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FOURTH
SECTION
CASE OF
THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA
(No. 2)
(Application
no. 34960/04)
JUDGMENT
STRASBOURG
18 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of the United
Macedonian Organisation Ilinden and Others v. Bulgaria (No. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34960/04) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the United Macedonian Organisation Ilinden
(“Ilinden”), an organisation based in south west
Bulgaria, in an area known as the Pirin region or the geographic
region of Pirin Macedonia, and by thirteen Bulgarian nationals, Mr
Boris Georgiev Pavlov, Mr Bozhidar Kostadinov Kiryanov, Mr Boris
Dimitrov Kereziev, Mr Yordan Kostadinov Ivanov, Mr Lyubcho Kirilov
Popchev, Mr Ivan Timchev Ivanov, Mr Georgi Stefanov Andonov, Mr Kiril
Serafimov Tilev, Mr Velik Dimitrov Hristovski, Mr Slavcho Vangelov
Barakov, Mr Aleksandar Velev Manchev, Mr Atanas Dimitrov Urdev and Mr
Yordan Sotirov Alekov (“the applicants”), on 15 September
2004.
- The
applicants were represented by the Bulgarian Helsinki Committee. The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Dimova, of the Ministry of Justice.
- The
applicants alleged, in particular, that the refusal to register
Ilinden was unlawful and unwarranted, that the registration
proceedings were unfair, and that those matters were a result of
their asserted Macedonian ethnicity which the Bulgarian State was
refusing to recognise.
- On
3 June 2008 the President of the Fifth Section, to which the case had
been allocated, decided to give priority to the application under
Rule 41 of the Rules of Court and to conduct the proceedings in the
case simultaneously with those in United Macedonian Organisation
Ilinden and Ivanov v. Bulgaria (No. 2) (no. 37586/04),
Singartiyski and Others v. Bulgaria (no. 48284/07), and
United Macedonian Organisation Ilinden – PIRIN and Others v.
Bulgaria (No. 2) (nos. 41561/07 and 20972/08) (Rule 42
(former 43) § 2 of the Rules of Court).
- On
30 September 2008 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
fairness of the registration proceedings, the interference with the
applicants’ right to freedom of association and the alleged
discrimination in the enjoyment of the applicants’ Convention
rights to the Government. It was also decided to examine the merits
of the application at the same time as its admissibility (Article 29
§ 1 of the Convention).
- Following
the re composition of the Court’s sections on 1 February
2011, the application was transferred to the Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
individual applicants were born in 1938, 1954, 1940, 1932, 1949,
1931, 1948, 1951, 1933, 1952, 1964, 1929 and 1944 and live in
Krupnik, Sandanski, Gotse Delchev, Ilindentsi, Katuntsi, Kamena,
Petrich and Kolarovo. They are all members of Ilinden’s
managing council.
A. Background to the case
- The
relevant background circumstances are described in detail in
paragraphs 9 21 of the Court’s judgment in the case of
United Macedonian Organisation Ilinden and Others v. Bulgaria
(no. 59491/00, 19 January 2006).
B. The founding meeting
- On
20 October 2002 a group of one hundred and eleven supporters of
Ilinden held a meeting at which they resolved to form a non-profit
association. They adopted its articles and elected its bodies,
including thirteen members of its managing council.
- Clause
6(1) of the articles, which defined the association’s goals,
said, inter alia, that Ilinden was “a successor and
continuer of the national liberation struggle of the Macedonian
nation”, including the “Macedonian fighters who fell
victim to Bulgarian state terrorism and genocide”. Clause 6(2)
specified that Ilinden “recognise[d] and respect[ed] the
territorial integrity of the Republic of Bulgaria and its laws and
constitution, but only if they [were] consonant with international
law and international agreements on human rights, fundamental
freedoms and minorities’ rights”. Clauses 6(4) and 6(5)
stated that Ilinden’s goals included “expressing and
defending the civil, national, social and economic rights of the
Macedonians who live on Macedonian soil under Bulgarian occupation
(jurisdiction), and of the Macedonians who live in Bulgaria”
and “requesting cultural autonomy status for Pirin Macedonia in
order for the assimilation process to be stopped”.
- Clause
7(1) to (6) of the articles provided that to attain its goals Ilinden
would propagate Macedonian culture and traditions, hold meetings to
commemorate historical dates, “nominate Macedonians for Members
of Parliament”, petition the government and various
international institutions for the “national rights of the
Macedonians”, and organise conferences and seminars.
- Clause
32(1) said that the association would be run and represented by a
managing council. According to clause 32(3), it would have three to
seven members. However, clause 32(5) specified that the first
managing council would have three members.
C. The registration proceedings
- On 21 October 2002 Ilinden applied for registration to
the Blagoevgrad Regional Court. In a judgment of 18 November 2002 the
court refused to register the association. It gave the following
reasons:
“The evidence ... shows ... that the activities of
the organisation seeking registration are directed against the
sovereignty and the territorial integrity of the country and the
unity of the nation. This is apparent from the association’s
main goals ... and the means for attaining them...
Their wording ... shows their political character.
