EHRM, 14-01-2014, nr. 47732/06

The Court is satisfied that the impugned interference was prescribed by law, namely by Ordinance no. 26/2000 and by Article 40 § 2 of the Romanian Constitution.

In the Court's opinion, the impugned interference pursued a number of legitimate aims, namely the preservation of public order and of the rights and freedoms of others.

As the Court has already held in its relevant case-law in matters of freedom of association, the right enshrined in Article 11 includes the right to form an association in order to act collectively in a field of mutual interest (see Gorzelik and Others v. Poland [GC], no. 44158/98, §§ 88–93, ECHR 2004-I, and Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports of Judgments and Decisions 1998-IV).

The Court further reiterates that the way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. The Court has repeatedly referred to the direct relationship that exists between democracy, pluralism and freedom of association, and it has established the principle that only convincing and compelling reasons can justify restrictions on freedom of association. All such restrictions are subject to rigorous supervision (see, among many other authorities, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 86–89, ECHR 2003-II).

Consequently, in determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision, embracing both the law and the decisions applying it, including those given by independent courts (see Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, § 49, ECHR 2012).

In its scrutiny, the Court's task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion; it must therefore look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Sidiropoulos and Others, cited above, § 40 and Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005-I).

In the instant case the Court must assess whether the interference at issue, namely the refusal by the domestic courts to register the association, met a ‘pressing social need’ and was ‘proportionate to the legitimate aims pursued’.

The Court notes at the outset that, in so far as the applicant association had not been active before applying for registration, the national courts based their refusal of the applicants' request solely on an assessment of whether the Memorandum and Articles submitted to them complied with the generally broad provisions of Article 40 § 2 of the Constitution. The Court will therefore take these documents alone as their basis for assessing whether the interference in question was necessary (see, among other authorities, Refah Partisi (the Welfare Party) and Others, cited above, § 116, and The Argeş College of Legal Advisers v. Romania, cited above, § 37).

The Court observes that the domestic courts in their reasoning repeatedly referred to the association's aims as essentially unconstitutional and illegal (see paragraphs 6–8 above).

Furthermore, the domestic courts considered it unnecessary to allow the applicant association an opportunity to change its Articles; in their view, any change would have altered the very essence of the association, which was to encourage non-compliance with final judgments, to erode the image of the justice system, in brief, to oppose the judiciary, while arrogating to itself powers which only the national authorities had (see paragraph 6 above).

While strongly agreeing that public trust in the judiciary was a very valuable consideration, the Court however is not convinced that the aims incriminated in the national judgments emanated from the Articles of the aspiring association; moreover, the Court considers that the domestic courts' statements were based on mere suspicions regarding the true intentions of the association's founders and the activities it might have engaged in once it had begun to function (see, mutatis mutandis, Sidiropoulos and Others, cited above, § 46, and Bozgan, cited above, § 23).

The factual situation in the instant case is different from that in the case of Bota v. Romania ((dec.), no. 24057/03, 12 October 2004), where the Court found that the dissolution of an association which had among its stated aims the ‘setting up of bar associations’ and whose members effectively performed activities which were within the exclusive competence of the Romanian bar association was proportionate.

In the present case it does not appear that the Articles of the applicant association contained any indication that it had the aim of setting up similar organisations or parallel structures designed to encroach on existing State institutions. On the contrary, the relevant clauses refer to the objective of promoting cooperation between the association's members and those ‘authorised by law to protect their rights and interests’ or with ‘the legislative bodies’ (see paragraph 8 above).

Furthermore, the Court notes that the domestic law provides for the possibility of dissolving an association should it be demonstrated that it has goals which are contrary to public order or that it acts contrary to the provisions of its Articles (see, mutatis mutandis, Bozgan, cited above, § 36).

With respect to the county court's reference to the manner in which the disposal of the association's assets was regulated in the Articles, the Court firstly notes that this issue was raised for the first time in the appellate proceedings; furthermore, no deadline was allowed to the applicant association to remedy the alleged irregularity, as required by Article 9 of the Ordinance (ibid., § 28).

Taking into account all the above, the Court considers that the reasons invoked by the authorities for refusing registration of the applicant association were not determined by any ‘pressing social need’, nor were they convincing and compelling. Moreover, such a radical measure as the refusal of registration, taken even before the association started operating, appears disproportionate to the aim pursued (see Koretskyy and Others v. Ukraine, no. 40269/02, §§ 54– 55, 3 April 2008).

That being so, the interference cannot be deemed necessary in a democratic society.

There has accordingly been a violation of Article 11 of the Convention.