CASE OF VASILEV AND SOCIETY OF THE REPRESSED MACEDONIANS IN BULGARIA VICTIMS OF THE COMMUNIST TERROR v. BULGARIA

FIFTH SECTION

CASE OF VASILEV AND SOCIETY OF THE REPRESSED MACEDONIANS IN BULGARIA VICTIMS OF THE COMMUNIST TERROR v. BULGARIA

(Application no. 23702/15)

JUDGMENT
 

STRASBOURG

28 May 2020

This judgment is final but it may be subject to editorial revision.

In the case of Vasilev and Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

André Potocki, President,
Lәtif Hüseynov,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,

Having regard to:

the application 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 Mr Stoyan Gerasimov Vasilev, a Bulgarian national and also a Macedonian/citizen of the Republic of North Macedonia, and the “Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror”, an association based in Blagoevgrad, Bulgaria (“the applicants”), on 13 May 2015;

the decision to give the Bulgarian Government (“the Government”) notice of the complaint under Article 11 of the Convention concerning the refusal to register the applicant association;

the parties’ observations;

the tacit abstention of the Government of North Macedonia to exercise their right under Article 36 § 1 of the Convention to intervene in the proceedings owing to the first applicant’s second nationality; and

the decision of the judge elected with respect to Bulgaria, Y. Grozev, to withdraw from taking part in the consideration of the case,

Having deliberated in private on 28 May 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The case concerns the question whether it was necessary in a democratic society for the Bulgarian courts to refuse to register an association which advocates the idea that there exists an oppressed Macedonian ethnic minority in Bulgaria, chiefly on the grounds that (a) the association was directed against the unity of the Bulgarian nation and the territorial integrity of Bulgaria, and that (b) its goals were political and therefore only capable of being pursued by a political party rather than a regular association.

THE FACTS

1.  The first applicant, Mr Stoyan Gerasimov Vasilev, is a Bulgarian national and also a Macedonian/citizen of the Republic of North Macedonia who was born in 1948 and lives in Blagoevgrad, Bulgaria; he is the second applicant’s chairman (see paragraph 4 below). The second applicant, the “Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror”, is an association set up in 2013 in Blagoevgrad, Bulgaria.

2.  The applicants were represented before the Court by Mr K. Kanev, chairman of the Bulgarian Helsinki Committee, a non-governmental organisation based in Sofia, Bulgaria. On 15 January 2016 the President of the Section gave Mr Kanev leave to represent applicants in all pending and future cases in which he personally acts as a representative (Rule 36 § 4 (a) in fine of the Rules of Court). The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov of the Ministry of Justice.

3.  The facts of the case, as established by the Court, may be summarised as follows.

4.  On 9 December 2013 the eight founders of the applicant association held a meeting at which they resolved to form the association, adopted its articles, and elected its board, chairman (the first applicant), vice-chairman and cashier. They went on to instruct the first applicant to take the necessary steps to have the association registered.

5.  On an unknown later date the first applicant asked the Blagoevgrad Regional Court to register the association.

6.  On 30 July 2014 the judge to whom the case had been assigned recused himself, noting that the case concerned a request for the registration of “Macedonians”, which was not a minority officially recognised by the Bulgarian State, and that he had taken part in local elections as an independent candidate supported by a nationalist political party, which could give rise to doubts about his impartiality. The case was in consequence assigned to another judge.

7.  On 26 September 2014 the Blagoevgrad Regional Court refused to register the applicant association (see реш. № 4022 от 26.09.2014 г. по ф. д. № 44/2014 г., БОС). It found that the association’s goals, as formulated in its articles, suggested that it would be directed against the unity of the nation. In particular, the association had stated that it would strive to preserve and popularise the Macedonian cultural and historical heritage; to “preserve, develop and pass on to future generations the historical truth about the Macedonian question and the work for its resolution”; to restore and build monuments relating to the Macedonian past and heritage; to work to protect the rights of Macedonians; to organise lectures, talks and conferences about the past and present problems faced by the Macedonian people; to organise regional Macedonian gatherings, the commemoration of historical dates and events; to gather memoirs and historical and archive materials relating to the history of the Macedonians; to ensure the recording, preservation and popularisation of the Macedonian folkloric heritage; and so on. These activities and goals, seen against the backdrop of the disputes about Bulgarian historical personalities and events, were directed against the unity of the Bulgarian nation, which was contrary to the prohibition laid down in Article 44 § 2 of the Constitution (see paragraph 15 below).

