STANKOV AND UNITED MACEDONIAN ORGANISATION "ILINDEN" v. BULGARIA



                      AS TO THE ADMISSIBILITY OF

      Application No. 29221/95   Application No. 29225/95

      by Boris STANKOV           by United Macedonian

      against Bulgaria           Organisation "ILINDEN"

                                 against Bulgaria

      The European Commission of Human Rights sitting in private on

29 June 1998, the following members being present:

           MM    S. TRECHSEL, President

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

           Mrs   G.H. THUNE

           MM    F. MARTINEZ

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

           Mr    M. de SALVIA, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the applications nos. 29221/95 by Boris Stankov

and 29225/95 by United Macedonian Organisation "ILINDEN" and others

against Bulgaria, both introduced on 29 July 1994 and registered on

10 November 1995;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      3 February 1997 and the observations in reply submitted by the

      applicants on 26 November 1997; the additional observations

      submitted by the Government on 12 March 1998 and the applicants'

      reply of 8 April 1998; the additional observations submitted by

      the Government on 19 June 1998;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant in application No. 29225/95 is the United

Macedonian Organisation "Ilinden" ("the applicant association").  The

remaining applicant in application No. 29221/95 is Mr Boris Stankov

("the second applicant"), a Bulgarian citizen born in 1926 and residing

in Petrich.

      The applicants are represented by Mr Iordan Kostadinov Ivanov,

a Bulgarian citizen residing in Sandanski, President of the applicant

association.

A.    Particular circumstances of the case

      The facts of the case as submitted by the applicants may be

summarised as follows.

      Background of the case

      The United Macedonian Organisation "Ilinden" was founded on

14 April 1990.  It applied for but was refused registration.  In the

proceedings for registration the Blagoevgrad Regional Court (Okrazhen

sad) and the Supreme Court (Varhoven sad) examined the statute of the

association, its programme and other written evidence such as, inter

alia, an appeal to the population of Pirin Macedonia distributed by the

applicant association and the text of its public address on the

occasion of the "Day of the Bulgarian Alphabet".

      In their decisions of July and November 1990 and March 1991 the

courts found that the applicant association's aims were directed

against the unity of the nation, that it advocated national and ethnic

hatred, and that it was dangerous for the territorial integrity of

Bulgaria.  Therefore, its registration would be contrary to Sections

3, 8 and 52 para. 3 of the Constitution of 1971, as in force at the

time.  Thus, according to its programme and as it transpired from its

submissions to the courts, the aims of the association included inter

alia the "recognition of the Macedonian minority in Bulgaria", the

"political development of Macedonia" and the "united, independent

Macedonian state".  Moreover, the association was advocating enmity and

rejection.  In its appeal to the Supreme Court it had stated that "the

Macedonian people would not accept Bulgarian, Greek or Serbian rule".

The formal declaration, contained in the applicant association's

statute, that it would not infringe the territorial integrity of

Bulgaria, appeared inconsistent with the remaining material.

      Following the refusal of registration the attempts of the

applicant association to organise marches and meetings and other public

events were prevented by the authorities.

      Prohibitions against the holding of marches and meetings

      In July 1994 Mr Stankov as President of the Petrich branch of the

applicant association requested the mayor of Petrich to authorise

a march and a meeting to be held on 31 July 1994 in commemoration of

a historical event.  On 13 July 1994 permission was refused by the

mayor.  The applicant association appealed to the Petrich District

Court (Raionen sad).  On 16 July 1994 the Court dismissed the appeal.

The Court found that since the applicant association was banned, there

were well-founded fears that the march would endanger the public order

and the rights and freedoms of others.  Despite the refusal of the

authorities, on 31 July 1994 some members of the applicant association

(120-150 according to the applicants' assessment) attempted to approach

the historical site but the police, who according the applicants were

heavily armed, blocked their way.

      On 10 April 1995 the applicant association requested the mayor

of Sandanski to authorise a meeting to be held on 22 April 1995 at the

grave of Yane Sandanski at the Rozhen Monastery in commemoration of

a historical event.  This was refused on 14 April 1995 as the applicant

association was not duly registered by the courts.  On 15 April 1995

the applicant association appealed to the Sandanski District Court

stating inter alia that the Macedonian people were deprived of their

right to their own cultural life and that this was a violation of

international law.  The Court allegedly did not examine the appeal.