...The organisation says that it is a successor of and continues the
‘national liberation struggle of the Macedonian nation’,
including the ‘Macedonian fighters who fell victim to Bulgarian
State terrorism and genocide’[. Its articles of association]
specify that [the organisation] will respect the territorial
integrity of the Republic of Bulgaria, but only if ‘[it is]
consistent with international law and international agreements on
human rights, fundamental freedoms and the rights of minorities’;
[that the organisation] will ‘express and safeguard the civil,
social and economic rights of the Macedonians who live on Macedonian
soil under Bulgarian occupation (jurisdiction) and of the Macedonians
who live in Bulgaria’[. The articles also] insist that ‘the
process of assimilation in Pirin Macedonia must be stopped’.
Obviously, the aim is to distort the historical truth, to ignore the
Bulgarian character of certain geographical regions [and] to provoke
overt opposition by one part of the population to another. This also
threatens the territorial integrity of the country, whereas Article
44 § 2 of [the Constitution] prohibits organisations from
engaging in such activities.
Even if, despite [what was found] above, it is assumed
that the activities of [Ilinden] do not run counter to [the
Constitution], its Article 12 § 2 provides that associations may
not pursue political goals and carry out political activities that
are characteristic solely of political parties. The political
character of the aims [of Ilinden] is clearly shown by [its articles
of association], while the [applicable law] provides that
organisations seeking to engage in political, trade union or
religious activities must be regulated in a separate statute.
All this leads to the conclusion that what is sought is
the registration of an association whose aims are illegal. It cannot
be accepted that what is at issue is an organisation seeking to
preserve the historical traditions and the cultural riches of a
specific community. ... The realisation of the true aims [of Ilinden]
would no doubt be at the expense of the unity of the Bulgarian nation
[and] the sovereignty and the territorial integrity [of the country],
which is declared inviolable by Article 2 § 2 of the
Constitution.”
- Ilinden
appealed to the Sofia Court of Appeal, arguing, inter alia,
that it was not threatening the country’s sovereignty and
territorial integrity, nor trying to distort the “historical
truth”. The refusal to register it was in breach of Article 38
of the Constitution (see paragraph 18 below), as it was based on the
fact that it expressed views which differed from the officially
sanctioned ones. It was not proposing to engage in activities
characteristic solely of a political party either.
- On 11 July 2003 the Sofia Court of Appeal upheld the
lower court’s judgment. It held, in so far as relevant:
“The Blagoevgrad Regional Court ... received an
application by the managing council of the newly formed non-profit
association [Ilinden], requesting it to be registered ... in the
special register kept by the court... In [the impugned judgment the
Blagoevgrad Regional Court] refused to register the association...,
holding that [Ilinden]’s goals and the means for attaining them
have a political character and run counter to the spirit of [the 2000
Non Profit Legal Persons Act] and the provisions of the
[Constitution]. This court shares those conclusions.
The evidence submitted alongside the application for
registration, namely the articles of the non profit association
[Ilinden], the minutes of its founding meeting, held on 20 October
2002, a list of the founders, thirteen sample signatures of the
members of the managing council, notarised and expressly stating that
these persons wish to take part in the association’s management
and representation, and their criminal records, shows that a founding
meeting was held on 20 October 2002. It was attended by 111
individuals, who unanimously resolved to form a non profit
association named [Ilinden], adopted its articles and elected a
managing council consisting of thirteen members. However, the wording
of the articles – clauses 6 and 7, [which set out] the
association’s goals and the means for attaining them –
reveal their political character, which is impermissible for a
non profit association. This follows from the interpretation of
paragraph 2 of [the 2000 Non Profit Legal Persons Act], which
provides that organisations intending to carry out political,
trade union or religious activities must be regulated by
separate statutes. For instance, in clause 6(1), (4) [and] (5)
of its articles the organisation proclaims itself as being a
successor of and continuing the ‘national liberation struggle
of the Macedonian nation’, including ‘the Macedonian
fighters who fell victim to Bulgarian State terrorism and genocide’,
declares that ‘it will express and defend the civil, social and
economic rights of the Macedonians who live on Macedonian soil under
Bulgarian occupation (jurisdiction) and of the Macedonians living in
Bulgaria’, insists that ‘the assimilation process in
Pirin Macedonia must stop’, etc. All those goals set by the
newly formed organisation are directed towards distorting the
historical truth and ignoring the Bulgarian character of certain
geographical regions, with a view to stirring overt confrontation
between one group of Bulgarian citizens and another, which imperils
both the territorial integrity of the country and the unity of the
nation. This is in breach of the imperative rule of Article 44 §
2 of [the Constitution] which provides that ‘organisations
whose activities are directed against the sovereignty [or] the
territorial integrity of the country and the unity of the nation,
towards the incitement of racial, national, ethnical or religious
enmity ... are prohibited’. Moreover, the political goals and
the ways of attaining them, set by the organisation in clause 7(2),
(3) and (4) of its articles, are in breach of paragraph 2 of [the
2000 Non Profit Legal Persons Act] and Article 12 § 2 of
[the Constitution]. Apart from that, the founders have elected
thirteen members of the managing council, in breach of the articles
which provide, in clause 32(5), that the first managing council will
consist of three members who will manage and represent the
association (clause 32(1)). This was equally in breach of section
20(6) and (9) in conjunction with section 18(1)(3) of [the 2000
Non Profit Legal Persons Act], because it engenders uncertainty
as to the manner of managing and representing the organisation.
In view of the foregoing, this court finds that the
newly formed organisation [Ilinden] has goals, ways of attaining them
and representation which run counter to the provisions of [the 2000
Non Profit Legal Persons Act]. For this reason, it should not be
entered on the register of non-profit legal persons kept by [the
Blagoevgrad Regional Court]. ...”
- On
3 November 2003 Ilinden appealed on points of law. It argued, inter
alia, that, contrary to the Sofia Court of Appeal’s ruling,
its articles, when read properly, showed that it did not intend to
participate in political life. Nor was it trying to distort the
historical truth – its aim was to promote it. The refusal to
register it violated its right to freedom of association, enshrined
in Article 44 § 1 of the Constitution, and was in breach of
Article 38 of the Constitution (see paragraph 18 below). Ilinden
also contested the Sofia Court of Appeal’s findings concerning
its managing council.
- In a final judgment of 12 May 2004 (реш.
№ 342 от 12 май 2004 г. по
гр. д. № 1992/2003 г., ВКС,
търговска
колегия) the Supreme
Court of Cassation upheld the Sofia Court of Appeal’s judgment
in the following terms:
“The Sofia Court of Appeal founded the refusal to
register the association on the wording of the articles of
association, more specifically clauses 6 and 7, which show that the
goals sought to be attained by the association and the means for
their attainment are political in character. The [Constitution]
guarantees freedom of association, but only in line with the
requirements of the law. It is not permissible for a non profit
association to carry out political, trade union or religious
activities. The assertion in the appeal that [Ilinden] does not seek
to engage in political struggles is not substantiated. As correctly
observed by [the Sofia Court of Appeal], an organisation which
proclaims itself as being a successor and continuing the ‘national
liberation struggle of the Macedonian nation’, and its founders
as spiritual successors of ‘the Macedonian fighters who fell
victim to Bulgarian State terrorism and genocide’ has a
markedly political character. The [lower court] correctly held that
an activity consisting in ‘safeguarding the social and economic
rights of the Macedonians who live on Macedonian soil under Bulgarian
occupation and of the Macedonians living in Bulgaria’ is in
breach of Article 44 § 2 of the [Constitution], which prohibits
organisations whose activities are directed against the sovereignty
[or] the territorial integrity of the country and the unity of the
nation, or towards the incitement of racial, national, ethnical or
religious enmity. But even if [the court] were to accept the argument
in the appeal that the organisation does not seek to attain goals
which run counter to the constitutional order, those goals run
counter to the [2000 Non Profit Legal Persons Act], as they are
characteristic of a political party, not of a non profit
association. Thus, the alleged violation of Article 38 of the
[Constitution] has not been made out.
The argument in the appeal that the articles of
association in reality merely mention the minimum number of
members of the managing council, without further restrictions, is
unfounded. Clause 32(3) of the articles enclosed in the case file
says that the managing council consists of three to seven members.
Clause 32(5) makes special provision for the first managing council
and says that it will consist of three members serving three years.
That is, clause 32(5) does not merely set a minimum, as claimed in
the appeal. For this reason, [the Sofia Court of Appeal] correctly
found that the imperative rule of section 20(6) and (9) in
conjunction with section 18(1)(3) of the [2000 Non Profit Legal
Persons Act] has not been complied with – the manner of
managing and representing the organisation is unclear.
For the foregoing reasons, the court is of the opinion
that the grounds of appeal have not been made out and that [the
impugned judgment] should be upheld.”
II. RELEVANT DOMESTIC LAW
A. The Constitution
- The relevant provisions of the 1991 Constitution read:
Article 2 § 2
“The territorial integrity of the Republic of
Bulgaria shall be inviolable.”
Article 12 § 2
“Associations ... may not pursue political goals
or carry out political activities that are characteristic solely of
political parties.”
Article 38
“No one may be persecuted or restricted in his
rights because of his views, nor detained or forced to provide
information about his or another’s convictions.”
Article 44
“1. Citizens may freely associate.
2. Organisations whose activities are
directed against the sovereignty [or] the territorial integrity of
the country and the unity of the nation, towards the incitement of
racial, national, ethnical or religious enmity ... and organisations
which seek to achieve their goals through violence are prohibited.
3. The law shall specify the organisations
which are subject to registration, the manner of their dissolution
and their relations with the State.”
B. The 2000 Non Profit Legal Persons Act
- Under paragraph 2 of the transitional and concluding
provisions of the 2000 Non-Profit Legal Persons Act (“Закон
за юридическите
лица с нестопанска
цел”) – the Act which
regulates the formation, registration and activities of non profit
legal persons such as associations – organisations which intend
to engage in political, trade union and religious activities were to
be regulated by separate statutes.
- Section 18 (1)(3) of the Act provides that the names
and the offices of the persons who represent the association must be
entered in the register. Section 20 (6) and (9) provide that an
association’s articles must set out its managing bodies and the
manner of its representation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicants complained that the refusal to register Ilinden was in
breach of Article 11 of the Convention, which provides as follows:
“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 society 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.”
