Communicated on 2 May 2019
FIFTH SECTION
Application no. 23702/15
Stoyan Gerasimov VASILEV and
SOCIETY OF THE REPRESSED MACEDONIANS IN BULGARIA VICTIMS OF THE COMMUNIST TERROR
against Bulgaria
lodged on 13 May 2015
STATEMENT OF FACTS
1. The first applicant, Mr Stoyan Gerasimov Vasilev, is a Bulgarian national and also a Macedonian/citizen of the Republic of North Macedonia who was born in 1948 and lives in Blagoevgrad, Bulgaria; he is the second applicant’s chairman (see paragraph 4 below). The second applicant, the Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror, is an association formed in 2013 in Blagoevgrad, Bulgaria.
2. The applicants are represented before the Court by Mr K. Kanev, chairman of the Bulgarian Helsinki Committee.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. On 9 December 2013 the eight founders of the applicant association held a meeting at which they resolved to form the association, adopted its articles, and elected its board, chairman (the first applicant), vice-chairman and cashier. They went on to instruct the first applicant to take the necessary steps to have the association registered.
5. On an unknown later date the first applicant asked the Blagoevgrad Regional Court to register the association.
6. On 26 September 2014 the court refused the application (see реш. № 4022 от 26.09.2014 г. по ф. д. № 44/2014 г., БОС). It found that the association’s goals, as formulated in its articles, suggested that it would be directed against the unity of the nation. In particular, the association had stated that it would strive to preserve and popularise the Macedonian cultural and historical heritage; to “preserve, develop and pass on to future generations the historical truth about the Macedonian question and the work for its resolution”; to restore and build monuments relating to the Macedonian past and heritage; to work to protect the rights of Macedonians; to organise lectures, talks and conferences about the past and present problems faced by the Macedonian people; to organise regional Macedonian gatherings, the commemoration of historical dates and events; to gather memoirs and historical and archive materials relating to the history of the Macedonians; to ensure the recording, preservation and popularisation of the Macedonian folkloric heritage; and so on. These activities and goals, seen against the backdrop of the disputes about Bulgarian historical personalities and events, were directed against the unity of the Bulgarian nation, which was contrary to the prohibition laid down in Article 44 § 2 of the Constitution (see paragraph 13 below).
7. The first applicant appealed. He submitted that the court had erred by holding that the association’s goals went against Article 44 § 2 of the Constitution. These goals, which were social and cultural, were by no means unlawful. The mere fact that the association sought to promote a minority ethnic consciousness was not a threat to democracy or the unity of the nation. The refusal to register it had also been discriminatory, since an association having the same articles but called “Union of the Thracian Societies” had earlier been registered without any question being raised about the existence of a Thracian ethnos in Bulgaria. More generally, in approaching these matters the courts had to bear in mind that they were dealing with the fundamental right to freedom of association, and that only the Constitutional Court was competent to ban an organisation for being contrary to Article 44 § 2 of the Constitution.
8. On 2 February 2015 the Sofia Court of Appeal upheld the lower court’s decision (see реш. № 213 от 02.02.2015 г. по ф. д. № 3997/2014 г., САС). It noted that the association’s articles consistently insinuated that there existed in Bulgaria an oppressed Macedonian ethnos and called for the promotion of the so-called “Macedonian cause”, which was contrary to Article 2 § 2 and Article 44 § 2 of the Constitution (see paragraphs 9 and 13 below). Also, any changes relating to the country’s unitary character and territorial integrity and the unity of the nation were characteristic solely of political parties, and by Article 12 § 2 of the Constitution (see paragraph 10 below) could not be among the goals pursued by a regular association. The lower court had therefore been correct to refuse registration. Moreover, the possibility, envisaged by the association’s articles, for it to invest in, design and erect buildings, amounted to a secondary business activity which went beyond the bounds of what was permitted to associations, and in effect suggested that the association would operate as a business, in breach of the prohibition in section 3(3) of the Not-For-Profit Legal Persons Act 2000 (see paragraph 14 below).
B. Relevant domestic law and practice
1. Territorial integrity of the State
9. Article 2 § 2 of the Constitution of 1991 provides that the territorial integrity of the Republic of Bulgaria is inviolable.
2. Provisions relating to the aims which associations may lawfully pursue
10. By Article 12 § 2 of the Constitution, associations may not pursue political goals or carry out political activities that are characteristic solely of political parties.
11. In a decision of 21 April 1992 (реш. № 4 от 21.04.1992 г. по к. д. № 1/1991 г., обн., ДВ, бр. 35/1992 г.) the Constitutional Court held, inter alia, that “political activities that are characteristic solely of political parties”, within the meaning of Article 12 § 2, were defined by Article 11 § 3 of the Constitution as those which facilitate “the formation of citizens’ political will” through “elections or other democratic means”. The court went on to say that “what was essential for this type of political activity [was] direct participation in the process of forming the bodies through which, under the Constitution, the people exercise[d] power”.
12. In January 2015 the plenary of the Supreme Court of Cassation’s Commercial Section asked the Constitutional Court to give a binding interpretation of Article 12 § 2. In a decision of 17 March 2015 (опр. № 1 от 17.03.2015 г. по к. д. № 1/2015 г., обн., ДВ, бр. 23/2015 г.), the Constitutional Court declined the request. It noted that it had not been shown that there existed divergences in the application of that provision, as required under its case-law, and that it was only competent to give a binding interpretation of a constitutional provision if it had been duly established that there was uncertainty about its meaning.
