CASE OF ASSOCIATION OF CITIZENS RADKO AND PAUNKOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 11;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
8. The second applicant was born in 1954 and lives in Ohrid, the former Yugoslav Republic of Macedonia. 9. On 24 May 2000 ten Macedonian nationals, including the second applicant, founded the Association in the city of Ohrid. On 19 June 2000 the Ohrid Court of First Instance registered the Association in the register of associations of citizens and foundations under the following name: “Association of Citizens Radko-Ohrid”. 10. Article 3 of the Articles of Association (“the Articles”) defined the Association as an independent, non-political and public organisation, which studies and promotes the Macedonian Liberation Movement (“the Movement”) through commonly accepted democratic principles and standards. 11. Article 7 defined its objectives and tasks as follows: “The Association has the following objectives and tasks: it endeavours to raise and affirm the Macedonian cultural space; it endeavours to establish traditional ethical and human values; it endeavours to popularise the objectives, tasks and ideas of the Macedonian Liberation Movement through the publication of its own newspaper, publishing activity and library, and through its own electronic media, seminars, conferences, forums and other forms of cultural action.” 12. Article 8 set out that the Association will attain these objectives and tasks through: “- the individual and collective activities of the members, bodies and structures of the Association, - cooperation between the Association and other similar associations and structures, inside the country and abroad”. 13. Article 9 provided that every citizen who accepted the Association’s Programme could become a member. 14. Article 10 § 1 provided: “Every citizen of the Republic of Macedonia and citizens of a foreign state may become a member, if they have reached the age of 18, after signing a membership application”. 15. The Association’s Programme of 24 May 2000 consisted of two paragraphs. It read as follows: “The Association is founded as a non-governmental, non-party and non-political organisation with the purpose of raising and affirming the Macedonian cultural space, establishing traditional ethical and human values, affirmed in the ideas of the Macedonian Liberation Movement, through the publication of its own newspaper, publishing activity and library, and through its own electronic media, seminars, conferences, forums and other forms of cultural action. For the above objectives, the Association will organise public forums, with the participation of outstanding cultural and scientific scholars from inside the country and abroad, through its local committees.” 16. On 27 October 2000 the official launch of the Association took place in a hotel in Skopje, the capital of the former Yugoslav Republic of Macedonia. A promotional leaflet by the Association (which accompanied the letters of invitation for the opening ceremony) was published at the beginning of October. It provided information about the Association’s name, objectives and the ways in which these were to be achieved. It read: “a. Name of the Association The founders of the Association have taken as its name the most frequently used pseudonym of Ivan Mihajlov, RADKO. Ivan Mihajlov-Radko, his name, his life, his revolutionary activity and especially his cultural and literary activity are deeply woven in the history of Macedonia. Praised, but also denounced by his ideological adversaries, he became and still remains a legend for his ideological companions, including the founders of this Association. Although his work is yet to be evaluated, it is undisputable that under his leadership the Macedonian Liberation Movement became an example of the human spirit’s love of freedom. Thus, he placed an obligation on future generations to complete the holy liberation. Ivan Mihajlov headed the Movement for an extremely long period (1925-1990). He remained and worked as an intellectual and moral pillar of the revolutionary and cultural struggle of the Bulgarians from Macedonia. This allows us to state that his publications are the most authentic and most reliable evidence of the ideological content of the Macedonian Liberation Movement. Due to their factual reliability they remain as historical evidence of unquestionable scientific value. His written legacy provides the present and coming generations with the most concrete evidence of the revolutionary and cultural struggle of the Bulgarians from Macedonia. Of this legacy, the most important [work] is his four-volume “Memoirs”, which are a national treasure of unchangeable value in the recent history of Macedonia.” b. The Association aims to: - raise and affirm the Macedonian cultural space, having as its priority the cultural and historical identity of the Slavs from Macedonia who have appeared as Bulgarians throughout the centuries; - establish traditional ethic and human values; - affirm the ideas of the Macedonian Liberation Movement. c. The Association realises its objectives through: - own book-publishing activity, publication of its own newspaper and its own electronic media; - the organisation of conferences, seminars and forums with outstanding scientific and cultural scholars from the country and abroad; - cooperation with scientific, cultural and educational institutions, and with similar associations and organisations from the country or abroad.” 17. After the opening speech by the Chairman of the Association and a solemn performance of the anthem of Todor Alexandrov, three young men threw smoke bombs inside the conference hall, which caused a temporary delay. Some of the participants started to beat and kick the young men. The latter managed to escape, but a retired journalist was injured. According to the daily newspaper “Utrinski vesnik” of 30 October 2000, he sustained a “fracture of his left hand and blood on his face”. 18. On 7 October 2005 the Skopje Court of First Instance convicted two persons of causing grievous bodily injury and sentenced them to three months’ imprisonment. It found that the perpetrators had pushed the journalist, who had sustained a fracture of the forearm. One of the perpetrators was a member of the Association. 