A. The parties’ submissions
- The
Government submitted that the legal basis for the interference with
the applicants’ right was the Constitution, the 2000 Non Profit
Legal Persons Act and the 2001 Political Parties Act. The
restrictions which Article 44 § 2 of the Constitution imposed on
that right were similar to those allowed under Article 11 § 2 of
the Convention. By Article 44 § 3 of the Constitution, the
registration and the functioning of associations were to be regulated
by law. That law was the Non-Profit Legal Persons Act. The
restrictions imposed by those provisions were uniform and applied to
all associations, regardless of their membership or aims. The fact
that a person claimed to belong to a minority did not attract any
special privileges, but did not give rise to any particular
restrictions either.
- The
Government further submitted that the interference sought to
safeguard a wide range of societal interests. All three levels of
court rightfully refused to register Ilinden. Firstly, they found
that the association’s articles did not comply with the
statutory requirements, because there was a disparity between the
number of members of its managing council envisaged by its articles
and the number actually elected. It was important to point out in
that connection that the procedure for registering an association did
not result in a ruling having res judicata, and that it was
thus open to Ilinden to re apply for registration. To avoid
another refusal, it simply had to bring its founding documents in
line with the applicable requirements. Secondly, the courts found
that the association pursued political aims, which could be pursued
only by a political party. While an association’s founders were
free to choose its aims, their choice could not run counter to the
Constitution and the laws of the country.
- The
applicants submitted that the interference was not prescribed by law
because the national courts failed to give them clear indications on
how to proceed to obtain registration, and construed arbitrarily the
constitutional restrictions on freedom to associate. The interference
was not necessary in a democratic society either, because the
national courts did not have before them any evidence showing that
the registration of Ilinden would endanger Bulgaria’s
sovereignty or national security. However, those courts accepted
uncritically the “official position” on the so called
“Macedonian question” and justified the refusal on
grounds that had nothing to do with the principles of democracy.
- The
applicants also pointed out that the constitutional prohibition on
associations pursuing political aims, as construed by the national
courts in their case, had already been found deficient by the Court.
In Bulgaria, as could be seen from a number of publications,
associations routinely supported independent candidates for
elections, which showed that the national courts’ ruling on
that point was arbitrary.
- The
applicants went on to say that the refusal to register Ilinden could
not be justified on the basis of its goals and declarations. Nothing
had changed in that respect since the Court’s judgment in
United Macedonian Organisation Ilinden and Others (cited
above). The ostensible problem with the number of members of its
managing council was not sufficient to refuse registration either.
Indeed, under the applicable rules of procedure, the national courts
should not even have inquired into the matter. It was first mentioned
only by the court of appeal, whereas the first instance court
had not given any instructions for its rectification.
B. The Court’s assessment
1. Admissibility
- In so far as the Government’s argument that
Ilinden could re apply for registration may be regarded as an
objection of non exhaustion of domestic remedies, the Court
observes that the present case concerns one individual refusal of the
national courts to register the association. The Court has in a
number of cases treated such refusals in themselves as interferences
with the right to freedom of association (see Sidiropoulos and
Others v. Greece, 10 July 1998, § 31, Reports of
Judgments and Decisions 1998 IV; APEH Üldözötteinek
Szövetsége and Others v. Hungary (dec.),
no. 32367/96, 31 August 1999; Gorzelik and Others v. Poland
[GC], no. 44158/98, § 52, ECHR 2004 I; Partidul
Comunistilor (Nepeceristi) and Ungureanu v. Romania, no.
46626/99, § 27, 3 February 2005; United Macedonian
Organisation Ilinden and Others, cited above, § 53; Tsonev
v. Bulgaria, no. 45963/99, § 43, 13 April 2006; Moscow
Branch of the Salvation Army v. Russia, no. 72881/01, § 71,
ECHR 2006 XI; Ramazanova and Others v. Azerbaijan, no.
44363/02, § 60, 1 February 2007; Zhechev v. Bulgaria,
no. 57045/00, § 37, 21 June 2007; Bekir Ousta and Others
v. Greece, no. 35151/05, § 40, 11 October 2007; and
Emin and Others v. Greece, no. 34144/05, § 37, 26
March 2008). In one of those cases the Court specifically noted that
although it could have regard to earlier or later registration
proceedings, in so far as they could be relevant to the complaints
before it, such proceedings fell outside the scope of the case (see
United Macedonian Organisation Ilinden and Others, cited
above, §§ 30 and 31). Separate registration proceedings are
therefore of no relevance for the exhaustion of domestic remedies in
the case at hand. Indeed, to hold otherwise might erect a permanent
barrier to bringing such matters before the Court, because, as
rightly pointed out by the Government, in Bulgaria a refusal to
register a political party or an association does not preclude the
possibility of making further applications for registration an
indefinite number of times (see, mutatis mutandis, Guzzardi
v. Italy, 6 November 1980, § 80, Series A no. 39; Nenov
v. Bulgaria, no. 33738/02, § 38,
16 July 2009; and Naydenov v. Bulgaria, no.
17353/03, § 58, 26 November 2009). Moreover, the
possibility of requesting an authority to reconsider the decision
taken by it does not as a rule constitute an effective remedy (see
Granger v. the United Kingdom, no. 11932/86, Commission
decision of 9 May 1988, Decisions and Reports (DR) 56, p. 199,
and Roseiro Bento v. Portugal (dec.), no. 29288/02, ECHR
2004-XII (extracts)). Lastly, it cannot be overlooked that the
instant refusal to register Ilinden was the third in a row (see
Stankov, Trayanov, Stoychev, the United Macedonian Organisation
Ilinden, Mechkarov and Others v. Bulgaria, nos. 29221/95,
29222/95, 29223/95, 29225/95 and 29226/95, Commission decision of
21 October 1996, unreported, and United Macedonian
Organisation Ilinden and Others, cited above, § 30).
