FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 44079/98
by the United Macedonian Organisation Ilinden
and Iordan Kostadinov IVANOV
against Bulgaria
The European Court of Human Rights (First Section), sitting on 9 September 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsF. Tulkens,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 9 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The first applicant, the United Macedonian Organisation Ilinden (“Ilinden”), is an association based in south-west Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia. It has chapters in, inter alia, the towns of Sandanski, Petrich and Blagoevgrad. The second applicant, Mr Iordan Kostadinov Ivanov, is a Bulgarian national who was born in 1932 and lives in Sandanski. He is the chairperson of the first applicant. The applicants are not legally represented. The respondent Government are represented by Ms M. Dimova, co-agent, of Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
Ilinden was founded on 14 April 1990. In 1990 it applied for registration. The courts refused, holding that “its statute and programme were directed against the unity of the nation” (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, §§ 10‑14, ECHR 2001‑IX). Its second attempt to register in 1998‑99 likewise failed (see The United Macedonian Organisation Ilinden and Others v. Bulgaria (dec.), no. 59491/00, 9 September 2004) .
During the period 1990‑97 Ilinden tried each year to organise meetings at sites in Pirin Macedonia to commemorate certain historical events. All of these commemorations were banned by the authorities (ibid., §§ 15‑31).
2. Prohibitions against the holding of meetings during the period 1998‑2003
(a) The events of March, April and May 1998
On 25 March 1998 the second applicant and three other members of Ilinden informed the mayor of Sandanski that the organisation intended to organise a meeting on 19 April at the Rozhen monastery to commemorate the anniversary of the death of a historical figure buried there – Yane Sandanski. On 3 April the mayor informed them that he prohibited the meeting, as the municipality was preparing a commemoration and as another association, which, according to the Government, was hostile towards Ilinden, had already notified the mayor of its intention to hold a meeting at the same time and place. Upon that the second applicant and the other persons informed the mayor that in view of this scheduling conflict they decided to move the event to an earlier date, 18 April. On 14 April the mayor replied that he could not assent to that either, as in the meantime the other association had informed him that their commemoration would last from 18 until 22 April.
On 13 and on 16 April 1998 Ilinden lodged applications for judicial review of the mayor’s refusals with the Sandanski District Court.
On 10 April 1998 it also advised the head of the local police station of its intention to hold the meeting on 18 April.
On 16 April 1998 the police conducted a search at the home of a member of Ilinden, which served as a club of the organisation, and at another member’s home, and seized a copy machine, newspapers, books, leaflets and some other items.
On 17 April 1998 the Blagoevgrad Regional Prosecutor’s Office issued a decree, ordering the police to take measures to prevent Ilinden from holding a meeting. The decree, which was based on Article 185 of the Code of Criminal Procedure (“CCP”), stated that the holding of the meeting would constitute an offence under Article 174a of the Criminal Code (“CC”).
On 17 April 1998 the police summoned the second applicant and several other members of Ilinden. They were issued written warnings informing them that the planned meeting had been banned by the Blagoevgrad Regional Prosecutor’s Office.
On 18 April 1998 a number of members of Ilinden from towns and villages in Pirin Macedonia tried to approach Rozhen by cars and by buses. All were turned back by the police who were placed at check-points on the roads leading to the monastery. The passengers of one bus were forced off and the driver was fined for allegedly driving a vehicle in a state of disrepair. It seems that one person coming by car was taken into custody for ten hours for failing to produce an identification document and was ill‑treated.
On 24 April 1998 the Sandanski District Court informed Ilinden of its refusal to examine the applications for judicial review on the merits as they had been submitted on behalf of an unregistered organisation and were vague. It invited Ilinden to rectify those deficiencies within seven days.
On 29 April 1998 the second applicant and several other members of Ilinden filed complaints against the 16 April search and seizure with the Regional Police Directorate and requested the return of the seized items. It seems that no response was received.
On 13 May 1998 the second applicant complained to the Sofia Military Prosecutor’s Office about the coercive actions of the police before and during the planned commemoration. It seems that he did not receive an answer.