      The applicants submit that a group of supporters of the applicant

association who went to the Rozhen Monastery on 22 April 1995 were

ordered by the police to leave their cars in the nearby town of Melnik

and were transported to the Monastery by local buses.  There they were

allowed to visit the grave, to lay a wreath and to light candles.

However, they were not allowed to bring to the site the placards,

banners and musical instruments which they carried and were not allowed

to hold speeches at the grave.  The police allegedly took away the

ribbon attached to the wreath.  The participants then celebrated the

event, without music, in the region of the Monastery but at a certain

distance from the grave.

      In July 1995, as in previous years, the applicant association

again requested a permission to hold a commemoration march and

a meeting on 30 July 1995 at the historical site around Petrich.  The

reasons for the refusals of the mayor of Petrich of 14 July 1995 and

of the Petrich District Court of 18 July 1995 were identical to those

contained in their decisions of July 1994.

      On 8 April 1997 the applicant association informed the mayor of

Sandanski and the local police that they were organising a march and

a meeting to be held on 20 April 1997 at the Rozhen monastery in

commemoration of a historical event.  On 11 April 1997 the mayor

refused to grant permission.  He stated that permission for the

commemoration of the same historical event had been requested on

4 April 1997 by the director of the local high school.  The mayor

further explained that the commemoration would be organised jointly by

the school and the municipality and that "every [person], individually,

could come".

      On 15 April 1997 the applicant association appealed to the

Sandanski District Court against the mayor's refusal stating inter alia

that the mayor had not allowed them, "as a separate ethnic community",

to organise a march and a meeting at the tomb of their national hero.

      On 17 April 1997 the President of the Sandanski District Court

issued an order leaving the appeal without consideration.  The order

stated that the appeal had been submitted on behalf of an unregistered

organisation.  On 18 April 1997 the District Court's Registry prepared

a form letter notifying the representative of the applicant association

of the President's order.  The date on which this notification reached

the applicant association is disputed.  The Government have submitted

a copy of a document which shows that a Ms. K., the daughter-in-law of

the person who was representing the applicant association, received the

notification on 1 July 1997.  The applicants initially stated that they

had never received a response to their appeal of 15 April 1997 but

later admitted that on 5 May 1997 they had learned about the order of

17 April 1997.

      As the deficiencies of the appeal were not remedied within the

statutory seven days' time-limit, on 5 May 1997 the President of the

Sandanski District Court ordered the return of the appeal.  This order

was notified to the applicant association on 13 August 1997.

      The applicants claim that on 20 April 1997 the police did not

allow a group of supporters of the applicant association to reach the

Rozhen monastery and that two persons who have not submitted

applications to the Commission were ill-treated.  The applicants submit

that on 20 April 1997 only 13 students and two teachers from the local

high school arrived at the Rozhen monastery.  They laid a wreath in the

presence of the police and left two minutes later.

      On 14 July 1997 Mr Stankov as President of the association's

branch in Petrich requested permission for a march and a meeting at

a historical site in the outskirts of Petrich to be held on 2 August

1997.  On 17 July 1997 the mayor refused the request, stating that the

applicant association was not "a legitimate organisation".

      On 20 July 1997 the applicant association appealed to the Petrich

District Court against the refusal of the mayor stating inter alia that

there was no legal provision prohibiting marches and meetings organised

by organisations which are not "legitimate" and that the planned public

event was peaceful and did not endanger the public order.

      By decision of 1 August 1997 the Petrich District Court dismissed

the appeal on the merits.  The Court found that the applicant

association was not duly registered "in accordance with the laws of the

country" and that it was not shown that the persons who were acting on

behalf of the association were representing it in reality.  As a

result, it was unclear who was organising the event and who would be

responsible for order during the march and the meeting under Sections

9 and 10 of the Law on Manifestations and Meetings.  The Court

concluded that the lack of clarity as regards the organisers of

a public event posed a danger to public order and to the rights and

freedoms of others.

      The applicants submit that on 2 August 1997 the police did not

allow a group of supporters of the applicant association to reach the

historical site around Petrich.

B.    Relevant domestic law

a)    Freedom of assembly under the Constitution of July 1991:

Section 43

      "(1) Everyone shall have the right to peaceful and unarmed

assembly at meetings and manifestations.

      (2)  The procedure for organising and holding meetings and

manifestations shall be provided for by act of Parliament.

      (3)  Permission shall not be required for meetings to be

held indoors."

Section 44

     "...

