CASE OF SINGARTIYSKI AND OTHERS v. BULGARIA
Violation of Art. 11
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
7. The applicants were born respectively in 1953, 1964, 1951, 1960 and 1956, and live in Musomishta, Koprivlen, Sandanski and Blagoevgrad. 8. All five of them are members and followers of the United Macedonian Organisation Ilinden – Party for Economic Development and Integration of the Population (“UMO Ilinden – PIRIN”), a political party founded in 1998 and based in southwestern Bulgaria (in an area known as the Pirin region or the geographic region of Pirin Macedonia). The party was declared unconstitutional by the Constitutional Court on 29 February 2000 and as a result dissolved. In a judgment of 20 October 2005 this Court found that the party’s dissolution had been in breach of its and its members’ right to freedom of association (see United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria, no. 59489/00, 20 October 2005). The party apparently has links with the United Macedonian Organisation Ilinden (“UMO Ilinden”), an association also based in southwestern Bulgaria and advocating similar ideas (ibid., §§ 912, and Ivanov and Others v. Bulgaria, no. 46336/99, § 10, 24 November 2005). 9. On 6 March 2007 the applicants notified the Mayor of Sandanski that UMO Ilinden – PIRIN intended to organise a rally on Sunday 22 April 2007, first at the grave of Yane Sandanski near the Rozhen Monastery and then in front of his monument in the town of Melnik. The programme of the event, which was to take place between 10 a.m. and 4 p.m., included the laying of wreaths on the grave between 10 and 11 a.m. and the singing of folk songs in front of the monument between 11 a.m. and 4 p.m. 10. In a letter to the applicants of 18 April 2007 the Mayor of Sandanski allowed the rally, specifying that the laying of wreaths had to take place between 10 and 11 a.m. and the musical programme between 11 a.m. and 12 noon. 11. On the same date the Regional Governor of Blagoevgrad, acting of his own motion and relying on section 32(2) of the Administration Act and Article 93 § 4 of the Code of Administrative Procedure (see paragraph 24 below), annulled the Mayor’s letter. He reasoned that it amounted to an administrative decision, creating legal rights for UMO Ilinden – PIRIN, and that it was unlawful. Firstly, the organisation was not registered; on the contrary, in February 2007 the Supreme Court of Cassation had upheld the Sofia City Court’s judgment turning down its request to be registered as a political party (see UMO Ilinden – PIRIN and Others v. Bulgaria (no. 2), no. 41561/07, §§ 819, 18 October 2011). Since it was accordingly unlawful under Bulgarian law, it had no standing to give notice of its intention to hold a rally. Secondly, the proposed rally would put public order at risk. Both the Rozhen Monastery and Melnik were places visited by many tourists, especially on Sundays. It was therefore inappropriate to allow the staging of rallies there. Moreover, rallies and meetings were being organised at those locations at the same time by the local authorities and non-governmental organisations. As clashes between supporters of UMO Ilinden – PIRIN and others had taken place in the past, it was necessary to ban its rally. Finally, the activities of the organisation were contrary to Bulgarian law, as they consisted in propaganda against the country’s sovereignty and territorial integrity and aroused national and ethnic hatred. The Governor specified that his decision was to be served on the Mayor of Sandanski for execution. It was not served on UMO Ilinden – PIRIN or on any of the applicants. 12. On 20 April 2007 the members of the managing board of UMO Ilinden – PIRIN, as well as the first and second applicants, Mr Singartiyski and Mr Bezev, were summoned by the police. They were issued orders under section 55 of the 2006 Ministry of Internal Affairs Act (see paragraph 27 below) not to organise or take part in the rally in front of Yane Sandanski’s grave near the Rozhen Monastery. 13. On the same day the third applicant, Mr Stoychev, was told by telephone by an employee of the local branch of the National Electricity Company that no electrical power would be provided for the rally in Melnik, as it had been banned by order of the regional governor. 14. On 21 April 2007 a number of drivers of buses hired to transport the participants to the rally in Melnik informed the fourth applicant, Mr Evtimov, that they could not provide the requested service. Mr Evtimov then approached a number of travel agencies in Blagoevgrad, all of which advised him that the police had apprised them of the regional governor’s decision and that they would not provide transportation for fear of suffering negative consequences. Mr Evtimov eventually managed to hire four buses in a nearby village. 15. Similar transportation problems were experienced by persons from the towns of Petrich and Razlog who wished to attend the rally. 