(b) The events of July and August 1998
On 10 July 1998 Ilinden notified the mayor of Petrich that it planned to hold a meeting in the area of Samuilova krepost on 2 August. On 15 July the mayor replied that he could not allow the holding of a meeting, as another meeting had been planned for the same date and place by a municipal child centre.
On 16 July 1998 Ilinden lodged an application for judicial review with the Petrich District Court, arguing that for years in a row its meetings had been banned. It also stated that the area where it planned to hold the meeting was large enough for two parallel events; if that was deemed impracticable, it was prepared to reschedule the meeting for another date. The court dismissed the application in a judgment of 20 July 1998. It held that Ilinden was not duly registered “in accordance with the laws of the country”. As a result, it was unclear who would be the organiser of the event and who would be responsible for the order during the meeting, in accordance with sections 9 and 10 of the Meetings and Marches Act. The court concluded that the lack of clarity as to the organisers of a public event endangered public order and the rights and freedoms of others.
On 28 July 1998 the Blagoevgrad Regional Prosecutor’s Office issued a decree under Article 185 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that Ilinden was not registered and hence had no right to organisational or political activities; therefore the holding of a meeting would constitute an offence under Article 174a of the CC. Furthermore, Ilinden was advocating changes in the constitutional order in Bulgaria and thus the holding of a meeting would also constitute an offence under Chapter 1 of the CC.
On 2 August 1998 a number of members of Ilinden travelled by car to Samuilova krepost. All roads leading to the site were blocked by the police who were stopping the cars and turning them back. Earlier in the morning members from Petrich gathered at a bus station in order to go to the site. Several police officers approached them, informed them that the meeting had been banned by the Regional Prosecutor’s Office, and warned them not to try to reach the site. The plans of Ilinden to have the meeting at the planned spot having failed, its members decided to hold it at the organisation’s club in Petrich. On the way there they tried to lay flowers and wreaths at the memorial of a poet. The police blocked their way. It seems that one person was arrested and held for six hours.
(c) The events of September 1998
On 7 September 1998 Ilinden notified the mayor of Blagoevgrad that it planned to lay wreaths on 12 September at the memorial of a prominent historical figure – Gotze Delchev, situated in the centre of the town, to observe the seventy-forth anniversary of the killing of certain Macedonian activists by agents of the Bulgarian government. As no reply was forthcoming, the head of the local chapter of Ilinden telephoned the secretary of the municipality to enquire about the matter. The secretary informed him that Ilinden would not receive a written answer and that the municipality would advise the police so that it could prevent the event.
The applicants submit that on 10 September 1998 Ilinden lodged an application for judicial review with the Blagoevgrad District Court, but that it was not examined within the statutory time-limit. The Government submit that the records of the court do not indicate that an application was indeed lodged.
On 11 September 1998 the Blagoevgrad Regional Prosecutor’s Office issued a decree under Article 185 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that Ilinden was not registered and hence had no right to organisational or political activities. Also, it was advocating changes in the constitutional order of Bulgaria and expressed anti-Bulgarian views. Thus, the holding of a meeting would lead to the commission of offences under Article 174a § 2 and Chapter 1 of the CC.
In the evening of 11 September 1998 the police visited the house of the head of the local chapter of Ilinden and warned him that if he tried to organise the event he would be criminally prosecuted.
On 12 September 1998 members of Ilinden tried to approach the memorial of Gotze Delchev but the police blocked their way. They informed them that the Blagoevgrad Regional Prosecutor’s Office had banned the event and read them the decree, but refused to give them a copy.
(d) The events of April 1999
On 7 April 1999 Ilinden notified the mayor of Sandanski that it planned a commemoration at Rozhen on 25 April. On 9 April the mayor informed Ilinden that it would receive a reply after presenting a document establishing that it was a registered organisation.
The applicants submit that on 16 April 1999 Ilinden lodged an application for judicial review with the Sandanski District Court, but that the court did not reply.
