Communicated on 2 May 2019
FIFTH SECTION
Application no. 67197/13
MACEDONIAN CLUB FOR ETHNIC TOLERANCE IN BULGARIA and Angel Kirilov RADONOV
against Bulgaria
lodged on 10 October 2013
STATEMENT OF FACTS
1. The first applicant, the Macedonian Club for Ethnic Tolerance in Bulgaria, is an association formed in 2012 in Blagoevgrad, Bulgaria. The second applicant, Mr Angel Kirilov Radonov, is Bulgarian national who was born in 1954 and lives in Blagoevgrad; he is the chairman of the association’s board (see paragraph 4 below).
2. The applicants are represented before the Court by Mr T. Menkinoski, a lawyer practising in Skopje, North Macedonia.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. On 3 April 2012 the nine founders of the applicant association held a meeting at which they resolved to form the association, adopted its articles, and elected its board and chairman (the second applicant). They went on to instruct the second applicant to take the necessary steps to have the association registered.
5. On 13 June 2012 the association applied to the Blagoevgrad Regional Court to be registered. On 7 February 2013 the court refused its application (see реш. № 31 от 07.02.2013 г. по ф. д. № 36/2012 г., БОС).
6. The second applicant appealed. He argued, inter alia, that the refusal to register the association was in breach of Article 44 § 1 of the Constitution (see paragraph 14 below).
7. On 11 April 2013 the Sofia Court of Appeal upheld the lower court’s decision (see реш. № 715 от 11.04.2013 г. по ф. д. № 948/2013 г., САС). It noted that not-for-profit associations were chiefly characterised by their goals, which is why these goals had to be spelled out in their articles. In recognition of the fundamental right enshrined in Article 44 § 1 of the Constitution (see paragraph 14 below), which belonged to all people irrespective of their ethnic, confessional or linguistic differences, associations were by law entitled freely to set their goals. But as a corollary to that, the Constitution also envisaged, as was indeed permissible under international law, some universally applicable restrictions to freedom of association. A person’s self-identification as a member of an ethnic minority was thus neither a ground for privileges in that respect nor a ground for tougher restrictions.
8. The prohibition in Article 44 § 2 of the Constitution (see paragraph 14 below) was akin to that envisaged under Article 22 § 2 of the International Covenant on Civil and Political Rights, and an organisation which proposed to protect the interests of an ethnic minority which had not historically come to exist in Bulgaria fell under the terms of that provision.
9. The court went on to note that in its articles the association said that it would strive to protect the human and ethnic rights of Macedonians and other ethnic minorities in Bulgaria, and that it proposed to do so by organising lectures, talks and conferences about the past of the Macedonian people and its revolutionary struggles, as well as Macedonian national conventions and commemorations of historical dates and events; by collecting, publishing and preserving memoirs, documents and other materials relating to the fate of repressed Macedonians in Bulgaria; by providing legal and other assistance to repressed Macedonians and their heirs in Bulgaria; by organising rallies and demonstrations to vindicate the rights of the Macedonian minority in Bulgaria; and by presenting the problems of repressed Macedonians and of the Macedonian ethnic minority to the competent Bulgarian authorities and international institutions.
10. The systematic construction of those aims and means showed that they revealed assertions that there existed in Bulgaria a Macedonian ethnic minority whose rights had been infringed and would be protected by the applicant association. But there was no Macedonian minority in Bulgaria, in the form of a separate group established on its territory whose members were its nationals and had certain religious, linguistic, cultural or other characteristics that set them apart from the majority of the population. Therefore, the manifestation of such a minority by way of an association seeking to cater for its various needs was not in effect meant to defend its rights, which were no different from those of other citizens, but to cultivate among Bulgarian citizens a different ethnic self-consciousness which had not arisen in a natural historical way, and was thus directed against the unity of the nation, contrary to prohibition in Article 44 § 2 of the Constitution (see paragraph 14 below). Moreover, the association’s articles contained political goals, relating to activities characteristic of political parties, which was proscribed by Article 12 § 2 of the Constitution (see paragraph 11 below).
B. Relevant domestic law and practice
1. Provisions relating to the aims which associations may lawfully pursue
11. By Article 12 § 2 of the Constitution of 1991, associations may not pursue political goals or carry out political activities that are characteristic solely of political parties.
12. 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”.
13. 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.
14. 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.
15. 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.
2. Legal provisions and case-law relating to the question of whether appellate decisions in registration proceedings are amenable to appeal on points of law
16. Article 500 of the 1952 Code of Civil Procedure, in force until the end of February 2008, provided that a decision by a first-instance court to refuse to register a non-governmental organisation was amenable to appeal before a court of appeal. In a 2001 interpretative decision the plenary of the Supreme Court of Cassation’s Civil Section held that, read in the light of the Code’s remaining provisions and its overall scheme and general principles, that provision was to be construed as also permitting appeals on points of law against appellate decisions in such proceedings (see тълк. реш. № 1 от 17.07.2001 г. по тълк. д. № 1/2001 г., ВКС, ОСГК).
