Communicated on 27 April 2016
THIRD SECTION
Application no. 78607/11
PREOBRAZHENIYE ROSSII AND OTHERS
against Russia
lodged on 6 December 2011
STATEMENT OF FACTS
The applicant organisation, Preobrazheniye Rossii, was prior to its dissolution a public association registered under Russian law with its head office in Novosibirsk. The second and third applicants, Mr Sergey Vasilyevich Kabanov and Mr Daniil Yuriyevich Girich, born in 1979 and 1980 respectively, are Russian nationals living in Kemerovo. The applicants are represented before the Court by Mr A. Rakhmilovich, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background information on the applicant organisation and its core activities
On 16 April 2001 the Kemerovo regional charitable organisation Preobrazheniye (Transformation) was created with a view to helping the socially disadvantaged. On 25 May 2001 it was registered by the Kemerovo Regional Department of the Ministry of Justice of Russia. On 25 February 2003 it was included in the Unified State Register of Legal Entities.
Preobrazheniye spread its activities outside the Kemerovo Region. As a result, on 1 April 2006 its memorandum of association was amended to read “the interregional charitable organisation ‘Preobrazheniye’”; on 5 May 2006 the changes were officially registered.
On 1 August 2008, as the organisation spread its activities further, its name was changed to “the All-Russia charitable organisation ‘Preobrazheniye Rossii’” (Transformation of Russia). On 8 December 2008 the amendments to the memorandum of association were registered.
The second applicant was a vice president of the applicant organisation, while the third applicant was a member of its management board.
Its statutory objectives included providing “social support and protection [to] individuals who, owing to their physical and intellectual capacities and other circumstances, can not independently make use of their rights and legitimate interests”, “rehabilitation [to] those addicted to toxic substances and alcohol” and “assistance in social adaptation to ex-convicts and persons with no abode”.
The applicant organisation created rehabilitation centres in which people in need could stay voluntarily and free of charge. During their stay people could obtain help in combatting addictions and learning social adaptability skills. They were expected to work, either in the rehabilitation centre or outside, as the applicant organisation financed itself by providing paid services to third parties, namely cleaning and loading services. Work was considered an essential prerequisite to successful social rehabilitation.
By 2011 the applicant organisation had established and was managing 357 rehabilitation centres throughout Russia.
It also regularly organised charity fundraising events. Free lunches were distributed weekly (or in certain areas, daily) to those in need.
The applicant organisation used a coat of arms depicting a horseman facing right and carrying a spear aimed at a dragon on its stamp, letterheads and other visual materials. It appears that the logo was not registered as required by law.
2. Suspension of the applicant organisation’s activities and subsequent events
On 11 March 2010 the applicant organisation applied to the Ministry of Justice of Russia (“the Ministry”) requesting to register its logo.
On 1 April 2010 the Ministry refused to register it because of its similarity to the coat of arms of Moscow (an image of St George slaying the dragon).
On 8 April 2010 the Ministry, after carrying out a review of its activities, issued a warning to the applicant organisation with an order to rectify various breaches of law. Firstly, it had failed to register its logo and had used the coat of arms of Moscow on its stamp and letterheads without the government of Moscow’s permission. Secondly, it had not provided the Ministry with proof that it had kept a register of its members as required, nor with information concerning charity programmes and their financing. Thirdly, it had provided social services to addicts, ex‑convicts, orphans, persons with suicidal tendencies and the homeless despite not having the status of “social service provider” under the Social Services Act 1995. Lastly, it had carried out commercial activities, such as cleaning and loading services, and received profits from its rehabilitation centres.
On 15 September 2010 the Ministry issued an instruction to the applicant organisation. Noting that it had failed to rectify the breaches of law indicated in the warning, the Ministry instructed the applicant organisation to do so by 10 November 2010, warning it that failure to comply with the instruction might lead to suspension of its activities.
It appears that at some point the applicant organisation provided the Ministry with a number of documents concerning its activities.
On 2 September 2010 the management board decided to remove the logo similar to the coat of arms of Moscow from the stamp and letterheads.