     (2) Organisations whose activities are directed against the

sovereignty or the territorial integrity of the country or

against the unity of the nation, or aim at stirring racial,

national, ethnic or religious hatred, or at violating the rights

and freedoms of others, as well as organisations creating secret

or para-military structures, or which seek to achieve their aims

through violence, shall be prohibited."

b)    Requirements for the organisation of a meeting or a

manifestation:

      Law on Manifestations and Meetings of 1990

Section 2

     "Meetings and manifestations may be organised by

individuals, associations, political and other public

organisations."

Section 6 para. 2

     "(2) Every organiser [of] or participant [in a

manifestation or a meeting] shall be responsible for damage

caused through his or her fault during the [event]."

Section 8 para. 1

     "Where a meeting is to be held outdoors the organisers

shall notify in writing the [respective] People's Council or

mayor's office not later than 48 hours before the beginning [of

the meeting] and shall indicate the [name of] the organiser, the

aim [of the meeting], and the place and time of the meeting."

Section 9 para. 1

     " The organisers of the meeting shall take the measures

necessary to ensure the order during the event."

Section 10

     "(1)  The meeting shall be presided over by a president.

     (2) The participants shall abide by the instructions of the

president concerning the preservation of [public] order ..."

c)    Prohibitions on meetings and manifestations and appeals against

the prohibitions:

Law on Manifestations and Meetings of 1990

Section 12

     "(1) Where the time or the place of the meeting or

manifestation, or the itinerary of the march, would create a

situation endangering public order or traffic safety, the

President of the Executive Committee of the People's Council, or

the mayor, respectively, shall propose their modification.

     (2)   The President of the Executive Committee of the

People's Council, or the mayor, shall be competent to prohibit

the holding of a meeting, of a march or of a manifestation,

where reliable information exists that:

           1. it aims at the violent overturning of the

     Constitutional public order or is directed against the

     territorial integrity of the country;

           2. it would endanger public order in the local

     community;

            ...

           4. it would breach the rights and freedoms of others.

     (3) The prohibition shall be imposed by a written reasoned

act not later than 24 hours following the notification.

     (4) The  organiser of the meeting, march or manifestation

may appeal to the Executive Committee of the People's Council

against the prohibition referred to in the preceding paragraph.

The Executive Committee shall decide within 24 hours.

     (5) Where the Executive Committee of the People's Council

has not decided within [this] time-limit, the march, meeting or

manifestation may proceed.

     (6) In case the appeal has been dismissed the dispute shall

be referred to the respective District Court which shall decide

within five days.  The Court's decision shall be final."

      The Law on Manifestations and Meetings was adopted in 1990, when

the Constitution of 1971 was in force.  Under the Constitution of 1971

the executive local state organs were the Executive Committees of the

district People's Councils (Izpulnitelni komiteti na obshtinskite

narodni saveti).  The mayors referred to in some of the provisions of

the Law on Manifestations and Meetings were representatives of the

Executive Committee acting in villages and towns which were under the

jurisdiction of the respective People's Council.

      The 1991 Constitution abolished the Executive Committees and

established the post of the mayor, elected by direct universal

suffrage, as the "organ of the executive power in the municipality"

(Section 139).  The new municipal councils (obshtinski saveti), which

consist of elected councillors, are "organ[s] of local self-government"

(Section 138).  Under Section 21 of the Law on Local Self-Government

and Local Administration (Zakon za mestnoto samoupravlenie i mestnata

administratzia) of 1991 the municipal councils adopt the local budget,

determine the local taxes, decide on the management of municipal

property, adopt building plans and perform other similar tasks.  There

is no provision envisaging a possibility for a municipal council to

examine appeals against decisions of the mayor.

      Under Section 27 para. 2 of the Administrative Procedure Act

(Zakon za administrativnoto proizvodstvo), read in conjunction with

Section 5 of the transitory provisions to this Act, the decisions of

the mayors are subject to appeal to the regional governor (oblasten

upravitel).

      Under Section 35 para. 2 of the Administrative Procedure Act an

administrative act can be appealed against to a court either after the

exhaustion of the appeals to higher administrative organs, or after the

expiry of the time-limits for such appeals.  According to the Supreme

Court's practice an appeal may be submitted directly to the courts,

without exhausting the possibility of lodging appeals with the higher

administrative organs (opred. No. 103 ot 20.10.1987 na V.S. III g.o.;

opred. No. 68 ot 16.4.1997 po adm.d. 1260/96 na V.A.S., Biul., kn. 7-

8/97, str. 32).

