European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

CASE OF YORDAN IVANOV AND OTHERS v. BULGARIA

 

(Application no. 70502/13)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

11 January 2018

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.




In the case of Yordan Ivanov and Others v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          André Potocki,
          Síofra O’Leary,
          Gabriele Kucsko-Stadlmayer,
          Lәtif Hüseynov, judges,
          Maiia Rousseva, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 5 December 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 70502/13) against the Republic of Bulgaria lodged with the Court on 31 October 2013 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine Bulgarian nationals whose full names and dates of birth may be found in the Appendix (“the applicants”).

2.  The applicants were represented by Mr K. Kanev, chairman of the Bulgarian Helsinki Committee, a non-governmental organisation based in Sofia. On 15 January 2016 the President of the Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he personally acts as a representative (Rule 36 § 4 (a) in fine of the Rules of Court). The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova of the Ministry of Justice.

3.  The applicants alleged that the Bulgarian courts’ refusal to register the United Macedonian Organisation Ilinden (“Ilinden”), an organisation based in south-west Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia, of whose board they were members, had been in breach of their right to freedom of association. They also alleged that the refusal, which had in their view been based on the Bulgarian State’s policy to deny the existence of a Macedonian minority in Bulgaria, had been discriminatory.

4.  On 12 April 2015 Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 § 3). Accordingly, on 19 October 2017 the President selected Maiia Rousseva as ad hoc judge from the list of five persons whom the Republic of Bulgaria had designated as eligible to serve in that office (Article 26 § 4 of the Convention and Rule 29 § 1 (a)).

5.  Meanwhile, on 6 January 2016 the Court decided to give priority to the application (Rule 41) and to give the Government notice of it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The first and second applicants are Ilinden’s chairman and deputy chairman. The remaining seven applicants are members of Ilinden’s board of management.

A.  Background

7.  The background to the refusal to register Ilinden at issue in this case has been set out in detail in the judgments in the following cases: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001-IX; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, 20 October 2005; United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria, no. 59489/00, 20 October 2005; Ivanov and Others v. Bulgaria, no. 46336/99, 24 November 2005; United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, 19 January 2006; United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 2), no. 37586/04, 18 October 2011; United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, 18 October 2011; Singartiyski and Others v. Bulgaria, no. 48284/07, 18 October 2011; and United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, 18 October 2011.

B.  The 2012 refusal to register Ilinden

8.  On 19 September 2010 ninety-eight members of Ilinden held a founding meeting at which they resolved to form the organisation and apply to register it, adopted articles of association, and elected individuals to the organisation’s constituent bodies.

9.  On 27 September 2010 Ilinden’s managing council applied to the Blagoevgrad Regional Court for it to be registered as an association.

10.  In the course of the proceedings, the court several times asked the applicants to rectify deficiencies in the registration papers.

11.  In a decision of 3 February 2012 (реш. № 15 от 03.02.2012 г., по ф. д. № 85/2010 г., БОС), the Blagoevgrad Regional Court refused to register Ilinden. It noted that it had on several occasions instructed the applicants to rectify deficiencies in the registration papers, the latest such instruction having been given on 29 November 2011. The applicants’ subsequent filing of papers on 5 January 2012 had, however, failed to deal satisfactorily with the court’s concerns. The applicants had not clearly set out the competences of the association’s constituent bodies and had not made it clear which of the several copies of the articles of association filed with the court, in which differences appeared, had been the ones adopted at the founding meeting. Also, Ilinden’s aims, as defined in its articles of association, contravened Article 44 of the Constitution (see paragraph 22 below). It was true that Ilinden intended to use peaceful means to attain those aims. But the aims were themselves contrary to the State’s security and sought to stir up national hatred. Ilinden asked that Bulgaria “stop carrying out its policy of assimilating Macedonians”, “stop supporting nationalist propaganda that [has] sow[n] discrimination, hostility and threats against Macedonians”, “stop preventing Macedonians from holding peaceful rallies”, and “not [to] discriminate against Macedonians”. Those aims were directed against the security of the rest of the citizens and would lead to hostile relations between allegedly “discriminated Macedonians” and other Bulgarian citizens. They were therefore unlawful and precluded Ilinden’s registration.

12.  The applicants appealed. They submitted that the court had misconstrued Ilinden’s articles of association and that it was not seeking to stir up hatred or hostility. The real reason for the refusal to register it had been that it had advocated opinions which were at odds with official opinion. The registration papers met all the required formalities.