On 15 November 2010 the Ministry, relying on section 42(2) of the Federal Law on Public Associations no. 82-FZ of 19 May 1995 (“the Public Associations Act”), suspended the applicant organisation’s activities until 20 March 2011.
Despite the decision suspending its activities, on 24 November 2010 the applicant organisation published on its website an open call for the best letter to the Minister of Justice of Russia in support of it. In February 2011 it disseminated promotional flyers featuring its logo similar to the coat of arms of Moscow. On 6 and 13 March 2011 it ran charity events known as “Feed the Hungry”. It also organised an event to mark Children’s Day.
On 1 February 2011 the general assembly of the applicant organisation’s members (“the assembly”) decided to issue a warning to the applicant organisation’s members indicating that an image resembling St George slaying the dragon should not be used in its documents.
The applicant organisation contested the decision of 15 November 2010 suspending its activities before the Supreme Court of Russia, arguing that it had been decided that the image similar to the coat of arms of Moscow would be removed from its stamp and letterheads and that the information requested by the Ministry had been provided within the required period.
On 6 April 2011 the Supreme Court of Russia dismissed that complaint. It noted that in February 2011 the applicant organisation had still been using the logo similar to the coat of arms of Moscow. It further observed that providing the Ministry with minutes of a meeting of the assembly had not been sufficient to comply with the applicant organisation’s obligation to keep a register of its members. The applicant organisation was not a specialist social services provider under the Social Services Act; consequently, it had breached sections 3 and 17 of that law by providing social services to the public. Furthermore, it had not provided estimates of expenditure concerning its charitable activities, contrary to sections 17 and 19 of the Charities Act. The Supreme Court concluded that the Ministry had acted lawfully in suspending the applicant organisation’s activities, as the indicated breaches of law had not been rectified within the required period.
The applicant organisation appealed.
On 11 May 2011 the assembly approved a new logo for the applicant organisation depicting a horseman facing left and aiming a spear at a dragon. A description of the new logo was then sent to the Ministry for registration, as was an amended version of the memorandum of association.
On 19 May 2011 the applicant organisation sent to the Ministry two lists of its members as at 1 August 2008 and 11 May 2011, several decisions by the board to admit or exclude members, and a description of its charity programme “Ethical education, spiritual development and the moral and social support of citizens in 2007-11” (“the charity programme”), together with a long-term estimate of expenditure for 2007 to 2011. In addition, it later submitted a more detailed estimate of expenditure relating to the charity programme.
On 27 May 2011 the Ministry refused to register the amendments to the memorandum of association.
On 3 June 2011 it issued an order refusing to register the new logo of the applicant organisation. No reasons for the refusal were given.
On 7 June 2011 the Cassation Panel of the Supreme Court of Russia dismissed the appeal against the judgment of 6 April 2011 and upheld it in full. Repeating the reasoning of that judgment, it found that the applicant organisation had breached a number of legal provisions.
3. Dissolution of the applicant organisation and ensuing proceedings
On 23 March 2011 the Ministry applied to the Supreme Court of Russia seeking dissolution of the applicant organisation under section 44 of the Public Associations Act on the grounds that it had failed to rectify the breaches of law listed in the warning of 8 April 2010 and the instruction of 15 September 2010. It was further noted that it had organised public events despite the decision suspending its activities, in breach of section 43 of the Public Associations Act.
In reply to the Ministry’s application for dissolution, the applicant organisation submitted that providing cleaning and loading services had corresponded to its statutory objectives, that there had been no other sources of income, that the breaches of law indicated by the Ministry had been rectified and that the public events organised after the suspension of its activities had been compatible with section 43 of the Public Associations Act. In support of those submissions, it provided copies of decisions by its assembly and board dated 2 September 2010 and 1 February 2011, as well as a copy of the documents submitted to the Ministry on 19 May 2011. It also argued that it had been virtually impossible to immediately seize all printed materials carrying an image similar to that of St George which had been put into circulation prior to the Ministry’s warning.
