Information Note on the Court’s case-law No. 115
January 2009
Ligue du monde islamique and Organisation islamique mondiale du secours islamique v. France - 36497/05
Judgment 15.1.2009 [Section V]
Article 6
Criminal proceedings
Article 6-1
Access to court
Obligation on foreign association without a head office in France to make a declaration to the prefecture in order to be able to take part in court proceedings: violation
Facts: The two applicant associations each lodged a complaint for defamation and applied to join the proceedings as civil parties. Their complaints followed the circulation in France of an article from an Egyptian daily newspaper on the civil actions that had been brought in the United States by nine American law firms on behalf of relatives of the victims of the attacks of 11 September 2001 against various categories of defendants, including the two applicant associations, which the article said were accused of providing material support for terrorism. The public prosecutor asked the investigating judge at the tribunal de grande instance to hear representations from the applicant associations and to invite them to produce documentary evidence that, in their capacity as foreign associations, they had taken the steps required by law to obtain capacity to take part in legal proceedings in France. The applicant associations produced evidence that they were duly declared in their country of origin and so had legal personality and capacity to take part in proceedings. The investigating judge declined to investigate either association’s complaint. The applicant associations appealed. The indictments division overturned the investigating judge’s orders and reclassified them as a ruling that the complaints were inadmissible. The applicant associations appealed on points of law, but their appeals were dismissed on the grounds that they had not complied with the statutory procedure which all associations, both French and foreign, were required to follow to obtain capacity to take part in judicial
Law: Questions relating to the formation of associations and the recognition of their legal capacity through a prior declaration to the prefecture were governed by the Law of 1 July 1901. Section 5, paragraph 3, of that statute provided that where the association’s head office was located abroad, the prior declaration required to obtain legal capacity had to be made at the prefecture for the département where its main office in France was located. The wording of that subsection indicated that it was intended to apply to foreign associations who wished to establish themselves in France in order to carry on an activity. It did not expressly address the question of how an association which, like the applicant associations, had its head office abroad and did not carry on any activity in France could obtain capacity to take part in legal proceedings there to defend its civil rights. The courts had required a declaration to be made at the prefecture where the main office was based. However, the applicant associations did not have such an office in France. Moreover, the ambiguity of the requirement to make a declaration in the locality where the main office was situated was heightened by the fact that, following the courts’ decisions, the Ministry of Foreign Affairs had informed the applicant associations’ lawyer that foreign associations had to make the declaration at the prefecture for the locality where they had elected domicile whereas, in a letter to the same lawyer, the police had required the association to open a main office in France. The Court noted in this connection that neither the relevant legislation nor the related case-law referred to the notion of elected domicile. Moreover, although the applicant associations had in fact elected domicile at their lawyer’s office, this had been for the purposes of the proceedings they had instituted in the French courts. That election of domicile could not constitute a fictitious main office for the purposes of complying with the legal requirements. Accordingly, by requiring the declaration prescribed by law, the French authorities had not only penalised the failure to comply with a simple formal step that was necessary to protect public order and third parties, they had also imposed an actual restriction on the applicant associations that was not sufficiently foreseeable and infringed the very essence of their right of access to court.
Conclusion: violation (unanimously).
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This summary by the Registry does not bind the Court.
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