EUROPEAN
COURT OF HUMAN RIGHTS
CASE
OF STANKOV AND THE UNITED MACEDONIAN ORGANISATION ILINDEN v.
(Applications nos. 29221/95 and 29225/95)
JUDGMENT
FINAL
02/01/2002
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 Stankov and the
United Macedonian Organisation Ilinden
v.
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mrs E.
Palm, President,
Mrs W. Thomassen,
Mr L. Ferrari Bravo,
Mr J. Casadevall,
Mr B. Zupancic,
Mr T. Pantîru,
Mrs S. Botoucharova,
judges,
and Mr M. O’Boyle, Section
Registrar,
Having deliberated in private on
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in two applications
(nos. 29221/95 and 29225/95) against Bulgaria lodged with the European
Commission of Human Rights (“the Commission”) under former Article 25 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Boris Stankov
and the United Macedonian Organisation Ilinden (“the applicants”). The applications were
introduced on
2. The applicants appointed as their representative Mr Iordan Kostadinov Ivanov, a Bulgarian
citizen residing in Sandanski, who was chairman of
the applicant association for an unspecified period. In June 1998 Mr Ivanov, in turn,
instructed Mr L. Hincker, a
lawyer practising in
The Bulgarian Government (“the Government”) were
represented by their Agent, Mrs G. Samaras, of the
Ministry of Justice.
3. The applicants alleged a violation of Article 11
of the Convention in respect of the authorities’ refusal to allow the holding
of their commemorative meetings on
4. Having joined the applications and declared them
partly inadmissible on
5. The applications were allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.
6. By letter of
By letter of
7. A hearing, which was initially scheduled for 12
September 2000 but was postponed upon the Government’s request, took place in
public in the Human Rights Building, Strasbourg, on 17 October 2000 (Rule 59 §
2).
There appeared before the Court:
(a) for the Government
Mrs G. Samaras, Ministry of Justice, Agent;
(b) for
the applicants
Mr L. Hincker, Avocat, Counsel,
Mrs M. Lemaitre, Adviser.
Mr Iordan Kostadinov Ivanov, chairman of
the applicant association, was also present.
The Court heard addresses by Mr Hincker and Mrs Samaras.
8. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The United Macedonian Organisation
Ilinden (“the applicant association” or “Ilinden”) is an association based in south-west
Mr Boris Stankov
is a Bulgarian citizen who was born in 1926 and resides in Petrich.
At the relevant time he was the chairman of a branch of the applicant
association.
A. Background of the case
1. The founding and the dissolution of the applicant association
10. The United Macedonian Organisation
Ilinden was founded on
According to the applicants’ submissions before the Court, the
main activity of the applicant association was the organisation
of celebrations to commemorate historical events of importance for Macedonians
in
11. In 1990 Ilinden applied
for, but was refused, registration. In the proceedings for registration the
12. In their decisions of July and November 1990 and
March 1991 the courts found that the applicant association’s aims were directed
against the unity of the nation, that it advocated national and ethnic hatred,
and that it was dangerous for the territorial integrity of
13. The judgment of the Supreme Court of
“[T]he lower courts correctly
established that the aims of the [applicant association] under its statute and programme were directed against the unity of the nation...
[The material in the case] demonstrates that the [applicant association] seeks
to disseminate the ideas of Macedonianism among the
Bulgarian population, especially in a particular geographical area. [Those
ideas] presuppose the ‘denationalisation’ of the
Bulgarian population and its conversion into a Macedonian population.... It
follows that the [applicant association] is directed against the unity of the
nation and is therefore prohibited under Article 35 § 3 of the [1971]
Constitution ...”
14. It appears undisputed between the parties that
during the relevant period the applicant association underwent changes of
leadership and that there was internal conflict. Its local branches or separate
factions differed in their views and activities.
2. Public meetings prior to the period under consideration
15. The applicant association held a meeting for the
first time on
16. On
“1. Our
rights as a minority, of which we have been deprived, should be guaranteed to
us in accordance with the international agreements on minorities.
[We demand:]
2. The introduction of the
[study of] the Macedonian language, history and culture in all educational
institutions in Pirin
3. The right to radio and
television broadcasts in the Macedonian language...
...
5. That an end be put to the
assimilation process and the destruction of the Macedonian culture.
6. The right to publish in the
Macedonian language...
7. ...that the Macedonian
church should be independent...
8. That all Bulgarian
political parties on the
...
14. The complete cultural,
economic and political autonomy of Pirin
...
16. Should the Bulgarian
Government not respond positively to our demands, Ilinden
shall appeal to the United Nations Organisation, the
[Conference on] Security and Co-operation in Europe, the European Parliament,
the Great Powers, in the interest of peace in the Balkans and in Europe and
with a view to avoiding military conflicts due to the emerging nationalism in
Bulgaria, Serbia, Greece and Albania, with the following demands: annulment of
the separatist military union of 20 February 1912 between Bulgaria, Serbia and
Greece, withdrawal of the invaders from the occupied territories, ...
unification of Macedonia under the auspices of the United Nations and with the
protection of the Great Powers ...”
17. According to a police report, drawn up in 1998 by
the director of the police in the region and submitted to the Court by the
Government, “fierce anti-Bulgarian declarations” had been made at the meetings
of
As explained in the report, on
The report concluded:
“...[T]he
events organised by Ilinden
are provocative. There is a real risk of incidents. For that reason, since 1992
the municipalities in the region normally refuse to allow such events to
proceed. With a view to protecting the law, the assistance of the prosecuting
authorities and of the police is normally sought.”
18. The applicants submitted copies of photographs,
written testimonies and statements of persons who claimed that on several
occasions between 1990 and 1994 there had been police actions and acts of
private individuals obstructing the activities of the applicant association.
