CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 2)
Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - award
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
7. The individual applicants were born in 1938, 1954, 1940, 1932, 1949, 1931, 1948, 1951, 1933, 1952, 1964, 1929 and 1944 and live in Krupnik, Sandanski, Gotse Delchev, Ilindentsi, Katuntsi, Kamena, Petrich and Kolarovo. They are all members of Ilinden’s managing council. 8. The relevant background circumstances are described in detail in paragraphs 921 of the Court’s judgment in the case of United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/00, 19 January 2006). 9. On 20 October 2002 a group of one hundred and eleven supporters of Ilinden held a meeting at which they resolved to form a non-profit association. They adopted its articles and elected its bodies, including thirteen members of its managing council. 10. Clause 6(1) of the articles, which defined the association’s goals, said, inter alia, that Ilinden was “a successor and continuer of the national liberation struggle of the Macedonian nation”, including the “Macedonian fighters who fell victim to Bulgarian state terrorism and genocide”. Clause 6(2) specified that Ilinden “recognise[d] and respect[ed] the territorial integrity of the Republic of Bulgaria and its laws and constitution, but only if they [were] consonant with international law and international agreements on human rights, fundamental freedoms and minorities’ rights”. Clauses 6(4) and 6(5) stated that Ilinden’s goals included “expressing and defending the civil, national, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction), and of the Macedonians who live in Bulgaria” and “requesting cultural autonomy status for Pirin Macedonia in order for the assimilation process to be stopped”. 11. Clause 7(1) to (6) of the articles provided that to attain its goals Ilinden would propagate Macedonian culture and traditions, hold meetings to commemorate historical dates, “nominate Macedonians for Members of Parliament”, petition the government and various international institutions for the “national rights of the Macedonians”, and organise conferences and seminars. 12. Clause 32(1) said that the association would be run and represented by a managing council. According to clause 32(3), it would have three to seven members. However, clause 32(5) specified that the first managing council would have three members. 13. On 21 October 2002 Ilinden applied for registration to the Blagoevgrad Regional Court. In a judgment of 18 November 2002 the court refused to register the association. It gave the following reasons: “The evidence ... shows ... that the activities of the organisation seeking registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation. This is apparent from the association’s main goals ... and the means for attaining them... Their wording ... shows their political character. ...The organisation says that it is a successor of and continues the ‘national liberation struggle of the Macedonian nation’, including the ‘Macedonian fighters who fell victim to 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 international law and international agreements on human rights, fundamental freedoms and the rights of minorities’; [that the organisation] will ‘express and safeguard 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, to ignore the Bulgarian character of certain geographical regions [and] to provoke overt opposition by one part of the population to another. This also threatens the territorial integrity of the country, whereas Article 44 § 2 of [the Constitution] prohibits organisations from engaging in such activities. Even if, despite [what was found] above, it is assumed that the activities of [Ilinden] do not run counter to [the Constitution], its Article 12 § 2 provides that 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 shown by [its articles of association], while the [applicable law] provides that organisations seeking to engage in political, tradeunion or religious activities must 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.” 14. Ilinden appealed to the Sofia Court of Appeal, arguing, inter alia, that it was not threatening the country’s sovereignty and territorial integrity, nor trying to distort the “historical truth”. The refusal to register it was in breach of Article 38 of the Constitution (see paragraph 18 below), as it was based on the fact that it expressed views which differed from the officially sanctioned ones. It was not proposing to engage in activities characteristic solely of a political party either. 15. On 11 July 2003 the Sofia Court of Appeal upheld the lower court’s judgment. It held, in so far as relevant: “The Blagoevgrad Regional Court ... received an application by the managing council of the newly formed non-profit association [Ilinden], requesting it to be registered ... in the special register kept by the court... In [the impugned judgment the Blagoevgrad Regional Court] refused to register the association..., holding that [Ilinden]’s goals and the means for attaining them have a political character and run counter to the spirit of [the 2000 NonProfit Legal Persons Act] and the provisions of the [Constitution]. This court shares those conclusions. The evidence submitted alongside the application for registration, namely the articles of the nonprofit association [Ilinden], the minutes of its founding meeting, held on 20 October 2002, a list of the founders, thirteen sample signatures of the members of the managing council, notarised and expressly stating that these persons wish to take part in the association’s management and representation, and their criminal records, shows that a founding meeting was held on 20 October 2002. It was attended by 111 individuals, who unanimously resolved to form a nonprofit association named [Ilinden], adopted its articles and elected a managing council consisting of thirteen members. However, the wording of the articles – clauses 6 and 7, [which set out] the association’s goals and the means for attaining them – reveal their political character, which is impermissible for a nonprofit association. This follows from the interpretation of paragraph 2 of [the 2000 NonProfit Legal Persons Act], which provides that organisations intending to carry out political, tradeunion or religious activities must be regulated by separate statutes. For instance, in clause 6(1), (4) [and] (5) of its articles the organisation proclaims itself as being a successor of and continuing the ‘national liberation struggle of the