16. The parties’ accounts of the events of 22 April 2007 differed somewhat. 17. According to the Government, on the morning of that day the transport police carried out routine checks of some of the motor vehicles transporting people to the rally. As the police found certain irregularities, they sanctioned individual drivers and then allowed the buses to proceed to Melnik. After that both UMO Ilinden – PIRIN and UMO Ilinden were able to go ahead with the events planned by them, respectively in Melnik and near the Rozhen Monastery. As required by law, the police dispatched forces to ensure public order during the events. At about 10.30 a.m. a group of about fifty supporters of UMO Ilinden laid a wreath and flowers at Yane Sandanski’s grave. UMO Ilinden’s chairman made a short speech, and then the rally continued with a musical programme. No breaches of public order were noted. UMO Ilinden – PIRIN was not allowed to hold a rally in front of the Rozhen Monastery. A compromise solution was reached with the organisation to hold the rally in Melnik. At about 12 noon approximately two hundred members and supporters of UMO Ilinden – PIRIN gathered in front of Yane Sandanski’s monument in Melnik. They laid a wreath and flowers. Then the organisation’s leaders made short speeches about his life and work; in the Government’s view, most of those speeches contained insults against the Bulgarian people and State. There were also a number of negative remarks against the police, threats of violence against the Regional Governor and insults against the chairperson of the National Assembly, the Prime Minister and other highranking politicians. The musical programme continued after the allotted time slot. The police did not allow drunk individuals to breach public order. Journalists from “the former Yugoslav Republic of Macedonia” interviewed the leaders of UMO Ilinden and UMO Ilinden – PIRIN and a number of supporters. 18. The applicants started by pointing out that two events took place on 22 April 2007. The first was the one which their organisation, UMO Ilinden – PIRIN, held in Melnik, in front of Yane Sandanski’s monument. The other was the one held by UMO Ilinden – a similar but separate organisation – at Yane Sandanski’s grave near the Rozhen Monastery. UMO Ilinden – PIRIN’s members and supporters, including the applicants, were not able to approach the Monastery as originally planned because they were stopped en route by the police. They were allowed to drive only to Melnik. They could not tell whether members and supporters of UMO Ilinden had been allowed to hold a rally near the Monastery. 19. The applicants further stressed the difference between the way in which UMO Ilinden – PIRIN intended to conduct the rally and the way in which it actually unfolded. The original plan was to proceed in the manner described in paragraph 9 above. As a result of the Regional Governor’s decision and the ensuing actions of the police, UMO Ilinden – PIRIN’s members and supporters were able to go only to Melnik. On their way there, four buses carrying participants in the rally from Blagoevgrad were stopped several times by the police, who carried out lengthy checks of the drivers’ and the vehicles’ papers and imposed penalties for purported violations of the traffic rules. Buses with participants travelling from Gotse Delchev to Melnik were also stopped by the police three times, for about one hour each time. The third applicant, Mr Stoychev, who was travelling by car, was also stopped by the police, told that the rally was unlawful, and forced to throw away a wreath which he was carrying. 20. Upon their arrival in Melnik the applicants saw that Yane Sandanski’s monument was surrounded by about fifty or sixty police officers, who prevented the participants in the rally from laying a wreath, only allowing them to lay flowers individually. The officers also forced the participants to take away ribbons with the inscription “For Yane – from grateful Macedonians” and did not let them make speeches in front of the monument. At about 2 p.m. the officers advised the bus drivers that if they did not leave Melnik in one hour they would be fined. 21. The applicants were adamant that no agreement on how to proceed with the rally was ever made between them and the authorities, and that, contrary to what was asserted by the Government, they did not agree to any changes to their original plan. They also pointed out that the Government’s allegations that participants in the rally had made offensive speeches and had acted in a disorderly manner were not supported by any evidence. 22. The relevant provisions of the 1991 Constitution and the 1990 Meetings and Marches Act are set out in paragraphs 4851 of the Court’s judgment in the case of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (nos. 29221/95 and 29225/95, ECHR 2001IX), in paragraphs 7276 of the Court’s judgment in the case of United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98, 20 October 2005) and in paragraphs 2428 of the Court’s judgment in the case of Ivanov and Others v. Bulgaria (cited above). For the purposes of the present case, particular mention needs to be made of section 12(6) of the 1990 Act, which provides for a possibility to seek judicial review of a mayoral ban of a rally, and directs the court hearing such an application to determine it by means of a final decision not later than five days after it has been referred to it. 23. Under section 31(1) of the 1998 Administration Act, regional governors (a) carry out governmental policy and coordinate the operations of the branches of central government in their respective regions; (b) seek to achieve a balance between national and local interests and interact with the local authorities; (c) are responsible for safeguarding State property in their respective regions; (d) uphold legality in their regions and supervise the enforcement of administrative decisions; (e) control the lawfulness of the decisions and the actions of local authorities; (f) coordinate and control the operations of the territorial branches of ministries and other central authorities, as well as the enforcement of their decisions; (g) organise civil defence; (h) preside the regional security councils; and (i) carry out the region’s international contacts. 24. Under Article 93 § 4 of the 2006 Code of Administrative Procedure, all mayoral decisions may be challenged before regional governors. Under section 32(2) of the 1998 Administration Act, regional governors may annul unlawful mayoral decisions. Their decisions to do so are subject to judicial review (section 32(3) of the Act). 25. Regional governors’ decisions, like all administrative decisions, are subject to judicial review by the competent regional administrative courts (Article 132 §§ 1 and 2 of the 2006 Code of Administrative Procedure), whose judgments are appealable before the Supreme Administrative Court (Article 208 of the Code). 26. Article 127 § 1 of the Code provides that the administrative courts must rule on each application within a reasonable time. Article 172 § 1 of the Code requires the court to deliver its judgment not later than one month after the last hearing in the case. 27. Under section 55(1) of the 2006 Ministry of Internal Affairs Act, the police may, if necessary for the performance of their duties, issue orders to individuals or organisations. Those orders are binding unless they obviously impose the commission of an offence (section 55(4)). Section 55(5) provides that such orders, when issued in writing, are subject to judicial review in accordance with the provisions of the Code of Administrative Procedure. 28. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act” – hereinafter “the 1988 Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties. 29. The Committee of Ministers concluded the examination of application no. 44079/98 (United Macedonian Organisation Ilinden and Ivanov v. Bulgaria) and application no. 46336/99 (Ivanov and Others v. Bulgaria) on 8 June 2011, by adopting Resolution CM/ResDH(2011)46, which reads, in so far as relevant: “The Committee of Ministers, ... Recalling that the violations of the Convention found by the Court in these cases concern the infringement of the freedom of assembly of organisations which aim to achieve “the recognition of the Macedonian minority in Bulgaria” due to prohibitions of their meetings between 1998 and 2003 (violation of Article 11) and the lack of effective remedies to complain against these prohibitions (violation of Article 13) (see details in Appendix); Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of – individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and – general measures preventing similar violations; Having noted that two other applications presently pending before the European Court concern allegations relating to bans or to the holding of certain meetings of the applicants initially scheduled between March 2004 and September 2009; Having considered, without prejudging the judgment the Court could deliver in respect of these applications, that in view of the positive trend observed concerning the holding of the applicants’ meetings in particular since 2008 and the absence of complaints from them as regards 2010, no further individual measure seemed required in these cases; Having also examined the general measures and in particular the awarenessraising measures taken by the Bulgarian authorities to ensure that applicable domestic law is interpreted in conformity with the Convention and thus to prevent violations similar to that found by the European Court (see details in Appendix); Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix), DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and DECIDES to close the examination of these cases.”