They also submitted copies of newspaper articles accusing Ilinden of misappropriating Bulgarian national symbols,
describing its leaders as uneducated, mentally ill or traitors, and denying the
existence of a Macedonian minority in
B. Prohibitions against the holding of meetings during the
period under consideration
1. Events of July 1994
19. In July 1994 Mr Stankov, as chairman of the Petrich
branch of the applicant association, requested the mayor of Petrich
to authorise a meeting in the area of Samuilova krepost,
to be held on
On
20. Despite the refusal of the authorities, on
In the Government’s submission, the allegation that the area had
been sealed off was “manifestly ill-founded”.
2. Events of April 1995
21. On
This was refused on
22. On
The applicants submitted that a group of their supporters who
had travelled to the Rozhen
monastery on
3. Events of July 1995
23. In July 1995, as in previous years, the applicant
association again requested authorisation to hold a
commemorative meeting on
4. Events of April 1997
24. On
On
25. On 15 April 1997 Ilinden
appealed to the Sandanski District Court against the
mayor’s refusal stating inter alia that the
mayor had not allowed them, “as a separate ethnic community”, to organise a meeting at the tomb of their national hero.
On
26. The date on which that order was notified to the
applicant association is unclear. The applicants initially denied having
received a response to their appeal, but in later submissions to the Commission
stated that on
27. As the defects in the appeal were not remedied
within the statutory seven-days’ time-limit, on
28. The applicants claimed that on
5. Events of July and August 1997
29. On
30. On
By decision of
31. The applicants submitted that on
C. Other evidence concerning the aims and the activities
of the applicant association and its supporters
32. The parties made submissions and presented copies
of documents concerning the activities of the applicant association.
It appears that some of the documents relied upon by the
Government concern statements of persons adhering to a faction or a branch of
the applicant association. Those groups apparently differed in their views and
activities.
33. The Government relied on the declaration of
The Government submitted that during meetings, in letters to
institutions or in statements to the media persons associated with the
applicant association and its supporters had made declarations to the effect
that they wished that the Bulgarians left the region of Pirin
Macedonia and stated that there could be “no peace on the Balkans unless the
Bulgarians, the Geeks and all others recognise the
national rights of the Macedonian people and no democracy in any Balkan country
without such recognition”.
34. The Government submitted copies of several issues
of Vestnik za Makedonzite v Balgaria i
Makedonska poshta
further invited all Macedonians to a procession in
35. A hand-written poster, allegedly issued by
followers of the applicant association in Petrich,
called for a boycott of the 1994 parliamentary elections “to prevent the
establishment of legitimate Bulgarian authorities in the region” of Pirin
36. An appeal for a boycott of the 1997 elections
stated that the Macedonians should abstain from voting in protest against the
lack of recognition of their rights as a minority.
37. In a declaration published in the press in the
Former Yugoslav Republic of Macedonia, the leaders of a faction linked to the
applicant association criticised the Bulgarian
authorities for their refusal to recognise the
Macedonian language and the Macedonian minority in Bulgaria and appealed to
various international organisations to exert pressure
on the Bulgarian authorities in this respect.
38. The Government submitted a copy of a “memorandum”
addressed to the United Nations, signed by activists of the applicant association
or a faction of it, dated
The appeal also stated:
“[...] being conscious of the
contemporary economic and political realities in the Balkans,
Our peaceful and lawful means [...] are
to the advantage of the authorities who [...] deny the existence of a
Macedonian minority. Our democratic ways are to our detriment: the authorities
can afford political, economic and psychological pressure, and arms.”
39. Before the Court the Government relied on a
judgment of the Bulgarian Constitutional Court of
40. The Constitutional Court noted that UMOIPIRIN
could be regarded as a successor to or a continuation of the applicant
association. On that basis the
In particular, the
41. The Constitutional Court thus found that the
applicant association and UMOIPIRIN considered the region of Pirin as a territory which was only temporarily under
Bulgarian control and would soon become independent. Their activities were
therefore directed against the territorial integrity of the country and were as
such prohibited under Article 44 § 2 of the 1991 Constitution. The prohibition
was in conformity with Article 11 § 2 of the Convention, there
being no doubt that an activity against the territorial integrity of the
country endangered its national security.
The judgment was adopted by nine votes to three. The dissenting
justices gave separate opinions which have not been published.
D. Evidence submitted by the Government in support of
their allegation that some of the members of the applicant association were in
possession of arms
42. In support of this allegation the Government have submitted copies of two documents.
43. The first is a copy of an article from the Kontinent daily newspaper, dated 1/2 March 1997. The
newspaper informed that a Mr D.P.K. had been arrested
in Petrich for having threatened police officers with
blowing up their homes, as they had impeded his business. During the arrest the
police had allegedly discovered explosives in Mr D.P.K.’s home. The short publication went on by recalling
that Mr D.P.K. was allegedly a leader of Ilinden and a “Macedonian activist”.
44. The second submission appears to be a photocopy
of a flyer announcing the founding of an organisation
and inviting those interested to join. The document bears no signature. It
dates allegedly from 1995 and appears to have been typed on a typewriter.
The flyer explained that the newly created United Macedonian Organisation Nova did not wish to replace Ilinden. It criticised certain
leaders of the applicant association.
The flyer further stated that the new organisation
would form armed groups with the aim of “helping the
45. The Government have not
provided any comment or additional information on the contents of the two
documents submitted by them.
46. During the hearing before the Court, in response
to a question put to her, the Government’s agent informed the Court that no
criminal proceedings relevant to the present case have ever been brought
against members of the applicant association.
E. Government’s summary of the historical context
47. The Government stressed that knowledge of the
historical context and of the current situation in
“Historically, the Bulgarian nation
consolidated within several geographical regions, one of them being the
geographical region of
In 1934 the so-called ‘Macedonian
nation’ was proclaimed for the first time by a resolution of the Communist
International. Before that no reliable historical source had ever mentioned any
Slavic population in the region other than the Bulgarian population. After the
Second World War the Communist power in
In those parts of the geographical
region of Macedonia which were in Yugoslavia the realities of the bi-polar
cold-war world – where the relations between Yugoslavia and the socialist block
dominated by the USSR were tense – exacerbated the population’s feeling of doom
and exasperation and their fear that unification with Bulgaria proper would
never be possible. The forcible imposition of a Macedonian identity by the Tito
regime also played a decisive role.