13.  In a decision of 23 April 2012 (реш. № 634 от 23.04.2012 г. по ф. д. № 1002/2012 г., САС, ГК), the Sofia Court of Appeal upheld the refusal to register Ilinden. It held that its aims, as set out in its articles of association, were political, which was not permissible for an association seeking registration under the Non-Profit Legal Persons Act 2000 (see paragraphs 19-21 and 23 below). For instance, in clause 2 of its articles of association, Ilinden proclaimed itself as successor to “the national liberation struggle of the Macedonian nation”, and in clause 3 stated that it would “express and protect the civic, political, national, social and economic rights of Macedonians living in Bulgaria”. Clause 4 spoke of the protection of Macedonians subjected to racial and ethnic assimilation by the Bulgarian State’s nationalistic policies and demanded that Pirin Macedonia be given cultural autonomy, that the assimilation of Macedonians be stopped, and that Macedonian identity, religion, language, traditions and heritage, allegedly being subjected to ethnocide by the Bulgarian authorities, be protected. Clause 5 said that Ilinden would strive to free Macedonians from the sense of fear engendered by the Bulgarian State’s policy of discrimination and assimilation and to outlaw Bulgarian racism against Macedonians. According to the Sofia Court of Appeal, the lower court had been correct to find these aims contrary to the unity of the nation. They overtly pitted one group of citizens against another and engendered national and ethnic hatred, contrary to Article 44 § 2 of the Constitution (see paragraph 22 below)

14.  At the end of its decision, the Sofia Court of Appeal said that it was amenable to appeal on points of law before the Supreme Court of Cassation.

15.  On 4 June 2012 the applicants lodged such an appeal, reiterating their earlier arguments and submitting that the refusal to register Ilinden had been in breach of their right to freedom of conscience and association and that it had penalised them for advocating views contrary to those held by the majority of the population.

16.  In a decision of 30 April 2013 (опр № 133 от 30.04.2013 г. по т. д. № 510/2012 г., ВКС, I т. о.) a three-member panel of the Supreme Court of Cassation refused to accept the appeal on points of law. It held that under the applicable provisions of the 1952 Code of Civil Procedure, as construed in a binding interpretative decision in 2001 (see paragraph 24 below), appellate decisions upholding refusals to register a non-governmental organisation had been amenable to appeal on points of law. However, that was not the case under the 2007 Code of Civil Procedure, which had come into effect on 1 March 2008. The court analysed in detail the relevant provisions of the new Code and found that, when properly construed in the light of its overall scheme and the provisions governing similar registration proceedings, the rules governing the manner of appealing against a refusal to register a non-governmental organisation were to be construed as permitting an appeal to a court of appeal against a first-instance decision refusing registration but precluding an appeal on points of law against the court of appeal’s decision.

17.  On 14 May 2013 the applicants lodged a procedural appeal against that decision under Article 274 §§ 1 (1) and 2 of the 2007 Code. They contested the way in which the three-member panel had construed the relevant provisions of the new Code.

18.  In a final decision of 15 July 2013 (опр. № 508 от 15.07.2013 г. по ч. т. д. № 2571/2013 г., ВКС, II т. о.), another three-member panel of the Supreme Court of Cassation upheld the first panel’s decision. It noted that the appeal had been lodged within the applicable one-week time-limit under Article 275 § 1 of the 2007 Code, which ran from the date of serving of the decision. However, it went on to hold that the appeal was unfounded, and that no appeal on points of law lay against the Sofia Court of Appeal’s decision. Analysing in detail the applicable provisions of the new Code, it confirmed the manner in which the first three-member panel had interpreted them.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Provisions relating to the aims which associations may lawfully pursue

19.  Pursuant to 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.

20.  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”. The court also held that the activities of a political party in connection with upcoming elections encompassed the holding of rallies, assemblies and other forms of public campaigning in support of the party and the candidates nominated by it, which were also activities aimed at “forming” citizens’ political will.

21.  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 held that it had not been shown, as required under its case-law, that there had been divergences in the application of that provision, and that it was competent to give only a binding interpretation of a constitutional provision if there was a duly established uncertainty in its meaning.

22.  Pursuant to 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.

23.  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.

