CASE OF TSONEV v. BULGARIA
Violation of Art. 11;Not necessary to examine under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
Christos Rozakis
9. In 1990 the applicant founded and became the chairman of the Bulgarian Revolutionary Youth Party („Българска революционна младежка партия“). He ran for parliament in 1990 and in several later elections, unsuccessfully. Apparently he was also a presidential candidate in later elections on that party’s ballot. 10. At a meeting held on 10 November 1996 in Varna the applicant and fortynine other persons formed a party named Communist Party of Bulgaria („Комунистическа партия на България“). They adopted its constitution and elected its management organs. The applicant was elected the party’s chairman. The party’s aims, set out in the preamble to its constitution, were as follows: “... The main aim of the Communist Party shall be the revolutionary change of the Bulgarian society – democratisation of the society as a road to true power of the people. The primary goal of the party shall be the practical improvement of the socialist democracy – broadening of the direct participation of the people in the government of the state; economic freedom of the enterprises within the framework of an economy changed and armed with the new philosophy of central planning; active shift towards selfgovernment of the municipalities and the economic units as a transition towards selfgoverning communities within a society of social homogeneity. ... The Communist Party is convinced of the need for the union of the political parties, movements and eminent personalities into one political coalition – ‘Union for National Cooperation ‘Civic Forum’’, as the most proper way out of the societal antagonisms and divisions. ... The Party shall advocate a policy of rapprochement between peoples which are at different sociopolitical stages of development; of deepening of the economic, political and cultural ties between them. The Communist Party’s ultimate aim is the ‘constant improvement of society’. The Communist Party is a party of a new type. It shall struggle for political power and shall work dedicatedly for the triumph of the communist ideal – building of a civil society with the economic nature of a society ruled by the principles of scientific socialism and the political nature of a society free of class divisions, political parties and movements: a society in which the vehicle of development shall be the Man – a universally developed and harmonious personality.” 11. Articles 1 – 8 of the party’s constitution dealt with membership in the party and the members’ rights and obligations. Article 8 set out, inter alia, the grounds for expelling members. 12. Articles 9 – 26 of the constitution set out the organisational structure of the party and the powers of its organs. 13. Article 28 of the constitution, which described the party’s symbols, stated, inter alia, that they stood for the “idea of a revolutionary sociopolitical order”. 14. On 3 December 1996 the applicant, in his capacity of chairman of the party, applied to the Sofia City Court to have it registered. 15. The court held a hearing on 18 December 1996. It noted that the manner of liquidation of the party had not been provided for in its constitution, that the declarations submitted by the founders were incomplete, and that there were certain other irregularities. Accordingly, it adjourned the case for 26 February 1997 with a view to allowing the party to remedy the deficiencies it had spotted. 16. In order to rectify the deficiencies noted by the court, the applicant and the other founders held another meeting on 26 January 1997 and decided to amend the party’s constitution. On 17 February 1997 they submitted the amendments and updated declarations to the court, which admitted them in evidence. 17. A second hearing took place on 26 February 1997. 18. In a decision of 6 March 1997 the Sofia City Court refused to register the party, holding: “In the course of the proceedings the court found that the applicants have failed to comply with the requirements of sections 7, 8 and 9(2) of the Political Parties Act [of 1990], in order to make the entering of the party in the register possible. [The case-file contains] minutes from the general meeting of the [party] held on 26 January 1997, which are not duly signed. The introduction to the party’s constitution contains aims which are identical to the aims of other, already registered parties. The party’s structure is not fully and clearly set out [in its constitution]; the powers of its different organs are not clearly described, are repeated in the different provisions of the party’s constitution and thus the powers [of the party’s organs] are not clearly spelled out. The party’s constitution does not specify the manner of termination of membership in the party.” 19. On 14 March 1997 the applicant appealed to a threemember panel of the Supreme Court. 20. The court held a hearing on 4 June 1997. 21. On 9 June 1997 the threemember panel of the Supreme Court upheld the lower court’s decision. It opined: “The name of the Communist Party of Bulgaria formally does not already exist in the register [of political parties], but it does not set it apart from an already registered party – [the Bulgarian Communist Party], as required by section 8(1) of the [Political Parties Act of 1990], because in fact it contains the same words; their rearranging does not change the purport and the essence of the political party. This name does not individualise it and does not clearly set it apart from another, already registered party. [The party’s] aims, as indicated in part I of its constitution ... are contrary to section 3(2) of the [Political Parties Act of 1990]. The manner of termination of membership in the party is not set out [in its constitution], contrary to section 8(1) of the [Political Parties Act of 1990].” 22. On 1 August 1997 the applicant lodged a petition for review with a fivemember panel of the Supreme Court. 23. A hearing was held on 4 March 1998. 