FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34960/04
by the United Macedonian Organisation Ilinden and Others
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 30 September 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro‑Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 15 September 2004,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The first applicant, the United Macedonian Organisation Ilinden (“the applicant association” or “Ilinden”), is an organisation based in south-west Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia. The remaining applicants, 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, Bulgarian nationals born respectively in 1938, 1954, 1940, 1932, 1949, 1931, 1948, 1951, 1933, 1952, 1964, 1929 and 1944 and living in Krupnik, Sandanski, Gotse Delchev, Ilindentsi, Katuntsi, Kamena, Petrich and Kolarovo, are members of Ilinden's management committee.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. 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 The United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/00, 19 January 2006).
2. 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.
3. 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. Its opinion read, in so far as relevant:
“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 1991 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 1991 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 [of 1991].”
On an unspecified date Ilinden appealed to the Sofia Court of Appeals, arguing, inter alia, that it was not in reality 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 1991 Constitution, as it was based on the fact that it expressed views which differed from the officially sanctioned ones. Nor was it proposing to engage in activities characteristic solely of a political party.
On 11 July 2003 the Sofia Court of Appeals 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 [1991 Constitution]. This court shares these 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, 13 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 these 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 arousing 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 1991 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 orgnisation 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 1991 Constitution]. Apart from that, the founders have elected 13 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 orgnisation.
In view of the foregoing, this court finds that the newly formed organisation [Ilinden] has goals, ways for 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 Appeals' 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 1991 Constitution and was in breach of Article 38 of the Constitution. Ilinden also contested the Sofia Court of Appeals' findings concerning its managing council.
In a final judgment of 12 May 2004 the Supreme Court of Cassation upheld the Sofia Court of Appeals' judgment in the following terms:
“The Sofia Court of Appeals 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 [1991 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 Appeals], 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 ruling 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 [1991 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, these 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 claimed violation of Article 38 of the [1991 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 3 to 7 members. Clause 32(5) makes special provision for the first managing council and says that it will consist of 3 members serving 3 years. That is, clause 32(5) does not merely set a minimum, as claimed in the appeal. For this reason, the [the Sofia Court of Appeals] 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.”
B. Relevant domestic law
1. The 1991 Constitution
The relevant provisions of the 1991 Constitution read as follows:
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.”
2. The 2000 Non-Profit Legal Persons Act
According to 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.
COMPLAINTS
1. The applicants complained under Article 6 § 1 of the Convention that the registration proceedings had been unfair and that the courts examining the registration request had been biased and had based their judgments on political and ideological reasons rather than the law. This had been most visible in the reasoning of the Blagoevgrad Regional Court, which had accused the association of trying to “distort the historical truth”. The higher courts had shared the same attitude, but had been able to conceal it better behind purported formal grounds for denying registration.
2. The applicants complained under Article 6 § 1 of the Convention that the registration proceedings had been unreasonably lengthy.
3. The applicants complained under Article 11 of the Convention that the refusal to register the association had not been prescribed by law, as the national courts had given arbitrary interpretations of many constitutional and statutory terms and of the association's articles. For the applicants, the refusal had not been necessary in a democratic society either. There was no indication that the association presented a threat to the country's national security or territorial integrity. The reasons given by the national courts on this point had rather been designed to preserve the official position on the “historical truth”. However, in a democratic society no one had a monopoly over “historical truth”. There was furthermore nothing contrary to a democratic society in aiming to further the interests of national minorities.
4. The applicants complained under Article 14 of the Convention that the refusal to register the applicant association had been based on their asserted Macedonian ethnicity, which the Bulgarian State was refusing to recognise.
THE LAW
1. The applicants complained that the refusal to register Ilinden, after proceedings which they considered unfair, was in breach of their rights to freedom of association, to a fair trial and to freedom from discrimination. They relied on Articles 6 § 1, 11 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 [a] ... tribunal...”
Article 11
“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. ...”
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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice thereof to the respondent Government.
2. In respect of their complaint that the registration proceedings were unreasonably lengthy the applicants again relied on Article 6 § 1 of the Convention, which provides, as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The applicants pointed out that the Sofia Court of Appeals ruled more than seven months after the lodging of the appeal against the Blagoevgrad Regional Court's judgment and the Supreme Court of Cassation took more than nine months to dispose of the appeal on points of law. In their view, such delays were unwarranted.
The Court notes at the outset that it was only the applicant association, not the remaining applicants, which was party to the proceedings at issue. The question thus arises whether the remaining applicants may claim that their civil rights were affected by these proceedings (see, mutatis mutandis, APEH Üldözötteinek Szövetsége and Others v. Hungary, no. 32367/96, §§ 30‑36, ECHR 2000-X; and Jechev v. Bulgaria (dec.), no. 57045/00, 2 May 2006). However, the Court does not need to resolve this issue, as the complaint is inadmissible in any event for the following reasons.
The Court observes that the proceedings started on 21 October 2002 and ended on 12 May 2004. Their overall duration was therefore a little over one and a half years for three levels of jurisdiction. In the circumstances and taking into account in particular the subject‑matter of the case, the Court does not consider that the overall duration of the proceedings was unreasonable (see Jechev, cited above).
It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the complaints concerning the fairness of the registration proceedings (complaint no. 1), the interference with the applicants' right to freedom of association (complaint no. 3), and the alleged discrimination in the enjoyment of the applicants' Convention rights (complaint no. 4);
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy