CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA
Violation of Art. 11;Not necessary to examine Arts. 6-1 and 14;Costs and expenses partial award - domestic and Convention proceedings
Christos Rozakis
8. Ilinden is an association based in southwest Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia. 9. Ilinden was founded on 14 April 1990. Its aims, according to its articles of association and programme, were to “unite all Macedonians in Bulgaria on a regional and cultural basis” and to achieve “the recognition of the Macedonian minority in Bulgaria”. Clauses 8 and 9 of the articles stated that the organisation would not infringe the territorial integrity of Bulgaria and “would not use violent, brutal, inhuman or unlawful means”. 10. In 1990 Ilinden applied for, but was refused, registration. In the proceedings for registration, the Blagoevgrad Regional Court and the Supreme Court examined its articles of association, its programme and other written evidence. 11. In their decisions of July and November 1990 and March 1991 the courts found that Ilinden’s aims were directed against the unity of the nation, that it advocated national and ethnic hatred and that it was dangerous for the territorial integrity of Bulgaria. Therefore, its registration would have been contrary to Articles 3, 8 and 52 § 3 of the Constitution of 1971, as in force at the time. In particular, the aims of the association included the “political development of Macedonia” and the “united, independent Macedonian State”. Moreover, in its appeal to the Supreme Court, the association had stated that “the Macedonian people [would] not accept Bulgarian, Greek or Serbian rule”. The formal declaration in its articles of association that it would not imperil the territorial integrity of Bulgaria appeared inconsistent with the remaining material. 12. The judgment of the Supreme Court of 11 March 1991 stated, inter alia: “[T]he lower courts have correctly established that the aims of [Ilinden] under its articles of association and programme were directed against the unity of the nation... [The material in the case] demonstrates that [Ilinden] seeks to disseminate the ideas of Macedonianism among the Bulgarian population, especially in a particular geographical area. [Those ideas] presuppose the ‘denationalisation’ of the Bulgarian population and its conversion into a Macedonian population... It follows that [Ilinden] is directed against the unity of the nation and is therefore prohibited under Article 35 § 3 of the [1971] Constitution...” 13. Throughout the period 19902003 Ilinden tried to organise commemorations of historical events every year on certain dates in April, August and September, on various sites in Pirin Macedonia. Almost all of the commemoration gatherings were banned by the authorities, often on the basis of the organisation not been registered. In some instances the courts refused to examine appeals against such bans on the same ground (for the period 199497 see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, §§ 21, 25, and 2930, ECHR 2001IX; for the period 19982003 see The United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, §§ 1271, 20 October 2005). 14. On 26 October 1997 the applicants, together with seven, eight or nine other persons, held a meeting in Petrich. There are two versions of the minutes of this meeting. The first one states that eighteen persons adopted a resolution to reapply for registration of Ilinden. The second one states that seventeen persons decided to found a nonprofitmaking association named Ilinden. Both versions state that the persons present adopted the articles and elected the management committee and the chairman of the association. 15. The relevant clauses of the articles of association of Ilinden adopted at that meeting read: “1. [Ilinden] is a national Macedonian organisation, on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the Macedonian nation ... and of the Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide. 2(1). Ilinden recognises and respects the territorial integrity of the Republic of Bulgaria and its laws and Constitution, provided they are consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities. 2(2). [Ilinden] supports the international law [rules providing that] borders between countries may be altered peacefully through negotiations. 3. The goals and objects of [Ilinden] ... [are] to express and defend the civil, political, national, social, and economic rights of Macedonians living on Macedonian land under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria. 4(1). [Ilinden] will protect the Macedonians subjected to assimilation by the Bulgarian nationalistic policies. 4(2). [Ilinden will seek the r]ecognition of a status of cultural autonomy of Pirin Macedonia [in order to] halt the process of assimilation of the Macedonians. ... 4(5). [and the g]iving of autocephalous status of the Macedonian church in Pirin Macedonia with a view to cutting off the assimilation activities of the Bulgarian priests. ... 5. [Ilinden] will strive towards ... liberating the Macedonians from the feelings of fear of the discrimination and assimilation policies of the [Bulgarian State]. ... 7(2). [The means employed by Ilinden for achieving its goals shall be] ... the holding of peaceful assemblies, meetings, marches and demonstrations... 7(3). Participation in elections through nomination of independent Macedonians candidates. ... 8(2). Every Macedonian, as well as a citizen of another ethnicity, may become a member of the organisation.” 