      Section 120 para. 2 of the 1991 Constitution provides that all

administrative acts, except those expressly excluded by Act of

Parliament, are subject to judicial appeal.

      Where a court orders that an appeal against an administrative

decision shall be returned to the sender for failure to remedy

a procedural omission, the court's order is subject to appeal to the

higher court within a seven days' time limit (Section 45 of the

Administrative Procedure Act in conjunction with Section 200 of the

Code of Civil Procedure (Grazhdansko-protzesualen kodeks).

      At the relevant time a petition for review to the Supreme

Administrative Court could be submitted  against a judgment of

a District Court pronounced in proceedings concerning an appeal against

an administrative decision (Sections 225-229 of the Code of Civil

Procedure, as in force until April 1998; Section 44 of the

Administrative Procedure Act as in force until December 1997).

COMPLAINTS

      The applicants complain under Article 11 of the Convention of the

refusal of the authorities to allow the holding of marches and meetings

on 31 July 1994, 22 April and 30 July 1995, and on 20 April and

2 August 1997.

PROCEEDINGS BEFORE THE COMMISSION

      Mr Boris Stankov and the applicant association introduced their

complaints on 29 July 1994.

      On 21 October 1996 the Commission decided to join applications

Nos. 299221, 29222, 29223, 29225 and 29226/95 and to communicate the

complaints of UMO "Ilinden" and of Mr Boris Stankov (which formed part

of applications Nos. 29221/95 and 29225/95) concerning the refusal of

the authorities to allow the holding of marches and meetings on 31 July

1994 and on 22 April and 30 July 1995.  The Commission declared

inadmissible the remainder of the five joined applications.

      The Government's written observations were submitted on

3 February 1997, after an extension of the time-limit fixed for that

purpose.  The applicants replied on 26 November 1997, after extensions

of the time-limit.

      On 7 March 1997 the Commission granted legal aid to Mr Stankov.

      By letter dated 20 October 1997 the applicants submitted

additional complaints concerning the events in April, July and August

1997.  This letter and the enclosed material was transmitted to the

Government on 13 January 1998.  The Government commented on these

additional complaints by letter of 12 March 1998.  The applicants

replied on 8 April 1998.  On 23 May 1998 the Commission decided to

communicate the additional complaints and to examine them jointly with

the initial complaints.  On 19 June 1998 the Government submitted

additional observations.

THE LAW

1.    The Commission notes at the outset that by its partial decision

of 21 October 1996 it has declared inadmissible all complaints

registered under applications nos. 29222/95, 29223/95 and 29226/95 and

some of the complaints registered under applications nos. 29221/95 and

29225/95, the examination of the remainder of the latter two

applications having been adjourned.  The Commission takes note,

therefore, that applications nos. 29222/95, 29223/95 and 29226/95 are

to be considered disjoined and declared inadmissible on 21 October

1996.

2.  The applicants complain under Article 11 (Art. 11) of the

Convention of the refusal of the authorities to allow the holding of

marches and meetings on 31 July 1994, 22 April and 30 July 1995 and on

20 April and 2 August 1997.

      Article 11 (Art. 11) of the Convention, insofar as relevant,

provides as follows:

      "1.  Everyone has the right to freedom of peaceful assembly and

      to freedom of association with others ...

      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..."

a)    The Government submit that the applicants have concealed certain

facts in an attempt to mislead the Commission and that therefore the

application must be rejected as an abuse of the right to petition.

Thus, the applicants stated that they had never received a response

from the District Court to their appeal of 15 April 1997, whereas in

reality they had been duly informed of the decisions taken on this

appeal.

      The applicants have not reacted to the Government's allegation

that the application was an abuse of the right to petition.  They state

nevertheless that it was only on 5 May 1997, well after the date of the

planned commemoration, that they learned about the order of the

President of the District Court of 17 April 1997.

      The Commission considers that the Government's objection could

only be accepted if it were clear that the application was based on

untrue facts in a deliberate attempt to mislead the Commission.

However, this is far from clear at this stage of the proceedings

(No. 24760/94, Dec. 27.6.96, D.R. 86, p. 54; Eur. Court HR,  Akdivar

v. Turkey judgment of 16 September 1996, Reports of judgments and

decisions 1996-IV, No. 15, pp. 1210, 1211, paras. 53 and 54).

      It follows that the application cannot be regarded as an abuse

of the right of petition within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention and cannot be declared inadmissible on

this ground.

b)    The Government dispute the locus standi of the applicant

association to bring an application under Article 25 (Art. 25) of the

Convention.  They submit that since this organisation has been refused

registration in Bulgaria, it has no standing as a legal entity under

Bulgarian law and, consequently, it may not be considered to have

standing before the Commission.  In the Government's view the applicant

association cannot be considered a "non-governmental organisation"

within the meaning of Article 25 (Art. 25) of the Convention.

Furthermore, the Government insist that no reference to the non-

existent United Macedonian Organisation "Ilinden" should be made in the

Commission's decisions.  The Government do not dispute the locus standi

of the second applicant, Mr Boris Stankov.

      The applicant association replies that the lack of registration

does not mean that it is an "illegal" association or that it does not

exist.  Without being registered an association has a number of rights,

including the right to hold meetings.  Many unregistered associations

exist in Bulgaria.  Also, Article 25 (Art. 25) of the Convention does

not limit the right of petition to those associations which are

registered.  Finally, the applicant association may choose its own name

and it is not for the Government to decide what name it should bear.

      The Commission recalls its case-law in cases concerning non-

governmental organisations which have been refused registration or have

been dissolved.  In such cases, where the complaints concerned inter

alia the very fact of the dissolution or of the refusal of

registration, the Commission did not question the applicants' locus

standi as "non-governmental organisations" within the meaning of

Article 25 (Art. 25) of the Convention (cf. No. 18874/91, Dec. 12.1.94,

D.R. 76, p. 44; Nos. 19392/92 and 21237/93, Dec. 6.12.94, pending

before the Court; No. 23892/94, Dec. 16.10.95, D.R. 83, p. 57; No.

27608/95, Dec. 29.11.95;  No. 28626/95, Dec. 3.7.97; No. 30985/96, Dec.

8.9.97).  Indeed, any other solution would to a substantial degree

restrict the right of non-governmental organisations to petition under

Article 25 (Art. 25) of the Convention.

      The Government's argument in the present case is in essence that

where a non-governmental organisation has no legal standing under

domestic law and where it is not open to the Commission to examine the

conformity with the Convention of the decision which has led to such

legal situation, the non-governmental organisation has no standing to

submit a petition in respect of acts of the authorities posterior to

that decision.

      However, the Commission notes that in the present case the

applicant association has been refused registration and has not been

"dissolved", and that there is nothing to suggest that a non-registered

association such as the applicant association had no right under

Bulgarian law to function and to perform its activities.

      Furthermore, the Commission recalls its case-law according to

which the refusal of registration of an association does not amount to

an interference with the association's right to freedom of assembly if

the association is able to perform its activities without

a registration (No. 18874/91, Dec. 12.1.94, D.R. 76, p. 44).

It follows that in case the authorities seek to suppress the activities

of such an association following the refusal of registration there must

be a possibility for it to submit a complaint under Article 11

(Art. 11) of the Convention.

      In any event, the Commission notes that in the present case the

domestic authorities on several occasions received requests and appeals

by the applicant association, as represented by its President or by the

second applicant, and examined them on the merits, thus impliedly

accepting the applicant association's locus standi to complain about

the prohibition against the holding of marches and meetings.  In these

circumstances the Commission accepts the procedural capacity of the

applicant association, as represented by its President, to bring an

application to the Commission (cf., mutatis mutandis, Eur. Court HR,

Catholic Church of Canea v. Greece judgment of 16 December 1997,

para. 31, to be published in Reports of Judgments and Decisions 1997;

No. 13712/88, Dec. 2.4.90 and No. 20966/92, Dec. 30.11.94).

      It follows that the Government's objection that the applicant

association has no legal standing before the Commission must be

rejected and that, therefore, the application cannot be declared

inadmissible under Article 27 para. 2 (Art. 27-2) of the Convention on

this ground.

c)    In their initial observations the Government did not raise an

objection in respect of the exhaustion of all domestic remedies.

However, in their additional observations, which deal with the

prohibitions on marches and meetings on 20 April and 2 August 1997, the

Government submit that the applicants have not complied with the rule

of exhaustion of all domestic remedies.

      In their additional observations of 12 March 1998, referring to

Section 35 para. 2 of the Administrative Procedure Act and Section 12

para. 4 of the Law on Manifestations and Meetings, the Government

stated that the acts of the mayors were subject to appeal to the

respective municipal council.  In their additional observations of

19 June 1998 the Government stated that under Section 27 para. 2 of the

Administrative Procedure Act, read in conjunction with Section 5 of the

transitory provisions to this Act, the decisions of the mayors were

subject to appeal to the regional governor.

      The Government also state that the applicants should not have

seized the District Court before having exhausted the administrative

avenue of appeal.  They maintain that a judicial appeal submitted prior

to the exhaustion of the administrative avenue of appeal or,

alternatively, prior to the expiry of the time-limits for such appeals,

is inadmissible under Bulgarian law.  Thus, in the applicants' case,

the district courts decided wrongly on the occasions where they

examined the applicants' appeals on the merits.  Also, the

administrative avenue of appeal is a better remedy as it offers

a possibility to challenge not only the impugned decision's lawfulness,

but also the exercise of discretionary power by the administrative

body.

      Furthermore, the decisions of the District Courts on the merits

of the applicants' appeals could be challenged before the Supreme

Administrative Court by means of petitions for review (molba za pregled

po reda na nadzora).  The Bulgarian review proceedings have been

considered by the Commission as a remedy to be exhausted for purposes

of Article 26 (Art. 26) of the Convention (Nos. 24571 and 24572/94,

Dec. 28.6.95, D.R. 82, p. 85; No. 24140/94, Dec. 22.2.95, unpublished).

The Government acknowledge that a decision of the Supreme

Administrative Court in a case such as the applicants' would not have

provided a possibility to hold the prohibited meeting.  However, a

decision of the Supreme Administrative Court in the applicants' favour

would have had jurisprudential value and would have dealt with the

question whether or not the applicants' rights had been violated.

Thus, the Supreme Administrative Court would have provided the remedy

which the applicants now seek from the Convention organs.

      The Government also state that the order of the President of the

Sandanski District Court of 17 April 1997 refusing on procedural

grounds to deal with the applicants' appeal was subject to appeal to

the Regional Court.

      The applicants reply that the 1991 Constitution abolished the

Executive Committees of the People's Councils, referred to in

Section 12 para. 4 of the Law on Manifestations and Meetings.  It is

therefore evident that the applicants could not appeal to an

administrative body which did not exist.  Furthermore, the Law on

Administrative Procedure provides for a possibility to appeal against

an administrative act directly to a court.

      As regards the possibility to submit to the Supreme

Administrative Court a petition for review the applicants state that

this may be an effective remedy in cases concerning, for example,

property disputes, but not in circumstances where, as in their case,

the District Court confirmed prohibitions against meetings to be held

a day or two following the court's judgment.  The review proceedings

before the Supreme Administrative Court normally last for a year or

more.  Furthermore, the review proceedings cannot lead to an award of

compensation for the violation of the applicants' rights.  Also, the

review proceedings have never been used, as far as the applicants are

informed, in cases pertaining to the application of the Law on

Manifestations and Meetings.

      The applicants also maintain that an appeal to the Regional Court

against the orders of the President of the Sandanski District Court

leaving without consideration the association's appeal of 15 April 1997

is not an effective remedy.

      The Commission considers that the Government's objection

concerning the exhaustion of domestic remedies, albeit raised solely

in the context of their submissions about the prohibitions on marches

and manifestations on 20 April and 2 August 1997, is submitted in

general terms and must therefore be regarded as a general objection

concerning all prohibitions complained of.

      The Commission recalls that under Article 26 (Art. 26) of the

Convention normal recourse should be had by an applicant to remedies

which are available and sufficient to afford redress in respect of the

breaches alleged.  The existence of the remedies in question must be

sufficiently certain not only in theory but also in practice, failing

which they will lack the requisite accessibility and effectiveness.

      In the area of exhaustion of domestic remedies there is

a distribution of the burden of proof.  It is incumbent on the

Government claiming non-exhaustion to satisfy the Convention organs

that the remedy was an effective one available in theory and in

practice at the relevant time, that is to say, that it was accessible,

was one which was capable of providing redress in respect of the

applicant's complaints and offered reasonable prospects of success.

However, once this burden of proof has been satisfied it falls to the

applicant to establish that the remedy advanced by the Government was

in fact exhausted or was for some reason inadequate and ineffective in

the particular circumstances of the case or that there existed special

circumstances absolving him or her from the requirement to exhaust.