17. Article 606 of the 2007 Code of Civil Procedure, in force since March 2008, likewise provides that a decision by a first-instance court to refuse to register a non-governmental organisation is amenable to appeal before a court of appeal.
18. According to legal commentaries published shortly after the 2007 Code’s entry into force, it was possible to in turn appeal on points of law against the court of appeal’s decision (see Р. Иванова, Б. Пунев, С. Чернев, Коментар на новия Граждански процесуален кодекс, Труд и право, 2008 г., стр. 715, and Ж. Сталев, Българско гражданско‑процесуално право, Сиела, 2012 г., стр. 1286). In three decisions given in 2009, 2011 and 2012 the Supreme Court of Cassation implicitly accepted this (see опр. № 28 от 22.04.2009 г. по т. д. № 80/2009 г., ВКС, I т. о.; опр. № 524 от 06.07.2011 г. по т. д. № 1126/2010 г., ВКС, I т. о.; and опр. № 626 от 14.08.2012 г. по т. д. № 820/2011 г., ВКС, II т. о.).
19. However, in a decision given on 30 April 2013 a three-member panel of that court, having analysed in detail the relevant provisions of the 2007 Code, held that decisions of the courts of appeal in such cases were not amenable to appeal on points of law (see опр № 133 от 30.04.2013 г. по т. д. № 510/2012 г., ВКС, I т. о.). In July 2013 that decision was upheld on appeal by another three-member panel of the court (see опр. № 508 от 15.07.2013 г. по ч. т. д. № 2571/2013 г., ВКС, II т. о.).
20. It appears that in all subsequent decisions relating to the point the Supreme Court of Cassation likewise held that no appeal on points of law lay against decisions by the courts of appeal in such cases (see опр. № 34 от 29.01.2014 г. по т. д. № 70/2014 г., ВКС, I т. о.; опр. № 273 от 07.05.2014 г. по ч. т. д. № 943/2014 г., ВКС, II т. о.; опр. № 385 от 13.11.2014 г. по т. д. № 3112/2014 г., ВКС, I т. о.; опр. № 307 от 04.06.2015 г. по ч. т. д. № 586/2015 г., ВКС, I т. о.; опр. № 50 от 16.02.2016 г. по т. д. № 18/2016 г., ВКС, I т. о.; опр. № 284 от 29.06.2016 г. по ч. т. д. № 1403/2016 г., ВКС, I т. о.; опр. № 317 от 15.07.2016 г. по ч. т. д. № 1062/2016 г., ВКС, I т. о.; and опр. № 230 от 01.11.2016 г. по т. д. № 1769/2016 г., ВКС, II т. о.).
21. In December 2015 the President of the Supreme Court of Cassation asked the plenary of the court’s Civil and Commercial Sections to give an interpretative decision on a number of points of procedure. One of those was whether decisions whereby courts of appeal courts upheld regional courts’ refusals to register a legal entity were amenable to appeal on points of law. The President said that the case-law on that was inconsistent, referring to the three 2009-12 decisions cited in paragraph 18 above and the two 2013 decisions to the opposite cited in paragraph 19 above. In its interpretative decision, handed down in July 2018, the plenary of the court’s Civil and Commercial Sections confirmed that no appeal on points of law lay against decisions by the courts of appeal in such cases (see тълк. реш. № 5 от 12.07.2018 г. по тълк. д. № 5/2015 г., ВКС, ОСГТК).
COMPLAINTS
22. The applicants complain under Article 6 § 1 of the Convention that the reasons given by the Sofia Court of Appeal were unclear and arbitrary, owing in particular to its alleged failure to take into account all relevant legal provisions and its finding that the applicant association would pursue political goals.
23. They also complain under Article 11 of the Convention that the reasons for which the applicant association was refused registration were not clear and compelling, and that the decision to do so was not based on an acceptable assessment of the relevant facts.
24. Lastly, they complain under Article 14 of the Convention that the authorities refused to register the applicant association on account of the second applicant’s Macedonian ethnic origin.
QUESTION TO THE PARTIES
Was the refusal to register the applicant association in breach of its and Mr Radonov’s right to freedom of association, enshrined in Article 11 of the Convention (see United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, §§ 53-82, 19 January 2006; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, §§ 30‑41, 18 October 2011; Yordan Ivanov and Others v. Bulgaria, no. 70502/13, §§ 39-42, 11 January 2018; and United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 3), no. 29496/16, §§ 32‑36, 11 January 2018)?
Full & Egal Universal Law Academy