16. On 16 March 1998 the applicants lodged an application for the registration of Ilinden with the Blagoevgrad Regional Court. They submitted to the court a copy of the first version of the minutes of the 26 October 1997 meeting (see paragraph 14 above). Finding that one member of the management committee had not signed the application for registration and that the filed copy of the articles of association had not been signed either, the court invited the applicants to submit duly signed copies of the application and the articles. On 6 April 1998 one of the applicants filed a signed application and an unsigned copy of the articles. The court also instructed the applicants to produce a copy of the resolution for the founding of Ilinden. On 2 June 1998 an unsigned copy of the second version of the minutes of the October 1997 meeting (see paragraph 14 above), containing a resolution for the founding of Ilinden and the names of eighteen purported founders, was filed with the court. A hearing was held on 19 June 1998. On 10 July 1998 a copy of the second version of the minutes (see paragraph 14 above), signed by fifteen persons, was filed with the court. At a hearing held on 29 September 1998 the applicants stated that this second version had been drafted by an attorney and had been signed by the founders before the first hearing on 19 June 1998. The court admitted the document in evidence. 17. The Blagoevgrad Regional Court gave judgment on 2 November 1998. It rejected the application in the following terms: “By section 136(1) of the Persons and Family Act [of 1949], the application for registration of a nonprofitmaking association must be accompanied by a resolution for its founding [and] its articles of association, signed by the founders... In their application for registration the members of the management committee state that in 1990 the organisation was denied registration ..., which may lead to the conclusion that the resolution for the founding of Ilinden was adopted ... at the latest in 1990. This conclusion is supported by the first version of the minutes of 26 October 1997. This version states that at a meeting held on 26 October 1997 in Petrich, with eighteen persons present, the question of the reregistration of Ilinden was discussed... In a letter of 30 April 1998 the court instructed the applicants to present a resolution for the founding of the association. Following this instruction the applicants submitted unsigned minutes dated 26 October 1997, which reflect a different agenda and different decisions. These new minutes contain an express resolution for the founding of Ilinden, for the adoption of its articles of association and the electing of a management committee. The heading of these minutes indicates that seventeen persons were founders. An additional, signed version of these minutes bears the signatures of fifteen persons. Three of the alleged founders ... have not signed the minutes of 26 October 1997, while the minutes state that the resolution for the founding of the association was adopted by unanimity. However, these persons have signed the [first version of the minutes], which contain the resolution to re-register Ilinden. [During the hearing] on 29 September 1998 the members of the management committee averred that there had only been one meeting, [which took place] on 26 October 1997. In view of these circumstances, the court considers that it has not been categorically established that a resolution for the founding of Ilinden was adopted on 26 October 1997. It is unclear who the founders were, because there are two versions of the minutes of the same date, signed by different persons and having different contents. Thus, one of the absolute prerequisites of section 136(1) of the [Persons and Family Act of 1949] – a resolution for the founding the association – is missing. The second mandatory attachment to the application for registration – articles of association signed by the founders – is likewise missing. When the applicants first applied for registration on 16 March 1998..., they were instructed to submit articles of association signed by the founders. This instruction has not been complied with. The articles ... dated 27 September 1997 are not signed. Alongside the articles the applicants have submitted a separate sheet, stating: ‘The articles of association of Ilinden were discussed and adopted at the founding meeting on 26 October 1997’. Only the signatures of the members of the management committee follow. The presentation of articles of association signed by the founders is an absolute prerequisite for [registration]. On this ground alone – the failure to comply with the requirements of section 136(1) of the [Persons and Family Act of 1949] – the registration of [Ilinden] must be refused. The court considers it necessary to note that, alongside the above-mentioned [reasons to refuse registration], there are a number of serious discrepancies between the submitted articles of association and the laws of [Bulgaria], which render the registration inadmissible. In clause 1 of its articles of association [Ilinden] defines itself as a ‘Macedonian national organisation on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the Macedonian nation ... and of the Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide’. This text clearly shows that the association considers itself a ‘successor’ and continuer of ... the ‘national liberation struggle of the Macedonian nation’... The evoking of historical events in which the Bulgarian people fought for the protection of its national interests [and] for the restoration of the Bulgarian State is puzzling in the context of an activity which is to be carried out against this same State. It is not clear how an association may be a ‘successor’ of ‘fighters fallen victim’ but probably the applicants wanted to underscore that they intend to lead a ‘national liberation struggle’ on the territory of the Republic of Bulgaria through uprisings, which process is expected to lead to victims. Read this way, clause 1 of the articles raises serious doubts as to the peaceful means for the achievement of the goals of the association declared in clause 7. Clause 2(1) of the articles recognises the territorial integrity of the country, its laws and Constitution, but under a condition: ‘if they are consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities’. The reservations relating to respect for the territorial integrity of the country continue in clause 2(2) of the articles, which introduces the concept of modification of the borders through ‘negotiations’. The association’s goal – to achieve a modification of the borders of Bulgaria through taking of territory away – is clearly spelled out in clause 3 of the articles, which indicates that [Ilinden] ‘expresses and defends the civil, political, national and social and economic rights of Macedonians living on Macedonian land under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria’. The use of the term ‘occupation’ indicates that, according to the applicants, the Republic of Bulgaria includes forcibly annexed ‘Macedonian’ lands, for the liberation of which they will lead a ‘national liberation struggle’. This idea is underscored in several other provisions of the articles. Thus, clause 4 speaks of protection against Bulgarian ‘assimilation’ through cultural autonomy of Pirin Macedonia, which takes as a given that the population there is not Bulgarian, clause 5 [speaks of] ‘taking the Macedonians out’ of the state of [being subjected to] ‘discrimination and assimilation’ by the Bulgarian State. Clause 7 of the articles indicates that the association will organise peaceful assemblies, meetings, marches and demonstrations with demands for political rights, and that it will participate in elections through the nomination of candidates. Therefore, even though it claims to be a non-profitmaking association, Ilinden proclaims that it will carry out a political activity within the meaning of Article 11 § 3 of the Constitution [of 1991] and section 13(3) of the Political Parties Act [of 1990]. Article 12 § 2 of the Constitution [of 1991] provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties. This prohibition is developed in section 13(1) and (5) of the Political Parties Act [of 1990]. An association which pursues political goals such as those clearly designated by the applicants here may not be registered [as such]. Apart from the political character of the goals and of the future activity [of the association], the aforesaid leads to the conclusion that [Ilinden] is an organisation directed against the sovereignty, the territorial integrity and the unity of the nation and towards the incitement of national hatred, and is not categorically excluding the use of violence. Clauses 1, 2, 4, 6, and 7 of the articles of the association contain suggestions [that there exists] a Macedonian ethnos [constituting a] minority and deprived of the rights that the Constitution [of 1991] bestows upon all Bulgarian citizens. There is no Macedonian minority in Bulgaria. There are no historical, religious, linguistic, or ethnical grounds for such an assertion. [Such an assertion], coupled with the declarations alleging ‘assimilation, discrimination and xenophobia’ in respect of the ‘Macedonians’, is in reality directed against the unity of the nation. Every organisation committed to such a political platform is prohibited by virtue of Article 44 § 2 of the Constitution [of 1991]. ...” 18. The management committee of Ilinden appealed to the Sofia Court of Appeals. They argued that the Blagoevgrad Regional Court had deliberately misconstrued the articles of association. Ilinden had no political goals and had never intended to dispute the territorial integrity and the sovereignty of Bulgaria, nor to incite violence or ethnic hatred. The court had refused registration because of its mistaken finding that the articles insinuated the existence of a Macedonian ethnos having a minority character. Also, as there had apparently been doubt about technical problems with the registration documents, the management committee submitted a fresh copy of the minutes of the association’s founding meeting. It also submitted a list of signatures of the founders of Ilinden who were not members of the management committee, apparently with the purpose of remedying the deficiency noted by the Blagoevgrad Regional Court – that the articles of association bore the signatures of the members of the management committee only, not of all founders. 19. The Sofia Court of Appeals dismissed the appeal in a judgment of 28 April 1998. The relevant part of its opinion read: “...this court finds that the prerequisites for entering [Ilinden] in the register of nonprofitmaking legal persons are missing. The first irregularity of the association is that the submitted articles are not signed by the founders, as required by section 136 of the Persons and Family Act [of 1949]. Furthermore, the articles contain a number of clauses which do not allow the registration of the association. Clause 1 indicates that [Ilinden] shall be ‘a Macedonian national organisation [based] on ethnicity and origin’, and clause 8 provides that ‘only a Macedonian’ may be a member of the organisation; such type of association is inadmissible and contrary to Article 6 § 2 of the Constitution [of 1991], which prohibits privileges based on ‘nationality, ethnicity, origin’... In clause 7 of its articles the association sets itself political goals, which it may pursue only if registered [as a political party]. The formulated aims, such as ‘participation in elections’ [and] the holding