CASE OF KORETSKYY AND OTHERS v. UKRAINE
Violation of Art. 11;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
4. Mr Koretskyy was born in 1955, Mr Tolochko and Mr Lobytskyy were born in 1975, and Mr Gorbal was born in 1978. All the applicants live in Kyiv. 5. On 7 June 2000 the applicants and two other persons founded an association named “Civic Committee for the Preservation of Wild (Indigenous) Natural Areas in Bereznyaky” (“Громадянський Комітет за збереження дикої (корінної) природи Березняків”, the “Civic Committee”). Mr Koretskyy was elected as the Civic Committee’s head. 6. On 27 July 2000 the applicants filed an application for the State registration of the Civic Committee together with a copy of its articles of association with the Kyiv City Department of Justice (the “City Department”). 7. The Civic Committee’s articles read, in so far as relevant, as follows: “1.1. The Civic Committee ... (hereafter – the Committee) is a voluntary association of citizens, non-governmental organisations, and other legal entities, which unite their efforts in joint activities [aiming at the] preservation of wild (indigenous) natural systems in cities and towns. 1.2. The Committee is a non-governmental, non-profit organisation. ... 1.4. The activities of the Committee are to be carried out on the territory of Kyiv. The Committee may have representative offices in other cities and towns of Ukraine. ...” “2.1. The Committee’s activities shall be based on the principles of: a) democracy; b) legality; c) self-government; d) equality of members; e) openness; f) combination of local actions with global thinking; g) active creative initiative of the broader community.” “3.1. The Committee was founded with the aim of protecting natural systems from their complete destruction in the process of urbanisation and from their replacement by artificial biomes in the process of urban development and growth. 3.2. The aim of the Committee is to preserve the remaining indigenous natural areas on the territory of the contemporary residential area of Bereznyaky.” “4.1. The Committee ... shall have the task of taking concrete action to raise awareness among urban planners, members of bodies of local self-government, and the general public about ... the difference between indigenous natural systems and artificial natural systems in cities and towns, of the possible consequences of the loss of samples of natural ecosystems, as well as [the task of] coordinating joint activities of public authorities, non-governmental organisations, and the general public [aimed at] the prevention of such consequences, the result of which should be the preservation of indigenous biomes as natural samples. 4.2. According to [its] aim and tasks the Committee shall perform its activities in the following areas: a) collection of information concerning the indigenous nature of Bereznyaky; b) collection and study of world experience of coexistence of cities and natural systems; c) creation and development of a publicly accessible electronic database; d) cultural, educational, publishing, and informational activities; e) lobbying of issues connected with the preservation of natural ecosystems with the national and local authorities; ...” “5.1. ... the Committee shall have the right: a) to take part in civil law relations, to acquire pecuniary and non-pecuniary rights; ... d) to [disseminate] propaganda, and [carry out]cultural and educational activities; ... h) to set up entities and organisations, to set up media, and to perform publishing activities; i) to carry out non-governmental ecological expert examinations; ... 5.2. In order to fulfil its tasks the Committee shall have the right to carry out the necessary economic (“господарську”) and other commercial activities by means of establishing legal entities.” “6.1. Membership in the Committee may be individual, collective, honorary, as well as [through] voluntary participation (“в якості волонтерів”); ... 6.4. Citizens of Ukraine and other States who share the ideology and participate in certain projects and actions [of the Committee] for free, may become volunteers of the Committee; ...” “... 7.11. The Executive Board of the Committee shall be responsible for the financial administration of projects, the accounting of the Committee, and manage everyday administrative (“господарчу”) and financial activities to ensure the implementation of projects. ...” 8. On an unspecified date the application and articles of association were returned to the applicants and they were advised to make changes to the text, which were noted down by the City Department in the same documents. In particular, several sentences and paragraphs were crossed out, including paragraphs 3.1, 5.1 (d), and 6.4. Some other parts of the articles were rephrased or amended, like, for instance, the word “lobbying” in paragraph 4.2 (e) was replaced by “submission of propositions” and the phrase “to carry out non-governmental ecological expert examinations” in paragraph 5.1 (i) was reformulated to the effect that the Civic Committee could carry out ecological expert examination on a “voluntary basis”. 9. According to the applicants, on 6 September 2000 they submitted the redrafted version of the articles of association, in which the Department’s corrections were only partially accepted. The Government denied this. 10. By letter of 18 September 2000, the City Department informed the applicants of its refusal to register the Civic Committee on the ground that its articles had not been drafted in accordance with the domestic law. In particular, the Civic Committee’s status was not indicated; the provision that the Civic Committee could have representative offices in other cities and towns of Ukraine did not correspond to the provision that its activities were to be carried out on the territory of Kyiv; the articles listed two aims of the organisation instead of one aim and tasks; the Executive Board of the Civic Committee was entrusted with economic (“господарські”) functions while section 24 of the Associations of Citizens Act envisaged that the economic activities of an association could only be carried through separate legal entities which it could establish for that specific purpose; and the provisions that the Civic Committee could carry out publishing activities on its own and involve volunteers in its activities as members were contrary to the same law. Finally, the applicants had not taken into account all the corrections made to the text of the articles of association and they had submitted a copy of the document showing that they had paid registration fees, while the original was required. 