On an unspecified later date several members of Ilinden were warned by the police not to organise a meeting on 25 April.
On 25 April 1999 members of Ilinden tried to approach Rozhen by cars. The police, who had dispatched patrols at all roads leading to the monastery, blocked their way and turned them back. Some drivers were fined, allegedly for driving vehicles in state of disrepair. On the way back members of the Sandanski chapter of Ilinden tried to lay flowers at the bust of Yane Sandanski, but the police seized the flowers and allegedly arrested one person.
(e) The events of the end of April and May 1999
On 27 April 1999 Ilinden notified the mayor of Blagoevgrad that it planned to lay wreaths at the memorial of Gotze Delchev on 4 May.
On 29 April 1999 mayor informed Ilinden that it would receive a reply after presenting a document establishing that it was a registered organisation.
The same day the Blagoevgrad Regional Prosecutor’s Office issued a decree under Article 185 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It held that the holding of a meeting would constitute offences under Article 174a and Chapter 1 of the CC.
On 3 May 1999 a member of Ilinden lodged an application for judicial review with the Blagoevgrad District Court. The court refused to examine the application by an order of 4 May, as it was unclear who was the organiser of the planned event. Moreover, the court was competent to deal with applications against orders banning meetings; no such order had been issued.
On 4 May 1999 members of Ilinden who tried to approach the memorial were stopped by the police who informed them that the Blagoevgrad District Prosecutor’s Office had issued a decree prohibiting the event. The police read the decree to the members of Ilinden, but refused to give them a copy.
On 25 May 1999 Ilinden complained to the Sofia Military Prosecutor’s Office about the coercive actions of the police and the authorities. On 25 May that Office refused to open criminal proceedings, holding that, since Ilinden had not been registered, the ban of its meeting had been lawful and that the police had acted in pursuance of their duty to preserve public order.
(f) The events of July and August 1999
On 12 July 1999 Ilinden notified the mayor of Petrich that it planned to hold a meeting at Samuilova krepost on 1 August. On 20 July the mayor replied that he could not allow the holding of a meeting, as another meeting had been planned for the same date and place by another organisation.
On 21 July 1999 Ilinden lodged an application for judicial review with the Petrich District Court, stating that it was prepared to move its meeting to another hour of the day or to hold it on some of the hills adjacent to Samuilova krepost, so as to avoid interfering with the other meeting. The court dismissed the application in a judgment of 26 July 1999. It held that Ilinden was non-existent as it was not registered. As a result, it could not be considered as the organiser of, and be responsible for order during the meeting, as required by sections 9 and 10 of the Meetings and Marches Act. In the court’s view, that lack of clarity as to the organisers of the event endangered public order. Moreover, another meeting had been scheduled for the same date.
On 27 July 1999 the Blagoevgrad Regional Prosecutor’s Office issued a decree under Article 185 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It considered that the holding of a meeting would constitute offences under Article 174a and Chapter 1 of the CC.
It seems that no meeting was held on 1 August 1999 at Samuilova krepost by any other organisation. When that same day members of Ilinden tried to approach the site by cars, they were stopped by police stationed at the roads leading to the site.
(g) The events of April 2000
On 11 April 2000 Ilinden notified the mayor of Sandanski that it intended to organise a commemorative meeting on 22 April at Rozhen. On 18 April the mayor made an order prohibiting the meeting, apparently on the ground it would endanger public order. Ilinden did not seek judicial review of this order.
On 22 April 2000 members of Ilinden tried to approach Rozhen by cars. They were stopped at police check-points, where some of the drivers were fined, allegedly for traffic violations. It seems that the police also seized material intended for the decoration of a stage the members of Ilinden planned to set up at the site. A vehicle transporting musicians and their instruments was not allowed to continue. The cars were stopped again at a second police post near the monastery and some written materials were seized. However, the members of Ilinden were allowed to approach the site, which was heavily guarded by police. The applicants allege that a plain-clothes policeman was filming the participants despite their numerous objections. They laid flowers and made a short speech, apparently denouncing the “assimilation policy” led by the Bulgarian government. After that they left the site.