8.  The first applicant appealed. He submitted that the court had erred by holding that the association’s goals went against Article 44 § 2 of the Constitution. These goals, which were social and cultural, were by no means unlawful. The mere fact that the association would seek to promote a minority ethnic consciousness was not a threat to democracy or the unity of the nation. The refusal to register it had also been discriminatory, since an association having the same articles but called “Union of the Thracian Societies” had earlier been registered without any question being raised about the existence of a Thracian ethnos in Bulgaria. More generally, in approaching these matters the courts had to bear in mind that they were dealing with the fundamental right to freedom of association, and that only the Constitutional Court was competent to ban an organisation for being contrary to Article 44 § 2 of the Constitution.

9.  On 19 December 2014 two of the three Sofia Court of Appeal judges to whom the case had been assigned were removed from it because in 2010 they had taken part in the consideration of a similar case.

10.  On 2 February 2015 the Sofia Court of Appeal upheld the lower court’s decision (see реш. № 213 от 02.02.2015 г. по ф. д. № 3997/2014 г., САС). It noted that the association’s articles consistently insinuated that there existed in Bulgaria an oppressed Macedonian ethnos and called for the promotion of the so-called “Macedonian cause”, which was contrary to Articles 2 § 2 and 44 § 2 of the Constitution (see paragraphs 11 and 15 below). Also, any changes relating to the country’s unitary character and territorial integrity and the unity of the nation were characteristic solely of political parties, and, by Article 12 § 2 of the Constitution (see paragraph 12 below), could not be among the goals pursued by a regular association. The lower court had therefore been correct to refuse registration. Moreover, the possibility, envisaged by the association’s articles, for it to invest in, design and erect buildings, amounted to a secondary business activity which went beyond the bounds of what was permitted to associations, and in effect suggested that the association would operate as a business, in breach of the prohibition in section 3(3) of the Not-For-Profit Legal Persons Act 2000 (see paragraph 16 below).

RELEVANT LEGAL FRAMEWORKTerritorial integrity of the State

11.  Article 2 § 2 of the Constitution of 1991 provides that the territorial integrity of the Republic of Bulgaria is inviolable.Provisions relating to the aims which associations may pursue

12.  By Article 12 § 2 of the Constitution, associations may not pursue political goals or carry out political activities that are characteristic solely of political parties.

13.  In a decision of 21 April 1992 (реш. № 4 от 21.04.1992 г. по к. д. № 1/1991 г., обн., ДВ, бр. 35/1992 г.) the Constitutional Court held, inter alia, that “political activities that are characteristic solely of political parties”, within the meaning of Article 12 § 2, were defined by Article 11 § 3 of the Constitution as those which facilitate “the formation of citizens’ political will” through “elections or other democratic means”. The court went on to say that “what was essential for this type of political activity [was] direct participation in the process of forming the bodies through which, under the Constitution, the people exercise[d] power”.

14.  In January 2015 the plenary of the Supreme Court of Cassation’s Commercial Section asked the Constitutional Court to give a binding interpretation of Article 12 § 2. In a decision of 17 March 2015 (опр. № 1 от 17.03.2015 г. по к. д. № 1/2015 г., обн., ДВ, бр. 23/2015 г.), the Constitutional Court declined the request. It noted that it had not been shown that there existed divergences in the application of that provision, as required under its case-law, and that it was only competent to give a binding interpretation of a constitutional provision if it had been duly established that there was uncertainty about its meaning.

15.  Article 44 § 1 of the Constitution enshrines the right to freedom of association. Article 44 § 2 goes on to say that organisations whose activities are directed against the country’s sovereignty or territorial integrity or against the nation’s unity, or which aim to stir up racial, national, ethnic or religious hatred, or to violate the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to attain their goals through violence, are prohibited.

16.  The Not-For-Profit Legal Persons Act 2000 governs the formation, registration, organisation, activities and winding-up of not-for-profit legal persons, such as associations and foundations. It provides, in section 3(3), that a not-for-profit legal person may carry out a secondary business activity only if that activity is connected with its main registered activity and only if the proceeds from it are used for the goals set out in its articles.registration of associations

17.  Until the end of 2018, the procedure for the registration of associations unfolded at first instance before the territorially competent regional courts. A September 2016 amendment to the Not-For-Profit Legal Persons Act 2000 – in particular to sections 17 and 18 –, which came into force on 1 January 2018, shifted competence to register associations from the regional courts to the Registry Agency attached to the Ministry of Justice (which has since 2008 also kept the register of companies). Since 1 January 2018 the registration procedure is governed by sections 13 to 31 of the Register of Companies and the Register of Not-For-Profit Legal Persons Act 2006 (as amended with effect from the same date).

18.  The explanatory notes to the October 2015 Government bill which led to these amendments (no. 502-01-83) noted, among other things, that there existed systemic divergences in the case-law of the various regional courts relating to the registration of not-for-profit associations, which “gave rise to legal uncertainty, led to an increase in the administrative burden for organisations and in the time for obtaining registration, and was conducive to infringements of the constitutional right to freedom of association”.

THE LAWALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

19.  The applicants complained that the applicant association had been refused registration. They relied on Article 11 of the Convention, which provides, in so far as relevant:

“1.  Everyone has the right ... to freedom of association with others ...

2.  No restrictions shall be placed on the exercise of [this right] 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. ...”The parties’ submissions

20.  The Government submitted that the refusal to register the applicant association had been based on the Constitution and the relevant statutes, which according to them had been properly applied by the Bulgarian courts. The refusal had sought to attain a number of legitimate aims, and had been necessary in a democratic society. It had been based on the stated goals of the association, which were directed against the unity of the Bulgarian nation and were political in nature and hence only capable of being pursued by a political party, and also on the possibility, envisaged by the association’s articles, for it to engage in business, which went beyond the bounds of what was permitted to associations under the relevant statute. The Government went on to note that the association could seek registration afresh under the newly introduced registration mechanism that had come into effect in the beginning of 2018. They pointed out that an association having identical goals as the applicant association had managed to obtain registration under that new mechanism.

21.  The applicants submitted that the first two grounds on which the Sofia Court of Appeal had upheld the refusal to register the applicant association – that its goals would undermine the unity of the Bulgarian nation and that those goals were political and thus only capable of being pursued by a political party – closely resembled those given by the Bulgarian courts in previous similar cases, and had already been found by this Court on several occasions not to be necessary in a democratic society. The third ground cited by the Sofia Court of Appeal – the alleged intention of the applicant association in reality to engage in business in breach of the relevant statutory prohibition – was based on a tendentious misconstruction of its articles, which contained entirely lawful terms typical for articles of association in Bulgaria: that the association could engage in business solely as an ancillary activity meant to generate funds for its main activities.The Court’s assessmentAdmissibility

22.  The complaint is neither manifestly ill-founded nor inadmissible on any of the other grounds set out in Articles 34 and 35 §§ 1-3 of the Convention. It must therefore be declared admissible.Merits

23.  The refusal to register the applicant association amounted to a “restriction” of both its and its members’ right to freedom of association (see United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, § 53, 19 January 2006; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, §§ 27 and 30, 18 October 2011; Yordan Ivanov and Others v. Bulgaria, no. 70502/13, § 39, 11 January 2018; and United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 3), no. 29496/16, § 32, 11 January 2018).

24.  The fact that the association is capable of seeking registration afresh under the new registration mechanism put in place in the beginning of 2018 (see paragraphs 17 and 18 above) is of no relevance in this respect. The Court has in a number of cases treated a refusal to register an organisation as a “restriction” in its own right, and has even observed that earlier or later registration proceedings fall outside the scope of the case relating to that particular “restriction” (see United Macedonian Organisation Ilinden–PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 70, 18 October 2011).

25.  There is no need to examine whether the “restriction” was “prescribed by law” or pursued a legitimate aim (see United Macedonian Organisation Ilinden and Others (no. 2), § 32; Yordan Ivanov and Others, § 40; and United Macedonian Organisation Ilinden and Others (no. 3), § 33, all cited above) because, even assuming that it was and did, it was not “necessary in a democratic society”, for the following reasons.