B.  Legal provisions and case-law relating to the question of whether appellate decisions in non-contentious registration proceedings are amenable to appeal on points of law

24.  Article 500 of the 1952 Code of Civil Procedure, in force until the end of February 2008, provided that decisions whereby a first-instance court refused to register a non-governmental organisation were amenable to appeal before a court of appeal. In a 2001 interpretative decision (тълк. реш. № 1 от 17.07.2001 г. по тълк. д. № 1/2001 г., ВКС, ОСГК) the plenary of the Supreme Court of Cassation’s Civil Section held that, read in the light of the Code’s remaining provisions and its overall scheme and general principles, that provision was to be construed as also permitting appeals on points of law against appellate decisions in such proceedings.

25.  Article 606 of the 2007 Code of Civil Procedure, in force since 1 March 2008, likewise provides that decisions whereby a first-instance court refuses to register a non-governmental organisation are amenable to appeal before a court of appeal. According to legal commentaries published after the Code’s entry into force, it was then possible to appeal on points of law against the court of appeal’s decision (see Р. Иванова, Б. Пунев, С. Чернев, Коментар на новия Граждански процесуален кодекс, Труд и право, 2008 г., стр. 715, and Ж. Сталев, Българско гражданско-процесуално право, Сиела, 2012 г., стр. 1286). It appears that until the present case, the Supreme Court of Cassation had not explicitly ruled on the issue. In three decisions given in 2009, 2011 and 2012 it had implicitly accepted that this had been possible (see опр. № 28 от 22.04.2009 г. по т. д. № 80/2009 г., ВКС, I т. о.; опр. № 524 от 06.07.2011 г. по т. д. № 1126/2010 г., ВКС, I т. о.; and опр. № 626 от 14.08.2012 г. по т. д. № 820/2011 г., ВКС, II т. о.). It appears that in all decisions given after the present case, it expressly found the opposite - that no appeal on points of law lay against appellate decisions in such cases (see опр. № 34 от 29.01.2014 г. по т. д. № 70/2014 г., ВКС, I т. о.; опр. № 273 от 07.05.2014 г. по ч. т. д. № 943/2014 г., ВКС, II т. о.; опр. № 385 от 13.11.2014 г. по т. д. № 3112/2014 г., ВКС, I т. о.; опр. № 307 от 04.06.2015 г. по ч. т. д. № 586/2015 г., ВКС, I т. о.; опр. № 50 от 16.02.2016 г. по т. д. № 18/2016 г., ВКС, I т. о.; опр. № 284 от 29.06.2016 г. по ч. т. д. № 1403/2016 г., ВКС, I т. о.; опр. № 317 от 15.07.2016 г. по ч. т. д. № 1062/2016 г., ВКС, I т. о.; and опр. № 230 от 01.11.2016 г. по т. д. № 1769/2016 г., ВКС, II т. о.).

26.  In 2015 the President of the Supreme Court of Cassation asked the plenary of the court’s Civil and Commercial Sections to give an interpretative decision on a number of points of procedure. One such point was whether decisions whereby appellate courts upheld regional courts’ refusals to register a legal entity were amenable to appeal on points of law. The President said that the case-law on that was inconsistent, citing the three 2009-12 decisions referred to above and the two decisions in the applicants’ case (see paragraphs 16 and 18 above). The proceedings in the interpretative case (тълк. д. № 5/2015 г., ВКС, ОСГТК) were opened on 11 December 2015 and a decision is still pending. The court deliberated on 16 February 2017.

III.  RELEVANT DECISIONS OF THE COMMITTEE OF MINISTERS

27.  At its 1214th meeting from 2 to 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 and United Macedonian Organisation Ilinden and Others (no. 2) (both cited above). Taking into account, inter alia, the Blagoevgrad Regional Court’s and the Sofia Court of Appeal’s decisions in the present case (see paragraphs 11 and 13 above), the Committee 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 the execution of those judgments under enhanced supervision (point 4 of the decision).

28.  At its 1288th meeting from 6 to 7 June 2017 the Committee once again examined the state of execution of the two judgments. Taking into account, inter alia, the Blagoevgrad Regional Court’s and the Sofia Court of Appeal’s decisions in the present case (see paragraphs 11 and 13 above), it expressed deep concern that since United Macedonian Organisation Ilinden and Others (cited above) had become final in 2006, Ilinden had been refused registration on three occasions, partially on grounds already criticised by this Court (point 1 of the decision).