(h) The events of July 2000
On 10 July 2000 Ilinden notified the mayor of Petrich of its intention to hold a commemorative meeting on 30 July at Samuilova krepost. By a letter of 18 July the mayor replied that he could not allow the event, as another association had already applied for authorisation to organise a meeting on the same date.
Ilinden lodged an application for judicial review with the Petrich District Court. It argued that the site was large enough for two events to take place simultaneously. The court dismissed the application in a judgment of 24 July 2000. It found that Ilinden had not been registered and apparently had links with a political party (“UMO Ilinden – Pirin”, which was dissolved by the Constitutional Court on 29 February 2000) which had been declared unconstitutional and dissolved for acting against the territorial integrity of the country. Therefore, the holding of a meeting by Ilinden could pose a threat to the territorial integrity of the country. Moreover, another, duly registered, association intended to organise a meeting on the same date. The parallel holding of two events could endanger public order.
Nevertheless, on 30 July 2000 members of Ilinden held a meeting at Samuilova krepost. It seems that the police did not interfere.
(i) The events of September 2000
On 1 September 2000 Ilinden informed the mayor of Blagoevgrad that that it wanted to hold a commemoration at the memorial of Gotze Delchev on 12 September. The mayor did not reply. Ilinden then lodged an application for judicial review with the Blagoevgrad District Court, but did not get an answer.
On 8 September 2000 the Blagoevgrad Regional Prosecutor’s Office issued a decree under Article 185 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that the holding of a meeting would constitute an offence under Chapter 1 of the CC.
On 12 September 2000 members of Ilinden tried to approach the memorial, but were stopped by the police. A police officer read out the decree prohibiting the commemoration, but refused to furnish a copy of it.
(j) The events of April 2001
On 4 April 2001 Ilinden notified the mayor of Sandanski that it would organise a meeting on 22 April at Rozhen. The mayor did not reply.
On 22 April 2001 members of the organisation assembled at the site. Approximately fifty police officers were also present. The applicants aver that at some point during the meeting two members tried to place a wreath covered with a band with an inscription on the grave of Yane Sandanski. Four policemen moved towards them and ordered that the band be removed. When the persons carrying the wreath refused, the police seized it and arrested one of them. He was taken to a nearby village, released and warned not to try to return to the meeting. Additionally, a poster brought by the members of Ilinden was taken away by a plain-cloths police officer. The police also prevented the placing on the podium of loudspeakers the members of Ilinden had brought. The applicants also allege that local catering companies were prohibited by the municipal authorities from sending staff and facilities to the site during the meeting. The Government submit that during the meeting a member of Ilinden stated that “there have been and will be Macedonians. Death to the enemies! Not a single Bulgarian will remain living...”. According to them, one person who was drunk was taken out of the area where the meeting was taking place.
(k) The events of the end of April and May 2001
On 27 April 2001 Ilinden notified the mayor of Blagoevgrad that it indented to lay flowers at the memorial of Gotze Delchev on 4 May. The mayor did not reply.
On 4 May 2001 a group of members of Ilinden attempted to approach the memorial to lay a wreath covered with a band with an inscription. The applicants allege that the police intervened and ordered them to remove the band with the inscription, citing a decree made by the Blagoevgrad District Prosecutor’s Office. Apparently the members of Ilinden refused and several plain‑clothes police officers diverted them from the memorial. The members of Ilinden headed for a nearby church, followed by the police who were allegedly shouting insulting words at them. The applicants aver that two police officers seized a camera held by one of the members. The members laid the wreath at a grave in the churchyard. Later during the day three unknown persons took it away. According to the Government, the police had to disrupt the ceremony and direct the members of Ilinden to the nearby church because other persons who were standing nearby became agitated upon the arrival of news that members of UMO Ilinden – Pirin had tried to assault the Bulgarian ambassador in Skopje.