- It
follows that the complaint under Article 11 cannot be dismissed for
failure to exhaust domestic remedies.
- The
Court further considers that the complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
- The refusal to register the association undoubtedly
amounted to interference, in itself, with both Ilinden’s and
its members’ right to freedom of association (see the cases
cited in paragraph 27 above). The possibility for the association to
re apply for registration – while capable of being taken
into account in assessing the proportionality of the interference
(see, mutatis mutandis, Lajda and Others v. the Czech
Republic (dec.), no. 20984/05, 3 March 2009) – does
not, as already noted, alter that conclusion.
- Such
interference gives rise to a breach of Article 11 unless it can be
shown that it was “prescribed by law”, pursued one or
more legitimate aims as defined in paragraph 2 and was “necessary
in a democratic society” to achieve those aims.
- The
Court does not consider it necessary to determine whether the
interference was “prescribed by law” or pursued a
legitimate aim, as it finds, for the reasons set out in the following
paragraphs, that it cannot be regarded as being “necessary in a
democratic society”.
- The
Court summarised the principles relevant for the determination of
this point in paragraphs 57 62 of its judgment in the case of
United Macedonian Organisation Ilinden and Others (cited
above) as follows (references omitted):
(a) The
right to form an association is an inherent part of the right set
forth in Article 11, even if that Article only makes express
reference to the right to form trade unions. That citizens should be
able to form a legal entity in order to act collectively in a field
of mutual interest is one of the most important aspects of the right
to freedom of association, without which that right would be deprived
of any meaning. 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. Certainly States have a
right to satisfy themselves that an association’s aim and
activities are in conformity with the rules laid down in legislation,
but they must do so in a manner compatible with their obligations
under the Convention and subject to review by the Convention
institutions.
(b) While
in the context of Article 11 the Court has often referred to the
essential role played by political parties in ensuring pluralism and
democracy, associations formed for other purposes, including those
protecting cultural or spiritual heritage, pursuing various
socio-economic aims, proclaiming or teaching religion, seeking an
ethnic identity or asserting a minority consciousness, are also
important to the proper functioning of democracy. For pluralism is
also built on the genuine recognition of, and respect for, diversity
and the dynamics of cultural traditions, ethnic and cultural
identities, religious beliefs, artistic, literary and socio-economic
ideas and concepts. The harmonious interaction of persons and groups
with varied identities is essential for achieving social cohesion. It
is only natural that, where a civil society functions in a healthy
manner, the participation of citizens in the democratic process is to
a large extent achieved through belonging to associations in which
they may integrate with each other and pursue common objectives
collectively.
(c) Given
that the implementation of the principle of pluralism is impossible
without an association being able to express freely its ideas and
opinions, the Court has also recognised that the protection of
opinions and the freedom of expression within the meaning of Article
10 of the Convention is one of the objectives of the freedom of
association. Such a link is particularly relevant where – as
here – the authorities’ intervention against an
association was, at least in part, in reaction to its views and
statements.
(d) Freedom
of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress
and for each individual’s self fulfilment. Subject to
paragraph 2 of Article 10, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness without which there is no “democratic
society” (on this point, see also Association of Citizens
Radko and Paunkovski v. “the former Yugoslav Republic of
Macedonia”, no. 74651/01, § 64, 15 January 2009).
(e) Consequently,
the exceptions set out in Article 11 are to be construed strictly;
only convincing and compelling reasons can justify restrictions on
freedom of association. 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 (on this
point, see also Sidiropoulos and Others, § 40, and
Association of Citizens Radko and Paunkovski, § 66, both
cited above).
(f) When
the Court carries out its scrutiny, its 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. This does not mean that it has to confine itself
to ascertaining whether the respondent State exercised its discretion
reasonably, carefully and in good faith; it must 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.
- More
recently, in Association of Citizens Radko and Paunkovski
(cited above, § 65, citing Ouranio Toxo and Others v. Greece,
no. 74989/01, § 40, ECHR 2005 X (extracts)) the Court
made the point that although tension could be created in situations
where a community becomes divided, that is one of the unavoidable
consequences of pluralism. The role of the authorities in such
circumstances is not to remove the cause of that tension by
eliminating pluralism, but to ensure that the competing groups
tolerate each other.
- The
Court must scrutinise the reasons given by the national courts to
justify the interference in the light of the above principles. It
observes that the refusal to register Ilinden was based on three
grounds (see paragraphs 13, 15 and 17 above).
- The
first of those – alleged separatist ideas capable of arousing
confrontational attitudes and based on historical interpretations
considered absurd by the authorities and the majority of the
population – was found clearly insufficient in a case
concerning a previous refusal to register Ilinden (see United
Macedonian Organisation Ilinden and Others, cited above, §§ 75
and 76), and a case concerning the ban of a political party closely
connected with the applicant association and sharing its ideas (see
United Macedonian Organisation Ilinden – PIRIN and Others v.