      It must be further emphasised that the application of the rule

of exhaustion must make due allowance for the fact that it is being

applied in the context of machinery for the protection of human rights

that the Contracting Parties have agreed to set up.  Accordingly,

Article 26 (Art. 26) must be applied with some degree of flexibility

and without excessive formalism (Eur. Court HR,  Akdivar v. Turkey

judgment, loc. cit., paras. 66 and 68).

      Insofar as the Government refer to Section 12 para. 4 of the Law

on Manifestations and Meetings which provides for an appeal to the

Executive Committee of the People's Council, the Commission notes that

no such state organ has existed in Bulgaria since 1991.  The Government

initially suggested that after the abolition of the Executive

Committees the power to examine appeals resided with the local

municipal councils.  However, the Commission notes that under the

relevant law the municipal councils do not act as judicial bodies and

are not competent to examine appeals.  The Government have not provided

any example which would lead to a different conclusion.

      It is true that under Section 27 para. 2 of the Administrative

Procedure Act, read in conjunction with Section 5 of the transitory

provisions to this Act, the decisions of the mayors are subject to

appeal to the regional governor.

      However, the Commission notes that contrary to the Government's

assertion, the practice of the Supreme Court confirms that the

Administrative Procedure Act allows an appeal to a court against an

administrative act without exhaustion of the administrative avenue of

appeal.  Therefore, despite the existence of further possibilities for

administrative appeals against the mayors' decisions, the applicants

were not required to resort to them.  It should be noted that on

several occasions the District Courts admitted for examination the

applicants' appeals against the mayors' prohibitions, without requiring

the exhaustion of any administrative remedy.

      Finally, it is also true that on the occasions where the District

Courts examined their appeals, the applicants had the theoretical

possibility to submit to the Supreme Administrative Court petitions for

review.  Also, the order of the President of the Sandanski District

Court of 5 May 1997, which barred the examination of the case before

it on procedural grounds, was apparently subject to appeal on

procedural points to the Regional Court.

      However, the Government have not provided any example of

a petition for review relating to matters under the Law on

Manifestation and Meetings having been examined by the Supreme

Administrative Court. Also, it is undisputed that had the applicants

attempted the remedies suggested by the Government, the proceedings

would have lasted for at least several months and any favourable

outcome would have resulted long after the date of a planned meeting

or manifestation.  The Commission, therefore, is not persuaded that

these theoretical remedies could provide adequate redress in respect

of the alleged violations of the Convention.

      The Commission finds, accordingly, that the Government's

objections as regards the exhaustion of domestic remedies must be

rejected and that, therefore, the application cannot be declared

inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention.

d)    The Government further maintain that the application is

inadmissible because the refusals of the authorities to allow the

holding of marches and meetings were justified on several grounds.

      Firstly, the Government state that under Section 2 of the Law on

Manifestations and Meetings the organisers of such public events must

be "individuals, associations, political and other public

organisations", whereas the applicant association is not registered and

its activities are not in conformity with Bulgarian law.  This was the

ground for some of the refusals.  The Government submit, without

relying on a particular example, that on several occasions requests to

organise meetings have been granted where they had been submitted by

members of the applicant association in their individual capacity.

      Secondly, the Government maintain that the refusals were

justified under Sections 39 and 44 of the Constitution.  The Government

submit a copy of a poster distributed by the applicant association

which contains an invitation to the meeting planned for 31 July 1994

and depicts a schematic map where the territory of Macedonia is shown

to encompass parts of the territory of Bulgaria, Greece and Albania.

The Government submit a copy of a police report which states that

during meetings held by the applicant association in 1990 and 1991

calls had been launched for the recognition of the Macedonian minority

in Bulgaria, for cultural autonomy, as well as for independence and for

greater Macedonia.  The Government also submit a copy of a newspaper

published in FYROM in 1997, which reports that the applicant

association had announced 10 August 1998 as the date on which Pirin

Macedonia would declare its independence from Bulgaria.  The Government

submit that these documents emanating from the applicant association

openly propagate against the sovereignty and the territorial integrity

of the country and spread enmity and national and ethnic hatred.