11. In a letter of 20 September 2000, received by the City Department on 25 September 2000, Mr Koretskyy, acting on behalf of the Civic Committee as its head, stated that the Department had not taken into account the amended version of the Civic Committee’s articles lodged with it on 6 September 2000. He asked the Department to reconsider its decision in the light of the amended version of the articles of association, the additional copies of which he could submit if the Department wished. 12. By letter of 24 October 2000, the City Department acknowledged receipt of the applicants’ letter of 20 September 2000 and, referring to its letter of 18 September 2000, informed them that the articles of association could not be examined if they had not been re-drafted in compliance with the law. The Department also informed them that its refusal to register the Civic Committee could be challenged before the courts. 13. The applicants continued to carry out certain activities of the Civic Committee, in particular, publishing articles on its behalf in various newspapers. 14. On 30 November 2000 the applicants lodged a complaint with the Pecherskyy District Court of Kyiv, seeking the annulment of the City Department’s decision not to register the Civic Committee. They alleged a violation of their right to form an association and the right to freely choose its aims and areas of activities. They also argued that the reasons for the refusal to register their association had been based on an incorrect interpretation and application of the relevant law by the City Department. Furthermore, according to them, the City Department had failed to take into account the amended version of the articles of association, which they annexed to their complaint to the court. 15. On 13 March 2001 the court rejected the applicants’ complaint as unsubstantiated. On 28 August 2001 the Kyiv City Court of Appeal upheld the first-instance court’s decision. 16. The courts held that the refusal to register the Civic Committee had been lawful, since the articles of association contained textual discrepancies with the relevant provisions of the domestic legislation. In particular, the aim of the Civic Committee was not defined correctly and did not correspond to the requirements of sections 3 and 13 of the Associations of Citizens Act. The provisions of paragraphs 1.4, 5.1, and 7.11 of the articles of association authorising the Executive Board of the Civic Committee to carry out “everyday administrative and financial” activities and envisaging that the Civic Committee could perform publishing activities were not in compliance with sections 9 and 24 of that law. The wording of paragraphs 6.1 and 6.4 of the articles of association as regards the participation of volunteers in the Civic Committee’s activities contravened the principle of equality of members of an association embodied in section 6 of the law. 17. The courts also noted that the applicants had failed to submit a corrected version of the articles of association, while the versions they had filed with the courts had not been drafted in compliance with the law. 18. On 14 March 2002 a panel of three judges of the Supreme Court rejected the applicants’ request for leave to appeal in cassation, finding no grounds for examination of the case by the Civil Cases Chamber of the Supreme Court. 19. On 7 July 2002 the applicants decided to liquidate the Civic Committee and discontinued its activities. 20. The relevant provisions of the Constitution of Ukraine read as follows: “The legal order in Ukraine is based on the principles according to which no one shall be forced to do what is not envisaged by legislation. State and local self-government bodies and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.” “Citizens of Ukraine have the right to freedom of association in political parties and non-governmental organisations for the exercise and protection of their rights and freedoms and for the satisfaction of their political, economic, social, cultural and other interests, with the exception of restrictions established by law in the interests of national security and public order, the protection of the health of the population or the protection of rights and freedoms of other persons. ...” “The founding and activities of political parties and non-governmental organisations are prohibited if their programme goals or actions are aimed at the liquidation of the independence of Ukraine, the change of the constitutional order by violent means, the violation of the sovereignty and territorial indivisibility of the State, the undermining of its security, the unlawful seizure of Sate power, the propaganda of war, violence, the incitement of inter-ethnic, racial, [or] religious enmity, and encroachments on human rights and freedoms and the health of the population. Political parties and non-governmental organisations shall not have paramilitary formations. ... The prohibition of the activities of associations of citizens shall be exercised only through judicial procedure.” 21. Article 187-8 of the Code provides: “Leadership of an association of citizens which was not legalised in the order envisaged by law, or the legalisation of which was refused, or which was dissolved by a court decision, but which continues to act, as well as participation in the activities of such associations within a year following the application of the administrative sanction for the same offence, - shall be punishable by the deprivation of liberty for a term of up to five years.” 22. With the entry into force of the new Criminal Code on 1 September 2001, the above offence was decriminalised. 23. Article 186-5 of the Code reads: “Leadership of an association of citizens which was not legalised in the order envisaged by law, or the legalisation of which was refused, or which was dissolved by a court decision, but which continues to act, as well as participation in the activities of such associations - shall be punishable by a fine [in the amount] of twenty-five to one hundred and thirty times the statutory non-taxable monthly income.” 