CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 mai 2006

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Lorenzen , President ,   Mrs   S. Botoucharova ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   R. Maruste ,   Mr   J. Borrego Borrego, judges , and Mrs C. Westerdiek, Section Registrar , Having regard to the above application lodged on 2 February 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Petar Jechev Jechev, is a Bulgarian national who was born in 1928 and lives in Plovdiv. He is the chairman of the association “Civil Society for Bulgarian Interests, National Dignity, Union and Integration – for Bulgaria” („Гражданско общество за български интереси, национално достойнство, единение и обединение – за България“ – “the association”). The applicant is represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government are represented by Ms M. Kotzeva, co ‑ Agent, of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The association was founded on 19 December 1996 in Plovdiv. At a meeting on that date the founders adopted its articles and elected its management bodies. The applicant was elected as its chairman. The association’s articles read, as relevant: “1.     [The association] is a Bulgarian patriotic non ‑ profit organisation. It shall be DEMOCRATIC in form and NATIONAL in content. OBJECT: mass, historically and morally enlightening, societal and political, cultural and educational, scientific and research, sport and technical, publishing, advertising, charitable and all other types of activities and services which are allowed (not prohibited) under the [Persons and Family Act of 1949] in respect of non ‑ profit associations. 2.     [The association] is founded with the aims of: uplifting the Bulgarian spirit; protecting the Bulgarian interests and creating a wealthy, prosperous and patriotic nation; elevating, developing and preserving the Bulgarian national dignity; uniting the Bulgarian identity within and outside the boundaries of the promised Bulgarian land, under the flag of historical truth; protecting and restoring the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria. 3.     [The association] is for the creation of a people’s court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9 September 1944, in particular the period 1994, 1995, 1996 and the following years. ... 4.     [The association] is for a wide discussion ... of the illegal trampling and repealing of our first constitution after our liberation in 1878, the most democratic Constitution of Turnovo and the imposition of the present [Constitution]... [The association] is for the reinstatement (possibly with amendments) of the unlawfully abolished ‘CONSTITUTION OF TURNOVO’... [The association] is for ... changing the form of government of Bulgaria, for the returning of H.M. KING SIMEON II to the motherland and the throne. ... 8.     ... The core of the [association’s] activity shall be the spiritual unification of all Bulgarians, contacts with and consolidation of the Bulgarian Diaspora, establishment of sincere relations with ... all Bulgarians outside Bulgaria, and, in the international relations – point one shall be: abolition (opening) of the border between Bulgaria and Macedonia...” On an unspecified later date the association applied to the Plovdiv Regional Court to be registered. After holding a hearing on 28 May 1997, the Plovdiv Regional Court denied the application in a judgment of 6 June 1997. It held: “[According to] clause 2 of [its articles], [the association] aims to protect and restore the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria. According to clause 3 of the articles, the association is for the creation of a ‘people’s court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9   September 1944, in particular the period 1994, 1995, 1996 and the following years’. Clause 4 of the articles provides for a discussion on the repealing of the Constitution of Turnovo and the adoption of the [C]onstitution [of 1991] which is presently in force. The goals which have been enumerated thus far are sufficient to refuse the association’s registration. They are clearly political in nature and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990].” On 6 November 1997 the applicant, in his capacity of chairman of the association, appealed to the Supreme Court of Cassation. He argued, inter alia , that the association’s aims were not political, but goals which could be pursued by every citizen. A hearing listed for 24 February 1998 was adjourned because the association’s lawyer had not been properly summoned. The Code of Civil Procedure was amended with effect from 1 April 1998, providing that the judgments of the regional courts were appealable not before the Supreme Court of Cassation, but before the newly established courts of appeals. On the same date the Supreme Court of Cassation forwarded the applicant’s appeal to the newly created Plovdiv Court of Appeals. On 2 June 1998 the Plovdiv Court of Appeals instructed the applicant to specify the new evidence which he wished to be gathered on appeal, provide a new power of attorney for his lawyer and pay an additional fee, thus bringing the appeal in line with the new rules of civil procedure. The applicant was notified of the court’s instructions on 15 July 1998. On 21   July 1998 he paid the additional fee and on 23 July 1998 amended his appeal in accordance with the court’s instructions. A hearing was held on 26 February 1999. The Plovdiv Court of Appeals dismissed the appeal in a judgment of 10   March 1999. It held as follows: “The articles of [the association] contain provisions which are contrary to the ... Constitution of the Republic of Bulgaria. For instance, clause 2 of the articles provides for the restoration of the coat of arms of the Bulgarian Kingdom as the country’s coat of arms. Clause 4 provides for a change of the form of government from republic to monarchy and for the restoration of the Constitution of Turnovo [of 1879]. Clause 8 of the articles – abolition of the border between Bulgaria and [the former Yugoslav Republic of] Macedonia. These goals, as formulated in the above-cited clauses, run counter to Articles 1, 2 § 2 and 164 of the Constitution. Moreover, the association indeed has political goals, while according to Article 12 § 2 of the Constitution associations may not pursue political goals and carry out political activities that are characteristic solely of political parties.” On 2 April 1999 the applicant lodged an appeal on points of law with the Supreme Court of Cassation. He argued that the lower court had incorrectly held that the association’s aims were contrary to the Constitution. Furthermore, the association did not pursue political aims, because it was not aspiring to accede to power. The courts’ refusal to register it was an infringement of its founders’ freedom of expression. On 17 May 1999 the Supreme Court of Cassation instructed the applicant to specify the grounds on which he sought the quashing of the judgment below. The applicant was notified of the court’s instructions on 2 June 1999 and on 9 June 1999 complied with them, submitting additional observations. He reiterated his submission that the association’s aims were not political, because it was not seeking to accede to political power through elections or otherwise, or exercise it. Its aims were characteristic of the civil society and were to be achieved through other, non ‑ political means. Furthermore, the association’s articles did not provide for the creation of a people’s court, it did not in fact object to the new coat of arms of Bulgaria and was not seeking to change the form of government from republic to monarchy. These were erroneous findings of the lower court. Finally, the association was seeking to achieve the spiritual union of all Bulgarians, not the abolition of the border between Bulgaria and the former Yugoslav Republic of Macedonia. The Supreme Court of Cassation held a hearing on 29 September 1999 and on 11 October 1999 upheld the lower court’s judgment in the following terms: “The [court below] correctly found that the goals set out in clauses 2, 3 and 4 of the association’s articles have a certain political tenor and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990]. These goals are contrary to Articles 1, 2 § 2 and 12 § 2 [of the Constitution].” B.     Relevant domestic law and practice 1.     The Constitution of 1991 The relevant provisions of the Constitution of 1991 read as follows: Article 1 § 1 “Bulgaria is a republic with a parliamentary form of government.” Article 2 § 2 “The territorial integrity of the Republic of Bulgaria shall be inviolable.” Article 11 “... 3.     Parties shall facilitate the formation of the citizens’ political will. The manner of forming and dissolving political parties, as well as the conditions pertaining to their activity shall be established by law. 4.     No political parties shall be formed on ethnic, racial, or religious basis, nor parties which seek to accede to power by force.” Article 12 “1.     The citizens’ associations shall serve to further and safeguard their interests. 2.     Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” Article 44 “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.” Article 164 “The Coat of Arms of the Republic of Bulgaria shall depict a gold lion rampant on a dark gules shield.” 2.     The Persons and Family Act of 1949 At the material time this act, the relevant provisions of which were superseded by new legislation in 2001, regulated the formation, status and dissolution of non ‑ profit legal entities, i.e. associations and foundations. Its pertinent provisions were: Section 134 “An association shall acquire legal personality after its entry in the register [kept by] the Regional Court.” Section 136(1) “An association shall be registered pursuant to an application by [its] management committee [to which shall be enclosed] a resolution for its founding and its articles of association, signed by the founders...” Section 138 “Associations shall be managed in accordance with [their] articles of association, which must contain provisions in respect of [their] name, aims, means...” 3.     The Political Parties Act of 1990 This act, which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties. Its relevant provisions read as follows: Section 1 “1.     Citizens may freely associate in political parties to influence the formation and expression of the political will of the people through elections or other democratic means. ... 3.     Other organisations and movements may also carry out political activities within the bounds set by the Constitution and the laws.” Section 7 “A political party may be formed [by] not less than fifty enfranchised citizens.” Section 13 “1.     A public organisation which has not been registered as a political party may not carry out the activity of a political party. 2.     A [public organisation] which has not been registered as a political party may not carry out organised political activities [on the premises of] enterprises, government agencies and organisations. 3.     ’Organised political activities’ shall mean the holding of meetings, demonstrations, assemblies and other forms of campaigning in favour of or against a political party or an election candidate. 4.     If a public organisation ... clearly carries out the activity of a political party, the regional prosecutor shall offer that it be dissolved or [re ‑ ]register as a political party within one month. 5.     If the organisation under the foregoing subsection does not cease its political activity or [re ‑ ]register as a political party, it shall be dissolved...” The Act also regulated the manner political parties were financed, providing for certain upper limits on the donations they could receive and prohibiting their receiving anonymous donations and donations from foreign states and organisations (section 17). 4.     Other relevant statutory provisions Only political parties, and not associations, may participate in parliamentary, presidential and local elections as such (section 41(2), (3) and (4) of the Electing of Members of Parliament, Municipal Councillors and Mayors Act of 1991, section 43(1) of the Electing of Members of Parliament Act of 2001, section 3(1) and (2) of the Electing of a President and a Vice ‑ President of the Republic Act of 1991, and section 35(1) of the Local Elections Act of 1995). 5.     Relevant case ‑ law of the Bulgarian Constitutional Court In a judgment of 21 April 1992 (реш. № 4 от 21 април 1992 г. по к.д. № 1 от 1991 г., обн., ДВ, бр. 35 от 28 април 1992 г.) the Constitutional Court stated, inter alia , that “political activities that are characteristic solely of political parties”, within the meaning of Article 12 §   2 of the Constitution of 1991, were defined by Article 11 § 3 thereof as those which facilitate “the formation of the citizens’ political will” through “elections or other democratic means”, as specified by section 1(1) of the Political Parties Act of 1990. The court went on to state that “what was essential for this type of political activity [was] the direct participation in the process of forming the bodies through which, according to the Constitution, the people exercise[d] its power”. Of course, the activities of a party in connection with upcoming elections embraced the holding of meetings, assemblies and other forms of public campaigning in support of the party and the candidates nominated by it, which was also an activity aimed at “forming” the citizens’ political will. COMPLAINTS 1.     The applicant complained that the domestic courts had refused to register the association whose chairman he is. He argued this had been a sanction for the views expressed in the association’s articles. He relied on Article 10 of the Convention. 2.     The applicant complained under Article 6 § 1 of the Convention that the Plovdiv Court of Appeals and the Supreme Court of Cassation failed to examine the case with due care and to consider his arguments. 3.     The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. 4.     The applicant complained under Article 13 of the Convention about the lack of effective remedies against the alleged violations of the Convention. THE LAW 1.     The applicant complained about the refusal of the courts to register the association whose chairman he is. In his initial application he relied on Article 10 of the Convention, whereas in his observations in reply to those of the Government he also relied on Article 11 of the Convention. These provisions read, as relevant: Article 10 “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 “ 1.     Everyone has the right to ... freedom of association with others... 2.     No restrictions shall be placed on the exercise of [this right] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...” The Government argued that the applicant’s complaint was solely under Article 10 of the Convention. He had not relied on Article 11 thereof in his initial application and this complaint was therefore out of the scope of the case and should not be examined by the Court. The Government were further of the view that the interference with the applicant’s rights had been prescribed by law, namely the Constitution, the Persons and Family Act of 1949 and the Political Parties Act of 1990. It had been intended to safeguard a wide range of public interests. All three levels of court had lawfully and justifiably refused to register the association. In the Government’s submission, the founders of an association were in principle free to determine the contents of its articles, but always subject to the requirements of the law. Under Bulgarian law, associations and trade unions were formed with a view to vindicating non ‑ political interests. All three levels of court had found that that certain clauses in the association’s articles, which could not be construed otherwise, had been contrary to the Constitution (Articles 1, 2 § 2 and 164) and the laws of Bulgaria, and that its aims had been political, contrary to the principle spelled out in Article 12 §   2 of the Constitution. They were at odds with Bulgaria’s current form of government and thus irreconcilable with the principles of democracy and the commands of the Constitution of 1991. The association’s founders could always amend the contentious clauses in its articles and reapply for registration. The applicant submitted that as the association’s registration had been denied on account of the contents of its articles, which had in a way constituted a penalty for the views expressed therein, the complaint fell to be examined under both Articles 10 and 11 of the Convention. He further argued that the interference with his rights had not been prescribed by law. The Plovdiv Regional Court had not relied on a specific provision of the Political Parties Act of 1990 to justify its refusal to register the association, which was understandable in view of the text of section 1(3) thereof. That court’s proposition that only political parties could pursue political aims showed a fundamental lack of understanding of the role of non-governmental organisations in a democratic society. These were frequently set up in order to promote various causes and influence the government’s policies. Their goals were thus often political. The fundamental difference between them and political parties, however, were not those goals, but the means to achieve them. Political parties participated in elections and in the government, whereas associations did not; they merely influenced public opinion on various issues, thus indirectly shaping the government’s policies. Likewise, the Plovdiv Court of Appeals’ holding that the association’s aims were such as to fall under the proscription of Article 12 § 2 of the Constitution was erroneous. The association’s aims, as was apparent from the wording of its articles, consisted of various reform ideas, and not a concrete and coherent political programme and ideology. There was no reason why such ideas could not be backed by various entities in a pluralistic society. It was important to underscore that the association’s articles contained no language pointing to an intention to participate in elections or in the government, which were indeed goals solely characteristic of political parties. On the other hand, Article 12 § 2 of the Constitution was nor framed with sufficient precision, as it could be read as prohibiting to associations all types of political goals. Nor did it make clear what was exactly prohibited: political goals or also political activities. The interference had also been arbitrary, as evidenced by the lack of real reasons for the Supreme Court of Cassation’s judgment, whose holding was packed in four lines. The applicant further submitted that the interference had not been necessary in a democratic society. He referred to the principles developed in Court’s case ‑ law on this issue and argued that he had been penalised solely for the ideas expressed in the association’s articles. The association had not engaged in any action which could characterise it as propagating violence or undemocratic principles. The idea of a monarchy and the related insignia was not undemocratic or violent, as evidenced in particular by the fact that the name of the coalition which had ruled the country as from 2001 was “National Movement Simeon II”, after the former heir to the throne Simeon Saxe-Coburggotski, who had become prime minister. Even before his starting into office in 2001 Bulgaria’s coat of arms had featured a crown, whereas the public debate over the form of government – republic or monarchy – continued. While the Constitution indeed needed stability, it was by no means carved into stone. Its amendment could be envisaged for the purpose of bringing it in line with the dominant public views on the form of government, whereas suppressing any ideas in this respect could harm democracy and constituted unfettered majority rule. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     In respect of his complaint that the Plovdiv Court of Appeals and the Supreme Court of Cassation failed to examine the case with due care and to consider his arguments the applicant relied on Article 6 § 1 of the Convention, which provides, as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Court notes at the outset that it was the association, not the applicant, who was party to the proceedings at issue. The question thus arises whether the applicant may claim that his civil rights were affected by these proceedings (see, mutatis mutandis , APEH Üldözötteinek Szövetsége and Others v. Hungary , no. 32367/96, §§ 30 ‑ 36, ECHR 2000 ‑ X). However, the Court does not need to rule on this issue, as the complaint is inadmissible in any event for the following reasons. Insofar as the applicant may be taken to submit that the domestic courts’ judgments were not sufficiently reasoned, the Court reiterates that the extent to which their duty to give reasons applies may vary and must be determined in the light of the circumstances of the case. In dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see García Ruiz v. Spain [GC], no. 30544/96, §   26, ECHR 1999 ‑ I, with further references). On the basis of the material before it, the Court does not consider that the courts’ judgments in the instant case lacked reasons, even though a more substantial statement thereof might have been desirable (ibid., § 29). Insofar as the applicant challenged the manner in which the courts interpreted and applied domestic law, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 3.     In respect of his complaint about the length of the registration proceedings the applicant also relied on Article 6 § 1 of the Convention, which provides, as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” As noted above, it was the association, not the applicant, who was party to the proceedings at issue. However, the Court does not need to rule on the issue whether he may claim that his civil rights were affected by these proceedings, as this complaint is likewise inadmissible in any event for the following reasons. The proceedings started on an unspecified date in early 1997. They ended on 11 October 1999. Their length was thus less than three years for three levels of court. There were certain delays attributable to the authorities, especially during the proceedings before the second ‑ instance court. However, in the circumstances and taking into account in particular the subject-matter of the case, the Court does not consider that the overall duration of the proceedings was unreasonable. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 4.     In respect of his complaint about the lack of effective remedies against the alleged violations of the Convention the applicant relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Court notes that the applicant did not specify in what respect Article   13 had, in his view, been breached. It follows that this complaint is unsubstantiated and therefore manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It must thus be rejected in accordance with Article 35 § 4 thereof. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint concerning the refusal of the domestic courts to register the association whose chairman he is; Declares inadmissible the remainder of the application.   Claudia Westerdiek   Peer Lorenzen   Registrar   President