      Thirdly, in the Government's view the meetings and marches posed

a danger to public order and their prohibition was therefore justified

under Section 12 of the Law on Manifestations and Meetings.  The

Government submit that the historical site in the outskirts of Petrich

is a place visited by many tourists, especially on a Sunday in the

summer.  Therefore it was not appropriate to allow meetings to be held

there.  Also, as regards the marches and meetings at the Rozhen

Monastery near Sandanski, the Government state that at the same place

and at the same time meetings and marches were organised by the local

authorities and by other non-governmental organisations.  The

Government further submit that the concern for the public order was not

unjustified because in the past there had been clashes between

supporters of the applicant association and other persons.  In support

of this statement the Government submit a copy of a police report which

states that during a meeting held by the applicant association in 1991,

tension had arisen due to the statements made at the meeting, and that

a prominent politician was splashed with beer on his face.

      The Government emphasize that all requests for the holding of

meetings and marches were made by the applicant association, as an

organisation.  The Government clarify that the applicants were informed

by the local authorities that if they wished to visit the historical

sites and to commemorate the historical events as individuals they

could do so provided that they did not carry their slogans and posters.

      The applicants reply that the position of the Government

discloses the lack of clarity about the legal grounds of the

prohibitions of meetings and marches organised by the applicant

association.  Thus, the Government now submit arguments which were not

relied upon by the local authorities in their decisions refusing

permission.  Also, the grounds for refusing examination of the appeals

on procedural grounds were changing constantly which reveals that the

authorities would resort to "tricks" to avoid addressing the

substantive issues.  All this confusion demonstrates, in the

applicants' view, that the prohibitions were a part of the consistent

administrative practice of the authorities of all levels to suppress

the rights of the Macedonians.

      The applicants state that the lack of registration of the

applicant association cannot be a valid argument for the prohibition

of the meetings and marches.  Thus, the Law on Manifestations and

Meetings contains no requirement that a notification for a public

event, and an appeal against a prohibition, must originate from

a registered legal person.

      The applicants submit that their gatherings have always been

peaceful and that there have never been clashes with other persons.

Thus, a meeting held at the Rozhen Monastery in 1990, prior to the

beginning of the policy of systematic prohibitions, went without any

problems.  The gatherings in commemoration of historical events usually

began with a speech, followed by reading of poems and then folk music

and dances.  The applicants submit that it has always been the police

who created problems and ill-treated the demonstrators.

      The applicants dismiss as frivolous the arguments that the

prohibitions were necessary in view of the danger that tourists would

be disturbed or because the local authorities or other organisations

were holding meetings in the same places and on the same dates.  They

submit that on 31 July 1994, when the supporters of the applicant

association were prevented from approaching the historical site near

Petrich, the police had sealed off the whole area, not letting anyone

pass.  Therefore, there were no tourists around.  Also, the police were

not checking identity documents and had no means to know who was

a tourist and who was a member of UMO Ilinden.

      The applicants submit in respect of the commemoration on 20 April

1997, when thirteen school children came to lay a wreath, that it is

unclear why two commemorations could not take place simultaneously or

one shortly after the other.  This would not have posed a threat to the

public order. The position of the Government that any member of the

applicant association could attend the commemoration "in an individual

capacity" is no answer to the applicants' complaints which concern

their freedom of assembly.

      The applicants submit that even if the authorities had reasons

to believe that the meetings and marches would meet opposition by other

people, it was their duty to protect the applicant association's right

to counter-demonstrate, as defined in the Court's case-law.

      The applicants further argue that the demonstrations did not pose

any threat to the national security and the territorial integrity of

the country as the demonstrators never carried arms or threatened

anyone.  The applicants submit that speeches, music and dances cannot

amount to attempts to forcibly change the established constitutional

order or to incitement to enmity or hatred.  If the demonstrators were

responsible for such acts, the authorities could have brought criminal

proceedings against them.  However, no such proceedings have been

brought.

      Having examined the complaints of the applicant association and

of Mr Stankov under Article 11 (Art. 11) of the Convention concerning

the prohibitions against holding meetings and marches on 31 July 1994,

22 April and 30 July 1995, and on 20 April and 2 August 1997, the

Commission finds that they raise serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits.  This part of the applications cannot,

therefore, be regarded as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, and no other grounds

for declaring it inadmissible have been established.

      For these reasons, the Commission, by a majority,

      DECLARES THE REMAINDER OF THE APPLICATIONS ADMISSIBLE, without

      prejudging the merits.

        M. de SALVIA                        S. TRECHSEL

         Secretary                            President

      to the Commission                   of the Commission

 

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