Bulgaria, §§ 58 62, no. 59489/00, 20 October
2005). The Court also considers it important to repeat what it said
in its first judgment concerning interferences with the Article 11
rights of Ilinden – Stankov and the United Macedonian
Organisation Ilinden v. Bulgaria (nos. 29221/95 and 29225/95,
ECHR 2001 IX):
“97. ... Freedom of assembly and the
right to express one’s views through it are among the paramount
values of a democratic society. The essence of democracy is its
capacity to resolve problems through open debate. Sweeping measures
of a preventive nature to suppress freedom of assembly and expression
other than in cases of incitement to violence or rejection of
democratic principles – however shocking and unacceptable
certain views or words used may appear to the authorities, and
however illegitimate the demands made may be – do a disservice
to democracy and often even endanger it.
In a democratic society based on the rule of law,
political ideas which challenge the existing order and whose
realisation is advocated by peaceful means must be afforded a proper
opportunity of expression ...
107. ... The fact that what was at issue
touched on national symbols and national identity cannot be seen in
itself ... as calling for a wider margin of appreciation to be left
to the authorities. The national authorities must display particular
vigilance to ensure that national public opinion is not protected at
the expense of the assertion of minority views, no matter how
unpopular they may be.”
- Indeed,
the Court recently noted that political parties advocating
independence participate in local government in some areas of Spain,
and confirmed its position that the expression of separatist ideas
cannot be regarded as in itself threatening a State’s
territorial integrity and national security (see Etxeberria and
Others v. Spain, nos. 35579/03, 35613/03,
35626/03 and 35634/03, § 55, 30 June 2009).
- The
second ground – characterisation of Ilinden’s goals as
political and thus capable of being pursued solely by a political
party – was found insufficient in a case concerning a previous
refusal to register Ilinden (see United Macedonian Organisation
Ilinden and Others, cited above, § 73), and also in a case
concerning the refusal to register another association on exactly the
same ground (see Zhechev, cited above, §§ 52 57).
- In
that latter case the Court, after surveying a number of rulings by
the Bulgarian courts, observed that there existed uncertainty
surrounding the meaning of the term “political” in
Article 12 § 2 of the 1991 Constitution (see paragraph 18
above). It was quite conceivable that the Bulgarian courts could
label any goals which were in some way related to the normal
functioning of a democratic society as “political” and
accordingly direct the founders of legal entities wishing to pursue
such goals to register them as political parties instead of
“ordinary” associations. Therefore, a classification
based on that criterion was liable to produce incoherent results and
engender considerable uncertainty among those wishing to apply for
registration of such entities. The Court went on to observe that if
associations in Bulgaria could, when registered as such, participate
in elections and accede to power, it could prove necessary to require
some of them to register as political parties, so as to make them
subject to, for instance, stricter rules concerning party financing,
public control and transparency. However, under Bulgarian law
associations could not participate in national, local or European
elections. There was therefore no pressing social need to require
every association deemed by the courts to pursue “political”
goals to register as a political party. That would mean forcing the
association to take a legal shape which its founders did not seek. It
would also mean subjecting it to a number of additional requirements
and restrictions, such as for instance the rule that a political
party cannot be formed by less than a certain number of enfranchised
citizens, which could in some cases prove an insurmountable obstacle
for its founders. Such an approach ran counter to freedom of
association, because, in case it was adopted, the liberty of action
that would remain available to the founders of an association could
become either non-existent or so reduced as to be of no practical
value. On that basis, the Court concluded that alleged “political”
character of an association’s aims was not a sufficient ground
to refuse its registration (see Zhechev, cited above, §§
55 57).
- The
third ground to refuse to register Ilinden, an apparent problem with
the number of members of its managing council, was noted for the
first time by the Sofia Court of Appeal (see paragraph 15 above). It
is true that it was apparently due to a certain lack of diligence on
the part of Ilinden’s founders. However, the domestic courts
did not explain why they regarded that defect as so significant as to
preclude registration and impossible to cure in the course of the
registration proceedings (see, mutatis mutandis, United
Macedonian Organisation Ilinden and Others, §§ 65 69,
and Tsonev, §§ 55 and 57, both cited above). While
States are entitled to require organisations seeking official
registration to comply with reasonable legal formalities, that is
always subject to the condition of proportionality (see Ertan and
Others v. Turkey (dec.), no. 57898/00, 21 March 2006; Tebieti
Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no.
37083/03, § 72, 8 October 2009; Hayvan Yetiştiricileri
Sendikası v. Turkey (dec.), no. 27798/08, 11 January
2011; and Republican Party of Russia v. Russia, no.
12976/07, § 87, 12 April 2011). For
this Court, the defect appears to be of a relatively trivial
character. Failing further explanations, it can hardly be regarded in
itself as a sufficient reason to refuse to register Ilinden. Such a
refusal is a radical measure, because it prevents the association or
a political party in issue from even commencing any activity (see
Gorzelik and Others, § 105; United Macedonian
Organisation Ilinden and Others, § 80; Tsonev, §
63; and Zhechev, § 58, all cited above).
- In view of the foregoing, the Court finds that the
refusal to register Ilinden was not necessary in a democratic
society. There has therefore been a violation of Article 11 of the
Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 14 OF
THE CONVENTION
- The
applicants complained that the registration proceedings were unfair
and that the courts examining the registration request were biased.
