CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 3)
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
André Potocki;Angelika Nußberger;Erik Møse;Rousseva;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
6. The background to the refusal to register Ilinden at issue in this case has been set out in detail in the judgments in the following cases: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001-IX; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, 20 October 2005; United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria, no. 59489/00, 20 October 2005; Ivanov and Others v. Bulgaria, no. 46336/99, 24 November 2005; United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, 19 January 2006; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 2), no. 37586/04, 18 October 2011; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, 18 October 2011; Singartiyski and Others v. Bulgaria, no. 48284/07, 18 October 2011; and United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, 18 October 2011. 7. On 27 September 2010 Ilinden’s board of management applied to the Blagoevgrad Regional Court for it to be registered as an association. On 3 February 2012 the Blagoevgrad Regional Court refused the application, and on 23 April 2012 its decision was upheld by the Sofia Court of Appeal. A detailed account of those proceedings may be found in Yordan Ivanov and Others v. Bulgaria (no. 70502/13, §§ 8-18, 11 January 2018). 8. On 23 March 2014 the second and third applicants and seven other people held a meeting at which they resolved to set up Ilinden as an association. They defined Ilinden’s aims and the means that it would use to attain them, adopted its articles of association, and elected its board of management, which consisted of all nine of them. 9. Shortly after that, Ilinden’s board of management applied to the Blagoevgrad Regional Court for it to be registered as an association. 10. In a decision of 30 June 2014 (реш. № 2768 от 30.06.2014 г. по ф. д. № 36/2014 г., БОС) the Blagoevgrad Regional Court refused the application. It first observed that even though Ilinden had declared that it intended to be an association which only served the interests of its members, its aims, as set out in its articles of association, showed that in reality it meant to serve broader public interests (see paragraph 23 below). The court went on to note that Ilinden’s articles of association stated that it would strive for, inter alia, the introduction of the Macedonian language in schools, the protection of the right of Macedonians to refute propaganda about their history and culture, and the protection of Macedonian cultural heritage, which was being “subjected to ethnocide by Bulgarian cultural institutions”. The articles of association also stated that Ilinden would organise seminars and press conferences to expose the reasons which underlay the “policy of forced assimilation and discrimination of, and xenophobia towards, Macedonians in Bulgaria”. According to the articles of association, Ilinden was a “Macedonian organisation based on a Macedonian ethnic foundation and origin within the boundaries of Bulgaria”, and it “would remind [people] of the terror perpetrated by Bulgaria, of the thousands of Macedonians killed, of the violence, the prisons and the deprivation of basic human rights and freedoms of Macedonians after 1913, which amounted to crimes under international law”. For the court, all those statements gave the impression that Ilinden intended to stir up national and ethnic hatred, contrary to Article 44 § 2 of the Constitution (see paragraph 21 below). Moreover, the statements, combined with the existence, albeit brief, of a political party called the United Macedonian Organisation Ilinden-PIRIN, whose re-registration had recently been refused, and with the existence of organisations bearing the same or similar names, led to the conclusion that the intention was to mislead society and to obtain the registration of an organisation pursuing political aims (see paragraphs 18-20 below), or an organisation directed against the unity of the nation. This was also contrary to section 7(2) of the Non-Profit Legal Persons Act 2000 (see paragraph 24 below), which barred associations from having misleading names. Lastly, the association’s intended name was not unique, as required by law. 11. Ilinden’s founders appealed. They submitted that the court had misconstrued Ilinden’s articles of association and had erred in finding that its activities would be political or directed against the unity of the nation. The real reason for the refusal to register Ilinden had been that it advocated views which were at odds with the official ones. 12. In a decision of 18 November 2015 (реш. № 2272 от 18.11.2015 г. по ф. д. № 2968/2014 г., САС, ТО) a three-member panel of the Sofia Court of Appeal upheld the refusal to register Ilinden by two votes to one. 13. The court began by saying that when assessing the aims of an association seeking registration, it had to base itself chiefly on the articles of association. But since by law in registration proceedings the court had to examine the reality of the matter rather than carry out a mere formal check, it had to have regard not just to the aims set out in the articles of association, but to the entirety of the articles, and on that basis ascertain the founders’ real aims and intentions. The court also had to bear in mind the traditions which the association purported to represent and the historical figures with which it identified, the past activities, if known, of its founders, leaders and supporters, as well as the positions they had advocated. All those elements had to be juxtaposed with the aims set out in the articles of association, with a view to verifying whether those aims were not in effect a cover for other aims. In doing so, and thus balancing the rights of the founders of the association against the rights of others and the public interest, the court could rely not only on the material in the case file but also on facts which were publicly known and of which it could therefore take judicial notice. 