19. There was a strong media campaign before and after the launch of the Association, condemning its foundation and functioning as contrary to the Macedonian national identity. The Association was described as “fascist” and as rehabilitating “terrorism and fascism, which were the basic characteristics of Hitler’s collaborator Vančo Mihajlov” (excerpts from the newspapers “Utrinski vesnik”, mentioned above, and “Dnevnik” from 24 October 2000). 20. In or about October 2000 three practising lawyers from Skopje, together with a political party and the Association of War Veterans from the Second World War filed petitions before the Constitutional Court challenging the conformity of the Association’s Articles and Programme with Article 20 of the Constitution. They also challenged the lawfulness of the Ohrid court’s decision to register the Association. 21. The petitioners, inter alia, stressed that: “...the aims of the Association are the infiltration of Bulgarian linguistic elements into the Macedonian language and alphabet...” 22. The petitioners noted that all the Association’s documents bore the flag of Vančo Mihajlov. They continued: “The Association promotes Vančo’s (meaning Ivan Mihajlov’s) ideology for a change in the national conscience of the Macedonian people in favour of another one, which destroys the Macedonian national texture and leads to the encouragement of and incitement to national hatred and intolerance. The Association rehabilitates and legalises terrorism and fascism as crucial characteristics of the work of Hitler’s collaborator Vančo Mihajlov, as an “act of holy liberation” and as a legacy that is left to someone to complete...The Slavs from Macedonia who appeared as Bulgarians (Болгари) throughout the centuries...are unknown in the Republic of Macedonia. They do not exist as a nation, any nationality or legitimate entity whatsoever. There are only Macedonians in Macedonia, and there also might be Bulgarians, Serbs...as affiliated to different people and nations. However, there are no “Slavs from Macedonia-Bulgarians”. 23. On 8 November 2000 the Constitutional Court sent the petitions for reply to the second applicant, as Chairman of the Association. The Association contested the petitioners’ arguments as its Articles and Programme did not contain any elements that would incite to national, religious or racial hatred or intolerance or would advocate violent destruction of the constitutional order. 24. On 17 January 2001 the Constitutional Court declared the petition admissible. The court found, inter alia, that there existed: “well-founded doubts that the Association’s Articles and Programme were directed towards violent destruction of the constitutional order of the Republic of Macedonia and incitement to national or religious hatred or intolerance, and that as such they are not in conformity with the Constitution of the Republic of Macedonia”. 25. It further declared itself incompetent to judge the constitutionality of the registration decision of the Ohrid Court of First Instance, because it was not vested with jurisdiction to decide on such decisions. 26. On 21 March 2001 the Constitutional Court declared the Association’s Articles and Programme null and void, on the ground that they were directed towards violent destruction of the constitutional order and incitement to national or religious hatred or intolerance. 27. The Constitutional Court based its decision on the following reasoning: “According to Ivan Mihajlov’s teaching, Macedonian ethnicity never existed on this territory, but belonged to the Bulgarians (Болгари) from Macedonia and its recognition (i.e., that of Macedonian ethnicity) was the biggest crime committed by the Bolshevik headquarters during its existence. According to his teaching, the process of de-bulgarisation of Macedonia, which was violently carried out after the Second World War, was a [form of] slavery executed by the Serb-communist regime and such Serb-communist doctrine continued to be the official one of the State after it became independent in 1991. In line with those arguments, the founders of the Association “Radko” took the following as their main Programme objectives: (1) to raise and affirm the Macedonian cultural space, having as a priority the cultural and historical identity of the Slavs from Macedonia who have appeared as Bulgarians throughout the centuries; (2) to establish traditional ethic and human values; (3) not to forget the Bulgarian ethnic origin of the Macedonian people, as that would mean a denunciation of its tradition and culture. Affirmation of the ideas of the Macedonian Liberation Movement, according to the Association, in fact means relief from “Macedonianism”, as a Serb-communist doctrine, and from the “imagined Macedonian nation” which was used as an open door for the accession of the whole of Macedonia to Yugoslavia. Taking that into consideration, the court holds that the Articles and the Programme of the Association of Citizens “Radko”- Ohrid are directed towards the violent destruction of the constitutional order of the Republic of Macedonia and to incitement to national or religious hatred or intolerance, and finds that they are not in compliance with the Constitution of the Republic of Macedonia.” 28. As regards freedom of association, the Constitutional Court argued as follows: “... the court has taken into consideration that citizens’ freedom and right to association and activity, as part of the corpus of human rights and freedoms, are among the fundamental values for the existence and development of democratic relations in the functioning of government in the Republic of Macedonia, oriented towards its citizens and their rights, freedoms, interests and aspirations. They are also the basis for the accomplishment of the constitutional determination of the Republic of Macedonia as a democratic state. This being so, the above freedom and right are explicitly guaranteed in Article 20 §§ 1 and 2 of the Constitution of the Republic of Macedonia. However, the court finds that the freedom and right to association, organisation and activity cannot be taken to indicate approval for all objectives and the choice of means to attain them. The principles and safeguards for exercising freedom of association and activity are explicitly determined in Article 20 § 3 of the Constitution, which bans the Articles and activities of associations of citizens which are directed towards the violent destruction of the constitutional order of the Republic and to incitement to national or religious hatred or intolerance. Furthermore, Articles 1, 3 and 8 of the Constitution protect the sovereignty and territorial integrity of the Republic.” 