of ‘meetings, marches and demonstrations’ run also against Article 12 § 2 of the Constitution [of 1991], which does not allow associations to perform political activities. The legal definition of the term ‘political activity’ set out in section 13(3) of the Political Parties Act [of 1990] indicates that it comprises precisely the holding of meetings, demonstrations, assemblies and other forms of public campaigning. Clause 4 of the articles provides that the association will carry out activities that are characteristic of a denomination ... : ‘struggling to achieve an autocephalous status of the Macedonian church and cutting off the assimilation activities of the Bulgarian priests’ [; such activities] may be carried out only by nonprofitmaking organisations registered under section 133a of the Persons and Family Act [of 1949] and the Denominations Act [of 1949]. The proposition of the applicants is that the association should be registered because its articles do not set forth political aims and the association is not established on an ethnical or a national basis. These assertions are unfounded. On the one hand, the submitted articles of association have not been signed by the founders, which precludes the possibility of registration ... On the other hand, the activities the articles envisage ... may not be carried out by such a type of association. This indicates that the irregularities in the founding of the association may not be rectified through the additional presentation of evidence; the registration is therefore impossible.” 20. The management committee of Ilinden appealed on points of law to the Supreme Court of Cassation. They argued that the Sofia Court of Appeals had erred in holding that the formation of an association could lead to discrimination. On the contrary, it was the exercise of a fundamental right. Also, Ilinden did not pursue any of the activities proscribed by Article 44 § 2 of the Constitution of 1991. As regarded the alleged political goals and activities of the association, they submitted that the Sofia Court of Appeals had misconstrued the term “political activity”: the holding of meetings and marches was not the prerogative of political parties – they could be organised by any organisation or person. The statement of the court that the meaning of clause 4 of its articles of association was that Ilinden intended to engage in religious activities was tendentious and untrue. In addition, the applicants complained that the Sofia Court of Appeals had repeated the conclusion of the Blagoevgrad Regional Court that they had not submitted a duly signed copy of the articles of association, apparently disregarding the fresh documents they had presented together with their appeal from the latter’s judgment. 21. The Supreme Court of Cassation gave judgment on 12 October 1999. It dismissed the appeal in the following terms: “...The appeal is illfounded. The [Sofia] Court of Appeals found that the submitted articles of association have not been signed by the founders, as mandated by the imperative rule of section 136 of the [Persons and Family Act of 1949]. Secondly, the articles contain a number of clauses precluding the registration of the association. Clauses 1 and 8 contravene Article 6 § 2 of the Constitution [of 1991], clause 7 [contravenes] Article 12 § 2 of the Constitution [of 1991] in conjunction with section 13(3) of the [Political Parties Act of 1990], [and] clause 4 [runs counter to] section 133a of the [Persons and Family Act of 1949]. The judgment of the [Sofia] Court of Appeals is correct. The finding that the legal requirements for the registration of the association have not been met corresponds to the documents in the case file and more specifically to the articles of association [of Ilinden]. An association is registered pursuant to an application by its management committee which must be accompanied by a resolution for its founding and its articles, signed by the founders. This means a signed copy of the articles and not separate lists and minutes. [In addition,] Article 6 § 2 of the Constitution [of 1991] does not allow privileges on the basis of nationality, ethnicity, origin, etc. By Article 12 § 2 of the Constitution [of 1991], associations may not pursue political goals and carry out political activities characteristic solely of political parties. Account should also be taken of section 13 of the [Political Parties Act of 1990].” 22. On 21 October 2002 Ilinden lodged another application for registration with the Blagoevgrad Regional Court. In a judgment of 18 November 2002 the court refused to register the association. Its opinion read, as relevant: “The evidence ... indicates ... that the activities of the organisation which seeks registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation. This is apparent from the main goals of the association ... and the means for their achievement... The way they are formulated ... indicate[s] their political character. ...The organisation states that it is a successor and continuer of the ‘national liberation struggle of the Macedonian nation’, including the ‘Macedonian fighters who have fallen victim to the 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 the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities’; [that the organisation] will ‘voice and protect 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 and to ignore the Bulgarian character of certain geographical regions [and] to cause overt opposition of one part of the population to another. This also threatens the territorial integrity of the country, while Article 44 § 2 of the Constitution [of 1991] prohibits organisations engaging in such an activity. Even if, despite [what was found] above, it is assumed that the activities of [Ilinden] do not run counter to the Constitution [of 1991], by Article 12 § 2 thereof 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 indicated by [its articles of association], while the [applicable law] provides that organisations seeking to engage in political, trade union or religious activities shall 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].” 