THE LAW

I.  COMPLIANCE WITH THE SIX-MONTH TIME-LIMIT

A.  The parties’ submissions

29.  The Government submitted that the application had been lodged out of time. In their view, the six-month time-limit under Article 35 § 1 of the Convention had started to run from the date of the Sofia Court of Appeal’s decision, which had been more than six months before the applicants had applied to the Court. Under the 2007 Code of Civil Procedure, appellate decisions in non-contentious judicial proceedings for the registration of non-governmental organisations had not been amenable to appeal on points of law. In support of that assertion, the Government relied on two decisions of the Supreme Court of Cassation. They went on to say that since it was unclear when the Sofia Court of Appeal’s decision had been served on the applicants, one could also take as a starting point of the six-month time-limit the date on which the applicants had appealed against it: 4 June 2012. But that had also been more than six months before they had applied to the Court.

30.  The applicants submitted that in appealing on points of law against the Sofia Court of Appeal’s decision, they had simply followed that court’s previous indication that it had been possible to do so. More importantly, at that time the question of whether under the 2007 Code of Civil Procedure appellate decisions in non-contentious judicial proceedings had been amenable to appeal on points of law had been novel and far from settled. The applicable provisions had been ambiguous and leading legal commentators had expressed the view that they had had to be construed to mean that such decisions were amenable to appeal on points of law. The Supreme Court of Cassation’s case-law on the point had been inconsistent, a fact which prompted its President to seek an interpretative decision on it (see paragraph 26 above). It could not therefore be said that the applicants had attempted a clearly non-existent remedy and had thus missed the six-month time-limit.

B.  The Court’s assessment

31.  The application was lodged on 31 October 2013, whereas the final domestic decision on the merits, that of the Sofia Court of Appeal, was dated 23 April 2012, which is more than six months before that. This does not mean, however, that the application was lodged out of time. Since it is not evident whether the Sofia Court of Appeal’s decision was amenable to appeal, the point must be resolved by reference to the principle that when an applicant attempts an apparently existing remedy which later transpires to be ineffective, the six-month time-limit under Article 35 § 1 of the Convention runs from the point when he or she became or ought to have become aware of that (see, among other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012; and Chapman v. Belgium (dec.), no. 39619/06, § 34, 5 March 2013). The same principle applies when under domestic law it is open to question whether a remedy exists or is available.

32.  In Bulgaria, the rules governing the possibility to appeal on points of law against appellate decisions in non-contentious judicial proceedings for the registration of non-governmental organisations had changed not long before the adjudication on the applicants’ case. Under the previous rules such appeals had been possible, and there was - and still is - doubt about the correct interpretation of the new provisions (see paragraphs 16, 18 and 24-26 above). It could not therefore be said that before the Supreme Court of Cassation had ruled on the admissibility of their appeal on points of law against the Sofia Court of Appeal’s decision, the applicants had been or ought to have been aware that that decision was not amenable to such an appeal, especially since the Sofia Court of Appeal had itself stated otherwise (see paragraph 14 above).

33.  The next question is whether the applicants ought to have become aware that no appeal lay against the Sofia Court of Appeal’s decision when they were presented with the first ruling on that point by the three-member panel of the Supreme Court of Cassation on 30 April 2013. Since the point was novel and continues to be unsettled in Bulgarian law (see paragraphs 25 and 26 above), it cannot be considered unreasonable for the applicants to appeal against an initial adverse ruling on the point, and it is clear that such a “procedural” appeal lay against that ruling. Applicants cannot be required to apply to this Court before their position in connection with the matter has been finally settled at domestic level (see Varnava and Others, cited above, § 157). The six-month time-limit should therefore be counted in the circumstances of the present case from the second, final, decision of the three-member panel of the Supreme Court of Cassation, that of 15 July 2013, which means that the application was lodged within the six-month time-limit under Article 35 § 1 of the Convention.

34.  The Government’s objection must therefore be rejected.

II.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

35.  The applicants complained that the Bulgarian courts’ 2012 refusal to register Ilinden had been in breach of 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. ...”

A.  The parties’ submissions

36.  The Government did not make submissions on the merits of the complaint. They invited the Court to rule in the light of the reasons given by the Bulgarian courts.

37.  The applicants submitted that the “political” nature of Ilinden’s aims, cited by the Sofia Court of Appeal in support of its decision to uphold the refusal to register the organisation, being based on an impermissibly broad interpretation of that term, had not amounted to a valid reason for the refusal. That court’s other finding, that Ilinden’s aims would pit one group of citizens against another, had not been based on a proper reading of Ilinden’s articles of association. Even though some passages in those articles could have shocked parts of the Bulgarian public, in a pluralistic society that could not have justified refusing to register the organisation.