14. In Ilinden’s case, it had been common knowledge, sufficiently publicised in both Bulgarian and foreign media, that since 1990 some of its founders, leaders and supporters had in a persistent manner openly challenged both those who had opposed their views and the State authorities, which had led to a string of breaches of public order – clashes between Ilinden’s supporters and their opponents on account of the views expressed by the former about Macedonian history – reported in the media. Seen against that background, the declaration in Ilinden’s articles of association that people of any ethnicity could become members did not reflect the reality of the situation, which was that the organisation had been conceived as one based purely on Macedonian ethnicity. The same went for the declaration in the articles of association that Ilinden would only resort to peaceful means to achieve its aims. This had been belied by the organisation’s record of provoking its opponents and the State authorities by making strongly worded statements about violence against Macedonians such statements had featured in its articles of association as well which had led to real public clashes. The court had to also take into account the complex ethnic and religious situation in some neighbouring countries, as well as the severe migrant crisis affecting all of Europe and Bulgaria in particular, as a front-line State of the European Union. That crisis, coupled with the “recent, likewise commonly known, tragic events in Central European countries”, showed a categorical need to mobilise all available State and social resources. 15. In those circumstances, the application to register Ilinden had to be turned down for two reasons. Firstly, the pursuit of its real aims, seen against the backdrop of the heightened sensitivities of the population in Pirin Macedonia, where it was based, could have led to serious tensions and breaches of public order caused by, or involving, supporters of the organisation, as had happened in the past. In the tense situation facing Bulgaria and its neighbouring States, that had to be seen as a genuine possibility. Secondly, the realisation of Ilinden’s right to freedom of association would infringe the rights of all Bulgarians who did not support its aims or the means which it intended to use to attain those aims. All were entitled to believe that they were not citizens of a State which had committed international crimes, that they did not engage, in their capacity as Bulgarian citizens, in propaganda and manipulation of the history and culture of a neighbouring country and that they were not citizens of a State whose institutions had subjected the cultural heritage of part of its population to ethnocide. The Sofia Court of Appeal concluded that it was necessary to refuse the registration application, even though it recognised that it was also possible to dissolve an already registered association if it engaged in anti-constitutional or unlawful conduct. The refusal was a justified preventive measure. 16. The dissenting judge noted that Ilinden’s founders had complied with all formal requirements of the law. She went on to say that the registration regime was not to be used to hinder the exercise of the fundamental right to associate with others, and that the case called for the direct application of Article 11 of the Convention, which was part of Bulgarian law. She then noted how that Article had been construed by the European Court of Human Rights in several cases, including United Macedonian Organisation Ilinden-PIRIN and Others and United Macedonian Organisation Ilinden and Others (both cited above), and stated that, in her view, the fact that an association advocated a form of minority consciousness could not justify a restriction of its rights under that Article. The Court’s ruling on that point in Stankov and the United Macedonian Organisation Ilinden (cited above) had to be taken into account when examining the registration request at issue. There was, moreover, no evidence of actions by Ilinden’s founders which ran counter to the prohibition in Article 44 § 2 of the Constitution (see paragraph 21 below). The refusal to register it was thus disproportionate and unjustified. 17. Ilinden’s founders sought to appeal on points of law. On 22 February 2016 the judge-rapporteur of the Sofia Court of Appeal, who under the relevant rules of procedure had to check the appeal’s admissibility before forwarding it to the Supreme Court of Cassation, sent it back to the appellants. He noted that under the applicable rules of procedure, as consistently construed by the Supreme Court of Cassation, no appeal lay against appellate decisions confirming refusals to register an association. In a final decision of 15 July 2016 (опр. № 317 от 15.07.2016 г. по ч. т. д. № 1062/2016 г., ВКС, I т. о.) the Supreme Court of Cassation dismissed the founders’ appeal against the judge-rapporteur’s order. It likewise found that under the applicable rules of procedure, which it had already construed in several cases, the Sofia Court of Appeal’s decision was not amenable to appeal.