
ori a moralei publice, a drepturilor si a libertatilor
cetatenilor; desfasurarea instructiei penale; prevenirea
consecintelor unor calamitati naturale ori ale unui sinistru
deosebit de grav. (2) Restrângerea trebuie sa fie
proportionala cu situatia carea determinat-o si nu poate
atinge existenta dreptului sau a libertatii."
< translation >
"(1) The exercise of certain rights or freedoms can be restricted
only by law and only if necessary in the following situations:
for the defence of national security and public safety, for the
protection of public health or morals or for the protection of
the rights and freedoms of citizens, for the proper conduct of
criminal proceedings, for the prevention of adverse consequences
of natural disasters or of certain extremely serious accidents.
(2) The restriction must be proportionate to the situation which
has determined it and cannot affect the existence of the right
or freedom."
Law no. 21 of 6 February 1924 :
Article 3
"Asociatiunile [...] fara scop lucrativ sau patrimonial nu pot
dobândi personalitate juridica decât pe temeiul unei deciziuni
motivate a tribunalului civil în circumscriptia caruia s-a
constituit.
Aceasta deciziune nu se poate da decât la cererea celor
interesati [...] dupa ce s-a cerut avizul ministerului în
competenta caruia cade scopul asociatiunii [...]"
< translation >
"Non-profit-making associations [...] cannot obtain legal
personality unless there is a reasoned judgment of the civil
court in whose district the association was created.
This judgment can be pronounced only at the request of the
interested parties [...] after the opinion of the Ministry in
charge of the domain within which the association's aims fall has
been requested [...]"
Article 4
"Persoana juridica va avea fiinta numai de la data înscrierii
deciziunii de recunoastere ramasa definitiva, în registrul
special care va fi tinut în acest scop la grefa fiecarui tribunal
civil."
< translation >
"Legal personality is established as of the date of registration
of the final judgment in the special register kept for this
purpose by the competent court."Article 89
"Tribunalul cerceteaza în camera de consiliu daca actele depuse
pentru asociatii [...] îndeplinesc conditiile si formele
prevazute în legea de fata. Concluziile ministerului competent
si ale reprezentantului ministerului public sunt obligatorii si
hotarârea se va pronunta în sedinta publica fata cu acestia.
Neprezentarea concluziilor ministerului competent se considera
în favoarea constituirii persoanei juridice."
< translation >
"The court examines in camera whether the associations'
Memorandum and Articles of Association [...] fulfil the
substantive and formal conditions laid down by the present Law.
The conclusions of the competent Ministry and of the
representative of the State Counsel' Office (Ministerului Public)
are obligatory, and the decision shall be pronounced in their
presence. The non-presentation of conclusions by the competent
Ministry shall be considered to be in favour of the creation of
the legal person."
Implementing Regulations of Law no. 21/1924 :
Article 11
"Tribunalul constatând ca formele si cerintele articolelor de mai
sus sunt îndeplinite, va cere prin adresa avizul ministerului în
competenta caruia cade scopul asociatiei sau asezamântului [...]"
< translation >
"The court, where it considers that the substantive and formal
conditions of the above articles have been fulfilled, shall
request, in writing, the opinion of the Ministry in charge of the
domain within which the association's aims fall [...]"
Article 12 para. 2
"Avizul ministerului va cuprinde informatiile necesare asupra
utilitatii asociatiei [...] cât si daca actul constitutiv si
statutele contin toate dispozitiile necesare scopului si o buna
administrare a fondurilor."
< translation >
"The opinion of the Ministry shall contain the necessary
information as to the need for the association [...], and shall
deal with the question whether the association's founding act and
the statutes contain all the necessary provisions on the intended
activities and the proper administration of the funds."
COMPLAINTS
The applicants allege that the refusal of the domestic courts to
grant the applicant association legal personality is contrary to
Article 11 of the Convention. They complain that neither the opinion
of the Bucharest League for the Defence of Human Rights nor that of the
Ministry of Justice requested by the domestic courts were required by
law as a precondition for such grant.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 January 1995 and registered
on 25 October 1995.
