Last Updated on April 23, 2020 by LawEuro
THIRD SECTION
DECISION
Application no. 34196/05
Boris Vladimirovich MELEKHIN
against Russia
The European Court of Human Rights (Third Section), sitting on 11 February 2020 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Helen Keller,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 29 August 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Boris Vladimirovich Melekhin, is a Russian national, who was born in 1950 and lives in Miass. He was represented before the Court by Mr R.V. Kravtsov and Mr A.G. Bulin, lawyers practising in Rostov-on-Don.
2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr Galperin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The founders’ meeting
4. On 12 June 2004 the applicant and thirteen other persons identifying themselves as Cossacks held a meeting at which they decided to found a Chelyabinsk Regional Cossack Ethnic-Cultural Autonomy, a special type of public association. They adopted its Articles of Association and elected its bodies (Managing Council and Control-Revision Commission). The applicant was elected President of the Managing Council.
5. Clause 2 (1) of the Articles defined the association’s main goals as “cultural rehabilitation and rebirth of Cossacks as historically established ethnic group, independent decision-making in the spheres of preserving Cossacks’ identity, development of language, education and national culture”.
6. Clause 2 (2) of the Articles defined the association’s main tasks as “cultural, spiritual, moral nurturing of Cossack population, preservation and development of Cossack traditions and customs, study and promotion of Cossack history, protection of the rights and lawful interests of the Cossacks in State bodies and local authorities, development of ties with Cossack population in other parts of the country and abroad, participation in election campaigns aiming at representing the Cossack population in State bodies and local authorities”.
2. The registration proceedings
7. On 5 July 2004 the applicant submitted to the Chelyabinsk Regional Justice Department (ГлавноеуправлениеМинистерстваюстицииРоссийскойФедерациипоЧелябинскойобласти) an application for the registration of the Chelyabinsk Regional Cossack Ethnic-Cultural Autonomy, together with the documents required by law.
8. On 5 August 2004, relying on Section 23 of the Law on Public Associations, the Chelyabinsk Regional Justice Department refused to register the association. The Justice Department held that the Articles of Association of the Chelyabinsk Regional Cossack Ethnic-Cultural Autonomy were in contradiction with the Law on Ethnic-Cultural Autonomy. It stated, particular:
“In accordance with Section 1 of the [Law on Ethnic-Cultural Autonomy], ethnic-cultural autonomy in the Russian Federation is a form of ethnic-cultural self-determination, which has the form of an association of the citizens of the Russian Federation identifying themselves as part of a certain ethnic group constituting a ethnic minority on the territory concerned, on the basis of their voluntary self-organization for the purposes of independent resolution of the issues of preserving their identity, development of their language, education and national culture. In accordance with the Decree of the Government of the Russian Federation no. 355 of 22 April 1994 on State Policy Concerning Cossacks, the Cossacks are a particular group of the Russian people which is connected with State service and has multinational origins comprising more than forty ethnic groups. Therefore, people of various ethnic origins and [speaking different] languages can be the Cossacks, and the definition of the Cossacks is not related to any specific people or ethnic group, since a people is inseparably linked with a common territory and language.
The RSFSR Law no. 1107-1 of 26 April 1991 on the Rehabilitation of Peoples That Were Subjected to Repressions distinguished between the concepts of a people, an ethnic group and a cultural-ethnic group. According to Section 2 of the Law, a cultural-ethnic group does not form part of an ethnic group.
In accordance with Clause 1.1 of the Articles of Association you create the Chelyabinsk Regional Cossack Ethnic-Cultural Autonomy, however, the creation of a Cossacks ethnic-cultural autonomy is not provided for by law. In accordance with the President’s Decree no. 632 of 15 June 1992 on Measures of Implementation of the Law on Rehabilitation of Peoples That Were Subjected to Repressions in Respect of the Cossacks, the Cossacks are defined as a historically formed cultural-ethnic group, but not an ethnic group that constitutes an ethnic minority, as is required by Section 1 of the [Law on Ethnic-Cultural Autonomy].”