24. In a final decision of 19 March 1998 the fivemember panel of the Supreme Court dismissed the petition in the following terms: “The impugned decisions should not be quashed first and foremost because the name of the party – Communist Party of Bulgaria – does not set it apart from other parties, in violation of section 8(1) of the [Political Parties Act of 1990], as correctly found by the two courts below. The name is an individualising feature of the party and for that reason it should not duplicate [the names of] other parties, organisations and movements, which may ... engage in political activities. The rule of section 8(1) of the [Political Parties Act of 1990] concerning the party’s name sets the bounds of the founders’ autonomy and initiative in choosing the name. [The founders] must see to it that from a grammatical and a logical point of view there is no duplication of the purport and the essence [of the name] with the name of another party. In the case at hand the separate words which constitute the party’s name, on the one hand, and the particular wording used, on the other, although not identical to those used in other existing parties’ names, convey a similar meaning. The name “Communist Party of Bulgaria” uses the ideological term “communist”, which term, viewed in a historical context, resembles a party from the not so distant past – the Bulgarian Communist Party – and also resembles the Bulgarian Communist Party ... even though there is a rearrangement of the words... Regarding the contents of the party’s constitution, as required by section 8(1) of the [Political Parties Act of 1990], the courts [below] have correctly found that the constitution does not indicate the manner of termination of membership in the party. [The constitution sets forth] rules about the admission [of new members], about the members’ rights and the obligations and the [penalties which may be imposed on them], but there are no rules regarding the termination of the membership. Likewise, the powers of the [party’s] organs and its organisational structure are chaotically scattered throughout its constitution. The [courts below] have correctly found that the aims of the party are contrary to section 3(2) of the [Political Parties Act of 1990]. Part I of the constitution indicates that the main aim of the party [is] the ‘revolutionary change of Bulgarian society’ and the support for the idea of a revolutionary sociopolitical order – part V of the constitution.” 25. It appears that in Bulgaria at least eight other political parties are registered with the word “communist” in their names, e.g. Bulgarian United Communist Party („Българска единна комунистическа партия“), Bulgarian Communist Party of the Bolsheviks („Българска комунистическа партия на болшевиките“), Renewed Bulgarian Communist Party („Обновена българска комунистическа партия“), Bulgarian Communist Party “Georgi Dimitrov” („Българска комунистическа партия ‘Георги Димитров’“), Bulgarian Communist Party “Fatherland” („Българската комунистическа партия ‘Родина’“). 26. In the beginning of 1997 the Sofia City Court registered a party named Communist Party. On 22 April 2000 it changed its name into Communist Party of Bulgaria, which fact was likewise registered by the Sofia City Court in a decision of 16 November 2000, and published in the State Gazette on 22 November 2000 (ДВ, бр. 106 от 22 декември 2000 г.). 27. The relevant provisions of the Constitution of 1991 read as follows: “1. Citizens may freely associate. 2. Organisations whose activity is 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.” 28. The relevant provisions of the Political Parties Act of 1990 („Закон за политическите партии“), as in force at the relevant time, read: “No political party shall be founded: 1. [which is] aimed against the sovereignty and the territorial integrity of the country, [or] the rights and freedoms of its citizens; 2. whose aims are contrary to the Constitution and the laws of the country; 3. [which is based] on ethnicity or religion, or [aims] to spur racial, national, ethnical or religious hatred; 4. which advocates a fascist ideology, or tries to achieve its goals through violence or other unlawful means.” “A political party shall be formed at a founding meeting upon the agreement of at least fifty enfranchised citizens. The founding meeting shall adopt its constitution and elect the management organs.” “The constitution of a political party shall set forth: its name, which shall set it apart from other parties; its seat; its aims and objectives; the manner of becoming a member and of terminating the membership; the rights and obligations of the members; the managing organs; the party’s symbols; the sources of financing, as well as the manner and conditions for the party’s liquidation.” “1. The political party shall be entered in a separate register kept by the Sofia City Court, on application by the organ which represents it according to its constitution. 2. The application shall be accompanied by copies of: the minutes of the founding meeting, the party’s constitution, and a list of the names and addresses of the members of the party’s managing organ, which represents it according to its constitution. ...” “A political party ceases to exist: ... 4. when it is dissolved by decision of the Supreme Court [of Cassation].” “1. [A political party may be dissolved] upon the proposal of the Chief Prosecutor, if the party engages in activities which run counter to section 3 [of this Act]. 2. The decision of the Supreme Court [of Cassation] to dissolve a party may be appealed to a five-member panel [of that court].” 29. By section 12(1) and (2) of the Political Parties Act of 2001, in force until April 2005, a party could be dissolved by decision of the Sofia City Court on the application of a public prosecutor if, inter alia, the party systematically contravened the Act’s provisions, its activities ran counter to the provisions of the Constitution, or it had been declared unconstitutional by the Constitutional Court. By section 40(1) and (2) of the Political Parties Act of 2005, presently in force, the Sofia City Court, acting pursuant to the application of a public prosecutor, may order the dissolution of a party if its activities systematically contravenes the Act’s requirements or the provisions of the Constitution.