They also complained that the refusal to register Ilinden was based
on their asserted Macedonian ethnicity which the Bulgarian State was
refusing to recognise. They relied on Articles 6 § 1 and 14 of
the Convention, which provide, in so far as relevant:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
... impartial tribunal...”
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 a
national minority, property, birth or other status.”
A. The parties’ submissions
- The
Government submitted that the national courts’ decisions had
been in line with the applicable law. The allegations of bias and
discrimination were therefore groundless.
- The
applicants submitted that the courts examining Ilinden’s
registration request had been biased and had conducted the
proceedings unfairly. The grounds that they gave for their refusal to
register the organisation varied. They had not allowed its founders
an opportunity to bring the registration papers in line with the
applicable formal requirements as construed by the courts. They had
ventured into matters which were outside the subject matter of the
case, and given biased rulings on historical questions.
- The
applicants also submitted that the refusal to register Ilinden had
been discriminatory. In examining that issue, one had to bear in mind
the general situation in the country in relation to the so called
“Macedonian question”. The interference with the
applicants’ rights was a result of the lack of recognition of
the Macedonian minority in Bulgaria and of the resulting infringement
of that minority’s rights. The non execution of a number
of the Court’s judgments in previous cases concerning Ilinden
showed that even now individuals asserting a Macedonian ethnic
consciousness were being denied the rights to freedom of assembly and
association. The Macedonian minority was the only one not recognised
by Bulgaria, and had as a result suffered diverse instances of
discrimination. That had been noted by various Council of Europe
bodies, such as the Advisory Committee on the Framework Convention
for the Protection of National Minorities, the European Commission
against Racism and Intolerance, and the Commissioner for Human
Rights. The national courts systematically refused to register any
organisation which endeavoured to defend the rights of the Macedonian
minority, because they feared that such registration would amount to
a recognition of that minority.
- The
grounds given by the national courts for their refusal to register
Ilinden could be split in two groups. The first consisted of the real
ones – that the registration of an organisation of the
Macedonian minority would, by endowing it with a legal status,
imperil the country’s sovereignty and the nation’s unity.
All three levels of court had relied on such grounds, which were
indicative of the authorities’ enduring prejudice against the
Macedonian minority. The second group consisted of formal grounds
whose purpose was to conceal the real ones. The first such ground –
a purported problem with the number of members of Ilinden’s
managing council – could have been spotted by the
first instance court and easily rectified. The second one –
the bar on associations pursuing political aims – was equally
just a pretext to refuse registration, as evident from the earlier
refusals to register Ilinden.
- In
the applicants’ view, the above made it particularly important
for the Court to examine the complaint under Article 14. Only a
ruling under that provision would spur a real solution to the problem
and show that the situation under consideration consisted in the
denial of the existence of a whole ethnos. Otherwise, the authorities
would feel encouraged to continue their practice of searching for
various pretexts not to register Ilinden and thus refuse to recognise
the right to freedom of association of Macedonians in Bulgaria.
- All
the elements of discrimination were in place. The more unfavourable
treatment was the refusal to register Ilinden. The “badge”
of discrimination was the asserted Macedonian ethnic consciousness of
its members. The “hypothetical comparator” was any other
ethnic group that would try to register an association. Any such
group would have received far more favourable treatment. Indeed, the
asserted ethnicity of Ilinden’s founders was the decisive
factor behind the refusal to register it. That refusal stemmed from
the systematic negation of the existence of a Macedonian minority in
Bulgaria. The reasons for it were closely related to the asserted
ethnicity of Ilinden’s founders and its character. No such
reasons had been given in respect of associations of other ethnic
minorities. Those elements amounted to prima facie evidence of
discrimination, and it was for the Government to prove otherwise;
that was in line with established anti discrimination case law,
which in such circumstances required a shift of the burden of proof.
However, the Government had not put forward any meaningful arguments
to counter that allegation.
B. The Court’s assessment
- The
Court considers that those complaints are not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. They must therefore be declared
admissible. However, the Court notes that the complaints relate to
the same facts as the one based on Article 11. Although the
applicants insisted that their grievances under Articles 6 § 1
and 14 merited separate consideration, the Court, having carefully
reviewed their arguments, finds that they do not raise any issues
additional to those already examined under Article 11. Having regard
to its conclusion in paragraph 41 above, it does not consider that it
must deal with them. In that respect, the present case presents no
material difference from a number of similar cases – some of
which concerning interferences with the rights of persons asserting
minority ethnic consciousness – in which the Court, having
found a breach of the substantive Convention right at issue,
perceived no need to address separately the complaint under Article
14 (see, among other authorities, Sidiropoulos and Others,
cited above, § 52; Freedom and Democracy Party (ÖZDEP)
v. Turkey [GC], no. 23885/94, § 49, ECHR 1999 VIII;
Emek Partisi and Şenol v. Turkey, no. 39434/98, §
31, 31 May 2005; Ivanov and Others, cited above, § 78;
United Macedonian Organisation Ilinden and Others, cited
above, § 84; Bekir Ousta and Others, cited above, §
51; Emin and Others, cited above, § 37; and Tourkiki
Enosi Xanthis and Others v. Greece, no. 26698/05, § 63,
27 March 2008) or that under Article 6 § 1 (see Sidiropoulos
and Others, § 52; United Macedonian Organisation Ilinden
and Others, § 84; and Tsonev, § 66, all cited
above). It sees no reason to hold otherwise in the present case.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 9,000 euros (EUR) in respect of the non pecuniary
damage flowing from the alleged breach of their right to freedom of
association. They submitted that that amount was justified in view of
the systemic and persistent nature of the breach, which continued in
spite of a number of earlier judgments by the Court with which
Bulgaria failed to comply. The applicants further claimed EUR 2,000
in respect of the alleged breach of their right to a fair trial, and
EUR 3,000 in respect of the alleged breach of their right not to be
discriminated against. They requested that any amounts awarded under
those heads be paid into the bank account of the fifth applicant.
- The
Government submitted that the finding of a violation would amount to
sufficient just satisfaction, and that the amounts claimed by the
applicants were exorbitant. In their view, the amount of any award
should not exceed the sums awarded in similar cases and should take
into account the living standard in Bulgaria.
- The
Court observes that the only violation found in the present case was
that of Article 11 of the Convention. An award of just satisfaction
can therefore be based only on the fact that the applicants were
hindered in the exercise of their right to freedom of association
(see, mutatis mutandis, Zanghì v. Italy (Article
50), 10 February 1993, § 12, Series A no. 257 A). That
said, it cannot be overlooked that four years prior to the events in
issue in the present case Ilinden was likewise denied registration,
on grounds found insufficient by the Court (see United Macedonian
Organisation Ilinden and Others, cited above, §§
64 79). The applicants therefore had reason to feel a heightened
sense of distress and frustration (see, mutatis mutandis,
Burdov v. Russia (no. 2),
no. 33509/04, § 156, 15 January 2009). In these
circumstances, the Court awards the amount claimed by them in that
respect (EUR 9,000) in full. To that amount is to be added any tax
that may be chargeable.
- The
Court also considers it important to point out that a judgment in
which it finds a violation of the Convention or its Protocols imposes
on the respondent State a legal obligation not just to pay those
concerned the sums awarded by way of just satisfaction, but also to
take individual and/or, if appropriate, general measures in its
domestic legal order to put an end to the violation found by the
Court and to redress the effects, the aim being to put the
applicants, as far as possible, in the position they would have been
in had the requirements of the Convention not been disregarded (see
Verein gegen Tierfabriken Schweiz (VgT) v.
Switzerland (no. 2) [GC], no. 32772/02,
§ 85, ECHR 2009 ..., with further references). While
it is for the respondent State to choose what such measures should
involve, they must be compatible with the conclusions set out in the
Court’s judgment (see Church of Scientology Moscow v.
Russia, no. 18147/02, § 106, 5 April 2007, and Kimlya and
Others v. Russia, nos. 76836/01 and 32782/03,
§ 109, 1 October 2009) and with the State’s duty to abide
by those conclusions and their spirit (see Verein gegen
Tierfabriken Schweiz (VgT) (no. 2), cited above, § 90).
B. Costs and expenses
- The
applicants sought reimbursement of EUR 1,280 incurred in fees for
thirty-two hours of work by employees of their representative on the
proceedings before the Court, at EUR 40 per hour. They submitted a
fee agreement between them and their representative and a time sheet.
They also sought reimbursement of 456.27 Bulgarian levs (BGN)
incurred for translation of their observations into an official
language. They requested that any amount awarded under that head be
paid directly into the bank account of their representative.
- The
applicants further sought reimbursement of BGN 875 in respect of
costs incurred for the translation into Bulgarian of two of the
Court’s earlier judgments in cases concerning their
organisation and of documents received from the Court in the course
of the present proceedings. The applicants requested that any amount
awarded under that head be paid into the bank account of the fifth
applicant.
- The
Government submitted that the fees claimed were excessive. Only
expenses duly supported by documents were to be allowed. The sums
paid for the translation of two of the Court’s earlier
judgments in cases concerning Ilinden were not necessarily incurred,
as translations of those judgments in Bulgarian had been posted on
the Ministry of Justice’s website.
- The
applicants replied that the translation of the two judgments had been
completed before the official translation was posted on the Ministry
of Justice’s website.
- According
to the Court’s case law, costs and expenses can be awarded
under Article 41 only if it is established that they were actually
and necessarily incurred and are reasonable as to quantum. In the
present case, having regard to the information in its possession and
the above criteria, the Court awards the full amount claimed by the
applicants in respect of legal fees and the translation of their
observations into an official language. Converted into euros, the
total comes to EUR 1,513.29. To that amount should be added any tax
that may be chargeable to the applicants, and it is to be paid into
the bank account of the applicants’ representative, the
Bulgarian Helsinki Committee. As to the sum claimed by the applicants
in respect of the Bulgarian translation of the Court’s
judgments in two previous cases and of documents sent to them by the
Court, the Court, bearing in mind that the applicants were legally
represented, and having regard to Rule 36 § 5 (a) of its Rules,
does not consider that it was an expense which was necessarily
incurred. It therefore rejects that part of the claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that there is no need to examine
separately the complaints under Articles 6 § 1 and 14 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable on the date of
settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,513.29 (one thousand five hundred and thirteen euros and
twenty nine cents), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses, to be paid into the
bank account of the applicants’ representative, the Bulgarian
Helsinki Committee;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