Therefore, even if a process of
formation of a new nation has taken place, it was limited to the territory of
the
In the 1992 census, only 3,019
Bulgarian citizens identified themselves as Macedonians and indicated Macedonian
as their mother tongue. Another 7,784 declared themselves Macedonians in the
geographical sense, while allegedly indicating their Bulgarian national
conscience and mother tongue.
Individuals considering themselves
Macedonians are far from being discriminated against in
II. RELEVANT DOMESTIC LAW
48. The provisions of the Constitution of July 1991
concerning freedom of assembly read as follows:
Article 43
“(1) Everyone
shall have the right to peaceful and unarmed assembly at meetings and marches.
(2) The procedure for organising and holding meetings and marches shall be
provided for by act of Parliament.
(3) Permission
shall not be required for meetings to be held indoors.”
Article 44 § 2
“Organisations
whose activities are directed against the sovereignty or the territorial
integrity of the country or against the unity of the nation, or aim at stirring
racial, national, ethnic or religious hatred, or at violating the rights and
freedoms of others, as well as organisations creating
secret or paramilitary structures, or which seek to achieve their aims through
violence, shall be prohibited.”
49. The legal requirements for the organisation of meetings are set out in the Law on Meetings
and
Section 2
“Meetings and marches may be organised by individuals, associations, political or other
public organisations.”
Section 6 § 2
“(2) Every
organiser [of] or participant [in a march or a
meeting] shall be responsible for damage caused through his or her fault during
the [event].”
Section 8 § 1
“Where a meeting is to be held outdoors
the organisers shall notify in writing the
[respective] People’s Council or mayor’s office not later than 48 hours before
the beginning [of the meeting] and shall indicate the [name of] the organiser, the aim [of the meeting], and the place and time
of the meeting.”
Section 9 § 1
“The organisers
of the meeting shall take the measures necessary to ensure order during the
event.”
Section 10
“(1) The
meeting shall be presided over by a president.
(2) The
participants shall abide by the instructions of the president concerning the
preservation of [public] order ...”
50. Prohibitions against meetings are also regulated
by the Law on Meetings and
Section 12
“(1) Where the time or the
place of the meeting, or the itinerary of the march, would create a situation
endangering public order or traffic safety, the President of the Executive
Committee of the People’s Council, or the mayor, respectively, shall propose
their modification.
(2) The President of the
Executive Committee of the People’s Council, or the mayor, shall be competent
to prohibit the holding of a meeting, demonstration, or march,
where reliable information exists that:
1. it
aims at the violent overturning of Constitutional public order or is directed
against the territorial integrity of the country;
2. it
would endanger public order in the local community;
...
4. it
would breach the rights and freedoms of others.
(3) The prohibition shall be
imposed by a written reasoned act not later than 24 hours following the
notification.
(4) The organiser
of the meeting, demonstration or march may appeal to
the Executive Committee of the People’s Council against the prohibition
referred to in the preceding paragraph. The Executive Committee shall decide
within 24 hours.
(5) Where the Executive
Committee of the People’s Council has not decided within [that] time-limit, the
march, demonstration or meeting may proceed.
(6) If the appeal is
dismissed the dispute shall be referred to the respective district court which
shall decide within five days. That court’s decision shall be final.”
51. The Law on Meetings and
The 1991 Constitution abolished the Executive Committees and
established the post of mayor, elected by direct universal suffrage, as the
“organ of the executive power in the municipality” (Article 139).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
52. The Government reiterated and expanded, in the
light of recent developments, upon their objections made at the admissibility
stage of the proceedings. They submitted that certain discrepancies in the
applicants’ statements before various authorities demonstrated the abusive
nature of the applications. The Government further maintained that domestic
remedies had not been exhausted and that the applications were manifestly
ill-founded.
Commenting the Commission’s decision on Ilinden’s
locus standi, the Government, while not
disputing in their memorial the Commission’s conclusion, stated that the
judicial decisions of 1990 and 1991 (see above paragraphs 11-13) had the legal
effect of a ban on Ilinden’s activities as an
association and as a group of individuals. At the oral hearing the Government’s
agent asked the Court to find, on that ground, that the applicant association
had no locus standi.
The standing of Mr Stankov
was not called into question. The Government considered, however, that he was
not validly represented before the Court, as he had not authorised
Mr Ivanov, his
representative, to delegate his power to act to Mr Hincker, who – moreover – had only mentioned Ilinden in his letter to the Court announcing his
participation as counsel. The Government further questioned, for the first time
in their submissions on Article 41, the validity of Mr
Hincker’s power to represent the applicant
association, there having been no collective decision by the association’s
members authorising Mr Ivanov to delegate his power to act to another person.
53. The applicants invited the Court to rule on the
merits.
54. The Court recalls that, under the Convention
system as in force after 1 November 1998, where the respondent Government
repeat objections raised and examined at the admissibility stage, its task is
to verify whether there are special circumstances warranting re-examination of
questions of admissibility (Velikova v.
Bulgaria, no. 41488/98, § 57, ECHR 1999-V; and Basic v. Austria,
no. 29800/96, § 34, to be published in the court’s official reports).
The provision of Article 35 § 4 in fine of the
Convention, which allows the Court to declare an application inadmissible at
any stage of the proceedings, does not signify that a respondent State is able
to raise an admissibility question at any stage of the proceedings if it could
have been raised earlier (see paragraph 88 of the Explanatory Report to
Protocol No. 11 to the Convention and Rule 55 of the Rules of Court)
or to reiterate it where it has been rejected.
