AS TO THE ADMISSIBILITY OF
Application no. 44319/98
The European Court of Human Rights (Third Section), sitting on 3 April 2001 as a Chamber composed of
Mr L. Loucaides,
Mr P. Kūris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Mr K. Traja,
Mr A. Kovler, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced on 18 October 1998 and registered on 11 November 1998,
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 applicant is a Russian citizen, born in 1971 and living in Severodvinsk, Russia. She is represented before the Court by Mr G.B. Romanovskiy, a lawyer practising in Severodvinsk.
The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 August 1995 the applicant was granted a general notary licence by the Ministry of Justice. On 10 October 1995 she was appointed as a notary to the Severodvinsk State notary firm by a decision of the Arkhangelsk Regional Department of Justice (Управление Юстиции Архангельской области, hereinafter referred to as “the Department of Justice”).
On 14 February 1997 the Department of Justice licensed the applicant to open her own private notary practice. Shortly after she had opened her notary office, she was informed by the Arkhangelsk Notary Chamber (Архангельская Нотариальная Палата, hereinafter referred to as “the Notary Chamber”) that she had a statutory obligation to join it. On 4 March 1997 she applied for such membership, pursuant to Articles 2 and 24 of the Notary Act, which provide that every private practising notary must be a member of a notary chamber.
The applicant submits that she was informed by the president of the Notary Chamber that she was required to pay a membership entry fee of 500 times the minimum reference tariff (минимальный размер оплаты труда), which at the time equalled 40,000,000 roubles (RUR) / (approximately 40,160 FF).1 On 17 March 1997 the applicant withdrew her application for membership since she was unable to pay this sum and because she disagreed with the manner in which the fee had been established. On 21 March 1997 the members’ assembly of the Notary Chamber struck the applicant out of its list.
On 31 March 1997, after the applicant had resigned from membership, she received a copy of the decision of the board of the Notary Chamber, dated 11 March 1997, to admit her as a member. It fixed her membership entry fee at 100 times the minimum reference tariff, equal to 8,349,000 RUR (approximately 8,382 FF) to be paid in six instalments. However, she did not reapply for membership.
On 14 April 1997 the Notary Chamber brought an action before the Severodvinsk City Court of the Arkhangelsk Region (Северодвинский городской суд Архангельской Области, hereinafter referred to as “the City Court”) for the withdrawal of the applicant’s right to practise as a private notary because she was no longer a member.
On 18 April 1997 the City Court issued an interim decision by which the applicant was forbidden to exercise the profession of private notary before her case had been decided on the merits. The applicant appealed to the Arkhangelsk Regional Court (Судебная коллегия по гражданским делам Архангельского Областного Суда, hereinafter referred to as “the Regional Court”) claiming that the Notary Chamber was not entitled to bring the action and that the relevant national legislation breached her right under Article 30 of the Constitution not to be compelled to join or to remain in an association. She also maintained that there was no valid reason for the interim decision, since Article 133 of the Code of Civil Procedure provided that such a decision could only be taken if there was a risk that it would be otherwise impossible to execute the final court decision in the case.
On 15 May 1997 the Regional Court quashed the interim decision on the grounds that it was insufficiently motivated and unjustified, and referred the case back to the City Court. On 2 July 1997 the City Court adjourned the proceedings in order to submit to the Constitutional Court the question of the constitutionality of the provisions of the Notary Act relating to the obligation for a private practising notary to be a member of a notary chamber. The applicant joined the application, alleging in addition a violation of Article 19 of the Constitution which guarantees equality before the law.
On 25 September 1997 another City Court judge reopened the proceedings despite the fact that the Constitutional Court had not yet rendered its decision. On 14 October 1997 the City Court suspended the applicant’s right to act as a private notary on the basis that she was not a member of the Notary Chamber and thus practised her profession in violation of the legislation in force.
The applicant appealed. In January 1998 the Regional Court adjourned the proceedings awaiting the decision of the Constitutional Court.
On 19 May 1998 the Constitutional Court, after a hearing held on 29 April 1998, ruled that compulsory membership of a notary chamber is not contrary to Articles 19 and 30 § 2 of the Constitution. It stated, inter alia, that notary chambers perform important public law functions, which include the supervision of the exercise of private notaries’ professional duties, and the right to address a court with a request to deprive a notary of the right to practise because of a violation of the law. Having regard to these public law functions and duties, the Constitutional Court found that the principle of voluntary membership could not apply to notary chambers. As regards the status of notary chambers, the Constitutional Court added that they were to be considered as non-governmental organisations taking part in State power. Further, it ruled that membership of a notary chamber should not be subjected to conditions other than those established by law, in particular membership fees which are not foreseen by the notary legislation.
On 4 June 1998, following the Constitutional Court decision, the Regional Court held that the City Court’s decision of 14 October 1997 was in accordance with the law and should remain unchanged.
Subsequently, the Notary Chamber requested the City Court to order the applicant to pay its legal costs (19,991 Roubles). On 28 October 1998 the City Court partly granted this claim and ordered the applicant to pay the Chamber 3,130 Roubles. The applicant did not lodge an appeal against that decision.
B. Relevant domestic law
The Notary Act No. 4460-1 of 11 February 1993
Article 2 provides that in performing notary acts, notaries have equal rights and duties, irrespective of whether they are employed by State notary offices or in private practice. Documents authenticated by notaries are of equal legal validity. It further states that a notary engaged in private practice must be a member of a notary chamber.
According to Article 24, a notary chamber is a non-profit making organisation, which is a professional association based on the compulsory membership of private practising notaries. Persons who intend to obtain a license to conduct notary acts may also be members. Notary chambers shall be formed in each republic within the Russian Federation, in an autonomous region, autonomous areas, territories and regions, and in the cities of Moscow and St. Petersburg. The notary chamber shall be a corporate body and shall organise its work on the principles of self-government. It shall conduct its activities in accordance with the legislation of the Russian Federation, the republics within the Russian Federation, and its statutes. It may engage in business activities insofar as this is necessary for the performance of its statutory tasks. Its property shall not be subject to company property tax. Its statutes shall be adopted by a meeting of its members and shall be registered in accordance with the procedures prescribed for registering the statutes of public organisations.
According to Article 27, the membership fees and other payments by the members of the notary chamber are fixed by the general assembly of its members.
According to Article 34, the implementation of professional duties by notaries employed at State notary offices shall be supervised by State justice bodies, and by notary chambers in the private sector.
The Constitution of the Russian Federation of 12 December 1993
Article 19 of the Constitution provides for the equality of all before the law and courts of law, and equality of rights and liberties.
Article 30 § 2 of the Constitution provides that no one may be coerced into joining any association or into membership thereof.
1. The applicant complains, under Article 11 of the Convention, that the compulsory membership of the regional Notary Chamber, on pain of losing her right to practise as a private notary, was in breach of her right to freedom of association. She alleges that the fees charged were exorbitant, unnecessary and arbitrary, serving no professional purpose, such as professional indemnity insurance. Moreover, given her professional qualifications and her licence to practise, she claims that she should not be required to adhere to a notary chamber at all.
2. Invoking Article 11 in conjunction with Article 14 of the Convention, the applicant complains that she, as a private notary, was subject to the compulsory membership of the Notary Chamber which was not the case when she was a State notary with the same qualifications and licence. Moreover, the various regional notary chambers (of which there are sometimes more than one per region) require different membership fees depending on the decision of the general assembly of members.
1. The issues
The applicant complains, under Article 11 of the Convention, that the compulsory membership of the regional Notary Chamber, on pain of losing her right to practise as a private notary, was in breach of her right to freedom of association.
The Court notes that although most of the facts and proceedings complained of relate to a period prior to the entry into force of the Convention with regard to Russia on 5 May 1998, the final judicial decision was taken after that date. Therefore it considers that case as such falls within its competence ratione temporis.
Article 11 of the Convention provides, insofar as relevant:
“1. Everyone has the right 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 society ... for the protection of the rights and freedoms of others. ...”
Invoking Article 11 in conjunction with Article 14 of the Convention, the applicant also complains that she, as a private notary, is subject to the compulsory membership of the Notary Chamber which was not the case when she was a State notary with the same qualifications and licence. Moreover, the various regional notary chambers (of which there are sometimes more than one per region) require different membership fees depending on the decision of the general assembly of members.
Article 14 of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this 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 a national minority, property, birth or other status."
2. The parties’ observations
The Government submit, with reference to the Constitutional Court judgment of 15 May 1998, that the obligation for notaries in private practice to join the Notary Chamber does not infringe upon the right to equal treatment, freedom of association or the free choice of one’s professional activity. This obligation flows from the right of the State to establish conditions of appointment and organisation of the activities for those who exercise public authority such as notaries. Membership of a notary chamber is compulsory in order to allow the State, through the intermediary of notary chambers, to exercise supervision over the activities of private notaries who carry out public functions with a view to protecting the interests of individuals and legal persons.
The notary chambers’ duties include, inter alia, the development of private notary practices, the organisation of professional training, the payment of the expenses of those notaries appointed by courts to submit an expert opinion, the arrangement of professional insurance (as provided for in Article 25 of the Notary Act), the protection of certain social and professional rights of private practitioners and the provision of various benefits. Membership fees are used for these purposes and to cover the daily expenses of notary chambers.
The Government further submit that notary chambers are autonomous and that the fixing of membership fees falls within the exclusive competence of the assembly of their members. Any member of a notary chamber is, moreover, entitled to raise the issue of the fees within the assembly.
The Government conclude that the notary chambers are autonomous bodies set up mainly to exercise public law functions and develop private notary practices and, therefore, fall outside the scope of Article 11 of the Convention.
The Government contest the applicant’s allegation that she has been subjected to discriminatory treatment in her capacity as a private practitioner, as distinguished from notaries in the State service. Private notaries, by virtue of the nature of their independent private practice, are subject to a different legal regime of supervision, for which purpose the notary chambers have been created. The Government emphasise that there is a statutory obligation on private notaries to join a notary chamber, of which the applicant must have been aware when she decided to leave the State notary firm for private practice.
The applicant contends that compulsory membership of notary chambers is contrary to Article 11 of the Convention.
She acknowledges that the State has attributed certain public functions to notary chambers. However, these functions have been delegated to a private legal entity which is established under private law upon the initiative of private persons. The State does not create the notary chambers or set any clear rules for the admission of their members or their internal functioning. The notary chambers thus have an autonomous status and are not State organs or otherwise organs controlled by the State.
The applicant contends that while making membership of this private organisation - for her as a private notary - compulsory, the State at the same time failed to establish rules which sufficiently guarantee access to the notary chamber. In her specific case it was the managing board of the Notary Chamber which arbitrarily decided the entry and membership fees that she was due to pay.
As regards the public tasks of a notary chamber the applicant argues that, in practice, they are not performed, e.g. the supervisory activities. Finally, the applicant observes that she herself pays her professional insurance and social security contributions, not the Notary Chamber, as claimed by the Government.
3. The Court’s assessment
The first question to be determined in the present case is whether the notary chambers are associations within the meaning of Article 11 of the Convention and whether the establishment of such chambers prevents private practice notaries like the applicant from forming together or joining professional associations (the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43 pp. 26-27, §§62-66).
The Court notes that the Convention organs have consistently held that the regulatory bodies of the liberal professions are not associations within the meaning of Article 11 of the Convention (see, for example, the aforementioned Le Compte, Van Leuven and De Meyere v. Belgium judgment, §§ 64-65 as regards the Ordre des médecins; nos 14331/88 and 14332/88, Revert and Legallais v. France, D.R. 62 p. 309 as regards the Ordre des architectes; no. 13750/88 A. and Others v. Spain, D.R. 66 p.188 as regards bar associations). The object of these bodies, established by legislation, is to regulate and promote the professions, whilst exercising important public law functions for the protection of the public. They cannot, therefore, be likened to trade unions but remain integrated within the structures of the State.
Having regard to the Notary Act No. 4460-1 of 11 February 1993 and the statutory functions of notary chambers, the Court is of the view that such chambers are not associations within the meaning of Article 11 of the Convention.
As to the second question whether the applicant has been prevented from forming or joining an association which would otherwise promote her professional interests, nothing has been submitted which might indicate that the applicant was so prevented.
In these circumstance, the Court concludes that the applicant’s complaint falls outside the scope of Article 11 of the Convention and that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
Insofar as the applicant also invokes Article 14 of the Convention, the Court notes that this provision does not have an independent existence but complements other substantive Convention provisions (see the Gaygusuz v. Austria judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1141, § 36). As the Court has held above that the applicant’s complaint is incompatible with Article 11 of the Convention, the Court cannot examine any purported link with Article 14. It follows that this part of the application must also be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. Dollé J.-P. Costa
O.V.R. v. RUSSIA DECISION
O.V.R. v. RUSSIA DECISION