13. Article 44 § 1 of the Constitution enshrines the right to freedom of association. Article 44 § 2 goes on to say that organisations whose activities are directed against the country’s sovereignty or territorial integrity or against the nation’s unity, or which aim to stir up racial, national, ethnic or religious hatred, or to violate the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to attain their goals through violence, are prohibited.
14. The Not-For-Profit Legal Persons Act 2000 governs the formation, registration, organisation, activities and winding-up of not-for-profit legal persons, such as associations and foundations. It provides, in section 3(3), that a not-for-profit legal person may carry out a secondary business activity only if that activity is connected with its main registered activity and only if the proceeds from it are used for the goals set out in its articles.
3. Legal provisions and case-law relating to the question of whether appellate decisions in registration proceedings are amenable to appeal on points of law
15. Article 500 of the 1952 Code of Civil Procedure, in force until the end of February 2008, provided that a decision by a first-instance court to refuse to register a non-governmental organisation was amenable to appeal before a court of appeal. In a 2001 interpretative decision the plenary of the Supreme Court of Cassation’s Civil Section held that, read in the light of the Code’s remaining provisions and its overall scheme and general principles, that provision was to be construed as also permitting appeals on points of law against appellate decisions in such proceedings (see тълк. реш. № 1 от 17.07.2001 г. по тълк. д. № 1/2001 г., ВКС, ОСГК).
16. Article 606 of the 2007 Code of Civil Procedure, in force since March 2008, likewise provides that a decision by a first-instance court to refuse to register a non-governmental organisation is amenable to appeal before a court of appeal.
17. According to legal commentaries published shortly after the 2007 Code’s entry into force, it was possible to in turn appeal on points of law against the court of appeal’s decision (see Р. Иванова, Б. Пунев, С. Чернев, Коментар на новия Граждански процесуален кодекс, Труд и право, 2008 г., стр. 715, and Ж. Сталев, Българско гражданско‑процесуално право, Сиела, 2012 г., стр. 1286). In three decisions given in 2009, 2011 and 2012 the Supreme Court of Cassation implicitly accepted this (see опр. № 28 от 22.04.2009 г. по т. д. № 80/2009 г., ВКС, I т. о.; опр. № 524 от 06.07.2011 г. по т. д. № 1126/2010 г., ВКС, I т. о.; and опр. № 626 от 14.08.2012 г. по т. д. № 820/2011 г., ВКС, II т. о.).
18. However, in a decision given on 30 April 2013 a three-member panel of that court, having analysed in detail the relevant provisions of the 2007 Code, held that decisions of the courts of appeal in such cases were not amenable to appeal on points of law (see опр № 133 от 30.04.2013 г. по т. д. № 510/2012 г., ВКС, I т. о.). In July 2013 that decision was upheld on appeal by another three-member panel of the court (see опр. № 508 от 15.07.2013 г. по ч. т. д. № 2571/2013 г., ВКС, II т. о.).
19. It appears that in all subsequent decisions relating to the point the Supreme Court of Cassation likewise held that no appeal on points of law lay against decisions by the courts of appeal in such cases (see опр. № 34 от 29.01.2014 г. по т. д. № 70/2014 г., ВКС, I т. о.; опр. № 273 от 07.05.2014 г. по ч. т. д. № 943/2014 г., ВКС, II т. о.; опр. № 385 от 13.11.2014 г. по т. д. № 3112/2014 г., ВКС, I т. о.; опр. № 307 от 04.06.2015 г. по ч. т. д. № 586/2015 г., ВКС, I т. о.; опр. № 50 от 16.02.2016 г. по т. д. № 18/2016 г., ВКС, I т. о.; опр. № 284 от 29.06.2016 г. по ч. т. д. № 1403/2016 г., ВКС, I т. о.; опр. № 317 от 15.07.2016 г. по ч. т. д. № 1062/2016 г., ВКС, I т. о.; and опр. № 230 от 01.11.2016 г. по т. д. № 1769/2016 г., ВКС, II т. о.).
20. In December 2015 the President of the Supreme Court of Cassation asked the plenary of the court’s Civil and Commercial Sections to give an interpretative decision on a number of points of procedure. One of those was whether decisions whereby courts of appeal courts upheld regional courts’ refusals to register a legal entity were amenable to appeal on points of law. The President said that the case-law on that was inconsistent, referring to the three 2009-12 decisions cited in paragraph 17 above and the two 2013 decisions to the opposite cited in paragraph 18 above. In its interpretative decision, handed down in July 2018, the plenary of the court’s Civil and Commercial Sections confirmed that no appeal on points of law lay against decisions by the courts of appeal in such cases (see тълк. реш. № 5 от 12.07.2018 г. по тълк. д. № 5/2015 г., ВКС, ОСГТК).
COMPLAINTS
21. The applicants complain under Article 11 of the Convention that the refusal to register the applicant association was unjustified, being based on reasons which the Court had in previous similar cases found insufficient.
22. The applicants further complain under Article 14 of the Convention that the refusal to register the applicant association, which was based on its Macedonian character and must according to them be seen against the backdrop of systemic restrictions of the Article 11 rights of Macedonians in Bulgaria during the past two decades and the Bulgarian State’s policy of denying the existence of a Macedonian ethnic identity in Bulgaria, was discriminatory.
QUESTION TO THE PARTIES
Was the refusal to register the applicant association in breach of its and Mr Vasilev’s right to freedom of association, enshrined in Article 11 of the Convention (see United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, §§ 53-82, 19 January 2006; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, §§ 30841, 18 October 2011; Yordan Ivanov and Others v. Bulgaria, no. 70502/13, §§ 39-42, 11 January 2018; and United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 3), no. 29496/16, §§ 32‑36, 11 January 2018)?
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