55. It is true that, unlike the Velikova
and Basic cases, in the present instance the questions of admissibility were
examined by the Commission, prior to the entry into force of Protocol No. 11 to
the Convention, and not by the Court. The Court observes nevertheless that,
pursuant to Article 5 § 3 in fine of Protocol No. 11, applications
declared admissible by the Commission and transmitted to the Court without the
Commission having completed their examination, shall be dealt with “as
admissible cases”. The judgment of the Chamber in such cases is not final,
subject to the provisions of Article 44 § 2 of the Convention.
The Court finds, therefore, that in cases falling under Article
5 § 3 in fine of Protocol No. 11 to the Convention it will only re-open
questions of admissibility if there are special circumstances warranting such
re-examination.
56. In the present case the Government essentially
reiterated their objections as to the admissibility of the application, which
had already been examined and rejected by the Commission in its decision of
57. The Court notes that the Commission dealt with
the Government’s arguments in detail and gave full reasons for its decision.
Having carefully examined the Government’s submissions, including their
comments in the light of new developments, there are no new elements which
would justify a re-examination of the admissibility issues in the present case.
In respect of Mr Stankov’s
legal representation before it, the Court is satisfied, on the basis of the authorisation forms signed by him and Mr Ivanov (see paragraph 2 above), that he is validly
represented. The Court finally does not find anything which would cast doubt on
Mr Hincker’s power to
represent Ilinden. The Court leaves open the question
whether the Government are estopped
from raising that question for the first time in their submissions on Article
41 of the Convention.
The Government’s preliminary objections are therefore dismissed.
II. SCOPE OF THE CASE
58. The Government relied on evidence which did not
concern directly the commemorative meetings of
The applicants also relied on evidence concerning events outside
the scope ratione temporis
or materiae of the case while disputing
the relevance of some of the material submitted by the Government.
59. The Court recalls that the admissibility decision
delimits the scope of the case before it. It follows that it is not its task to
decide on complaints concerning events from 1990 to 1993 (which were declared
inadmissible by the Commission). Nor is it called upon to express a view in
this judgment on the question whether the banning of meetings in 1998, 1999 and
2000 or the Constitutional Court’s judgment of 29 February 2000 were consistent
with the Convention (those issues being the subject-matter of other
applications pending before the Court: nos. 44079/98, 59489/00 and 59491/00).
The scope of the present case is confined to the applicants’
complaints that the authorities prohibited their meetings on
III. ALLEGED VIOLATION OF ARTICLE 11
OF THE CONVENTION
60. The applicants alleged a violation of Article 11
of the Convention, which, in so far as relevant, provides as follows:
“1. Everyone
has the right to freedom of peaceful assembly and to freedom of association
with others ...
2. No
restrictions shall be placed on the exercise of these rights 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. Arguments of the parties
1. The applicants
61. The applicants submitted that the ban on meetings
organised by them in commemoration of certain
historical events, and the attitude of the authorities at the relevant time was
aimed at suppressing the free expression of ideas at peaceful gatherings. As
such it amounted to an interference with their rights under Article 11 of the
Convention, seen against this background as lex
specialis in respect of Article 10 of the
Convention.
62. They contended that the interference had not been
“prescribed by law” as the lack of registration of their association, which had
been relied upon by the mayors, was not among the grounds justifying a
prohibition of demonstrations under section 12 of the Law on Meetings and
63. Furthermore, they rejected as groundless the
Government’s assertion that the gatherings organised
by them had posed a threat. They had been entirely peaceful: their purpose had
been to commemorate historical events considered as an important part of the
history of the Macedonian people. The gatherings, which normally lasted about
three hours, had always commenced with texts being read out, and had proceeded
with poems, music and songs.
64. The applicants further questioned the legitimacy
of the aims pursued by the bans and their justification.
The aim of the authorities – as the applicants saw it – had been
to suppress the dissemination of the idea that a Macedonian minority existed in
65. They further maintained that the prohibitions
complained of, albeit limited to certain historical sites and to particular
dates, amounted in reality to a general ban on meetings of the applicant
association, since not a single meeting organised by
it had been authorised. Such an absolute ban was
disproportionate.
Nothing in the material submitted by the Government could lead
to the conclusion that they were seeking secession from
2. The Government
66. The Government doubted the applicants’ intention
to hold “peaceful” demonstrations, there allegedly being evidence that some of
the organisation’s members had been armed. Reference
was made in this respect to two papers they had submitted (see above paragraphs
42-46). They also referred to evidence allegedly demonstrating that since 1990
the meetings of Ilinden had always been marked by
conflict and clashes, both verbal and physical, between supporters of the
association and others. That was inevitable because of the provocative
anti-Bulgarian statements made at those meetings and the offensive language
used.
67. It was further emphasised
that members of the applicant association had never been prevented from
visiting the historical sites in question provided that they did not carry
posters or other material containing threats against the unity of the nation,
the country’s territorial integrity or the rights of others. The applicants’
freedom of assembly was thus intact.
68. If it was considered that there had been an
interference with the applicants’ rights under Article 11 of the Convention, that interference had been lawful and had been
based on unambiguous provisions of the Constitution and the Law on Meetings and
The Government disputed the applicants’ position that the
reasons for the bans had been changing constantly – thus allegedly disclosing
the lack of a clear legal basis. The reasons for all the bans had invariably
been the unconstitutional activities and statements of the applicant
association (which allegedly threatened the country’s territorial integrity and
national security) and the risk of incidents endangering public order.
69. With reference to the judgments of the Supreme
Court of 1990 and 1991 (see paragraphs 12 and 13 above) and to the judgment of
the Constitutional Court of 29 February 2000 (see paragraphs 39-41 above), it
was stressed that the applicant association had been dissolved as it had been
established that its activities threatened the country’s territorial integrity
and had been unconstitutional. “Reliable information” that a gathering might be
directed against the territorial integrity of the country was a valid ground
for a ban on such a gathering under section 12 § 2 of the Law on Meetings and
70. In addition, the measures complained of pursued a
number of legitimate aims: the protection of national security and territorial
integrity, the protection of the rights and freedoms of others, guaranteeing
public order in the local community and the prevention of disorder and crime.
