CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 octobre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 5 October 2016   FIFTH SECTION Application no. 29496/16 UNITED MACEDONIAN ORGANISATION ILINDEN and Others against Bulgaria lodged on 27 April 2016 STATEMENT OF FACTS 1.     The first applicant, the United Macedonian Organisation Ilinden (“Ilinden”), is a non-governmental organisation based in south-west Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia. The second applicant, Mr Yordan Kostadinov Ivanov, a Bulgarian national born in 1932 and living in Sandanski, is Ilinden’s chairman. The third applicant, Mr Ivan Dimitrov Hadzhiev, a Bulgarian national born in 1969 and living in Sofia, is a member of Ilinden’s board. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     On 23 March 2014 the second and third applicants and seven other individuals held a meeting at which they resolved to set up Ilinden as an association. They defined Ilinden’s aims and the means that it would use to attain them, adopted its articles, and elected its board, which consisted of all nine of them. 4.     Shortly after that, Ilinden’s board asked the Blagoevgrad Regional Court to register it as an association. 5 .     In a judgment of 30 June 2014 (реш. № 2768 от 30.06.2014 г. по ф.   д. № 36/2014 г., БОС) the Blagoevgrad Regional Court refused the request. It first observed that even though Ilinden declared that it intended to be an association which only served the interests of its members, its aims, as set out in its articles, showed that in reality it meant to serve broader public interests (see paragraph 17 below). The court went on to note that the articles stated that Ilinden would strive for, inter alia , the introduction of the Macedonian language in schools, the protection of the right of Macedonians to refute propaganda about their history and culture, and the protection of the Macedonian cultural heritage, which was being “subjected to ethnocide by the Bulgarian cultural institutions”, and that it would organise seminars and press conferences exposing the reasons underlying the “policy of forced assimilation and discrimination of, and xenophobia towards, Macedonians in Bulgaria”. The articles also stated that Ilinden was a “Macedonian organisation based on a Macedonian ethnic foundation and origin within the boundaries of Bulgaria”, and that it “would recall of the terror perpetrated by Bulgaria, of the thousands of killed Macedonians, of the violence, the prisons and the deprivation of Macedonians of basic human rights and freedoms after 1913, which amounted to crimes under international law”. For the court, all those statements gave the impression that Ilinden intended to stir up national and ethnic hatred, contrary to Article 44 § 2 of the Constitution (see paragraph 15 below). Moreover, the statements, combined with the existence, albeit brief, of a political party called United Macedonian Organisation Ilinden-PIRIN, whose re-registration was recently refused, and with the existence of organisations bearing the same or similar names, led to the conclusion that the intention was to mislead society and to obtain the registration of an organisation pursuing political aims (see   paragraphs 12-14 below), or an organisation directed against the unity of the nation. This was also against section 7(2) of the Non-Profit Legal Persons Act 2000 (see paragraph 18 below), which barred associations form having misleading names. Lastly, the association’s intended name was not unique, as required by law. 6 .     Ilinden’s founders appealed. They submitted that the court had misconstrued Ilinden’s articles and had been wrong to find that its activities would be political or directed against the unity of the nation. The real reason for the refusal to register Ilinden was that it advocated views which were at odds with the official ones. 7 .     In a judgment of 18 November 2015 (реш. № 2272 от 18.11.2015 г. по ф. д. № 2968/2014 г., САС, ТО) a three-member panel of the Sofia Court of Appeal upheld, by two votes to one, the refusal to register Ilinden. 8 .     The court began by saying that when assessing the aims of an association seeking registration, the courts had to base themselves chiefly on its articles. But in doing so they had to have regard to the entirety of the articles, and on their basis determine the real intentions of the association’s founders. The courts also had to bear in mind the traditions which the association purported to represent and the historical figures with which it identified. Lastly, the courts had to consider the past activities, if known, of the association’s founders, leaders and supporters, as well as the positions which they advocated. This latter element had to be juxtaposed with the aims, as set out in the articles, with a view to checking whether those stated aims were not a cover for others. In Ilinden’s case, it was public knowledge that since 1990 some of its founders, leaders and supporters had openly challenged their opponents and the State authorities, which had led to well publicised breaches of public order: clashes between supporters of Ilinden and their opponents on account of the views expressed by the former about Macedonian history. Moreover, the declaration in Ilinden’s articles that a person of any ethnicity could become its member did not reflect the reality of the matter, which was that it had been conceived as an organisation based purely on Macedonian ethnicity. The same went for the declarations in the articles that Ilinden would only resort to peaceful means to achieve its aims. Those were belied by the organisation’s record of provoking opponents and the State authorities by making strong statements about violence against the Macedonians. The court also had to bear in mind the current severe migrant crisis, which affected all of Europe and Bulgaria in particular, as a front-line state of the European Union; this crisis required the mobilisation of all available State and social resources. 9 .     In those circumstances, the request that Ilinden be registered had to be turned down, for two reasons. First, pursuit of its real aims, seen against the backdrop of the heightened sensitivities of the population in Pirin Macedonia, where it was based, could lead to serious tensions and breaches of public order caused by, or involving, supporters of the organisation, as had happened in the past. In the tense situation facing Bulgaria and its neighbouring States, this had to be seen as a real possibility. Secondly, the realisation of Ilinden’s right to freedom of association would infringe the rights of all Bulgarians who did not support its aims or the means which it intended to use to attain those aims. All were entitled to believe that they were not citizens of a State which had committed international crimes, such as forced assimilation, discrimination, xenophobia, terror and deprivation of parts of its population of basic human rights, that they did not engage, in their capacity as Bulgarian citizens, in propaganda and manipulations towards the history and culture of a neighbouring country, and that they were not citizens of a State whose institutions subjected the cultural heritage of part of its population to ethnocide. That was why it was necessary to refuse the registration request, even though it was also possible to dissolve an already registered association if it engaged in anti-constitutional or unlawful conduct. The refusal was a justified preventive measure. 10 .     The dissenting judge noted that Ilinden’s founders had complied with all formal legal requirements and that the majority in effect acknowledged that Ilinden’s articles were not unlawful, as found by the lower court. She went on to say that the registration regime should not be used to hinder the exercise of the fundamental right to associate, and that the case called for the application of Article 11 of the Convention, which was part of Bulgarian law. She then noted how this Article had been interpreted by this Court in several cases, including United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 59489/00, 20   October 2005) and United Macedonian Organisation Ilinden and Others v. Bulgaria (no.   59491/00, 19 January 2006), and said that, in her view, the fact that an association advocated a form of minority consciousness could not justify an interference with its rights under this Article. This Court’s ruling on that point in Stankov and the United Macedonian Organisation Ilinden v.   Bulgaria (nos. 29221/95 and 29225/95, ECHR 2001-IX) had to be taken into account when examining the registration request at issue. There was, moreover, no evidence of actions by Ilinden’s founders which fell foul of the prohibition in Article 44 § 2 of the Constitution (see paragraph   15 below). In the circumstances, the refusal to register it was thus unjustified. 11 .     Ilinden’s founders attempted to appeal on points of law. On 22   February 2016 the judge-rapporteur at the Sofia Court of Appeal, who under the relevant rules of procedure had to check the appeal’s admissibility before forwarding it to the Supreme Court of Cassation, sent it back to the appellants. He noted that under the applicable rules of procedure, as consistently construed by the Supreme Court of Cassation, no appeal lay against appellate judgments confirming refusals to register an association. In a final decision of 15 July 2016 (опр. № 317 от 15.07.2016 г. по ч. т. д. №   1062/2016 г., ВКС, I т. о.) the Supreme Court of Cassation dismissed the founders’ appeal against the judge-rapporteur’s order. It likewise found that under the applicable rules of procedure, which it had already construed in several cases, the Sofia Court of Appeal’s judgment was not subject to appeal. B.     Relevant domestic law and practice 12 .     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. 13 .     In a judgment of 21 April 1992 (реш. № 4 от 21.04.1992 г. по к. д. №   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”. That 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 Constitutional 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. 14 .     In January 2015 the Plenary Meeting 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. № 1 от 17.03.2015 г. по к. д. № 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. 15 .     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. 16 .     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. 17 .     By section 2(1), non-governmental organisations can freely establish their aims and can define themselves as organisations pursuing public or private interests. Organisations which pursue public interests enjoy tax privileges (section 4), but are in return subject to heightened regulation of their aims and the spending of their assets (sections 38(1) and 41), and to additional reporting and control requirements (sections 40 and 46). 18 .     By section 7(2), the name of an association must not be misleading or run counter to good morals. C.     Relevant decisions of the Committee of Ministers 19 .     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 (cited above) 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 a 2012 case in which they had refused to register Ilinden, 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 20.     The applicants complain under Article 11 of the Convention that the refusal to register Ilinden was arbitrary and disproportionate. 21.     The applicants further complain under Article 14 of the Convention that the refusal to register Ilinden, which came on the back of many other breaches of the rights of Ilinden and its members and supporters under Article   11 of the Convention, and was in the applicants’ view based on the policy of the Bulgarian State to deny the existence of a Macedonian ethnic minority, was discriminatory. QUESTIONS TO THE PARTIES 1.     Was the refusal to register Ilinden in breach of the applicants’ right to freedom of association, enshrined in Article 11 of the Convention?   2.     Did the applicants suffer discrimination in the enjoyment of their right to freedom of association, contrary to Article 14 of the Convention read in conjunction with Article 11?