26.  The Bulgarian courts based the refusal to register the association on two main grounds. The first was that by promoting the idea that there existed an oppressed Macedonian ethnic minority in Bulgaria, the association was impermissibly acting against the nation’s unity and the country’s territorial integrity. The second was the characterisation of the association’s goals as political and therefore only capable of being pursued by a political party (see paragraphs 7 and 10 above). In United Macedonian Organisation Ilinden and Others (no. 2) (cited above, §§ 36-39) and Yordan Ivanov and Others (cited above, § 41), both of these grounds were found to be insufficient to justify a refusal to register a similar association. The present case presents no material difference. It does not appear that the purported problem with association’s allegedly too broadly defined intended secondary business activity – the construction of buildings –, briefly referred to by the Sofia Court of Appeal but not even mentioned by the lower court, was so serious as to amount to a standalone ground to deny registration. Seen in its proper context, this was clearly a secondary activity not meant to transform the association into a business and thus subvert the statutory prohibition against that.

27.  There has therefore been a breach of Article 11 of the Convention.ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

28.  The applicants complained that the refusal to register the applicant association, which had been based on its Macedonian character and had, according to them, to be seen against the backdrop of systemic restrictions of the Article 11 rights of Macedonians in Bulgaria during the past two decades and the Bulgarian State’s policy of denying the existence of a Macedonian ethnic identity in Bulgaria, had been discriminatory. They relied on Article 14 of the Convention, which reads:

“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.”

29.  Neither party made submissions in relation to this complaint.

30.  The complaint relates to the same facts as the one based on Article 11 of the Convention: the refusal of the Blagoevgrad Regional Court, upheld by the Sofia Court of Appeal, to register the applicant association. Having regard to its findings in paragraphs 26 above, the Court finds no need to examine separately its admissibility or merits (see Yordan Ivanov and Others, §§ 50-53, and United Macedonian Organisation Ilinden and Others (no. 3), §§ 42-45, both cited above).APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.  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.”Damage

32.  The applicants claimed 9,000 euros (EUR) in respect of the non‑pecuniary damage they had allegedly sustained as a result of the breach of Article 11 of the Convention.

33.  The Government noted that in a number of previous similar cases the Court had held that the finding of a breach amounted in itself to sufficient just satisfaction, or had awarded lower sums with respect to non-pecuniary damage. The applicants’ claim was thus exorbitant.

34.  Taking into account the awards made in previous similar cases against Bulgaria (see, in particular, United Macedonian Organisation Ilinden and Others (no. 2), § 53; Yordan Ivanov and Others, § 57; and United Macedonian Organisation Ilinden and Others (no. 3), § 49, all cited above), and the specific circumstances of this case, the Court finds that the non-pecuniary damage suffered by the applicants on account of the breach of Article 11 of the Convention can be made good with a joint award of EUR 7,500, plus any tax that may be chargeable.Costs and expenses

35.  The applicants sought reimbursement of EUR 1,440 in respect of the fees charged by their representative in the proceedings before the Court for eighteen hours of work on the case, at EUR 80 per hour. They requested that any award under this head be made directly payable to the Bulgarian Helsinki Committee. In support of their claim, they submitted a conditional fee agreement between the first applicant and the Bulgarian Helsinki Committee.

36.  The Government invited the Court to make an equitable award in respect of costs and expenses.

37.  According to the Court’s case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum. Having regard to these principles and the material in its possession, the Court considers it appropriate to award the applicants EUR 1,000 in respect of the costs that they incurred in the proceedings before it, plus any tax that may be chargeable to them. As requested by the applicants, this sum is to be paid directly into the bank account of the Bulgarian Helsinki Committee, where their representative works.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint under Article 11 of the Convention concerning the refusal to register the applicant association admissible;Holds that there has been a violation of Article 11 of the Convention;Holds that there is no need to examine the admissibility or merits of the complaint under Article 14 of the Convention;Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of 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.

Victor SoloveytchikAndré Potocki
Deputy RegistrarPresident

 

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