71. In the Government’s view, Ilinden
infringed the rights and freedoms of others because it aspired to create a
Macedonian nation among people belonging to the Bulgarian nation and demanded
the imposition of a Macedonian identity and institutions in the region of Pirin to the exclusion of all Bulgarian institutions. The
handful of supporters of those ideas – some 3,000 in a region with a population
of about 360,000 – had assumed the right to speak for the people.
Most importantly, the applicant association was a separatist
group which sought the secession of the region of Pirin
from
72. With reference to the historical and current
context of Bulgaria and the Balkans (see paragraph 47 above), the Government
submitted that the applicant association’s insistence on differentiation and
“collective rights”, despite the fact that every person in Bulgaria fully
enjoyed all rights and freedoms, including cultural and political rights,
disclosed that their genuine goal had been the imposition on the Bulgarian
population of an alien national identity.
Even if a Macedonian minority existed in
73. In the context of the difficult transition from
totalitarian regimes to democracy, and due to the attendant economic and
political crisis, tensions between cohabiting communities, where they existed
in the region, were particularly explosive. The events in former
Moreover, the national authorities were better placed to assess
those risks. It was conceivable that the same facts might have different
implications in other States, depending on the context. The facts of the
present case had to be seen, however, against the background of the
difficulties in the region.
74. The time and place chosen by the applicant
association for their regular meetings had been inappropriate. They had
coincided with traditional, widely attended, ceremonies and fairs,
commemorating events of historical importance which had involved sensitive
issues. The applicant association’s provocative attitude had caused incidents
in the past and had prompted very negative reaction by the population. The
authorities had thus adopted the practice of not allowing Ilinden’s
meetings at the same time and place as the official celebrations.
Referring to the Commission’s decisions in application no.
8191/78 (Rassemblement Jurassien
& Unité jurasienne v.
Switzerland, DR 17, p. 93) and application no. 8440/78 (Christians against
Racism and Fascism v. the United Kingdom, DR 21 p. 138), the Government
submitted that given the State’s margin of appreciation, the prohibition of
demonstrations in conditions of public tension and where the authorities could
reasonably expect clashes was justified for the preservation of public order.
75. In their submission, the bans complained of were
proportionate to the legitimate aims pursued and did not violate Article 11 of
the Convention.
B. The Court’s assessment
1. Applicability
76. The Government expressed doubts as to the
peaceful character of the applicant association’s meetings and on that basis
disputed the applicability of Article 11 of the Convention.
77. The Court recalls that Article 11 of the
Convention only protects the right to “peaceful assembly”. That notion –
according to the Commission’s case-law – does not cover a demonstration where
the organisers and participants have violent
intentions (no. 13079/87, dec. 6.3.89, DR 60,
p. 256; no. 8440/78, Dec. 16.7.80, DR 21, p. 138).
78. In the present case, having carefully studied all
the material before it, the Court does not find that those involved in the organisation of the prohibited meetings had violent
intentions (see above paragraphs 10, 12, 13, 16, 17, 20, 22, 28, 31 and 32-46).
Article 11 is thus applicable.
2. Whether there has been an interference
79. The Court notes that on all occasions under
examination the authorities prohibited the meetings planned by both applicants.
That was, indeed, a practice that had been invariably followed ever since 1992
(see above paragraphs 17 and 74). In July 1994 the Chairman of the applicant
association and another person were issued police warnings to stay away from
the site of their planned commemorative meeting.
In one case, on
That approach by the authorities, allowing members of the
applicant association to attend the official ceremonies held at the same places
and time on the occasion of the same historical events, provided that they did
not carry their posters and did not hold separate demonstrations, was
reiterated in the mayor’s decision of 11 April 1997 and the Government’s
submissions to the Court (see paragraphs 24 and 66 above).
80. On the basis of the above, the Court considers
that there has undoubtedly been an interference with both applicants’ freedom
of assembly, within the meaning of Article 11 of the Convention.
3. Whether the interference was prescribed by law
81. The Court notes that the reasons given by the
authorities for the prohibition of meetings fluctuated and were not elaborate.
They repeatedly mentioned the lack of registration of the applicant
association, a fact which could not in itself, under the applicable law, serve as
ground for a ban on a meeting. On two occasions the mayors did not provide
reasons and that was only partially rectified by the district courts in their
judgments on appeal (see above paragraphs 19, 21, 23, 24, 29 and 30).
The Court observes, however, that the authorities referred to an
alleged danger to public order which in accordance with domestic law was among
the grounds justifying interference with the right to peaceful assembly. The
fact that Ilinden had been refused registration was
apparently considered relevant in the assessment of the alleged danger to
public order (see above paragraphs 19 and 30 in fine). Furthermore, the
prohibitions complained of were imposed by decisions of the competent mayors
and courts in accordance with the procedure prescribed by the Law on Meetings
and
82. In these circumstances the Court accepts that the
interference with the applicants’ freedom of assembly may be regarded as being
“prescribed by law”.
In so far as the applicants challenged the soundness of the
authorities’ finding that there had been a danger to public order, that issue
falls to be examined in the context of the question whether or not the
interference with the applicants’ freedom of assembly had a legitimate aim and
was necessary in a democratic society, within the meaning of Article 11 § 2 of
the Convention.
4. Legitimate aim
83. In the Government’s view the measures taken
against Ilinden’s commemorative meetings pursued
several legitimate aims: the protection of national security and territorial
integrity, the protection of the rights and freedoms of others, guaranteeing
public order in the local community and the prevention of disorder and crime.
The applicants disputed that position. In their submission the
disguised objective of the prohibitions complained of had been the denial of
the collective rights of the Macedonian minority.
84. The Court recalls that the enumeration of
exceptions to freedom of expression and assembly, contained in Articles 10 and
11, is exhaustive. The definitions of those exceptions are necessarily
restrictive and must be interpreted narrowly (see, the Sidiropoulos
v.
Having regard to all the material in the case the Court accepts
that the interference was intended to safeguard one or more of the interests
cited by the Government.
5. “Necessary in a democratic society”
(a) General principles in the
Court’s case-law
85. The Court recalls that notwithstanding its
autonomous role and particular sphere of application, Article 11 must also be
considered in the light of Article 10. The protection of opinions and the
freedom to express them is one of the objectives of the freedoms of assembly and
association as enshrined in Article 11 (Freedom and Democracy Party (ÖZDEP)
v. Turkey [GC] , no. 23885/94, § 37, to be
published in the Court’s official reports.
Such a link is particularly relevant where – as here – the
authorities’ intervention against an assembly or an association was, at least
in part, in reaction to views held or statements made by participants or
members.
86. Freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic conditions
for its progress and for each individual’s self-fulfilment.
Subject to paragraph 2 of Article 10, it is applicable not only to
“information” or “ideas” that are favourably received
or regarded as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb. Such are the demands of
pluralism, tolerance and broadmindedness without which there is no “democratic
society” (see, the Handyside v. the United Kingdom
judgment of 7 December 1976, Series A no. 24, p. 23, § 49; Gerger v Turkey [GC], appl.
24919/94, § 46, 8 July 1999, unreported).
Likewise, the freedom of assembly as enshrined in Article 11 of
the Convention protects a demonstration that may annoy or give offence to
persons opposed to the ideas or claims that it is seeking to promote (the Plattform “Ärzte für das Leben”
v. Austria judgment of 21 June 1988, Series A no. 139, § 32).
87. The expression “necessary in a democratic
society” implies that the interference corresponds to a “pressing social need”
and, in particular, that it is proportionate to the legitimate aim pursued.
The Contracting States have a certain margin of appreciation in
assessing whether such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions applying it, even
those given by an independent court. The Court is therefore empowered to give
the final ruling on whether a “restriction” is reconcilable with the rights
protected by the Convention (see Gerger v
When the Court carries out its scrutiny, its task is not to
substitute its own view for that of the relevant national authorities but
rather to review under Article 11 the decisions they took. This does not mean
that it has to confine itself to ascertaining whether the respondent State
exercised its discretion reasonably, carefully and in good faith; it must look
at the interference complained of in the light of the case as a whole and
determine, after having established that it pursued a “legitimate aim”, whether
it was proportionate to that aim and whether the reasons adduced by the
national authorities to justify it are “relevant and sufficient”. In so doing,
the Court has to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 11 and,
moreover, that they based their decisions on an acceptable assessment of the
relevant facts (the United Communist Party of Turkey and Others v. Turkey
judgment of 30 January 1998, Reports 1998-I, § 47).
88. There is little scope under Article 10 § 2 of the
Convention for restrictions on political speech or on debate on questions of
public interest (see, mutatis mutandis, the Wingrove
v. the
One of the principal characteristics of democracy is the
possibility it offers of resolving a country’s problems through dialogue,
without recourse to violence, even when those problems are irksome. Democracy
thrives on freedom of expression. From that point of view, there can be no
justification for hindering a group solely because it seeks to debate in public
the situation of part of the State’s population and to find, according to
democratic rules, solutions capable of satisfying everyone concerned (the
United Communist Party of Turkey judgment, loc. cit., § 57).
89. The inhabitants of a region in a country are
entitled to form associations in order to promote the region’s special
characteristics. The fact that an association asserts a minority consciousness
cannot in itself justify an interference with its rights under Article 11 of
the Convention (see the Sidiropoulos judgment, loc.
cit., § 44).
90. Admittedly, it cannot be ruled out that an organisation’s programme may
conceal objectives and intentions different from the ones it proclaims. To
verify that it does not, the content of the programme
must be compared with the organisation’s actions and
the positions it defends (the United Communist Party of Turkey judgment, loc.
cit., § 58).
An essential factor to be taken into consideration is the
question whether there has been a call for the use of violence, an uprising or
any other form of rejection of democratic principles (Freedom and Democracy
Party (ÖZDEP) v. Turkey, loc. cit., § 40). Where there has been incitement
to violence against an individual or a public official or a sector of the
population, the State authorities enjoy a wider margin of appreciation when
examining the need for an interference with freedom of expression (see the Incal v. Turkey judgment of 9 June 1998, Reports
1998-IV, p. 1567, § 48 and Sürek (No. 1) v.
Turkey [GC], no. 26682/95, § 61, ECHR 1999-IV).
(b) Application of the general
principles to the present case
91. The authorities referred to the fact that the
applicant association had been refused registration because the courts found
that it was anti-constitutional (see paragraphs 11-13 above).
92. The Court considers, however, that while past
findings of national courts which have screened an association are undoubtedly
relevant in the consideration of the dangers that its gatherings may pose, an
automatic reliance on the very fact that an organisation
has been considered anti-constitutional – and refused registration – cannot
suffice to justify under Article 11 § 2 of the Convention a practice of
systematic bans on the holding of peaceful assemblies.
The Court must rather scrutinise the
particular grounds invoked to justify the interference and the significance of
that interference.
(i) Grounds
invoked to justify the interference
(*) Alleged possession of arms
93. The Government produced a photocopy of a
typewritten flyer announcing the creation of armed groups (see paragraph 44
above). It has not been established, however, that it emanated from the
applicant association. The Government have not
provided any details. Nor have they explained the relevance of the newspaper
article submitted by them (see paragraph 43 above) which reported that a man
was suspected of certain offences, some of them apparently concerning a private
business conflict.
In the Court’s opinion it is evident that if there had been
preparation for armed action the Government would have been able to adduce more
convincing evidence in this respect.
(*) Alleged threat to public
safety
94. The Government argued that incidents had occurred
in the past, when the applicant association had held meetings and that there
was a likelihood of recurrence.
There is no evidence, however, of serious disturbances having
been caused by the applicants. The incidents referred to were of a minor nature
and did not result in prosecutions (see paragraphs 17, 18 and 46 above). The
decisions of the mayors and the local courts referred only to a hypothetical
danger for public order, without providing further details.
