Information Note on the Court’s case-law 243
August-September 2020
Yordanovi v. Bulgaria - 11157/11
Judgment 3.9.2020 [Section V]
Article 11
Article 11-1
Freedom of association
Criminal proceedings unnecessary vis-à-vis attempt to set up political party on religious basis: violation
Facts – In September 2009, the two applicants, who were brothers, belonging to the Turkish Muslim community in Bulgaria, held a meeting attended by about a hundred people at which a political party was formed, with the adoption of its constitution and the election of members to its decision-making bodies. A few days later, criminal proceedings were brought against the applicants, who were ultimately convicted and sentenced for attempting to set up a political party “on a religious basis”.
Law – Article 11: The criminal proceedings against the applicants, who were convicted and sentenced for attempting to set up a political party “on a religious basis”, and therefore for exercising their right to form an association or political party, had to be regarded as a “restriction” of their right to freedom of association.
The restriction was based on Article 166 of the 1968 Criminal Code, which prohibited inter alia the forming of political organisations “on a religious basis”. In view of the precise wording of that Article, the applicants knew or should have known, if need be having sought appropriate legal advice, that their actions in September 2009 could engage their criminal liability under that provision.
Admittedly, in the absence of any case-law on the application of Article 166 since the entry into force of the 1991 Constitution, the interpretation of the relevant clause by the Bulgarian criminal courts could not be decisively ascertained. Nevertheless, their position in the present case was reasonably foreseeable, having regard in particular to the interpretation by the Constitutional Court in 1992 of Article 11, paragraph 4 of the 1991 Constitution, which contained almost identical wording and to which the criminal courts in fact referred. Therefore there had been no unforeseeable departure from case-law or any mutatis mutandis extension of a criminal statute.
In the light of the parliamentary debate when Article 11, paragraph 4 of the 1991 Constitution was adopted, and the interpretation of that Article by the Bulgarian Constitutional Court, the criminal proceedings against the applicants had pursued the legitimate aims of the “prevention of disorder” and the “protection of the rights and freedoms of others”.
Even without having to consider the analysis by the Bulgarian criminal courts as to whether the party which the applicants had sought to set up could rightly be regarded as having a “religious basis”, and thus whether those courts had based their judgment on an acceptable assessment of the relevant facts, the Court had serious doubts as to whether it was necessary, under Article 11 § 2 of the Convention, to attach criminal sanctions to the prohibition at issue. However, what was important was not so much the severity of the sanctions imposed on the applicants as a result of the criminal proceedings against them, but rather the very fact that such proceedings, which resulted in a conviction and sentence, had been brought against them in the first place.
It was noteworthy that the applicants had not completed the procedure to register the political party whose creation was decided in September 2009. Under Bulgarian law, the result of this failure was that the party could not exist or engage in activities. Consequently, the result sought by the authorities, namely to ensure the peaceful coexistence of the various ethnic and religious groups in Bulgaria, could be achieved through such a procedure by a refusal to grant an application for registration of the political party. There was also a possibility for the authorities to dissolve a party which had been declared unconstitutional by the Constitutional Court. The Court therefore saw no reason why, in the circumstances of the present case, criminal proceedings for attempting to set up a political party, which resulted in the applicants’ conviction and sentence, thus representing a particularly severe response on the part of the authorities, would be necessary in addition to those other possibilities.
Moreover, Article 166 of the 1968 Criminal Code had existed long before the 1991 Constitution, from the time of the Communist regime in Bulgaria. The purpose of this provision had in fact been to preclude any re-emergence of the “capitalist” political parties which had existed before the establishment of the regime and still existed in “capitalist countries”, rather than to defend religious and ethnic tolerance in Bulgaria. Article 166 of the 1968 Criminal Code referred only to the establishment of a political organisation on a religious basis, while Article 11, paragraph 4 of the 1991 Constitution also prohibited political parties created on an ethnic or racial basis.
Having regard to the foregoing, the criminal proceedings against the applicants for attempting to set up a political party on a religious basis had not been necessary in a democratic society.
Conclusion: violation (six votes to one).
Article 41: finding of a violation sufficient in itself for non-pecuniary damage.
(See also Artyomov v. Russia (dec.), 17582/05, 7 December 2006, Information Note 92)
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This summary by the Registry does not bind the Court.
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