I incorrectly predicted that there's no violation of human rights in IVANOV AND OTHERS v. BULGARIA.

Information

• Judgment date: 2018-01-11
• Communication date: 2016-01-06
• Application number(s): 70502/13
• Country:   BGR
• Relevant ECHR article(s): 11, 11-1
• Conclusion:
  Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.773969
• Prediction: No violation

• Inconsistent

Communication text used for prediction

1.
The applicants are nine Bulgarian nationals whose personal details may be found in the annexed table.
2.
The first applicant is the chairman of the United Macedonian Organisation Ilinden (“Ilinden”), an organisation based in south-west Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia.
The second applicant is Ilinden’s deputy chairman.
The remaining seven applicants are members of Ilinden’s managing council.
3.
The applicants apply both in their personal capacity and on behalf of Ilinden.
A.
The circumstances of the case 4.
The facts of the case, as submitted by the applicants, may be summarised as follows.
5.
On 19 September 2010 ninety-eight members of Ilinden held a founding meeting at which they resolved to form the organisation and apply for its registration, adopted articles of association, and elected the organisation’s bodies.
6.
On 27 September 2010 Ilinden’s managing council applied to the Blagoevgrad Regional Court for it to be registered as an association.
7.
In the course of the proceedings, the court several times asked the applicants to rectify the registration papers.
8.
In a judgment of 3 February 2012 (реш.
No 15 от 03.02.2012 г., по ф. д.
No 85/2010 г., БОС), the Blagoevgrad Regional Court refused to register Ilinden.
It noted that it had on several occasions instructed the applicants to rectify deficiencies in the registration papers, the latest such instruction being given on 29 November 2011.
However, the applicants’ ensuing filing on 5 January 2012 had failed to deal satisfactorily with the court’s concerns.
The applicants had not clearly set out the competences of the association’s bodies, and had not made it clear which of the several copies of the articles of association filed with the court, in which differences appeared, had been the ones adopted at the founding meeting.
Also, Ilinden’s aims, as defined in its articles, infringed Article 44 of the Constitution (see paragraph 19 below).
It was true that it intended to use peaceful means to achieve those aims.
But the aims were themselves contrary to the security of the State and sought to stir up national hatred.
Ilinden asked that Bulgaria “stop carrying out its policy of assimilating Macedonians”, “stop supporting nationalist propaganda that sow[ed] discrimination, hostility and threats against Macedonians”, “stop preventing Macedonians from holding peaceful rallies”, and “not discriminate against Macedonians”.
These aims were directed against the security of the rest of the citizens and would lead to hostile relations between allegedly “discriminated Macedonians” and other Bulgarian citizens.
They were therefore unlawful and precluded Ilinden’s registration.
9.
The applicants appealed.
They submitted that the court had misconstrued Ilinden’s articles and that it did not seek to stir up hatred or hostility.
The real reason for the refusal to register it was that it advocated opinions which were at odds with the official ones.
The registration papers complied with all required formalities.
10.
In a judgment of 23 April 2012 (реш.
No 634 от 23.04.2012 г. по ф. д.
No 1002/2012 г., САС, ГК), the Sofia Court of Appeal upheld the refusal to register Ilinden.
It held that its aims, as set out in its articles, were political, which was not permissible for an association seeking registration under the Non-Profit Legal Persons Act 2000 (see paragraphs 16-18 and 20 below).
For instance, in clause 2 of its articles, Ilinden proclaimed itself as successor of “the national liberation struggle of the Macedonian nation”, and in clause 3 stated that it would “express and protect the civic, political, national, and social and economic rights of Macedonians living in Bulgaria”.
Clause 4 spoke of the protection of Macedonians subjected to racial and ethnic assimilation by the Bulgarian State’s nationalistic policies, and demanded that Pirin Macedonia be given cultural autonomy, that the assimilation of Macedonians be stopped, and that Macedonian identity, religion, language, traditions and heritage, allegedly subjected to ethnocide by the Bulgarian authorities, be protected.
Clause 5 said that Ilinden would strive to free Macedonians from the sense of fear engendered by the Bulgarian State’s policy of discrimination and assimilation and to outlaw Bulgarian racism against Macedonians.
According to the court of appeal, the lower court had been correct to hold that these aims were contrary to the unity of the nation.
They overtly pitted one group of citizens against another and engendered national and ethnic hatred, contrary to Article 44 § 2 of the Constitution (see paragraph 19 below) 11.
At the end of its judgment, the Sofia Court of Appeal said that it was subject to appeal on points of law before the Supreme Court of Cassation.
12.
On 4 June 2012 the applicants filed such an appeal.
13.
In a decision of 30 April 2013 (опр No 133 от 30.04.2013 г. по т. д.
No 510/2012 г., ВКС, I т.
о.
), a three-member panel of the Supreme Court of Cassation refused to accept the appeal for examination.
It held that under the applicable provisions of the Code of Civil Procedure 1952, as construed in a binding interpretative decision in 2001, appellate judgments upholding refusals to register an association had been subject to appeal on points of law.
However, that was not the case under the Code of Civil Procedure 2007, which had come into effect on 1 March 2008.
The court analysed in detail the relevant provisions of the Code and found that, when properly construed in the light of the Code’s overall scheme and the provisions governing similar registration proceedings, the rules relating to the manner of appealing against a refusal to register an association were to be construed as permitting an appeal against the initial refusal to a court of appeal but precluding a further appeal against the court of appeal’s judgment to the Supreme Court of Cassation.
14.
On 14 May 2013 the applicants appealed against that decision under Article 274 §§ 1 (1) and 2 of the 2007 Code.
They contested the way in which the three-member panel had construed the applicable provisions of the Code.
15.
In a final decision of 15 July 2013 (опр.
No 508 от 15.07.2013 г. по ч. т. д.
No 2571/2013 г., ВКС, II т.
о.
), another three-member panel of the Supreme Court of Cassation upheld the first panel’s decision.
It started by noting that the appeal had been filed within the applicable one-week time‐limit under Article 275 § 1 of the 2007 Code, which ran from the date of service of the decision.
However, it went on to hold that the appeal was ill-founded, and that no appeal lay against the Sofia Court of Appeal’s judgment.
Again analysing in detail the applicable provisions of the Code, it agreed with the construction put on them by the first three-member panel.
B.
Relevant domestic law 16.
By Article 12 § 2 of the Constitution of 1991, associations may not pursue political goals or carry out political activities that are characteristic solely of political parties.
17.
In a judgment of 21 April 1992 (реш.
No 4 от 21.04.1992 г. по к. д.
No 1/1991 г., обн., ДВ, бр.
35 от 28.04.1992 г.)
the Constitutional Court held, inter alia, that “political activities that are characteristic solely of political parties”, within the meaning of that Article, were defined by Article 11 § 3 of the Constitution as those which facilitate “the formation of the citizens’ political will” through “elections or other democratic means”.
The court went on to say that “what was essential for this type of political activity [was] direct participation in the process of forming the bodies through which, according to the Constitution, the people exercise[d] its power”.
The court also held that the activities of a political party in connection with upcoming elections encompassed the holding of rallies, assemblies and other forms of public campaigning in support of the party and the candidates nominated by it, which were also activities aimed at “forming” the citizens’ political will.
18.
In January 2015 the Plenary of the Commercial Section of the Supreme Court of Cassation asked the Constitutional Court to give a binding interpretation of Article 12 § 2.
In a decision of 17 March 2015 (опр.
No 1 от 17.03.2015 г. по к. д.
No 1/2015 г., обн., ДВ, бр.
23 от 27.03.2015 г.
), the Constitutional Court declined the request.
It held that it had not been shown, as required under its case-law, that there were divergences in the application of that provision, and that it was only competent to give a binding interpretation of a constitutional provision if there was a duly established uncertainty in its meaning.
19.
By Article 44 § 2 of the Constitution, organisations whose activities are directed against the country’s sovereignty or territorial integrity or against the nation’s unity, or which aim to stir up racial, national, ethnic or religious hatred, or to violate the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to attain their goals through violence, are prohibited.
20.
The Non-Profit Legal Persons Act 2000 governs the formation, registration, organisation, activities and winding up of non-profit legal persons, such as associations and foundations.
C. Relevant decisions of the Committee of Ministers 21.
At its 1214th meeting on 2-4 December 2014, the Committee of Ministers of the Council of Europe examined the state of execution of the Court’s judgments in United Macedonian Organisation Ilinden and Others v. Bulgaria (no.
59491/00, 19 January 2006) and United Macedonian Organisation Ilinden and Others v. Bulgaria (no.
2) (no.
34960/04, 18 October 2011).
Taking into account, inter alia, the judgments of the Blagoevgrad Regional Court and the Sofia Court of Appeal in this case (see paragraphs 8 and 10 above), it expressed regret that the awareness-raising measures taken by the Bulgarian authorities had proved insufficient to prevent the refusal to register Ilinden on grounds already criticised by the Court (point 1 of the decision), and decided to place these cases under enhanced supervision (point 4 of the decision).
COMPLAINTS 22.
The applicants complain under Article 11 of the Convention that the courts refused to register Ilinden.
23.
The applicants further complain under Article 14 of the Convention that the refusal to register Ilinden, which was in their view based on the policy of the Bulgarian State to deny the existence of a Macedonian minority, was discriminatory.