23. Ilinden’s ensuing appeal was dismissed by the Sofia Court of Appeals in a judgment of 11 July 2003. The court held that the aims of Ilinden were political, which was impermissible for a nonprofitmaking association. It further held that the aims of Ilinden were directed towards a “twisting of the historical truths and towards ignoring the Bulgarian character of certain geographical regions, with a view to causing overt opposition of one part of the Bulgarian citizens against another, which imperil[ed] the territorial integrity of the country and the unity of the nation, in breach of the imperative rule of Article 44 § 2 of the Constitution [of 1991]”. Finally, the court held that there had been an irregularity in the number of elected members of the association’s management committee. 24. Ilinden’s appeal on points of law to the Supreme Court of Cassation was likewise dismissed, in a final judgment of 12 May 2004. The court held that Ilinden’s activity, which would include protecting the ‘civil, social and economic rights of the Macedonians living on Bulgarian soil and of the Macedonians living in Bulgaria’ ran counter to Article 44 § 2 of the Constitution of 1991. Even assuming that this was not the case, registration was impossible, because Ilinden’s aims were in reality political, as indicated by its declarations that it was a continuer of the “national liberation struggle of the Macedonian nation” and that its founders were “spiritual successors of ‘the Macedonian fighters which had fallen victim of the Bulgarian state terrorism and genocide’”, which was impermissible for a nonprofitmaking association. Finally, the court endorsed the Sofia Court of Appeals’ finding that there had been an irregularity in the number of elected members of the management committee. 25. The relevant provisions of the Constitution of 1991 read as follows: “The territorial integrity of the Republic of Bulgaria shall be inviolable.” “All citizens shall be equal before the law. There shall be no privileges or restriction of rights on the grounds of race, nationality, ethnicity, sex, origin, religion, education, opinion, political affiliation, personal or social status, or property status.” “Parties shall facilitate the formation of the citizens’ political will...” “Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “Everyone shall have the right to peaceful and unarmed assembly at meetings and marches.” “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 ... as well as 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, as well as their relations with the State.” 26. At the material time this Act, the relevant provisions of which were subsequently superseded by the NonProfitMaking Legal Persons Act of 2000 (see paragraph 29 below) and some other statutes, regulated the formation, status and dissolution of nonprofitmaking legal persons. Its pertinent provisions were: “Nonprofitmaking legal entities carrying out an activity characteristic of a denomination or performing a religious or a religious educational activity shall be registered ... after assent being given by the Council of Ministers.” “An association shall acquire legal personality after its entry in the register [kept by] the Regional Court.” “An association shall be registered pursuant to an application by [its] management committee [to which shall be enclosed] a resolution for its founding and its articles of association, signed by the founders...” “Associations shall be managed in accordance with [their] articles of association, which must contain provisions in respect of [their] name, goals, means...” “...An association may be dissolved by decision of the Regional Court if ... its functioning is contrary to law, its articles or the state and public order...” 27. This act, which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties. Its relevant provisions read as follows: “1. A public organisation which has not been registered as a political party may not carry out the activity of a political party. 2. A [public organisation] which has not been registered as a political party may not carry out organised political activities [on the premises of] enterprises, government agencies and organisations. 3. ’Organised political activities’ shall mean the holding of meetings, demonstrations, assemblies and other forms of campaigning in favour of or against a political party or an election candidate. 4. If a public organisation ... clearly carries out the activity of a political party, the regional prosecutor shall offer that it be dissolved or register as a political party within one month. 5. If the organisation under the foregoing subsection does not cease its political activity or register as a political party, it shall be dissolved...” 28. The relevant provisions of this Act read as follows: “Meetings, rallies and marches may be organised by individuals, associations, political or other civic organisations.” 29. Under section 13(1)(3)(b) of this Act, which came into force on 1 January 2001 and at present regulates, inter alia, nonprofitmaking associations, the competent regional court may dissolve any association which carries out an activity which is contrary to the law, the public order or morality. By section 13(2) of the Act, the court may act pursuant to the request of any interested person or the public prosecutor.