29. Applying these criteria to the present case, the Constitutional Court held as follows: “The Articles and the Programme of the Association, read in the light of the prohibitions set forth in Article 20 § 3 of the Constitution, must be interpreted as aims which directly and explicitly call for destruction of the constitutional order, i.e. they explicitly encourage an incitement to national hatred and intolerance, and as such they are to be treated as aims and activities that are objectively directed towards what is banned by the Constitution. In this context, the court takes into consideration the Preamble to the Constitution of the Republic of Macedonia, which takes as a historical fact that Macedonia is constituted as a national state of the Macedonian people and that every activity directed towards denunciation of its identity is in fact directed towards the violent destruction of the constitutional order of the Republic and towards encouragement of or incitement to national or religious hatred or intolerance and towards denunciation of the free expression of its national affiliation. Bearing this in mind, the court found that the Programme and the Articles of the Association of Citizens “Radko”- Ohrid are directed towards the violent destruction of the state order; hindrance of free expression of the national affiliation of the Macedonian people, i.e. negation of its identity and incitement to national or religious hatred or intolerance.” 30. On 10 April 2001 the Constitutional Court’s decision was published in the “Official Gazette of the Republic of Macedonia” and became final and enforceable. 31. On 16 January 2002 the Ohrid Court of First Instance ex officio decided to terminate the activities of the Association (се утврдува престанок на работа на Здружението). 32. On 29 January 2002 the applicants appealed the latter decision. They complained that it had been given on the basis of the Constitutional Court’s decision, which in their view had not been final, but that the Strasbourg Court’s holdings on their application should be awaited. 33. On 11 February 2002 the Bitola Court of Appeal dismissed the appeal as ill-founded. It found that an association of citizens would cease to exist ipso jure when the Constitutional Court had declared its Articles and Programme unconstitutional. As the Constitutional Court’s decision had been published in the Official Gazette and had accordingly entered into force, the Court of Appeal upheld the lower court’s decision. 34. The Preamble to the Constitution, as valid at the material time, read, inter alia: “...the historical fact that Macedonia is established as a national state of the Macedonian people, in which full equality as citizens and permanent co-existence with the Macedonian people is provided for Albanians, Turks, Vlachs, Roma and other nationalities living in the Republic of Macedonia...” 35. Amendment IV of the Constitution of 2001 replacing the Preamble, reads, inter alia, as follows: “The citizens of the Republic of Macedonia, the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romany people, the Bosniak people and others ...” 36. The relevant provisions of the Constitution related to freedom of association and the Constitutional Court read as follows: Article 20 “Citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions. Citizens may freely establish associations of citizens and political parties, join them or resign from them. The programmes and activities of political parties and other associations of citizens may not be directed at the violent destruction of the constitutional order of the Republic, or at encouragement of or incitement to military aggression or ethnic, racial or religious hatred or intolerance. Military or paramilitary associations which do not belong to the Armed Forces of the Republic of Macedonia are prohibited.” Article 50 “Every citizen may invoke protection of the freedoms and rights set forth in the Constitution before the courts, including before the Constitutional Court of the Republic of Macedonia, in a procedure based upon the principles of priority and urgency. Judicial protection of the legality of individual acts of the state administration, as well as of other institutions carrying out public mandates, is guaranteed. A citizen has the right to be informed about human rights and fundamental freedoms and also actively to contribute, individually or jointly with others, to their promotion and protection. Article 110 §§ 3 and 7 “The Constitutional Court of the Republic of Macedonia: - protects the freedoms and rights of the individual and citizen relating to freedom of conviction, conscience, thought and public expression of thought; political association and activity; and the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation; - decides on the constitutionality of the programmes and statutes of political parties and associations of citizens...” Article 112 §§ 2 and 3 “The Constitutional Court shall repeal or invalidate a collective agreement, other regulation or enactment, statute or programme of a political party or association, if it finds that they do not conform to the Constitution or law. The decisions of the Constitutional Court are final and enforceable.” 37. The relevant provisions of the Associations of Citizens and Foundations Act provide: Article 2 “Citizens may freely associate in associations of citizens and may establish foundations in order to accomplish and protect their economic, social, cultural, scientific, professional, technical, humanitarian, educational, sports and other rights, interests and beliefs in conformity with the Constitution and laws. Associations of citizens and foundations shall be non-profit organisations.” Article 4 “The Programmes and activities of associations of citizens and foundations shall not be directed towards: - the violent destruction of the constitutional order of the Republic; - encouragement of or incitement to military aggression; and - encouragement of national, racial or religious hatred or intolerance.” Article 52 “An association of citizens shall cease to exist: ... if the Constitutional Court of the Republic of Macedonia decides that the Programme and the Articles are not in conformity with the Constitution... The person authorised to represent the association of citizens shall be obliged to notify the first-instance court of the circumstances as described in paragraph 1 within 15 days. The first-instance court shall determine the cessation of the association of citizens by adopting a decision in non-contentious proceedings. “