(l) The events of July 2001
On 12 July 2001 Ilinden notified the mayor of Petrich of its intention to hold a meeting on 29 July at Samuilova krepost. By a letter of 20 July, which was allegedly delivered at the home of a member of Ilinden on 28 July – a Saturday – the mayor prohibited the meeting because another meeting had been planned for the same date by a municipal child centre.
On 25 July 2001 the Blagoevgrad Regional Prosecutor’s Office issued a decree under Article 185 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that the holding of a meeting would constitute offences under Article 174a and Chapter 1 of the CC.
On 29 July 2001 a group of approximately two hundred and fifty people tried to approach Samuilova krepost by buses and cars. They were turned back by the police two kilometres before the site. The applicants allege that the police told them that military exercises were to take place and that they could not continue. According to the Government, they were informed of the prosecutor’s decree prohibiting the event. After they were stopped, the members of Ilinden decided to lay flowers at the memorial of a poet in Petrich. Several dozen police officers blocked their way. Two persons were arrested for filming the police.
(m) The events of August and September 2002
On 23 August 2002 Ilinden notified the mayor of Blagoevgrad that it wanted to hold a commemoration at the memorial of Gotze Delchev in the centre of Blagoevgrad on 12 September. The mayor did not reply.
On 12 September 2002 members of Ilinden tried to approach the memorial. However, at first that proved impossible because the memorial was surrounded by a crowd which was shouting insults. Several persons from that crowd attacked individual members of Ilinden, broke the flagstaff one of them was carrying, tried to take another flag, tore a poster and took the ribbon from a wreath carried by one of the members of Ilinden. A member of Ilinden was filming with a camera. One person attacked him from behind and tore the electrical cables of the camera. The police was present and had formed a cordon between the members of Ilinden and the crowd, but apparently failed to prevent the above incidents. However, they secured the members of Ilinden access to the memorial, where they laid a wreath. The president of Ilinden tried to make a short speech, which was constantly interrupted by the shouting of the crowd. The members of Ilinden then retreated from the memorial under police escort.
On 23 September 2002 Ilinden complained to the Blagoevgrad Regional Prosecutor’s Office about the actions of the crowd. That Office ordered a preliminary verification which is apparently still pending.
On 15 October 2002 Ilinden complained to the Sofia Military Prosecutor’s Office about the inactivity of the police officers present during the 12 September meeting and about their failure to secure the peaceful holding of the event. On 10 December 2002 that Office refused to open criminal proceedings. Ilinden appealed, but all levels of the prosecution authorities upheld the refusal.
(n) The events of August 2003
On an unspecified date in July 2003 Ilinden notified the mayor of Petrich that it planned to hold a meeting at Samuilova krepost on 2 August, to commemorate the one-hundred anniversary of the Ilinden uprising. Apparently the mayor assented and on 2 August 2003 members of Ilinden gathered at Samuilova krepost. There was a four-hour programme. During the entire event a plain-clothes police officer was filming. When the chairperson of Ilinden tried to remove the camera, there ensued a scuffle and the police attempted to arrest him.
(o) The events of the end of August and September 2003
On 28 August 2003 Ilinden notified the mayor of Blagoevgrad that on 12 September it intended to organise a commemoration at the memorial of Gotze Delchev. In its notification it stated that the purpose of the event was to honour the memory of the victims of the genocide inflicted by the Bulgarian government on the Macedonian nation. In a letter of 1 September, which was posted on 5 and arrived on 9 September, the mayor informed Ilinden that in principle every citizen of Bulgaria had the right to commemorate national heroes as Gotze Delchev. However, the remarks contained in the notification were unconstitutional and provocative. They were indicative of actions which would infringe the rights of others and would lead to conflicts, as had already happened in the past. Also, in order to organise events, Ilinden had to be registered. There was no need for the planned event to take place in front of the memorial of Gotze Delchev and its timing was inopportune, because another event had been planned for the same time and date. If Ilinden chose another place for holding its commemoration, the mayor would reconsider the matter.