B.  The Court’s assessment

38.  The Court has already found that the application was not lodged out of time (see paragraphs 31-34 above). It further notes that the complaint under Article 11 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) or inadmissible on other grounds. It must therefore be declared admissible.

39.  The refusal to register Ilinden amounted to a “restriction” of both its and its members’ right to freedom of association (see United Macedonian Organisation Ilinden and Others (no. 2), §§ 27 and 30, with further references).

40.  There is no need to examine whether that restriction was “prescribed by law” or pursued a legitimate aim (ibid., § 32) because, even assuming that it was and did, it was not “necessary in a democratic society”, for the following reasons.

41.  The refusal to register was based on two grounds. The first was that Ilinden advocated separatist ideas capable of arousing confrontational attitudes and based on “untenable” historical interpretations. The second was the characterisation of the organisation’s goals as political and therefore only capable of being pursued by a political party (see paragraphs 11 and 13 above). In United Macedonian Organisation Ilinden and Others (no. 2) (cited above, §§ 36 and 38-39), both of those grounds have been found to be insufficient to justify a refusal to register. It does not seem that the purported formal problems with Ilinden’s registration papers, briefly referred to by the Blagoevgrad Regional Court but not mentioned by the Sofia Court of Appeal, were so serious as to amount to stand-alone grounds to refuse to register it.

42.  There has therefore been a breach of Article 11 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

43.  The applicants complained that the refusal to register Ilinden, which had in their view been based on the Bulgarian State’s policy to deny the existence of a Macedonian minority, had been discriminatory. They relied on Article 14 of the Convention, which provides:

“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.”

A.  The parties’ submissions

1.  The Government

44.  The Government submitted that the applicants had failed to exhaust domestic remedies. They had not attempted to bring proceedings under the Protection Against Discrimination Act 2003 to seek a declaration that they had been discriminated against and damages. In the Government’s view, the fact that the alleged discrimination had resulted from a judicial decision had not been a bar to relief under the 2003 Act. In the applicants’ case the decisions of the Blagoevgrad Regional Court and the Sofia Court of Appeal had been given in non-contentious registration proceedings, and under Bulgarian law did not enjoy res judicata, as illustrated by the fact that those decisions had not precluded further registration requests by the same organisation. A claim under the 2003 Act in relation to those decisions had hence not been inconceivable. Mere doubts as to whether a domestic remedy was likely to be effective was not an excuse to eschew it.

45.  The Government went on to argue that if the Court were to find the complaint admissible, it should follow its previous rulings in similar cases and hold that there was no need to examine it separately.

2.  The applicants

46.  The applicants submitted that although the Commission for Protection Against Discrimination and the administrative courts routinely reviewed decisions of the administrative authorities, and although they could conceivably deal with grievances concerning logistical and similar issues relating to courts, such as access to court buildings for disabled people, it was unimaginable, and against the principle of legal certainty, that they would review the merits of a court decision.

47.  The applicants went on to argue that the Court should examine the complaint separately. The right not to be discriminated against was not a secondary one, and their complaint under Article 14 of the Convention raised additional issues which were not less important than those under Article 11 and called for a separate ruling. Properly seen, the facts which underpinned their complaint under Article 14 were not identical to those underlying their complaint under Article 11 but were much broader.

48.  Ilinden was the only non-governmental organisation in Bulgaria which had been refused registration because it had been seeking to promote the rights of a specific ethnic group. There were many other organisations which supported ethnic minorities, but only those supporting ethnic Macedonians were routinely refused registration. The judicial decisions which had done that, such as those in the case at hand, had to be seen against the backdrop of the Bulgarian State’s policy of denying the existence of a Macedonian ethnic identity, and had reflected that policy.

49.  Another element showing that the applicants had been discriminated against had been the systematic restrictions of their rights under Article 11 of the Convention, as well as the rights of other ethnic Macedonians, during the past two and a half decades.

B.  The Court’s assessment

50.  The complaint relates 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 Ilinden. Although the applicants insisted that their grievance under Article 14 required separate consideration, especially when seen against the overall background to which they referred, the Court, having carefully reviewed their arguments, does not find this to be the case.

51.  In general, the Court examines complaints under Article 14 in addition to those under the substantive Article in conjunction with which it is being relied on only if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case and a separate examination is necessary (see, among other authorities, Airey v. Ireland, 9 October 1979, § 30, Series A no. 32; Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; X and Y v. the Netherlands, 26 March 1985, § 32, Series A no. 91; Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 89, ECHR 1999-III; Aziz v. Cyprus, no. 69949/01, § 35, ECHR 2004-V; Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII; Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 100, ECHR 2006-XI; and Oršuš and Others v. Croatia [GC], no. 15766/03, § 144, ECHR 2010).

52.  Furthermore, in several cases not materially different from the present one - some of which concerned interferences with the rights of persons asserting an ethnic minority consciousness - the Court, having found a violation of the substantive Convention right at issue, saw no need additionally to deal with the complaint under Article 14 (see, among other authorities, Sidiropoulos and Others v. Greece, 10 July 1998, § 52, Reports of Judgments and Decisions 1998-IV; Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 49, ECHR 1999-VIII; Emek Partisi and Şenol v. Turkey, no. 39434/98, § 31, 31 May 2005; Ivanov and Others, cited above, § 78; United Macedonian Organisation Ilinden and Others, cited above, § 84; Bekir-Ousta and Others v. Greece, no. 35151/05, § 51, 11 October 2007; Emin and Others v. Greece, no. 34144/05, § 37, 27 March 2008; Tourkiki Enosi Xanthis and Others v. Greece, no. 26698/05, § 63, 27 March 2008; United Macedonian Organisation Ilinden and Others (no. 2), cited above, § 49; and National Turkish Union and Kungyun v. Bulgaria, no. 4776/08, § 52, 8 June 2017).

53.  The Court sees no reason to depart from that approach in this instance. Having regard to its findings in paragraphs 39-42 above, it finds no need to examine separately the admissibility or merits of the complaint under Article 14 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

54.  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.”

A.  Damage

55.  The applicants claimed 1,500 euros (EUR) each in respect of the distress and frustration which they had experienced as a result of the courts’ refusal to register Ilinden. They pointed out that this was the third such refusal, and that they had also suffered other breaches of their right to freedom of assembly in relation to their involvement with the organisation.

56.  The Government left it to the Court to decide on the appropriate award.

57.  The Court notes that an award of just satisfaction must be based on the fact that there has been an unjustified restriction of the applicants’ right to freedom of association. Nonetheless, this is the third occasion on which Ilinden has been refused registration, on grounds found insufficient by the Court (see United Macedonian Organisation Ilinden and Others, §§ 64-79, and United Macedonian Organisation Ilinden and Others (no. 2), §§ 35-41, both cited above). In these circumstances, the Court awards the nine applicants jointly EUR 12,000, plus any tax that may be chargeable.

B.  Costs and expenses

58.  The applicants sought reimbursement of EUR 3,120 in respect of the fees charged by their representative for thirty-nine hours of work on the case, at EUR 80 per hour. They requested that any award under this head be made directly payable to the Bulgarian Helsinki Committee. In support of their claim, they submitted a conditional fee agreement between the first applicant and the Bulgarian Helsinki Committee and a time-sheet for Mr Kanev’s work on the case.

59.  The Government submitted that the claim was excessive, given that the case only raised issues which were the subject of well-established case-law of the Court.

60.  According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.

61.  Having regard to these principles and the material in its possession, the Court considers it appropriate to award jointly to the applicants EUR 2,000, plus any tax that may be chargeable to them. As requested by the applicants, this sum is to be paid directly into the bank account of the Bulgarian Helsinki Committee, where their representative works.

C.  Default interest

62.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint concerning the restriction of the applicants’ right to freedom of association admissible;

 

2.  Holds that there has been a violation of Article 11 of the Convention;

 

3.  Holds that there is no need to examine the admissibility or merits of the complaint under Article 14 of the Convention;

 

4.  Holds

(a)  that the respondent State is to pay jointly to the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of the Bulgarian Helsinki Committee;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 11 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                           Angelika Nußberger
       Registrar                                                                              President




APPENDIX

Name                                          Year of birth      Residence

Yordan Kostadinov Ivanov        1932                    Sandanski

Ivan Dimitrov Hadzhiev             1969                    Sofia

Georgi Stefanov Andonov         1948                    Sandanski

Kiril Serafimov Tilev                  1951                    Sandanski

Yordan Petrov Berbatov             1937                    Blagoevgrad

Slavcho Vangelov Barakov        1952                    Petrich

Aleksandar Velev Manchev        1964                    Sandanski

Darinka Gavrilova Tapanska       1949                    Rupite

Angel Stefanov Angelov            1941                    Poleto