Macedonian nation’, including ‘the Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’, declares that ‘it will express and defend the civil, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria’, insists that ‘the assimilation process in Pirin Macedonia must stop’, etc. All those goals set by the newly formed organisation are directed towards distorting the historical truth and ignoring the Bulgarian character of certain geographical regions, with a view to stirring overt confrontation between one group of Bulgarian citizens and another, which imperils both the territorial integrity of the country and the unity of the nation. This is in breach of the imperative rule of Article 44 § 2 of [the Constitution] which provides that ‘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 ... are prohibited’. Moreover, the political goals and the ways of attaining them, set by the organisation in clause 7(2), (3) and (4) of its articles, are in breach of paragraph 2 of [the 2000 NonProfit Legal Persons Act] and Article 12 § 2 of [the Constitution]. Apart from that, the founders have elected thirteen members of the managing council, in breach of the articles which provide, in clause 32(5), that the first managing council will consist of three members who will manage and represent the association (clause 32(1)). This was equally in breach of section 20(6) and (9) in conjunction with section 18(1)(3) of [the 2000 NonProfit Legal Persons Act], because it engenders uncertainty as to the manner of managing and representing the organisation. In view of the foregoing, this court finds that the newly formed organisation [Ilinden] has goals, ways of attaining them and representation which run counter to the provisions of [the 2000 NonProfit Legal Persons Act]. For this reason, it should not be entered on the register of non-profit legal persons kept by [the Blagoevgrad Regional Court]. ...” 16. On 3 November 2003 Ilinden appealed on points of law. It argued, inter alia, that, contrary to the Sofia Court of Appeal’s ruling, its articles, when read properly, showed that it did not intend to participate in political life. Nor was it trying to distort the historical truth – its aim was to promote it. The refusal to register it violated its right to freedom of association, enshrined in Article 44 § 1 of the Constitution, and was in breach of Article 38 of the Constitution (see paragraph 18 below). Ilinden also contested the Sofia Court of Appeal’s findings concerning its managing council. 17. In a final judgment of 12 May 2004 (реш. № 342 от 12 май 2004 г. по гр. д. № 1992/2003 г., ВКС, търговска колегия) the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment in the following terms: “The Sofia Court of Appeal founded the refusal to register the association on the wording of the articles of association, more specifically clauses 6 and 7, which show that the goals sought to be attained by the association and the means for their attainment are political in character. The [Constitution] guarantees freedom of association, but only in line with the requirements of the law. It is not permissible for a nonprofit association to carry out political, tradeunion or religious activities. The assertion in the appeal that [Ilinden] does not seek to engage in political struggles is not substantiated. As correctly observed by [the Sofia Court of Appeal], an organisation which proclaims itself as being a successor and continuing the ‘national liberation struggle of the Macedonian nation’, and its founders as spiritual successors of ‘the Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’ has a markedly political character. The [lower court] correctly held that an activity consisting in ‘safeguarding the social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation and of the Macedonians living in Bulgaria’ is in breach of Article 44 § 2 of the [Constitution], which prohibits organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, or towards the incitement of racial, national, ethnical or religious enmity. But even if [the court] were to accept the argument in the appeal that the organisation does not seek to attain goals which run counter to the constitutional order, those goals run counter to the [2000 NonProfit Legal Persons Act], as they are characteristic of a political party, not of a nonprofit association. Thus, the alleged violation of Article 38 of the [Constitution] has not been made out. The argument in the appeal that the articles of association in reality merely mention the minimum number of members of the managing council, without further restrictions, is unfounded. Clause 32(3) of the articles enclosed in the case file says that the managing council consists of three to seven members. Clause 32(5) makes special provision for the first managing council and says that it will consist of three members serving three years. That is, clause 32(5) does not merely set a minimum, as claimed in the appeal. For this reason, [the Sofia Court of Appeal] correctly found that the imperative rule of section 20(6) and (9) in conjunction with section 18(1)(3) of the [2000 NonProfit Legal Persons Act] has not been complied with – the manner of managing and representing the organisation is unclear. For the foregoing reasons, the court is of the opinion that the grounds of appeal have not been made out and that [the impugned judgment] should be upheld.” 18. The relevant provisions of the 1991 Constitution read: “The territorial integrity of the Republic of Bulgaria shall be inviolable.” “Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “No one may be persecuted or restricted in his rights because of his views, nor detained or forced to provide information about his or another’s convictions.” “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 ... and 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 and their relations with the State.” 19. Under paragraph 2 of the transitional and concluding provisions of the 2000 Non-Profit Legal Persons Act (“Закон за юридическите лица с нестопанска цел”) – the Act which regulates the formation, registration and activities of nonprofit legal persons such as associations – organisations which intend to engage in political, trade union and religious activities were to be regulated by separate statutes. 20. Section 18 (1)(3) of the Act provides that the names and the offices of the persons who represent the association must be entered in the register. Section 20 (6) and (9) provide that an association’s articles must set out its managing bodies and the manner of its representation.