On 10 September 2003 Ilinden objected to the mayor’s decision. It stated that it was willing to shift the time of its commemoration to one hour later, but that the place was closely bound to a specific occasion and could not be changed. The same day Ilinden filed an application for judicial review of the mayor’s refusal with the Blagoevgrad District Court.
On 11 September 2003 the police summoned two members of Ilinden and issued them written warnings to not organise the event planned for 12 September.
On 12 September 2003 the mayor of Blagoevgrad informed Ilinden that he prohibited the planned event, because it would create conditions for the disruption of the public order and would endanger the rights of others.
On 12 September 2003 members of Ilinden gathered in the centre of Blagoevgrad with a view to marching to the memorial of Gotze Delchev. Approximately fifty police officers were also present. Several officers approached the members of Ilinden and read out a decree of the Blagoevgrad District Prosecutor’s Office prohibiting the commemoration.
In a decision of 16 September 2003 the Blagoevgrad District Court declared the application for judicial review inadmissible. It found that the application had been filed with the court on 10 September and had been presented to the attention of a judge-rapporteur at 4.37 p.m. on 11 September. As of 16 September the issue whether to allow the event planned for 12 September had already become moot and there was no need for the court to rule on that.
B. Relevant domestic law
The provisions of the Constitution of July 1991 concerning freedom of assembly read as follows:
Article 43
“1. Everyone shall have the right to peaceful and unarmed assembly at meetings and marches.
2. The procedure for organising and holding meetings and marches shall be provided for by act of Parliament.
3. Permission shall not be required for meetings to be held indoors.”
Article 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 paramilitary structures, or which seek to achieve their aims through violence, shall be prohibited.”
The legal requirements for the organisation of meetings are set out in the Meetings and Marches Act of 1990. Its relevant provisions are as follows:
Section 2
“Meetings and marches may be organised by individuals, associations, political or other public organisations.”
Section 6(2)
“Every organiser [of] or participant [in a march or a meeting] shall be responsible for damage caused through his or her fault during the [event].”
Section 8(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(1)
“The organisers of the meeting shall take the measures necessary to ensure 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 ...”
Prohibitions against meetings are also regulated by the Meetings and Marches Act:
Section 12
“1. Where the time or the place of the meeting, 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, demonstration, or march, where reliable information exists that:
1. it aims at the violent overturning of 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, demonstration or march 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 [that] time-limit, the march, demonstration or meeting may proceed.
6. If the appeal is dismissed the dispute shall be referred to the respective district court which shall decide within five days. That court’s decision shall be final.”
The Meetings and Marches Act was adopted in 1990, when the Constitution of 1971 was still in force. Under the Constitution of 1971 the executive local state organs were the Executive Committees of the district People’s Councils. The 1991 Constitution abolished the Executive Committees and established the post of mayor, elected by direct universal suffrage, as the “organ of the executive power in the municipality” (Article 139).
Article 185 of the CCP, as in force at the material time, provided that the prosecution authorities could undertake all necessary measures to prevent the commission of a criminal offence.
Article 174a § 2 of the CC makes it an offence for the organiser of a public meeting to, inter alia, hold a prohibited meeting in violation of section 12(3) of the Meetings and Marches Act of 1990.
Chapter 1 of the special part of the CC regulates offences against the Republic (attempted coup d’état, terrorist offences, mutiny, espionage, sabotage, advocating a fascist or other anti-democratic ideology, etc.).
COMPLAINT
The applicants complained under Article 11 of the Convention that they had been prevented from holding peaceful meetings. In their view, the interference with their right of peaceful assembly had not been justified under paragraph 2 of that Article.
THE LAW
In respect of their complaint that they were prevented from holding meetings the applicants relied on Article 11 of the Convention, which provides, as relevant:
“1. Everyone has the right to freedom of peaceful assembly...
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. ...”