On 16 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
9 January 1997. The applicants replied on 9 March 1997.
THE LAW
The applicants allege that the refusal of the domestic courts to
grant the applicant association legal personality is contrary to
Article 11 (Art. 11) of the Convention.
Article 11 (Art. 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 Government do not contest that the refusal of the courts to
grant the applicant association legal personality constitutes an
interference with its right to freedom of association. However, they
claim that this interference was in accordance with the law and was
necessary for the protection of the rights and freedoms of the "League
for the Defence of Human Rights" (Liga pentru Apararea Drepturilor
Omului), established in Bucharest.
The Government submit that the activity of defending human rights
is not within the competence of a specific ministry, but the general
practice since 1989 has been that the Ministry of Justice is competent
to provide the opinion required by Law No. 21/1924. The Ministry's
opinion is not binding on the judges. In the present case, the refusal
of the applicant association to comply with the requirements expressed
by the Ministry of Justice in its letter of 12 November 1993, that is,
to obtain the agreement of the Bucharest League, was considered by the
judges as interfering with the rights of the Bucharest League. The
Government submit that the refusal to register was based on Article 49
of the Romanian Constitution and was therefore necessary in order to
protect the interest of the Bucharest League.
Lastly, the Government point out that the applicant association
can, at any time, request registration if it decides to change its
name.
The applicants consider that neither the opinion of the Bucharest
League nor that of the Ministry of Justice requested by the domestic
courts were required by law as a precondition for registration.
Therefore, the refusal of the courts to register the applicant
association is contrary to their freedom of association.
The Commission notes that the first question which arises in this
case is whether the fact that the applicant association was unable to
register prevented it from pursuing its objectives and thus constituted
any interference with the applicant's right to freedom of association
(cf., e.g., No. 18874/91, Dec. 12.1.94, D.R. 76, p. 44).
However, the Commission considers that this question can remain
unanswered, because, even supposing that there was an interference,
that interference would have been justified under paragraph 2 of
Article 11 (Art. 11) of the Convention, for the following reasons.
Restrictions on the exercise of the right guaranteed by this
Article are permitted if they are "prescribed by law" and "necessary
in a democratic society" to achieve one of the legitimate aims listed
in Article 11 para. 2 (Art. 11-2).
In this case the Commission notes that the provisions of the
Romanian Constitution combined with the provisions of Law No. 21 of 6
February 1924 and its implementing Regulations empower the courts to
refuse registration in certain cases. These provisions were accessible,
foreseeable in their effects and compatible with the pre-eminence of
the rule of law.
As to the legitimacy of the interference, the Commission
considers that the aim pursued by the authorities was the protection
of the rights and freedoms of others which is one of the legitimate
aims set out in Article 11 para. 2 (Art. 11-2) of the Convention.
With regard to the necessity of the measure, the Commission
recalls that this implies "a pressing social need" and that States have
a margin of appreciation in this area (cf. Eur. Court HR, Handyside v.
United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22,
para. 48).
The Commission notes that the domestic courts, pursuant to the
relevant legal provisions, indicated to the applicants that they should
obtain, as the Ministry of Justice had suggested, the agreement of the
League for the Defence of Human Rights based in Bucharest, already
registered as a legal person.
As the applicants did not obtain this agreement, nor did they
apply for registration under a different name, the Commission considers
that the refusal of the courts to register the applicant association
cannot be regarded as unreasonable, having regard in particular to the
possibility of confusion between the applicant association's name and
that of the Bucharest League.
Therefore, the Commission considers that the refusal to register
the association can be regarded as a necessary measure in a democratic
society, having regard to the margin of appreciation States enjoy.
It follows that, in so far as there was an interference with the
applicants' right to freedom of association, the interference was
justified under Article 11 para. 2 (Art. 11-2) of the Convention (cf.
also No. 18874/91, Dec. 12.1.94, D.R. 76-A, p. 44).
The application must therefore be rejected as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy