CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 octobre 2011

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display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FOURTH SECTION             CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN – PIRIN AND OTHERS v. BULGARIA (No. 2)   (Applications nos. 41561/07 and 20972/08)           JUDGMENT       STRASBOURG   18 October 2011   FINAL   08/03/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of the United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (No. 2) , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President ,   Lech Garlicki,   Ljiljana Mijović,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva, judges , and Lawrence Early, Section Registrar , Having deliberated in private on 27 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 41561/07 and 20972/08) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 August 2007 and 11 April 2008 respectively. The principal applicant in both applications is the United Macedonian Organisation Ilinden – Party for Economic Development and Integration of the Population (“UMO Ilinden – PIRIN” or “the applicant party”), a political party founded in 1998 and dissolved by the Constitutional Court in 2000. The remaining applicants in the first application are Mr Ivan Iliev Singartiyski, Mr Stoyko Ivanov Stoykov, Mr   Angel Ivanov Bezev and Mr Botyo Vangelov Tikov, Bulgarian nationals born in 1953, 1974, 1964 and 1956 and living in Musomishta, Sandanski and Koprivlen, who are members of the applicant party’s governing body, and Mr Stoyan Nikolov Georgiev, a Bulgarian national born in 1938 and living in Petrich, who is a member of the party. The applicants in the second application are the same as those in the first application, save for the sixth applicant. 2.     The applicants were represented by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3.     The applicants alleged that two refusals of the courts to register the applicant party had infringed their right to freedom of association, had deprived them of effective domestic remedies, had been discriminatory, and had been in breach of the Bulgarian State’s duty to abide by the final judgment of the Court in an earlier case. 4.     On 3 June 2008 the President of the Fifth Section, to which the case had been allocated, decided to give priority to the applications under Rule   41 of the Rules of Court and to conduct the proceedings in the case simultaneously with those in United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2) (no. 34960/04), United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 2) (no. 37586/04), and Singartiyski and Others v. Bulgaria (no. 48284/07) (Rule 42 (former 43) § 2 of the Rules of Court). 5.     On 30 September 2008 the Court decided to join the two applications (Rule 42 (former 43) § 1) and to give notice of them to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1 of the Convention). 6.     Following the re ‑ composition of the Court’s sections on 1 February 2011, the application was transferred to the Fourth Section. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 7 .     The applicant party, based in south-west Bulgaria (in an area known as the Pirin region or the geographic region of Pirin Macedonia), was initially founded in 1998. It was declared unconstitutional by the Constitutional Court on 29 February 2000 and, as a result, dissolved. 8 .     The relevant developments up to February 2000 are described in detail in paragraphs 8 ‑ 28 of the Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no.   59489/00, 20 October 2005). In that judgment the Court found that the applicant party’s dissolution had been in breach of Article 11 of the Convention (ibid., §§ 50 ‑ 63). B.     The first attempt to have the applicant party re ‑ registered 9.     After the Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others (cited above) became final, on 20   January 2006, the applicant party’s followers decided to apply for re ‑ registration of the party, considering that this would be the best way of expunging the consequences of the violation of Article 11 (since under Bulgarian law there is no possibility of reopening proceedings before the Constitutional Court). 10.     On 9 June 2006, in line with the procedure envisaged in the 2005 Political Parties Act (see paragraph 43 below), the party’s founding committee published a founding declaration in Dnevnik , a national newspaper, announcing that the party’s founding meeting would be held on 25 June 2006. 11.     The meeting took place as planned. 1.     The proceedings before the Sofia City Court 12 .     On 20 September 2006 the applicant party’s founders applied to the Sofia City Court (“ Софийски градски съд ”) for registration. They enclosed with the application the original of the founding declaration and its published copy, a certificate attesting to the uniqueness of the party’s name, minutes of the founding meeting, signed by the meeting’s chairman and minute ‑ taker, a copy of the party’s constitution, notarised signature samples of the members of the party’s representative body, notarised declarations vouching for the authenticity of the lists of the party’s founders and members and of its constitution, a sample of the party’s seal, a list of the founders having signed membership declarations and copies of those declarations, and a list of the party’s members (5,778 individuals). 13 .     After the application was filed, a copy of the list of the party’s founding members was apparently made available to the police and the prosecuting authorities in Gotse Delchev, Blagoevgrad, Sandanski, Petrich and some other localities in the Pirin region. The police started systematically checking the names, the identities and the personal data of the individuals concerned. They also summoned a large number of those individuals, questioned them about their involvement with the party, and obtained from some of them declarations denying any connection with the applicant party. Following this operation, the police drew up a detailed report pointing to a number of alleged irregularities in the party’s formation, such as failures to indicate the full names, full and correct addresses and personal identity numbers of the founders in some membership declarations, as well as the facts that some founders were living abroad, were members of other parties, or were minors or mentally ill. It also contained allegations, based on interviews with the individuals concerned and other inquiries by the police, that they had been put on the list without their knowledge or against the payment of money. 14.     The police additionally commissioned a graphology expert to check the texts of the membership declarations and the signatures featuring on them. On 17 October 2006 the expert drew up a detailed report which said that the texts of a number of declarations had been filled in by the same people, but that the signatures were those of separate people (all of whom he identified by name and citizen identification number). He also said that the signatures of thirteen individuals on the membership declarations differed from the corresponding signatures on the list of members. 15 .     The Sofia City Court examined the application at a hearing held on 18   October 2006. A prosecutor of the Sofia City Prosecutor’s Office, who participated in the proceedings ex officio , produced the above ‑ mentioned reports, orders by the prosecuting authorities in Sandanski and Gotse Delchev for the carrying out of preliminary inquiries, and sixty ‑ six declarations obtained during the earlier police operation and purportedly establishing that the individuals who had made them had no links with the applicant party. 16 .     Some of the declarations contained the following statements: “I am not and have never been a member of UMO Ilinden – PIRIN; I made the decision to sign [the membership declaration] off the top of my head, I have not received anything in return, and I was not coerced into doing it”; “I   declare I have nothing to do with the anti ‑ Bulgarian organisation UMO Ilinden – PIRIN. In no way do I support their separatist ideas. The fact that I signed the petition does not in any way mean that I support their ideas”; “I   declare that I have never been a member and am not a member of the illegal UMO Ilinden”. 17 .     Counsel for the party’s founders requested an adjournment to acquaint himself with the newly presented evidence. The court turned the request down, allowing counsel to peruse the documents during a half-hour recess. When the hearing resumed, counsel for the party’s founders objected to the admission of the two reports in evidence and sought leave to present additional evidence: the membership applications of the persons whose names featured in the declarations presented by the prosecutor, and the missing personal identity numbers and addresses of the founders. The court denied leave, saying that the evidence sought to be adduced was not required under the 2005 Political Parties Act (see paragraphs 42 ‑ 46 below). It also said that it would rule on the admissibility of the prosecutor’s evidence in its judgment. 18 .     In a memorial filed after the hearing the prosecutor argued that the registration request should be rejected as, firstly, most of the founders had not personally filled in, but merely signed, their membership declarations, as shown by the expert report. Secondly, some of the members of the party’s governing bodies featured in the minutes of the founding meeting with two names only, which made it difficult to identify them. Thirdly, there was no indication that a properly constituted ballot committee had duly checked the number of participants in the founding meeting. All of this showed that the founding meeting had been irregular and its resolutions void. Moreover, the sixty ‑ six declarations showed that a number of the purported founders of the party were in fact no such thing. There were also a number of technical irregularities in the founding instruments. Lastly, there were indications that a number of purported founders had agreed to become members without really wanting to or understanding the implications. The party had therefore been founded in breach of, among other provisions, Article 11 of the Convention, which enshrined negative freedom of association. 19 .     