1. The Government raised an objection, claiming that the applicants had not exhausted domestic remedies with respect to their complaint about the events of April 2000. In particular, the applicants had not applied for judicial review of the mayor’s order of 18 April 2000 prohibiting the event. They had thus not used a means whereby they could protect their right to peaceful assembly.
The Government also expressed doubts as to whether the applicants had in fact sought judicial review of the mayor’s refusals of September 1998 and April 1999. They averred that the records of the Blagoevgrad District Court indicated that there were no cases initiated by Ilinden during that period.
The applicants did not comment.
The Court reiterates that under Article 34 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 Court 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 34 must be applied with some degree of flexibility and without excessive formalism (see, among many other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, pp. 1210‑11, §§ 65‑69).
Turning to the particular facts of the case, the Court notes that Ilinden indeed did not seek judicial review of the mayor’s order of 18 April 2000 and that there is no way of ascertaining whether it in fact sought judicial review of the mayors’ refusals to reply to its notifications in September 1998 and April 1999. However, the Court cannot disregard the fact that on at least seven occasions before the events of September 1998 and on least nine occasions before the events of April 2000 Ilinden sought judicial review of the mayors’ orders prohibiting its meetings (see above and also Stankov and the United Macedonian Organisation Ilinden, cited above, §§ 19, 21, 23, 25‑27 and 30). On each of those occasions the domestic courts either refused to examine its applications for review on the merits, most often reasoning that they had been submitted on behalf of an unregistered organisation, or rejected them as ill‑founded, considering that the events planned by Ilinden would pose a danger to the public order. Not once did the courts overturn a mayor’s prohibition of a meeting planned by Ilinden. It therefore appears that there was a firm trend of rejecting Ilinden’s applications for judicial review, which had continued for four years prior to the events of September 1998 and for almost six years prior to the events of April 2000. Thus, even assuming that Ilinden did not in fact seek judicial review of the mayors’ refusals to reply to its notifications in September 1998 and April 1999, the Court does not consider that in the particular circumstances of the case the applicant organisation had at its disposal a remedy offering reasonable prospects of success. Moreover, it should be noted that in September 1998 and April 1999 the mayors did not impose formal bans on the events planned by the organisation; they merely informed it that it would not receive replies to its notifications. It seems that in such circumstances the domestic courts considered that there had not been a refusal by the mayor and that judicial review was not possible.
The Court therefore concludes, in light of the above, that the complaints concerning the events of September 1998, April 1999 and April 2000 cannot be rejected for failure to exhaust domestic remedies.
2. As to the substance of the complaint, the Government submitted that in some of the cases about which the applicants complained there had been no interference with their rights under Article 11 of the Convention. Thus, on 30 July 2000, even though the mayor had banned the meeting and the District Court had upheld that ban, Ilinden had been able to hold it without interference by the authorities. Likewise, there had been no interference with Ilinden’s meeting in April 2000. Despite the provocative attitude of some of the organisation’s leaders, the police had been able to preserve public order without impinging on their freedom of assembly. Further, there had been no interference with the meeting held on 22 April 2001 near the Rozhen monastery. The applicants’ averment that the police had ordered the removing of the band on the wreath laid by members of Ilinden and had arrested one person was untrue. The police had merely taken one person who was drunk out of the area where the meeting had been taking place. This could not be interpreted as an interference with the applicants’ freedom of assembly. There had been no interference with the meeting held on 4 May 2001 either. The members of Ilinden had gathered in the centre of Blagoevgrad and the police had asked them to continue the event in a nearby church only with a view to their protection. The applicants’ averment that the police had seized a camera and had ordered the members of Ilinden to remove the band from the wreath they had laid at the monument was untrue. Finally, the meeting held on 12 September 2002 had not been interfered with. Despite the presence of a hostile crowd, the police had been able to secure the members of Ilinden access to the site of the event. Only the adequate actions of the police had prevented the occurring of serious incidents.
The Government maintained that in all cases where there had been an interference with the applicants’ rights under Article 11 of the Convention, that interference had been lawful and had been based on the unambiguous wording of section 12 of the Meetings and Marches Act of 1990. This was the sole basis for the decisions of the mayors and for those of the courts examining the applications for judicial review of the mayors’ decisions.