9. On 1 November 2004 the applicant challenged the lawfulness of the above refusal in court.
10. On 2 March 2005 the Tsentralniy District Court upheld the decision of the Chelyabinsk Regional Justice Department. The court stated, in particular, that under Section 1 of the Law on Ethnic-Cultural Autonomy only people that identify themselves as an ethnic minority may create ethnic-cultural autonomies. However, according to the Government decree on State Policy Concerning the Cossacks of 22 April 1994, the Cossacks are a particular group of Russian people that is connected to the military service and has members of over forty ethnic groups. Accordingly, the Cossacks may not be considered to form an ethnic group and, therefore, are not entitled to creation of an ethnic-cultural autonomy.
11. On 17 May 2005 the Chelyabinsk Regional Court upheld the above decision on appeal having endorsed the reasoning of the first-instance court.
12. On 6 December 2005 the applicant sought to have the judgment of 2 March 2005, as upheld on appeal on 17 May 2005, reviewed on account of newly discovered circumstances. The applicant referred, in particular, to state registration on 31 January 2000 of the Volgograd Regional Cossack Ethnic-Cultural Autonomy.
13. On 21 December 2005 the Tsentralniy District Court of Chelyabinsk refused to reopen the proceedings, since the existence of the Cossack Ethnic-Cultural Autonomy in the Volgograd Region could have had no bearing on the court’s decision to grant the applicant’s claim or dismiss it.
14. On 7 February 2006 the Chelyabinsk Regional Court upheld the above decision on appeal.
3. Other developments
15. On 11 October 2011 the Supreme Court of Russia, in a final decision, granted the application by the Volgograd Regional Justice Department to liquidate the Volgograd Regional Cossack Ethnic-Cultural Autonomy. The Supreme Court held that pursuant to the domestic law the Cossacks may form Cossack associations (казацкоеобщество) but not ethnic-cultural autonomies, and that the registration of the Volgograd Regional Cossack Ethnic-Cultural Autonomy constituted an error in application of the law.
B. Relevant domestic law and practice
1. The Constitution of the Russian Federation
16. The relevant Articles of the Constitution read as follows:
Article 26 § 1
“Everyone shall have the right to determine and indicate his ethnicity. No one may be forced to determine and indicate his or her ethnicity.”
Article 30 § 1
“Everyone shall have the right to association, including the right to create trade unions for the protection of his or her interests. The freedom of activity of public association shall be guaranteed.”
Article 55 § 3
“The rights and freedoms of man and citizen may be limited by the federal law only to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for ensuring defence of the country and security of the State.”
2. Law of the Russian Soviet Federative Socialist Republic on the Rehabilitation of Peoples That Were Subjected to Repressions, no. 1107-1 of 26 April 1991 (The RSFSR Law on the Rehabilitation)
17. The relevant Section of the Law reads as follows:
Section 2
“Peoples (peoples, ethnic groups and other cultural-ethnic groups that had been historically formed, e.g. the Cossacks) are considered to have been subjected to repressions if against them on the State level was conducted the policy of slender and genocide, accompanied with their forced migration, suppression of ethnic units, modification of the territorial borders [of such units] and establishment of the regime of terror and violence in the places of special settlements.”
3. Federal Law on Public Associations, no. 82-FZ of 19 May 1995
18. The relevant Sections of the Law read as follows:
Section 3. Content of the citizens’ right to association
“The citizens’ right to association involves the right to create on voluntary basis public associations for the protection of their common interests and attaining their common goals, the right to join the existing public associations or abstain from joining them, as well as the right to freely withdraw from public associations.
The creation of public associations fosters the implementation of the rights and legitimate interests of the citizens.
The citizens have the right to create public associations of their choice without prior authorization by the State bodies and local authorities, as well as to join such public associations on condition of compliance with their articles of association.”
Section 16. Restrictions on creation of public associations and their activity
“The creation and activity of public associations whose goals and actions are directed to carrying out extremist activities shall be prohibited.
…
The restrictions on creation of certain types of public associations may be established only by federal laws.”
Section 21. State registration of public associations
“For acquiring the rights of a legal person a public association shall be subject to State registration in accordance with federal law of 8 August 2011 No. 129-FZ on state registration of legal persons and individual entrepreneurs.
The decision on state registration (refusal of state registration) of a public association is taken by the [competent federal executive body], or its territorial body. … ”
Section 23. Refusal to register a public association
“The state registration of a public association shall be refused on the following grounds:
1) if the articles of a public association contradict the Constitution of the Russian Federation and the legislation of the Russian Federation; …
The refusal of state registration of a public association … may be appealed against to … a court. … ”
4. Federal Law on Ethnic-Cultural Autonomy, no. 74-FZ of 17 June 1996
19. The relevant Sections of the Law read as follows:
Section 1. Definition of ethnic-cultural autonomy
“Ethnic-cultural autonomy in the Russian Federation is a form of ethnic-cultural self-determination, which has the form of an association of the citizens of the Russian Federation identifying themselves as part of a certain ethnic group constituting a ethnic minority on the territory concerned, on the basis of their voluntary self-organization for the purposes of independent resolution of the issues of preserving their identity, development of their language, education and national culture.
Ethnic-cultural autonomy is a variety of a public association. The legal form of organization of an ethnic-cultural autonomy is a public association.”
Section 12. Securing by the federal executive agencies and the executive agencies of the constituent territories of the Russian Federation of the right to receive secondary education in mother tongue and of the right to choose the language of bringing up and education
“Federal executive agencies and the executive agencies of the constituent territories of the Russian Federation in accordance with the legislation of the Russian Federation and the legislation of the constituent territories of the Russian Federation on languages of the peoples of the Russian Federation [and] on education and with the present Federal Law…
Carry out financing of the arrangements aimed at securing the right to receive education in [one’s] mother tongue in the State [and] municipal educational facilities, at the expense of the corresponding budgets and out-of-budget allocations within the assets assigned for education;
…”
Section 19. Financial support of ethnic-cultural autonomies by agencies of State authority of the constituent territories of the Russian Federation
[as in force until 9 February 2009]
“With a view to preserve the ethnic character, to develop the mother tongue and ethnic culture and to exercise ethnic-cultural rights of the citizens of the Russian Federation who identify themselves with specific ethnic groups, agencies of State authority of the constituent territories of the Russian Federation, in accordance with the laws of the constituent territories of the Russian Federation, may provide in the budget of the constituent territories of the Russian Federation for financial means in order to provide support to the ethnic-cultural autonomies.”
5. Federal Law on State Service of the Russian Cossacks, no. 154-FZ of 5 December 2005
20. The relevant Section of the Law reads as follows:
Section 2. Basicnotions
“1) The Russian Cossacks [are] the citizens of the Russian Federation [who are] members of Cossack associations (казацкие общества);
2) The state register of Cossack associations in the Russian Federation [is an] information resource containing data on Cossack associations;
3) A Cossack association [is a] voluntary association of the citizens of the Russian Federation in the form of a non-profit organization, created in accordance with the federal law, entered into the state register of Cossack associations of the Russian Federation, the members of which took it upon themselves in the established order the obligation to carry out state or other service; …”
6. President’s Decree on Measures of Implementation of the Law on Rehabilitation of Peoples That Were Subjected to Repressions in Respect of the Cossacks, no. 632 of 15 June 1992
21. The relevant provisions of the decree read as follows:
“For the purposes of the restoration of historical justice in respect of the Cossacks, rehabilitation thereof as of a historically formed cultural-ethnic group… Idecree:
1. To condemn the policy of repressions, arbitrariness and unlawfulness conducted by the State and the Party in respect of the Cossacks and their specific representatives.
2. To support the movement for the resurrection of the Cossacks, restoration of [their] economic, cultural and patriotic traditions and forms of self-government, while at the same time not allowing either the return to any privileges based on [social class] or forced imposition [on anybody] of the Cossack way of life.
3. To establish that people, who identify themselves as the Cossacks’ direct descendants and express the wish to jointly restore and develop the Cossack traditional forms of economy, to resurrect and preserve their culture and way of life, to participate in State or other service, as well as [those] who voluntarily joined the Cossacks, may form Cossack associations and create them in the form of homestead, village, town, district, regional or military Cossack associations and of the all-Russia Cossack association.”
7. Order of the Supreme Council of the Russian Federation on Rehabilitation of the Cossacks, no. 3321/1 of 16 July 1992
22. The relevant provisions of the order read as follows:
“Pursuant to the requirements of the RSFSR Law on rehabilitation of repressed peoples, aiming at full rehabilitation of the Cossacks and creation of necessary conditions for their rebirth as historically established ethnic-cultural community, the Supreme Council holds:
…
3. Recognize the Cossacks’ rights to … create public Cossack associations with historically established names, including expatriates’ communities (землячества), unions (союзы) and other associations; their registration and activity in accordance with general procedure provided for the public associations of citizens.”
8. Decree of the Government of the Russian Federation on State Policy Concerning Cossacks, no. 355 of 22 April 1994
23. The relevant provisions of the decree read as follows:
1. Resurrection of the State Cossack Service
“For the main part of their history the Cossacks were related to State service, and it was in the course of the State service that the Cossacks acquired the features that distinguish them as a particular group of the Russian people. The combination of State service with a specific military-agricultural way of life constituted the precondition for the development of the traditional form of the Cossack State service, which proved itself highly efficient throughout centuries …
The Cossack State service is not the only issue related to the resurrection of the Cossacks. However, the Government proceeds from [the assumption that] the Cossacks culture, traditions and customs were formed in connection with the State service and the specific way of life …”
4. Cossacksterritorialunits
“… Cossacks traditionally had multicultural origins. Representatives of more than forty ethnic groups served in the Cossack troops. Balanced policy, based on the best Cossack traditions, and involvement in the State service of Cossack representatives from various nationalities may become an important factor of inter-ethnic stability in various regions of Russia.”
COMPLAINT
24. The applicant complained that the refusal to register the Chelyabinsk Regional Cossack Ethnic-Cultural Autonomy violated his Convention rights. He relied in this regard on Articles 6 § 1, 11, 13, 15 and 17 of the Convention and Article 1 of Protocol No. 12.
THE LAW
25. The Court, being the master of characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/10, §§ 123-26, 20 March 2018), considers that the complaint falls to be examined under Articles 11 and 14 of the Convention, which read as follows:
Article 11
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic association in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with an ethnic minority, property, birth or other status.”
A. The parties’ submissions
26. The Government submitted, firstly, that the applicant had abused the right of individual application having failed to inform the Court that the decision to register the Volgograd Regional Cossack Ethnic-Cultural Autonomy had been quashed by the Supreme Court of Russia in a final decision of 11 October 2011.
27. As regards the complaint under Article 11, the Government argued that the interference was in accordance with the Law on Public Associations and the Law on Ethnic-Cultural Autonomy, whose provisions were sufficiently precise and foreseeable. They further maintained that while it was the State’s duty to protect ethnic minorities, the modalities of such protection fell within the State’s margin of appreciation. The possibility to create an ethnic-cultural autonomy was one of such modalities. Under Section 12 of the Law on Ethnic-Cultural Autonomy the State was under an obligation to support the ethnic-cultural autonomies by financial and other means with a view, in particular, to preserve the ethnic minorities’ culture, traditions and language. Therefore, wrongful registration of an ethnic-cultural autonomy would lead to people unfairly obtaining certain privileges and guarantees, and to the State bearing a corresponding obligation to provide for them. This would result in embezzlement of the assets intended for support of ethnic minorities and thus potentially to the breach of their rights.
28. As for the complaint under Article 14, the Government pointed out that the State had envisaged ethnic-cultural autonomies specifically for ethnic minorities. At the same time, the domestic law specifically provide the Cossacks with a possibility to form an association for the purposes of exercising their rights, which remains open to the applicant. The applicant is also free to form any other association in respect of which the domestic law does not provide specific requirements similar to those in respect of ethnic-cultural autonomy. Thus, the applicant has not been discriminated in any way with regard to his right to freedom of association.
29. The applicant averred that the refusal to register the Chelyabinsk Regional Cossack Ethnic-Cultural Autonomy constituted an interference with his Article 11 rights, which was not “prescribed by law”. He argued, in this regard, that the domestic authorities wrongly interpreted the definition of the Cossacks given in the Section 2 of the RSFSR Law on the Rehabilitation (see 17 paragraph above) as “cultural-ethnic group” (the definition of the Cossacks given in the law) should be tantamount to “ethnic group”. Furthermore, since Section 19 of the Law on Ethnic-Cultural Autonomy (see 19 paragraph above) had been repealed on 9 February 2009, and the State was no longer under the obligation to provide support to the ethnic-cultural autonomy, the interference may not be considered to have been “necessary in a democratic society”.
30. The applicant further maintained that the Cossacks were an ethnic group which on certain territories should be considered ethnic minority. Therefore, the refusal to register the Chelyabinsk Regional Cossack Ethnic‑Cultural Autonomy constituted discrimination within the meaning of Article 14.
B. The Court’s assessment
31. The Court does not consider it necessary to address the Government’s argument concerning the alleged abuse of the right of individual application as the application is in any event inadmissible for the following reasons.
32. The Court reiterates that 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). It observes, at the same time, that Article 11 does not guarantee the right to form a particular type of association.
33. The Court notes that the domestic authorities refused to register the Chelyabinsk Regional Cossack Ethnic-Cultural Autonomy on the ground that the domestic law did not provide the Cossacks with the right to form an ethnic-cultural autonomy. Insofar as the applicant criticises the interpretation of the domestic law in the domestic proceedings, the Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of national legislation (see Perez v. France [GC], no. 47287/99, § 82, ECHR 2004‑I). In the present case the domestic courts carried out their own assessment of the applicable laws, provided a consistent interpretation of the relevant domestic law provisions as well as arguments in support of their approach to the application thereof in the applicant’s case.
34. Insofar as the applicant may be understood to claim that the courts’ interpretation in his case was inconsistent with the practice of other courts in similar cases (see paragraph 12 above), the Court notes that in a final decision of 11 October 2011 the Supreme Court of Russia upheld the liquidation of the Volgograd Regional Cossack Ethnic-Cultural Autonomy on the ground that pursuant to the domestic law the Cossacks may form Cossack associations but not ethnic-cultural autonomies, thus removing any inconsistencies that may have been in the domestic case-law (see paragraph 15 above).
35. The Court further observes that under the domestic law the Cossacks may form Cossack associations (see the Law on State Service of the Russian Cossacks in paragraph 20 above, the President’s Decree in paragraph 21 above and Order of the Supreme Council in paragraph 22 above). The applicant did not provide the Court with any evidence that he had applied to form a Cossack association, nor did he provide any argument as to why such a form would be inadequate for his purposes.
36. It follows that this part of the application must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
37. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Having regard to its findings above, the Court considers that the applicant failed to provide any evidence of discrimination within the meaning of Article 14.
38. It follows that this part of the application must likewise be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 March 2020.
Stephen Phillips Paulo Pinto de Albuquerque
Registrar President
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