The risk of minor incidents thus did not call for a ban on Ilinden’s meetings.
(*) Alleged dangers stemming
from Ilinden’s goals and declarations
Separatist ideas
95. The Government stressed that the applicant
association imperilled
The applicants stated that the sole purpose of their meetings
had been to commemorate historical events and that they did not pursue
separatist goals.
96. On the basis of all the evidence, the Court finds
that at the relevant time it was not unreasonable for the authorities to
suspect that certain leaders of the applicant association – or small groups
which had developed from it – harboured separatist
views and had a political agenda that included the notion of autonomy for the
region of Pirin Macedonia or even secession from
Bulgaria. That is borne out by various statements made by those leaders (see
paragraphs 16, 33, 34 and 35). The Court also takes into account the findings
of the Supreme Court from 1990 and 1991 and of the
It follows that the authorities could anticipate that separatist
slogans would be broadcast by some participants during the commemorative
ceremonies.
97. The Court reiterates, however, that the fact that
a group of persons calls for autonomy or even requests secession of part of the
country’s territory – thus demanding fundamental constitutional and territorial
changes – cannot automatically justify a prohibition of its assemblies.
Demanding territorial changes in speeches and demonstrations does not
automatically amount to a threat to the country’s territorial integrity and
national security.
Freedom of assembly and the right to express one’s views through
it are among the paramount values in a democratic society. The essence of
democracy is its capacity to resolve problems through open debate. Sweeping
measures of a preventive nature to suppress freedom of assembly and expression
other than in cases of incitement to violence or rejection of democratic
principles – however shocking and unacceptable certain views or words used may
appear to the authorities, and however illegitimate the demands made may be –
do a disservice to democracy and often even endanger it.
In a democratic society based on the rule of law political ideas
which challenge the existing order and whose realisation
is advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of assembly as well as by other
lawful means.
98. The Court finds, therefore, that the probability
that separatist declarations would be made at meetings organised
by Ilinden could not justify a ban on such meetings.
Alleged propagation of violence and
rejection of democratic principles
99. The Government referred to statements which could
be interpreted as inviting the Bulgarians to leave the Pirin
region to the Macedonians (see above paragraphs 16, 17 and 33) and suggested
that even if the separatist aims of Ilinden had not
thus far been pursued by them in an openly violent manner, there had
nevertheless been some indications that that would happen.
The applicants rejected these allegations as groundless and
stressed the peaceful character of their meetings.
100. There is no doubt that seeking the expulsion of
others from a given territory on the basis of ethnic origin is a complete
negation of democracy.
It is noteworthy, however, that the Supreme Court, when refusing
to allow the registration of the applicant association in 1990 and 1991, and
the Constitutional Court in its judgment of 29 February 2000 (see above
paragraphs 12, 13 and 39-41) did not state that Ilinden’s
goals and activities involved incitement to violence or rejection of democratic
rule. Furthermore, no relevant criminal proceedings against members of Ilinden or participants in meetings have ever been brought
(see above paragraph 46).
101. Most of Ilinden’s
declarations and statements emphasised their reliance
on public debate and political pressure for the achievement of their goals and
expressly rejected violence (see paragraphs 10, 16, 37 and 38). Those
statements which could be interpreted as calling for violence or rejection of
democracy appear isolated against the background of all material in the case.
Moreover, since various persons and groups associated with Ilinden
had divergent views, not all the material cited necessarily reflected ideas and
goals that dominated the applicant association’s agenda.
102. In its judgment in the case of Incal v. Turkey the Court found that the mere fact that a
message read out at a commemorative ceremony to a group of people – which
already considerably restricted its potential impact on national security,
public order or territorial integrity – contained words such as “resistance”,
“struggle” and “liberation”, did not necessarily mean that it constituted an
incitement to violence, armed resistance or an uprising (loc. cit., §
50).
In the present case the Court takes into account the fact that
some of Ilinden’s declarations apparently included an
element of exaggeration as they sought to attract attention.
103. In the Court’s opinion, there is no indication
that the applicant association’s meetings were likely to become a platform for
the propagation of violence and rejection of democracy with a potential
damaging impact that warranted their prohibition. Any isolated incident could
adequately be dealt with through the prosecution of those responsible.
“Conversion” of the Bulgarian
population into a Macedonian population
104. The Government submitted that the applicant
association had sought the “conversion of the population in the region into a
Macedonian population” in order to achieve its final goal – secession from
The applicants maintained that Ilinden
was an association of the Macedonians in
105. The Court does not accept the argument that it
was necessary to limit the applicants’ right to demonstrate in order to protect
those whom they were allegedly trying to “convert”. It has not been shown that
unlawful means of “conversion”, infringing the rights of others, have been or were likely to be employed by the applicants.
Statements perceived as offensive by
the public opinion
106. It appears that Ilinden’s
meetings generated a degree of tension given the special sensitivity of public
opinion to their ideas which were perceived as an offensive appropriation of
national symbols and sacred values (see paragraphs 13, 17, 18 in fine,
24 and 47 above).
In particular, the applicants sought to commemorate historical
events, to which they attached a different significance to that which was
generally accepted in the country. They considered as Macedonian martyrs
historical personalities who were commonly and officially celebrated in the
country as Bulgarian national heroes and therefore sought to organise their meetings at the same times and places as the
traditional official ceremonies.
107. However, if every probability of tension and
heated exchange between opposing groups during a demonstration were to warrant
its prohibition, society would be faced with being deprived of the opportunity
of hearing differing views on any question which offends the sensitivity of the
majority opinion.
The fact that what was at issue touched on national symbols and
national identity cannot be seen in itself – contrary to the Government’s view
– as calling for a wider margin of appreciation to be left to the authorities.
The national authorities must display particular vigilance to ensure that
national public opinion is not protected at the expense of the assertion of
minority views no matter how unpopular they may be.
(ii) The significance of the
interference
108. The Government suggested that a fair balance was
achieved through the relative flexibility shown – when supporters of Ilinden were allowed to approach the historical sites
provided that they did not brandish banners or make speeches –, and that the
applicants should have chosen other sites for their meetings.