The cases when the mayors had requested Ilinden to present proof that it had been registered were not to be construed as imposing an additional requirement as a precondition for the organisation of meetings. The only reason why the mayors had requested such proof was to be able to establish who the organiser of the respective event was and who would accordingly be liable for the damage occurring as a result of the event. It was true that in most cases the notifications to the mayors had indicated that the organiser was Ilinden, but, since it had not been registered, it had been impossible to know who the members of its governing bodies were. In all cases where the notifications to the mayors had indicated who were the physical persons who would organise the events, the mayors had not requested a document for the registration of Ilinden. In sum, there was not a single occurrence when the municipal authorities had grounded the bans on the holding of meetings on the fact that Ilinden lacked judicial registration.
The Government further argued that the measures complained of pursued a wide range of legitimate aims: protecting national security and the territorial integrity of the country, guaranteeing public order in the local community, protecting the rights and freedoms of others and preventing disorder and crime.
In the Government’s submission, the measures complained of had been proportionate to the legitimate aims pursued. Referring to the case of Gustafsson v. Sweden (judgment of 25 April 1996, Reports 1996‑II, pp. 652‑53, § 45), the Government submitted that the Contracting States enjoyed a wide margin of appreciation in their choice of the means to be employed to attain a legitimate aim. The authorities had not overstepped that margin. When banning each individual event, they had had regard to the present and immediate threat of disruption of the public order, as well as the danger for the territorial integrity and the security of the country. On the other hand, it was noteworthy that a number of meetings organised by Ilinden (those on 25 April 1999, 22 April and 30 July 2000, 22 April and 4 May and 29 July 2001, and 12 September 2002) had been de facto held despite the bans. Therefore, since 1998 the authorities had been very flexible in exercising their powers. In each individual case they had adopted a different approach and had acted in compliance with the Constitution and the laws of the country, as well as with the principles underlying the Convention.
In particular, as regards the events of March, April and May 1998, the mayor’s bans had been based on the fact that another association, which was hostile towards Ilinden, was going to hold a meeting at the same time and place. It had been exactly with a view to avoiding clashes between the two that the Blagoevgrad Regional Prosecutor’s Office had issued a decree ordering the police to prevent Ilinden from holding a meeting.
The same pattern had prevailed during the events of July and August 1998. The mayor of Petrich and the Petrich District Court had grounded the ban on, inter alia, the fact that another meeting had been planned for the same time and place.
Concerning the events of September 1998, the ban had been made necessary by the provocative manner in which Ilinden had described certain historical events. This had not been the first time when Ilinden had given an interpretation of historical events in a manner offending the patriotic feelings of the Bulgarians from the region. The authorities had grounds to believe that the expression of such a position in the centre of Blagoevgrad would stir a violent reaction from others. The prohibition of the meeting had therefore been imposed with a view to protecting the members of Ilinden from violence.
As regards the events of April 1999, although Ilinden had not been able to hold its meeting at the planned site, the authorities had deemed that it could be held in the centre of Sandanski.
Regarding the events of April 2000, although there had been an express prohibition of the meeting, Ilinden had been able to hold it, because the authorities had considered that the public order could be preserved.
Finally, the Government stressed that since the Court’s judgment in the case of Stankov and the United Macedonian Organisation Ilinden (cited above) the authorities had taken into consideration the Convention principles and since then there had never been an absolute ban on the events organised by Ilinden. In executing the Court’s judgment in the above case the Ministry of Justice had apprised the mayors of Petrich and Sandanski of the text of the judgment with a view to preventing further violations of Article 11 of the Convention.
In sum, the Government were of the view that in all cases where there had been a public event organised by Ilinden, the authorities had taken measures to preserve the public order, to create conditions for the peaceful holding of the meetings and to guarantee the applicants’ rights under Article 11 of the Convention.
The applicants did not comment.
The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy