Last Updated on May 24, 2019 by LawEuro
Communicated on 7 September 2018
THIRD SECTION
Application no. 73715/17
Fedor Valeryevich MIKUSHIN
against Russia
lodged on 5 October 2017
STATEMENT OF FACTS
The applicant, Mr Fedor Valeryevich Mikushin, is a Russian national, who was born in 1975 and lives in Rostov-on-Don. He is the founder and director of a non-governmental organisation Eco-Logica. The applicant is represented before the Court by Mr N. Olenichev, a lawyer practising in St Petersburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Registration as a foreign agent
On 13 February 2015 the Rostov Region Justice Department (the “Justice Department”) established that Eco-Logica had been financed by foreign organisations, such as National Endowment for Democracy and the Dutch embassy. It also determined that Eco-Logica was involved in “political activities” by means of organising environmental monitoring in Rostov, creating educational environmental programs for students, initiating a project on collecting and processing garbage, taking part in a Rostov Region Government’s project contributing to the personal fulfilment of the youth and their involvement in regional politics, preparing reports on environmental rights and civil society in Russia and Georgia.
On 3 April 2015 the Ministry of Justice put Eco-Logica on the list of foreign agents.
By decision of 20 April 2015 the Justice of the Peace of the First Court Circuit in Rostov-on-Don fined Eco-Logica for the offence of failing to seeking voluntary registration as a foreign agent.
2. Application for dissolution
On 19 March 2015 a general assembly of the Eco-Logica members decided to dissolve the organisation.
On 3 June 2015 the applicant filed an application for dissolution with the Justice Department.
On 8 June 2015 the Justice Department refused to make an entry on Eco-Logica’s dissolution, claiming that the provided documents contravened Russian law and that the true reason for the dissolution request had been to avoid paying the fine. The applicant challenged the Justice Department’s decision before a court.
On 18 August 2015 the Leninskiy District Court in Rostov-on-Don dismissed the claim. The court established that the Eco-Logica members had adopted decision on its dissolution after the Justice Department’s inspection which had established a violation of the Foreign Agents Act. Hence, they were aware of possible negative implications for Eco-Logica. It held that the dissolution of an organisation implied its voluntary dissolution without causing any harm to others while the Eco-Logica members, including the applicant, had tried to avoid paying the fine for failure to register as a foreign agent and thereby had abused their rights.
On 12 October 2015 and 19 January 2016 the Rostov Regional Court and on 10 May 2016 the Supreme Court reproduced the Leninskiy District Court’s conclusions and upheld the decision of 18 August 2015.
B. Relevant domestic law and practice
1. Public Associations Act
According to Article 23 § 1 of the Public Associations Act, a competent State body may refuse to register a public association if its articles of association and other registration documents contravene Russian Constitution and law.
According to Article 26 the dissolution of a public association shall be made by virtue of a decision of its general assembly under the articles of association or by virtue of a court decision under Article 44 of the Public Associations Act (involuntary dissolution).
All property which belonged to the dissolved public association and remained after all creditors’ claims had been satisfied, shall be used for the purposes provided for by the articles of association or determined by the decision of the general assembly ordering the dissolution, or by a court decision.
2. Civil Code
Article 10 §§ 1 and 2 of the Civil Code prohibits exercising civil rights solely for harming any other person, evading the law with illegal purpose, and any other wilful unlawful exercising of civil rights (abuse of rights). A court of general jurisdiction, commercial court or arbitration body shall take into account the nature and effects of such abuse of rights and refuse to protect the rights in full or in part, and shall take other measures prescribed by the law. At the same time, according to 10 § 5 of the Civil Code it is presumed that the parties act reasonably and in good faith.
According to Article 61, a legal entity’s founders (members) or its competent body may decide to dissolve the legal entity, in particular, due to expiry of its operating term and fulfilment of its goals. A legal entity may be wound up by virtue of a court decision if (1) the State registration of the entity has been held invalid; (2) the entity exercises its activities without a licence (if it needs a licence for its activities); (3) the entity commits a fragrant violation of law; (4) a public association exercises activities in breach of its goals prescribed by its articles of association; (5) the entity cannot achieve its goals; (6) in any other cases provided for by the law.
All legal entity’s obligations before its creditors become due after date of the decision on its dissolution.
According to Article 62 of the Civil Code the founders (members) or a competent body of a legal entity subject to dissolution, shall inform about dissolution the registration State body and shall use its property for the dissolution purposes only. If the property is insufficient, the founders (members) of the legal entity shall be jointly and severally liable to perform all necessary actions on their own account.
In case of failure to perform or improper performance of the obligation to dissolve the legal entity, a person concerned or a competent State body may file a lawsuit on dissolution of the legal entity and request to appoint an insolvency officer.
3. Supreme Commercial Court
According to the Ruling of the Supreme Commercial Court of 15 January 2013 no. 11925/12 on the case no. А55-15285/2011, under provisions of Articles 61 – 64 of the Civil Code, a legal entity may be dissolved voluntary by decision of its founders (members). At the same time, the dissolution of a legal entity shall not aim at causing any harm to any other person (under Article 10 § 1 of Civil Code).
COMPLAINTS
The applicant complains under Article 11 of the Convention that the authorities violated his right as a director to dissolve his non-governmental organisation because he allegedly tried to avoid paying the fine for the failure to register as a foreign agent.
QUESTIONS TO THE PARTIES
1. Was there an interference with the applicant’s freedom of association, in particular his right as the founder of a non-governmental organisation to decide whether or not to have the organisation dissolved, within the meaning of Article 11 § 1 of the Convention?
2. If so, was that interference justified in terms of Article 11 § 2? In particular, was that interference prescribed by law and necessary? Did it pursue a legitimate aim?
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