CASE OF ASSOCIATION OF VICTIMS OF ROMANIAN JUDGES AND OTHERS v. ROMANIA
Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
5. On 28 June 2005 the applicant association lodged an application with the Bucharest District Court, seeking to be granted legal personality and to be registered as an association in the Register of Associations and Foundations kept by that court. According to its Articles, the founders of the applicant association were the other nine applicants. The Board of the association had five members, while Ms Neagu was designated as the President of the Association. In support of its application, the applicant association appended a document issued by the Ministry of Justice confirming that the name chosen for the association was available, as well as a copy of its Memorandum (act constitutiv) and Articles (statut), which, in their relevant parts, read: “The goal of the association is to protect the rights and the legitimate interests of its members before all domestic authorities with the capacity to administer, supervise and/or enact justice. The objectives of the association are: - to support and promote the relationship between its members and those authorised by law to protect their rights and interests; - to monitor the activity of the Romanian justice system with the aim of reporting to the relevant authorities any injustice, irregularities or illegalities committed by Romanian judges; - to present in the media any cases of manifest unfairness or bias in the application of the law, in so far as the public has the right to be aware of any negative aspects of the activities of the Romanian justice system; - to support its members in their undertakings before any international court; - to organise any form of protest (marches, public gatherings, picketing), with prior authorisation from the authorities and in accordance with the law; - to signal the gravity and the public danger represented by an non-impartial or an incompetent judicial system; - to create a database of all cases involving its members that are pending before the authorities; - to cooperate with the legislative bodies by providing them with ideas, projects, proposals, etc. with the aim of improving the functioning of the Romanian judicial system.” 6. On 30 November 2005 the court rejected the application, holding that the goal of the applicant association was in breach of Article 40 § 2 of the Romanian Constitution, which states that “an organisation which, by its aims or activity, militates against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania shall be unconstitutional”. The court noted as follows: “In its Articles, the applicant [association] starts from the premise that a group of individuals who consider themselves victims of judges – as a result of having had their own cases brought before the judicial authorities – want to form an association which would promote their interests, notably by using any legal means for publicising any alleged injustice, irregularity or illegality, and also by lawfully protesting against all of these aspects. Such a premise, also implicit in the name of the association, is profoundly unconstitutional in that a group of individuals is stating proprio motu that a judgment can be unfair or irregular or an expression of illegality. All these aspects encourage non-compliance with courts’ judgments and represent a form of attack on one of the State’s powers, namely the judiciary.(...) The infringement is prescribed by law ... in so far as the association is not constitutional because of its aims. The measure aims to protect public order and the rights of others. (...) The measure is necessary in so far as the image of the justice system is currently a matter of national interest, and any attack on the courts is therefore an issue of particular gravity which justifies the refusal to grant legal personality to an association that wants to promote an unfavourable image of justice, in the light of the fact that none of its members has the authority to note (calitatea sǎ constate) any “injustice, irregularity or illegality committed by the judges” because it is only the State authorities appointed to make inquiries in that regard which have jurisdiction to pronounce a conclusion on such matters.” The court did not consider it necessary to give the applicant association the opportunity to remedy the impugned irregularity by modifying its Articles, as prescribed by Article 9 of Government Ordinance no. 26/2000, in so far as it considered that any modification of the aims of the applicant association rendering it constitutional would alter the very essence of the association. 7. The applicant association appealed against the judgment before the Bucharest County Court. It stressed that, according to its Articles, all the association’s activities had to be conducted in compliance with the law and its aim could therefore not be regarded as unconstitutional. 8. On 16 February 2006 the Bucharest County Court dismissed the appeal, upholding the reasoning given by the first-instance court. The court referred also to the provisions in the applicant association’s Articles, according to which the Board of the association was competent to accept or reject a membership request on the basis of its own assessment of whether or not the aspiring member was a victim of a breach of his or her rights in a trial before a judge. Such competence was unlawful in so far as the Board thus exercised a form of discretion in assessing whether there were breaches of rights, legitimate interests and/or law by the judges. In claiming to have such competence, the Board was attempting to usurp the domestic and international institutions empowered to make such assessments, which was unconstitutional, illegitimate and unlawful. Furthermore, the court held that the Articles did not comply with legal requirements concerning the disposal of the association’s assets in the event of its dissolution. The Articles prescribed that “in event of dissolution, the disposal of the assets would be decided by the General Meeting, in compliance with the provisions of Article 60”, while the law, namely article 6 § 3 g) of the Ordinance “required that the procedure should be set down in the Articles itself”.