On 8 June 2011 the Supreme Court of Russia granted the Ministry’s request and dissolved the applicant organisation. It held that the applicant organisation had failed to rectify the breaches of law indicated by the Ministry and had carried out a number of activities in spite of the suspension order.
The applicant organisation appealed.
On 16 August 2011 the Cassation Panel of the Supreme Court of Russia upheld the judgment in full.
Following the applicant organisation’s dissolution, a large proportion of of its rehabilitation centres were closed owing to, among other things, a lack of legal personality to enter into leases.
B. Relevant domestic law and practice
1. Registration of Legal Entities Act no. 129-FZ of 8 August 2001
Under section 5(1) and (5), all legal entities must be registered in the Unified State Register of Legal Entities. Each entry must contain the address of the legal entity and the names of its ex officio representatives. The registration authority must be notified of any changes to that information.
2. Public Associations Act no. 82-FZ of 19 May 1995
Section 5(1) defines a public association as “a voluntary self-governed non-commercial formation created at the initiative of citizens who have joined together on the basis of common interests with a view to achieving the common objectives listed in [its] memorandum of association (hereinafter “the statutory objectives”)”.
Under section 24(1) and (2), public associations may have logos, such as emblems, coats of arms, heraldic symbols, flags and anthems. However, they may not be identical to the logos of international organisations, States, regions and municipalities of Russia and the army.
Under section 37, public associations may carry out commercial activities as long as they serve to achieve the statutory objectives.
Section 42(1) provides that if a public association breaches the Constitution or Russian law or commits acts contrary to its statutory objectives, a State registration body, the Prosecutor General or a prosecutor may indicate the breaches to the association’s governing body and set a time-limit for rectification. Under section 42(2), if the breaches indicated have not been rectified within the required period, the State agency or agent in question may suspend the public association’s activities for up to six months.
Section 43(1) provides that a decision suspending a public association’s activities has certain consequences. Its rights as a media publisher are suspended, and it is forbidden from organising any kind of public gathering, participating in elections and using bank accounts, except where it is required to make contractual, salary, liability and tax payments.
Section 44(1) lists the grounds for dissolution of a public association. Breaches of human rights and freedoms, repeated or serious breaches of the Constitution, law and other legal norms, the systematic performance of activities contrary to its statutory objectives, or failure to rectify the breaches listed by a State registration agency as grounds for suspending the association’s activities.
3. Social Services Act no. 195-FZ of 10 December 1995 (repealed by Federal Law no. 442-FZ of 28 December 2013)
Section 3 defined “social services providers” as enterprises and institutions of all forms of property, and individual entrepreneurs providing social services to the population. It defined “social services” as acts of providing assistance as defined by the Act to specific categories of citizens in accordance with Russian law.
Section 17(1) listed thirteen specific types of social services institutions and “other institutions providing social services”. Section 17(2) read that “social services enterprises include enterprises providing social services to the population”. Section 17(3) stated that the establishment and functioning of social services institutions and enterprises should be governed by the Civil Code of Russia.
4. Charities Act no. 135-FZ of 11 August 1995
Section 4(1) provides that individuals and legal entities have a right to freely engage in charitable activities on a voluntary basis. They may do so on their own or in association with others, either with or without prior registration as a charity (section 4(2)).
Under section 17(1) and (2), a charity programme – a series of events aimed at achieving the specific objectives approved by a charity’s management body – should contain an estimate of its income and planned expenditure and set stages and time-limits for its completion. Under section 17(3), at least 80% of a charity’s income should be used for charity programmes within the time-limits set therein.
Section 19 entitled “Supervision of charitable activities” sets rules on charity bookkeeping.
COMPLAINT
The applicants complain under Article 11 of the Convention, alleging a disproportionate interference with their freedom of association on account of the dissolution of the applicant organisation.
QUESTION TO THE PARTIES
Has there been an interference with the applicants’ right to freedom of association under Article 11 of the Convention on account of the dissolution of the applicant organisation? If so, was it “prescribed by law”? Did it pursue one or more of the legitimate aims referred to in Article 11 § 2 of the Convention? Did it correspond to a “pressing social need”? Was the interference proportionate to the legitimate aim(s) pursued?
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