24. The relevant provisions of the Act read as follows: “A non-governmental organisation is an association of citizens for the satisfaction and protection of their lawful social, economic, creative, age-related, national and cultural, sporting and other mutual interests.” “Associations shall not be legalised, or the activities of legalised associations shall be prohibited through judicial procedure if their aim is: to change the constitutional order by violent means and the territorial integrity of the State by any illegal means; to undermine State security by means of activities in favour of foreign States; to propagate war, violence or brutality, fascism and neo-fascism; to incite national and religious enmity; to restrict generally recognised human rights. ...” “Associations shall be established and shall act on a voluntary basis and on the principles of equality of their members (participants), self-government, legality and openness. They shall be free to choose the direction of their activities. Restrictions on the activities of associations may be introduced only by the Constitution and the laws of Ukraine.” “Associations shall have pan-Ukrainian, local or international status. Pan-Ukrainian associations include associations the activities of which cover the entire territory of Ukraine and which have local branches in the majority of the regions [of Ukraine]. Local associations include associations the activities of which cover the territory of the respective administrative-territorial unit or region. Associations shall designate the territory of their activities independently. A non-governmental organisation shall be international if its activities cover the territory of Ukraine and of at least one other State. ...” “An association shall act on the basis of its articles of association. The articles of association shall include: 1) the name of the association (which shall differ from the names of existing associations), its status and address; 2) the aim and tasks of the association; 3) the conditions of and rules governing the granting of membership of the association, [and of] termination of membership; 4) the rights and duties of the members (participants) of the association; 5) the rules governing the founding and activities of the bodies of the association, local branches and their powers; 6) the sources of, and rules governing the use of, funds and other assets of the association, rules governing reporting, control, and conducting economic and other commercial activities necessary to fulfil the tasks [of the association]; 7) the procedure for changing and amending the articles of association; 8) the procedure for the liquidation of the association and settlement of property related issues connected with its liquidation. The articles of association may contain other provisions concerning the peculiarities of the founding and activities of the association. The articles of association shall not contradict the legislation of Ukraine.” “Legalisation (official recognition) of an association shall be compulsory and may be effected through the (association’s) registration or the notification of [its] foundation. The activities of an association which has not been legalised or which has been dissolved by a court decision shall be illegal. In the event of its registration the association shall become a legal entity. Political parties and international non-governmental organisations shall be registered by the Ministry of Justice. Legalisation of a non-governmental organisation shall be carried out by the Ministry of Justice, local bodies of State executive power, [or] executive committees of village and town councils. If the activities of a local non-governmental organisation cover the territory of two or more administrative territorial units, its legalisation shall be carried out by the relevant higher authority. The local bodies of State executive power and the executive committees of village and town councils shall register the local branches of registered pan-Ukrainian and international associations, provided such registration is envisaged by the articles of association of these associations. The body [of State power] responsible for the legalisation [of associations] shall make an act of legalisation (official recognition) of an association public through the media.” “The founders of associations shall submit an application for their registration... The application for registration shall be accompanied by the articles of association, minutes of the constituent meeting (conference) or general meeting of founders, information about the composition of the central [managing] bodies, information about local branches, documents confirming the payment of registration fees, save for cases when a non-governmental organisation is exempted from the payment of registration fees in accordance with the laws of Ukraine. ... The application for the registration shall be dealt with within two months following the receipt of the documents. If necessary, the body performing the registration shall verify the data contained in the submitted documents. The applicant shall be informed in writing about a decision to register or about a refusal to register within ten days. ...” “The registration of an association may be refused if its articles of association or other documents submitted for the registration contravene the legislation of Ukraine. A decision refusing the registration shall contain reasons for the refusal. This decision may be challenged before the courts. The body [of State power] responsible for the registration shall make public the refusal to register an association through the media.” “Non-governmental organisations and their unions may be legalised by giving written notice to the Ministry of Justice, local bodies of State executive power, [or] executive committees of village and town councils.” “To accomplish the goals and tasks set out in the articles of association, registered associations shall enjoy the [following] rights: to take part in civil law relations, to acquire pecuniary and non-pecuniary rights; to represent and protect their lawful interests and the lawful interests of their members (participants) before public and non-governmental bodies; to take part in political activities, hold public events (meetings, demonstrations etc.); to provide ideological, organisational, and financial support to other associations, to assist in their founding; to found entities and organisations; to receive information necessary for the fulfilment of their tasks from State and local self-government bodies; to disseminate information and to propagate their ideas and aims; to found media. Non-governmental organisations shall have the right to found enterprises necessary for the fulfilment of their tasks. ...” “To accomplish the goals and tasks set out in the articles of association, registered associations may carry out the necessary economic and other commercial activities by means of establishing separate legal entities, founding enterprises in accordance with the procedure envisaged by the legislation. ...” “Leadership of the association which was not legalised in the order envisaged by law, or the legalisation of which was refused, or which was dissolved by a court decision, but which continues to act, as well as participation in the activities of such associations shall be punishable by administrative or criminal law.”