FIFTH SECTION
CASE OF MACEDONIAN CLUB FOR ETHNIC TOLERANCE IN BULGARIA AND RADONOV v. BULGARIA
(Application no. 67197/13)
JUDGMENT
STRASBOURG
28 May 2020
This judgment is final but it may be subject to editorial revision.
In the case of Macedonian Club for Ethnic Tolerance in Bulgaria and Radonov v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Lәtif Hüseynov,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,
the application 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”) by the “Macedonian Club for Ethnic Tolerance in Bulgaria”, an association based in Blagoevgrad, Bulgaria, and the chairman of its board, Mr Angel Kirilov Radonov, a Bulgarian national (“the applicants”), on 10 October 2013;
the decision to give the Bulgarian Government (“the Government”) notice of the complaint under Article 11 of the Convention concerning the refusal to register that association and to declare inadmissible the remainder of the application;
the parties’ observations; and
the decision of the judge elected with respect to Bulgaria, Y. Grozev, to withdraw from taking part in the consideration of the case,
Having deliberated in private on 28 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the question whether it was necessary in a democratic society for the Bulgarian courts to refuse to register an association which advocates the idea that there exists an oppressed Macedonian minority in Bulgaria and seeks to protect that alleged minority’s rights, on the grounds that (a) the association was directed against the unity of the Bulgarian nation, and that (b) its goals were political and therefore only capable of being pursued by a political party rather than a regular association.
THE FACTS
1. The first applicant, the “Macedonian Club for Ethnic Tolerance in Bulgaria”, is an association set up in 2012 in Blagoevgrad, Bulgaria. The second applicant, Mr Angel Kirilov Radonov, is Bulgarian national who was born in 1954 and lives in Blagoevgrad; he is the chairman of the association’s board (see paragraph 4 below).
2. The applicants were represented before the Court by Mr T. Menkinoski, a lawyer practising in Skopje, North Macedonia. The Government were represented by their Agent, Mr V. Obretenov of the Ministry of Justice.
3. The facts of the case, as established by the Court, may be summarised as follows.
4. On 3 April 2012 the nine founders of the applicant association held a meeting at which they resolved to form the association, adopted its articles, and elected its board and chairman (the second applicant). They went on to instruct the second applicant to take the necessary steps to have the association registered.
5. On 13 June 2012 the association applied to the Blagoevgrad Regional Court to be registered. On 7 February 2013 the court refused its application (see реш. № 31 от 07.02.2013 г. по ф. д. № 36/2012 г., БОС).
6. The second applicant appealed. He argued, inter alia, that the refusal to register the association was in breach of Article 44 § 1 of the Constitution (see paragraph 14 below).
7. On 11 April 2013 the Sofia Court of Appeal upheld the lower court’s decision (see реш. № 715 от 11.04.2013 г. по ф. д. № 948/2013 г., САС). It noted that not-for-profit associations were chiefly characterised by their goals, which is why these goals had to be spelled out in their articles. In recognition of the fundamental right enshrined in Article 44 § 1 of the Constitution (see paragraph 14 below), which belonged to all people irrespective of their ethnic, confessional or linguistic differences, associations were by law entitled freely to set their goals. But as a corollary to that, the Constitution also envisaged, as was indeed permissible under international law, some universally applicable restrictions to freedom of association. A person’s self-identification as a member of an ethnic minority was thus neither a ground for privileges in that respect nor a ground for tougher restrictions.
8. The prohibition in Article 44 § 2 of the Constitution (see paragraph 14 below) was akin to that envisaged under Article 22 § 2 of the International Covenant on Civil and Political Rights, and an organisation which proposed to protect the interests of an ethnic minority which had not historically come to exist in Bulgaria fell under the terms of that provision.
9. The court went on to note that in its articles the applicant association said that it would strive to protect the human and ethnic rights of Macedonians and other ethnic minorities in Bulgaria, and that it proposed to do so by organising lectures, talks and conferences about the past of the Macedonian people and its revolutionary struggles, as well as Macedonian national conventions and commemorations of historical dates and events; by collecting, publishing and preserving memoirs, documents and other materials relating to the fate of repressed Macedonians in Bulgaria; by providing legal and other assistance to repressed Macedonians and their heirs in Bulgaria; by organising rallies and demonstrations to vindicate the rights of the Macedonian minority in Bulgaria; and by presenting the problems of repressed Macedonians and of the Macedonian ethnic minority to the competent Bulgarian authorities and international institutions.
10. The systematic construction of those aims and means showed that they revealed assertions that there existed in Bulgaria a Macedonian ethnic minority whose rights had been infringed and would be protected by the applicant association. But there was no such minority in Bulgaria, in the form of a separate group established on its territory whose members were its nationals and had certain religious, linguistic, cultural or other characteristics that set them apart from the majority of the population. Therefore, the manifestation of such a minority by way of an association seeking to cater for its various needs was not in effect meant to defend its rights, which were no different from those of other citizens, but to cultivate among Bulgarian citizens a different ethnic self-consciousness which had not arisen in a natural historical way, and was thus directed against the unity of the nation, contrary to prohibition set out in Article 44 § 2 of the Constitution (see paragraph 14 below). Moreover, the association’s articles contained political goals, relating to activities characteristic of political parties, which was proscribed by Article 12 § 2 of the Constitution (see paragraph 11 below).
RELEVANT LEGAL FRAMEWORK
11. 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.
12. In a decision of 21 April 1992 (реш. № 4 от 21.04.1992 г. по к. д. № 1/1991 г., обн., ДВ, бр. 35/1992 г.) the Constitutional Court held, inter alia, that “political activities that are characteristic solely of political parties”, within the meaning of Article 12 § 2, were defined by Article 11 § 3 of the Constitution as those which facilitate “the formation of 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, under the Constitution, the people exercise[d] power”.
13. In January 2015 the plenary of the Supreme Court of Cassation’s Commercial Section 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. 23/2015 г.), the Constitutional Court declined the request. It noted that it had not been shown that there existed divergences in the application of that provision, as required under its case-law, and that it was only competent to give a binding interpretation of a constitutional provision if it had been duly established that there was uncertainty about its meaning.
14. Article 44 § 1 of the Constitution enshrines the right to freedom of association. Article 44 § 2 goes on to say that 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.
15. The Not-For-Profit Legal Persons Act 2000 governs the formation, registration, organisation, activities and winding-up of not-for-profit legal persons, such as associations and foundations. Until the end of 2018, the registration procedure unfolded at first instance before the territorially competent regional courts. A September 2016 amendment to the 2000 Act – in particular to sections 17 and 18 –, which came into force on 1 January 2018, shifted competence to register associations from the regional courts to the Registry Agency attached to the Ministry of Justice (which has since 2008 also kept the register of companies). Since 1 January 2018 the registration procedure is governed by sections 13 to 31 of the Register of Companies and the Register of Not-For-Profit Legal Persons Act 2006 (as amended with effect from the same date).
16. The explanatory notes to the October 2015 Government bill which led to these amendments (no. 502-01-83) noted, among other things, that there existed systemic divergences in the case-law of the various regional courts relating to the registration of not-for-profit associations, which “gave rise to legal uncertainty, led to an increase in the administrative burden for organisations and in the time for obtaining registration, and was conducive to infringements of the constitutional right to freedom of association”.
THE LAW
17. The applicants complained that the applicant association had been refused registration. They relied on Article 11 of the Convention, which provides, in so far as relevant:
“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. ...”
18. The Government submitted that the refusal to register the applicant association had been based on the Constitution and the relevant statutes, which according to them had been properly applied by the Bulgarian courts. The refusal had sought to attain a number of legitimate aims, and had been necessary in a democratic society. It had been based on the stated goals of the association, which were directed against the unity of the Bulgarian nation, and also political in nature and hence only capable of being pursued by a political party. The Government went on to note that the association could seek registration afresh under the newly introduced registration mechanism that had come into effect in the beginning of 2018. They pointed out that an association having identical goals as the applicant association had managed to obtain registration under that new mechanism.
19. The applicants submitted that the goals of the association were fully in line with the Bulgarian Constitution. They noted that this Court had on many occasions found breaches of Article 11 of the Convention in cases relating to Macedonian organisations in Bulgaria. They also noted that the possibility for the applicant association to seek registration under the mechanism put in place in 2018 could not wipe out the fact that it had been refused registration six years earlier, in 2013.
20. The complaint is neither manifestly ill-founded nor inadmissible on any of the other grounds set out in Articles 34 and 35 §§ 1-3 of the Convention. It must therefore be declared admissible.
21. The refusal to register the applicant association in 2013 amounted to a “restriction” of both its and its members’ right to freedom of association (see United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, § 53, 19 January 2006; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, §§ 27 and 30, 18 October 2011; Yordan Ivanov and Others v. Bulgaria, no. 70502/13, § 39, 11 January 2018; and United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 3), no. 29496/16, § 32, 11 January 2018).
22. The fact that the association is capable of seeking registration afresh under the new registration mechanism put in place in the beginning of 2018 (see paragraphs 15 and 16 above) is of no relevance in this respect. The Court has in a number of cases treated a refusal to register an organisation as a “restriction” in its own right, and has even observed that earlier or later registration proceedings fall outside the scope of the case relating to that particular “restriction” (see United Macedonian Organisation Ilinden–PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 70, 18 October 2011).
23. There is no need to examine whether the “restriction” was “prescribed by law” or pursued a legitimate aim (see United Macedonian Organisation Ilinden and Others (no. 2), § 32; Yordan Ivanov and Others, § 40; and United Macedonian Organisation Ilinden and Others (no. 3), § 33, all cited above) because, even assuming that it was and did, it was not “necessary in a democratic society”, for the following reasons.
24. The Sofia Court of Appeal based the refusal to register the applicant association on two grounds. The first was that the association advocated the idea that there existed a Macedonian ethnic minority in Bulgaria, which meant that it sought to cultivate such a minority – since one did not in reality exist – and was thus directed against the unity of the nation (see paragraphs 8-10 above). The second was the characterisation of the association’s goals as political and hence only capable of being pursued by a political party (see paragraph 10 in fine above). In United Macedonian Organisation Ilinden and Others (no. 2) (cited above, §§ 36-39) and Yordan Ivanov and Others (cited above, § 41), both of these grounds were found to be insufficient to justify a refusal to register a similar association. The present case presents no material difference.
25. There has therefore been a breach of Article 11 of the Convention.
26. The applicants complained under Article 6 § 1 of the Convention that the reasons given by the Sofia Court of Appeal had been unclear and arbitrary, owing in particular to that court’s alleged failure to take into account all relevant legal provisions and its finding that the applicant association would pursue political goals.
27. The applicants also complained under Article 14 of the Convention that the authorities had refused to register the applicant association on account of the second applicant’s Macedonian ethnic origin.
28. Articles 6 § 1 and 14 of the Convention read, in so far as relevant:
Article 6 § 1 (right to a fair hearing)
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
Article 14 (prohibition of discrimination)
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
29. Neither party made submissions in relation to these complaints.
30. The complaints relate to the same facts as the one based on Article 11 of the Convention: the refusal of the Blagoevgrad Regional Court, upheld by the Sofia Court of Appeal, to register the applicant association. Having regard to its findings in paragraph 24 above, the Court finds no need to examine separately their admissibility or merits (see Yordan Ivanov and Others, §§ 50-53, and United Macedonian Organisation Ilinden and Others (no. 3), §§ 42-45, both cited above).
31. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
32. The applicants claimed 100,000 euros (EUR) in respect of the non‑pecuniary damage they had allegedly sustained as a result of the refusal to register the applicant association. The second applicant pointed out that as someone who identified himself as an ethnic Macedonian he had faced a long-standing policy of a denial of his rights by the Bulgarian authorities.
33. The Government noted that in a number of previous similar cases the Court had held that the finding of a breach amounted to sufficient just satisfaction, or had awarded much lower sums with respect to non‑pecuniary damage. In their view, the applicants’ claim was thus exorbitant; they invited the Court to hold that the finding of a breach of Article 11 of the Convention was in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants.
34. Taking into account the awards made in previous similar cases against Bulgaria (see, in particular, United Macedonian Organisation Ilinden and Others (no. 2), § 53; Yordan Ivanov and Others, § 57; and United Macedonian Organisation Ilinden and Others (no. 3), § 49, all cited above), and the specific circumstances of this case, the Court finds that the non-pecuniary damage suffered by the applicants on account of the breach of Article 11 of the Convention can be made good with a joint award of EUR 7,500, plus any tax that may be chargeable.
35. The applicants sought reimbursement of EUR 580 allegedly spent on translating correspondence and submissions for the purposes of the proceedings before the Court, of approximately EUR 100 allegedly spent on postage, and of EUR 3,000 allegedly spent on lawyers’ fees. In relation to this latter sum, they referred to the scale of lawyers’ fees in force in North Macedonia, where their lawyer practised. The applicants did not submit any documents in support of their claim.
36. The Government pointed out that the applicants had not submitted any documents in support of their claim, or set out any details about the actual amount of work spent by their lawyer on the case.
37. The Court notes that the applicants did not submit any documents showing that they had paid or were under a legal obligation to pay any fees to their legal representative. There is therefore no basis on which to accept that the legal costs claimed by the applicants have been actually incurred by them (see Merabishvili v. Georgia [GC], no. 72508/13, § 372, 28 November 2017). The mere reference to the scale of lawyers’ fees applicable in North Macedonia, where their lawyer practised, is not sufficient (see, mutatis mutandis, Altay v. Turkey (no. 2), no. 11236/09, §§ 84 in fine and 87, 9 April 2019). Nor did the applicants provide any documents in support of their claim relating to postage and translation expenses. It follows that their claim with respect to costs and expenses must be rejected in full.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants jointly in respect of non-pecuniary damage, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on this amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 28 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik André Potocki
Deputy Registrar President