In a counter ‑ memorial counsel for the party’s founders submitted, inter alia , that the facts the prosecutor sought to prove through the evidence he had adduced could be established only within the framework of separate contentious proceedings. Non ‑ contentious registration proceedings were not a suitable forum for resolving such issues. Even if one were to admit that there were certain irregularities in the membership declarations or the lists, this was not reason enough to hold that the number of founders had not in fact been attained. The sixty ‑ six declarations presented by the prosecutor had to be discounted, inter alia because their sincerity was highly doubtful as they appeared to have been made under pressure from the police. That could be seen from the content of some of the declarations. Most of the irregularities noted in the police report were trivial or irrelevant and, in view of the limited number of individuals concerned – fifty ‑ eight – did not cast doubt on the fact that the party had more than five thousand members, as required by law. Lastly, there was no indication that the party’s formation had been in breach of Article 11 of the Convention or Articles 11 and 44 of the Constitution (see paragraph 41 below); on the contrary, it was consonant with the Court’s judgment in the case of United Macedonian Organisation Ilinden – PIRIN and Others (cited above). 20 .     In a judgment of 30 October 2006 the Sofia City Court refused to enter the applicant party in the register of political parties. It held as follows: “... In an application ... of 20 September 2006 the applicants Ivan Iliev Singartiyski, Stoyko Ivanov Stoykov, Angel Ivanov Bezev and Botyo Vangelov Tikov asked [this court] to enter in the register of political parties the newly founded party UMO Ilinden   – PIRIN. ... The certificate attesting to the uniqueness of the name, [issued by the registry of the Sofia City Court], shows that it was issued for a political party named UNITED MACEDONIAN ORGANISATION ILINDEN – PARTY FOR ECONOMIC DEVELOPMENT AND INTEGRATION OF THE POPULATION. A founding declaration has been produced, as required under section 10(2) of [the 2005 Political Parties Act]. However, it cannot be individualised, as there is no information in the file about the ‘initiative committee’ of ‘at least 50 enfranchised Bulgarian citizens’ who have adopted it, as required under subsection 1 of this section. The declaration says that they are ‘a group’ but the evidence does not allow the court to ascertain their number. The declarations under section 11(3) of [the same Act] do not contain information about the membership of the initiative committee, i.e. such declarations are lacking. It can be seen from the enclosed minutes of 25 June 2006 that on that date a founding meeting of the ‘political party UMO Ilinden – PIRIN’ was held. At the beginning of the meeting a ballot committee was elected, whose membership cannot be ascertained, as the individuals mentioned feature with their first and family names only and there is no further information about them. In addition, there is no report by this committee relating its findings which are mentioned only in the minutes. The individualisation of persons with two names only also affects the procedures for electing a Leadership, a Central Council and an Audit Committee. The [citizen identification numbers] of the members are not set out either. An uncertified copy of the [party’s] constitution has been produced. It is not clear whether this is the constitution that was adopted at the founding meeting or the constitution mentioned in the notarised declaration vouching for its authenticity. No graphic depictions of the symbols of the party have been submitted. They have merely been described in clause 3 of the constitution: ‘the party’s flag is red, with a golden sun and a golden inscription ‘UMO Ilinden – PIRIN’, and the party’s sign, comprising two Pirin mountain peaks with a sun rising between them, yellow with a blue background, with a white edelweiss at the foot of the hills. Lists and declarations of the founding members, said by the applicants to be 530 in number, have been presented, as required under section 15(3)(4) and (3)(5) in conjunction with section 11 [of the 2005 Political Parties Act]. The expert report presented by the [Sofia City Prosecutor’s Office] shows that 116 of the declarations were filled in by the same 25 persons, so that it is logical to conclude that 91 founding members did not personally fill in their declarations, as required by law. The report was contested by counsel for the applicants. The court gives credence to this piece of evidence, as handwriting [recognition] demands special skills and, although it is clear to the naked eye that the declarations in volume 2, pages 1 to 9 [of the case file] have been filled in with the same handwriting, the court itself would not be able to make legally binding findings on this point, because this requires special qualifications and skills, which are in the experts’ province. The court also gives credence to the expert report because it was made by the Ministry of Internal Affairs’ Institute of Forensic Science and Criminology, bears the Institute’s seal and the signature of Dr [S.B.] – head of the ‘Documentary offences, photography and phonoscopy’ department, and is thus an official document. The court does not take into account the 66 individual declarations presented by [the Sofia City Prosecutor’s Office], although they tend to show that the procedure for the formation of the party was not especially perfect. As correctly argued by counsel for the applicants in his brief, their number could not influence the number of the [party’s] members required under section 15(3)(7) of [the 2005 Political Parties Act]. The presented list of the party’s members is inaccurate and incorrect: for instance, in volume one of the evidence – pages 27, 28, 29, 40 and 41 – the names of 100 persons are listed, but without saying for what purpose their names and personal data are listed; pages 30 to 39, listing 141 persons, are presented as an uncertified copy and do not make it clear for what purpose the names and personal data are given; pages 45 to   59 and 71 to 77, concerning 308 people, are presented in an uncertified copy, on page   310 there are two persons with incomplete addresses, page 359 features one person identified by his first name only, without a [citizen identification number] and address, the same on pages 361 and 367, and so on. On the basis of these findings of fact the court makes the following findings of law: The application was made under Article 489 of [the 1952 Code of Civil Procedure] in conjunction with section 15 of [the 2005 Political Parties Act] and has given rise to non ‑ contentious proceedings. In such proceedings the registering court must check whether the application is formally valid and whether it is well ‑ founded. Article 489 of [the Code] governs the registration of all types of legal persons which by law are required to be registered by a court. According to section 15 [of the Act], a political party is registered in the special register kept by the Sofia City Court on the basis of a special application by its representative body. To determine whether the application is well ‑ founded, the registering court has to check whether the facts sought to be registered are indeed subject to registration and whether they have validly taken place. The application is admissible, as it was filed by the members of the leadership of the political party UMO Ilinden – PIRIN, who, according to clause 41(4) of its constitution, represent it and are therefore the proper applicants. The application is unfounded for the following reasons: Section 11 of [the 2005 Political Parties Act] provides that each enfranchised Bulgarian citizen may join the subscription, up until the founding meeting, by personally filling in and signing an individual membership declaration, based on a model adopted by the initiative committee. Through this declaration the citizens express their personal wish to be members of the political party, and declare that they accept its main principles and goals, as set out in its founding declaration, and that they are not members of another political party. The [members of] the initiative committee must also fill in such a declaration... For a valid membership to arise, there must be ‘an initiative of at least 50   enfranchised Bulgarian citizens who form an initiative committee’, which adopts the founding declaration to be signed by the founders. A founding declaration has been produced, but the available evidence does not show that the initiative committee consists of at least 50 Bulgarian citizens. The expression ‘group of citizens’, used in the declaration (page 6 of the case file) does not establish the characteristics of these individuals (enfranchised Bulgarian citizens) and thus the quorum required under section 10(1) of [the 2005 Political Parties Act]; moreover, section 11(3) [of the same Act] expressly requires the initiative committee to fill in the declaration as well. This court does not find it established that this formality, which is a necessary prerequisite for membership, has been completed. Even assuming that the founding declaration is in compliance with the law, the model declaration adopted by the initiative committee should still be filled in and signed personally – section 11(1) of [the 2005 Political Parties Act]. At least 91 of the submitted 530 declarations have not been filled in personally, i.e. one of the two cumulative prerequisites, mandatory under the law, has not been complied with. The court would not comment on the authenticity of the signatures, about which there are doubts. The expert report says that there are differences between the signatures of the same persons in the declarations and in the lists featuring their names. This logically leads to the conclusion that there are only 441 proper founding declarations, in breach of the requirements of section 15, subsections (3)(4) and (3)(5), of [the 2005 Political Parties Act]. The above shows that the founding meeting was attended by far fewer than 500 founders and that there has been no valid adoption of the [party’s] constitution , as required under section 13(1) of the [above ‑ mentioned] Act. A quorum is established on the basis of these very founding declarations, as there is no legal requirement for each founder to personally fill in his name and personal data in the lists. It can be seen from the founding meeting’s minutes that a ballot committee was elected, but it did not draw up a report; the minutes feature only the first and the family names of its members and for this reason they cannot be identified, nor their responsibility engaged. This is why the court cannot find that the statement in the minutes that a quorum was attained does not need to be proven. A quorum establishes lawful representation; it is a prerequisite for a collective body validly to adopt resolutions. Each of the members is bound to all the others who have agreed to the [party’s] constitution. This instrument binds the members of a legal person to act in a certain way, in pursuit of common goals. A legal person’s resolutions are legal acts emanating from its bodies and entailing legal consequences for all members of a given community. A necessary prerequisite for the adoption of resolutions by collective bodies (in the instant case, a political party) is the quorum – the mandatory number of persons corresponding to the requirements of [the 2005 Political Parties Act] – of Bulgarian citizens who have capacity to act, who are not disenfranchised, and who have to be present to adopt a valid resolution. To be legitimate, resolutions of collective bodies have to comprise a certain number of identical acts by persons having capacity to act. The lack of the legally required quorum leads to resolutions which have not been adopted by consensus. From a legal point of view, the entire procedure for duly forming a legal person has been vitiated. The presence of this defect is in itself sufficient to deny the political party registration; moreover, it cannot be made good without calling and holding a new founding meeting. To achieve precision and give full reasons for its ruling, this court considers that the remaining circumstances required for the lawful formation of a legal person must be analysed as well. It is questionable whether the applicants have adduced in evidence a constitution. The enclosed copy of a constitution is not certified and there is no indication that it is indeed the authentic constitution of the party, as claimed in the notarised declaration of its Central Council. Section 14 of the [2005] Political Parties Act enumerates the minimum contents of each party’s constitution: the name, the symbols, the seat, the goals, the rules governing its organisation and activities, the manner of becoming a member and ceasing to be one, the rights and the obligations of the members, and the manner in which the party is to be wound up. The party’s name or acronym cannot match those of another party. Nor is it possible to supplement these with words, letters, figures, numbers or other signs. Section 5 bars parties from using in their symbols the coat of arms or the flag of the Republic of Bulgaria or another State, or religious signs and images. In this connection, [the court must] verify compliance with both the [2005] Political Parties Act and, mutatis mutandis , the applicable provisions of the [2000] Non ‑ Profit Legal Persons Act (as stated in paragraph 2 of the concluding provisions of the [2005] Political Parties Act). Concerning the name. A certificate attesting to the uniqueness of the name UNITED MACEDONIAN ORGANISATION ILINDEN – PARTY FOR ECONOMIC DEVELOPMENT AND INTEGRATION OF THE POPULATION has been presented. This name has been written this way only in the founding declaration published in the newspaper Dnevnik and in clause 1 of the constitution. Everywhere else, in all evidence, the name features as UMO Ilinden – PIRIN. Counsel for the applicants ... says on page 3 of his brief that ‘there is a separate organisation UMO Ilinden, which, although having similar ideas to those of UMO Ilinden – PIRIN, is a separate organisation’. It can be seen from clause 3 of the constitution that the abbreviated version of the name will be written on the party’s symbol – its flag – and will also appear on the party’s seal. However, this name is contrary to section 7, subsections (1) and (2), of the [2000] Non ‑ Profit Legal Persons Act, which provides that ‘the name must clearly show the legal person’s type’ and that it ‘must not be misleading’. There is a discrepancy between the unique name featuring on the Sofia City Court’s certificate and the name used in the evidence. The shortened name could confuse third parties, firstly because it concerns ‘a separate organisation UMO Ilinden’, secondly because the acronym PIRIN could be wrongly deciphered, and [finally because] a clear indication of the legal person’s type is missing. Concerning the symbols. The failure to produce the graphic depictions of the symbols described in clause 3 of the constitution precludes a categorical conclusion about their conformity with the law. The seal, however, shows that the ‘sun’ mentioned in clause 3 is in fact the sixteen ‑ ray stylised star known as the Star of Vergina or the Star of Kutlesh. It was discovered during archaeological excavations in the vicinity of the village of Vergina (formerly Kutlesh) in Northern Greece and was depicted on the golden larnax found in 1977 by Professor Manolis Andronikos in a royal tomb dating from the time of Ancient Macedonia. Professor Andronikos described the symbol as a ‘star’, a ‘starburst’ or a ‘sunburst’. Following the discovery of the larnax (box), the Star of Vergina was widely adopted by Greeks as a symbol of continuity between ancient Macedonian culture and modern Greece. Nowadays the symbol is popular in Greece. The Star of Vergina on a blue background is commonly used as an official emblem of the three peripheries, the prefectures and the municipalities of the region of Macedonia. Thus, the blue flag with the Star of Vergina appeared in the 1980s. The symbol was also adopted by the large Macedonian diaspora, and later, after the disintegration of Yugoslavia, the independent Republic of Macedonia displayed the Star of Vergina on its new flag. The Star of Vergina became a source of controversies both within the Republic of Macedonia and in its relations with neighbouring Greece. The flag – a red rectangle with the star in the middle – became a major issue and the subject of extensive political discussions between the two sides. Greek objections led to the flag being banned from use in a variety of international organisations, including the United Nations, the Olympic Games and the representations of the Republic of Macedonia in the United States of America and Australia. In February 1993 the Greek Parliament adopted a declaration designating the Star of Vergina as an official Greek national symbol. In July 1995 Greece lodged a request with the World Intellectual Property Organization (WIPO) for exclusive intellectual property rights to the Star of Vergina. From a legal standpoint, the symbols described in clause 3 of the [party’s] constitution are contrary to section 5 of the [2005] Political Parties Act. Concerning the rules governing the organisation and the activities of the political party – the [2005 Political Parties Act] does not lay down detailed regulations for this type of legal person. This calls for subsidiary application of the [2000 Non ‑ Profit Legal Persons Act]. Political parties are subject to all rules in chapters I and II, concerning the types of legal persons, and, more specifically, part one, concerning associations, as well as in chapter III, concerning associations acting in the public interest. In assessing the rules governing the [party’s] organisation and activities, the court must equally take into account the provisions of the Constitution, which lay down guiding principles which are relevant for the specific areas of legal regulation or for the activities of those subject to the law. Each corporate legal person has internal rules and they are one of its essential characteristics. The enclosed constitution sets out the main structures of the party and their manner of operation. The supreme body is the National Conference, consisting of delegates (clause 34), elected by the local sections (clause 34(4)). The calling of the meetings of this body is entrusted to the Central Council, which is in turn summoned by the Leadership or on the motion of half of its members. The founders intentionally avoided a clear exposition of the manner in which the National Conference may be called, with a view to [preventing] disputes on this point. The question of delegates is not well regulated in terms of what the delegate quota is, or [what part of] the membership, nor which delegates have been duly elected. Nor is it clear on the basis of what principle the Central Council fixes the territory of each section – clause 21(1) of the constitution. This in practice prevents the court from exercising the judicial scrutiny, required by section 25(4) and (6) of the [2000 Non ‑ Profit Legal Persons Act], of the lawfulness of the supreme body’s resolutions and their conformity with the [party’s] constitution, pursuant to applications made under section 25(6) of the [same Act] by the party’s members and bodies, or by the public prosecutor. In such proceedings, the court must of necessity review the procedure for calling [a meeting of the party’s bodies] and must determine its lawfulness. The [2000] Non ‑ Profit Legal Persons Act provides that there must be a possibility of calling [a meeting of] the governing body on the direct initiative of one-third of the association’s members. Where such a meeting has not been called, the Act lays down a judicial procedure for calling [a meeting of this body] pursuant to a written request by the members. The applicant party’s constitution does not provide for such a possibility. In his memorial counsel for the applicants says that ‘ the registration of the party UMO Ilinden – PIRIN would be in execution of a judgment of 20 October 2005 of the European Court of Human Rights, which became final on 20 January 2006 and in which the European Court analysed in detail all aspects of UMO Ilinden – PIRIN’s activities prior to its dissolution and held that the party’s dissolution had been unlawful as it was contrary to the essential principles of freedom of association ’. In their memorial the Sofia City Prosecutor’s Office submit that the breaches of Articles   11 § 3 and 44 of the [Constitution] have been unequivocally established; those provisions lay down the principle that parties facilitate the formation and the expression of the political will of the citizens, who have the right to freely associate. The prosecuting authorities argue that the evidence shows the applicant party is not based on the free will of the citizens, but that some have been made members against their will or without being aware for what purpose they had filled in declarations – i.e. without information, and in this sense ‘ the party in issue is not based on the free will of the citizens, nor does it form or express their political will ’. In the Prosecutor’s Office’s view, the facts point to a breach of Article 11 of the [Convention] which, when providing that everyone has the right to freedom of association, ‘ undoubtedly intends this to depend on the free will of the individual, not on the decisions of others to include him in a specific association, in this case a political party ’. Article 231 § 1 (h) of [the 1952 Code of Civil Procedure] provides that the judgments of the European Court of Human Rights may constitute grounds for reopening domestic proceedings which have ended in a final judgment. However, it is clear that the situation in the case at hand does not fall within the ambit of that provision. A fortiori , the violations found by the [European Court of Human Rights] should not be allowed to occur in pending proceedings. Because the possibility that the final decision (which is the ultimate goal) of a set of proceedings will be set aside would render these proceedings meaningless. The [Convention] has precedence over domestic (national) legislation that contravenes it – Article 5 § 4 of [the Constitution]. It should however not run counter to the present wording of [the Constitution]. This is because Article 85 § 4 (until 2005, § 3) of [the Constitution] provides that the concluding of international treaties requiring amendments to [the Constitution] has to be preceded by such amendments. This follows from the reasons given by the Constitutional Court in its decision no. 7 of 2 July 1992. The European Court is not competent to give instructions to the States to take specific measures to comply with their obligations under [the Convention] – [see] the judgments in the cases of Corigliano [v. Italy , 10 December 1982, Series A no. 57], Castells [v. Spain , 23 April 1992, Series A no. 236], Bozano [v. France , 18 December 1986, Series A no. 111], etc. The [European Court’s] judgments analyse a specific case (whether specific facts amount to a violation of [the Convention]). For this reason, the court does not consider that those judgments may directly determine the outcome of a future case. The instant judgment is based on new facts and evidence, gathered in line with the requirements of [the 1952 Code of Civil Procedure] in the present proceedings. In other words, only the principles emerging from the [European Court’s] judgments are binding and the applicants cannot request automatic registration merely because their fundamental rights have been restricted in the past, for which they have been awarded just satisfaction. In conclusion, freedom of association is guaranteed by [the Constitution], but only if the legal requirements for association in its various forms – [under the 1991] Companies Act, [the 2000] Non ‑ Profit Legal Persons Act, [and the 2005] Political Parties Act – have been complied with. In view of the foregoing, the court finds that the political party has not been duly formed and for this reason its application for registration is to be denied as unfounded.” 2.     The proceedings before the Supreme Court of Cassation 21.     On 13 November 2006 the applicants appealed to the Supreme Court of Cassation (“ Върховен касационен съд ”). They argued, inter alia , that the admission of the expert report in evidence had been a serious breach of the rules of procedure, as any doubts about the authenticity or the probative value of the documents submitted in support of the registration request should have been resolved in separate contentious proceedings. The Sofia City Court’s denial of leave to the applicants to adduce further evidence had also been in breach of the rules of procedure, had rendered the proceedings unfair, and had prevented them from proving they had complied with the requirements of the 2005 Political Parties Act. These procedural errors had had a material impact on the Sofia City Court’s findings of fact. Furthermore, that court’s ruling that membership declarations must be filled in by the member in person was too rigid and unduly restrictive of the freedom of association of the party’s founders. 22 .     After hearing the appeal on 8 February 2007, in a final judgment of 14   February 2007 (реш. № 87 от 14 февруари 2007 г. по т. д. № 726/ 2006   г., ВКС, I т. о.) the Supreme Court of Cassation upheld the Sofia City Court’s judgment in the following terms: “... [This court] considers ... that the Sofia City Court erred by admitting in evidence the expert report contested by the applicants. This report is in fact a private expert report and not an official document, as wrongly held by the [Sofia City Court]. This entailed a breach of the rules of evidence. ... However, that breach was not material, as it was not the only ground which led to the [Sofia City Court’s] refusal to register [the party]. That court found that the produced founding declaration – the first element of the complex of events leading to a political party’s formation ... – was vitiated. The founding declaration cannot be individualised , as it does not emanate from at least fifty enfranchised Bulgarian citizens, as required by the law (section 10 [of the 2005 Political Parties Act]), but from a ‘ group of citizens ’, and that ‘group of citizens’ cannot be individualised, nor their number ascertained. There is no information in declarations under section   11(3) of [the same Act] about the size and the membership of the initiative committee, because such declarations are lacking. Therefore, [the Sofia City Court’s] decisive conclusion that the [applicant party] was not validly formed was based on lapses in the founding declaration presented, which fails to meet the imperative requirements of the law – sections 10(1) and 11(1) ‑ (3) [of the 2005 Political Parties Act]. The incompleteness of the lists, noted by the [Sofia City Court], was an additional and not a decisive ground for the refusal, and for this reason its being based on a breach of the rules of procedure is not material and does not vitiate the impugned judgment. By the same token, [this court] finds unavailing the arguments in the appeal about the rigid application of the rule in section 11 [of the Act] in relation to the handwritten declarations, which allegedly led to a restriction of the exercise of basic political rights. Section 11’s requirement for a personally filled in and signed declaration does not restrict or discriminate against illiterate or blind individuals, as the law deals with such eventualities in Article 151 [of the 1952 Code of Civil Procedure], which is also applicable in the instant proceedings... If the law requires personally filled in and signed declarations under section 11 [of the 2005 Political Parties Act], the court is bound to apply it correctly and uniformly – Article 4 § 2 [of the above Code]. [The Sofia City Court] did precisely that; therefore, the complaints that it erred in the application of section 11 [of the Act] are unfounded. The complaints that [the Sofia City Court] breached the rules of procedure by refusing the applicants leave to adduce further evidence rectifying the irregularities in the initially submitted documents, such as wrong or incomplete addresses, [citizen identification numbers], [and] proof of the truth of circumstances required by law to be declared, are unfounded. It is true that the proceedings are non ‑ contentious, and that the court has to check of its own motion whether the prerequisites for issuing the decision sought are in place. It is also true that the court may of its own motion gather evidence, and instruct the applicants to produce evidence in corroboration of their claims (Article 427 [of the 1952 Code of Civil Procedure]). However, the instant case concerns omissions of the founders , which may not be rectified subsequently. The complaints that the impugned judgment was wrong on the merits are likewise unfounded. As already noted, the requirement of section 11 [of the 2005 Political Parties Act] that the declarations be personally filled in and signed is a requirement of the law , and the court is bound to apply the law as it is, correctly and uniformly – Article 4 § 2 [of the above ‑ mentioned Code]. Regardless of what has been said above, [this court] reiterates that the decisive ground for refusing registration stems from the vitiated declaration of the founding committee, found defective partly because of the lack of declarations personally made by [the party’s] members. The lack of such declarations and the vitiated lists and the ensuing lack of proof that the meeting had a quorum are thus not, in themselves, independent grounds for a refusal. The lack of graphic symbols and of a report of the ballot committee are not independent grounds for the refusal [either] – they were noted by [the Sofia City Court] in addition to its decisive conclusion about the lack of a founding declaration. It is a separate issue that [the Sofia City Court] found further omissions in the [party’s] formation which were not mentioned or commented upon in the appeal. In view of the foregoing and having dealt with all grounds of appeal [raised by the applicants], [this court] finds that [the Sofia City Court’s] conclusions that [the applicant party] was not validly formed and that its registration request was unfounded are correct. For this reason, the impugned judgment is to be upheld...” 3.     Domestic and international public discussions of the applicant party’s re ‑ registration attempt 23 .     On 3 November 2006, a few days after the Sofia City Court gave its judgment, there was a meeting in Sofia between the Macedonian and Bulgarian Ministers of Foreign Affairs. The news agencies reported that during the meeting Bulgaria’s then Foreign Minister, Mr Ivaylo Kalfin, said: “[T]he judgment of the European Court of Human Rights in Strasbourg does not entail the registration of a party. Bulgaria was ordered to pay a fine; it paid it and there are no further legal consequences. I believe that Bulgaria has fully executed the prescriptions of the Human Rights Court and there are no outstanding matters”. 24 .     In November 2006 the group of the Greens/European Free Alliance in the European Parliament proposed an amendment to the report on Bulgaria’s accession to the European Union, suggesting that it should include text calling on the Bulgarian authorities “to prevent any further obstruction to the registration of the political party of the ethnic Macedonians and to put an end to all forms of discrimination and harassment vis ‑