109. The Court considers that depriving the
applicants of the right to express their ideas through speeches or slogans at
meetings cannot reasonably be characterised as
evidence of flexibility. Indeed, the authorities had adopted the practice of
imposing sweeping bans on Ilinden’s meetings (see
above paragraphs 17 and 74).
Furthermore, it was apparent that the time and the place of the
ceremonies were crucial to the applicants, as well as for those attending the
official ceremony. Despite the margin of appreciation enjoyed by the Government
in such matters the Court is not convinced that it was not possible to ensure
that both celebrations proceeded peacefully either at
the same time or one shortly after the other.
(iii) The Court’s conclusion
110. As the Government have
pointed out, the applicant association had only about 3,000 supporters, not all
of whom were active.
The authorities nonetheless resorted to measures aimed at preventing
the dissemination of the applicants’ views at the demonstrations they wished to
hold.
111. That approach, in the circumstances where there
was no real foreseeable risk of violent action or of incitement to violence or
any other form of rejection of democratic principles was in the Court’s view
not justified under paragraph 2 of Article 11 of the Convention.
112. In sum, the Court finds that the authorities
overstepped their margin of appreciation and that the measures banning the
applicants from holding commemorative meetings were not necessary in a
democratic society, within the meaning of Article 11 of the Convention.
There was therefore a violation of that provision.
IV. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
113. 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. The applicants’ claims
114. Following the Commission’s decision of
By letter of
In respect of non-pecuniary damage, the applicants claimed
compensation for, inter alia, suffering as a
result of the actions of the authorities who allegedly sought to wipe out Ilinden.
115. In their memorial before the Court, which was
prepared without legal advice, the applicants did not set out claims for just
satisfaction. They did so at the hearing on
116. Before the Court the applicants did not claim
pecuniary or non-pecuniary damages. They requested the reimbursement of their
costs, claiming 10,000 German marks (DEM) in respect of the domestic
proceedings (trips to the local courts, secretarial and legal work),
DEM 15,000 in respect of the Strasbourg proceedings (including
8,127 French francs (FRF) for Mr Ivanov’s travel and subsistence expenses for the hearing in
Strasbourg, FRF 5,000 in translation expenses, and FRF 2,000 in other
expenses), as well as an additional FRF 35,000 in legal fees for their counsel.
The applicants submitted a copy of their agreement with Mr Hincker on legal fees and
copies of Mr Ivanov’s hotel
and airline-ticket invoices. They stated that they had been unable to present
proof of the remaining costs as they had not been legally represented at the
domestic level or before the Commission and had paid all the expenses with the
association’s resources.
B. The Government’s submissions
117. In respect of the applicants’ claims made in
August 1998, on
The Government’s reply to the applicants’ claims made in October
2000 was submitted at the hearing and in writing on
118. The claim in respect of costs in the domestic
proceedings – the Government continued – was out of proportion and abusive. The
applicants had only submitted, in each case, one-page standard requests and
appeals, evidently prepared without legal advice. No court fees had been due
and no other expenses incurred.
The DEM 15,000 claimed in respect of the
In the Government’s view, an award of FRF 35,000 in legal fees
would be clearly excessive as it did not correspond to the actual legal work
done by the applicants’ counsel and also because the economic conditions in the
respondent State should be taken into account. The lawyer’s claim was the
equivalent of 146 minimum monthly wages in
The Government concluded that an award of costs covering Mr Ivanov’s travel and
subsistence expenses for the hearing before the Court (FRF 8,127) plus FRF
5,000 in legal fees for Mr Hincker
would be acceptable, if the Court decided to award just satisfaction.
C. The Court’s assessment
119. Rule 60 § 1 of the Rules of Court provides, in
so far as relevant:
“any claim which the ... applicant may
wish to make for just satisfaction under Article 41 of the Convention shall,
unless the President of the Chamber directs otherwise, be set out in the
written observations on the merits or, if no such written observations are
filed, in a special document filed no later than two months after the decision
declaring the application admissible.”
120. The Court notes that on
It is true that at the hearing the applicants’ lawyer only
claimed costs. However, the Court cannot interpret his submissions as
withdrawing the claims filed by the applicants directly, without the
involvement of Mr Hincker,
in the absence of an express statement in that sense.
As regards the Government’s objection under Rule 60 § 1 of the
Rules of Court, the Court observes that the applicants’ memorial was prepared
without legal advice and that the claims which were submitted for the first
time at the hearing concerned solely their costs. It is clear that certain
costs and expenses, and in particular those related to the hearing, could not
be specified in advance.
Finally, the Government were given
every opportunity to comment in detail on all the applicants’ claims and have
done so, in December 1998 and December 2000.
In these circumstances, the Court considers that there is a
validly submitted claim for pecuniary and non-pecuniary damages and costs,
which should be examined.
121. The Court accepts that the applicants have
suffered non-pecuniary damage as a consequence of the violation of their right
to freedom of assembly. Deciding on an equitable basis, the
Court awards under this head to the applicant association and to Mr Stankov the global sum of
FRF 40,000, to be paid jointly to Mr Stankov and to the representative of Ilinden,
Mr Ivanov.
The claim in respect of pecuniary damages is unsubstantiated and
should be dismissed.
122. As regards costs in the domestic proceedings,
the Court agrees with the Government that the applicants were not legally
represented at that level and have not mentioned any legal fees paid.
The applicants must have incurred certain expenses, however, in
translating correspondence and submissions for the purposes of the
123. In addition, the amounts claimed in respect of Mr Ivanov’s appearance before the
Court (FRF 8,127) are to be awarded in full.
As regards counsel’s fees, the Court, noting that Mr Hincker was only involved in
the last stage of the proceedings and ruling on an equitable basis, awards FRF
25,000.
124. According to the information available to the
Court, the statutory rate of interest applicable in
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the
Government’s preliminary objections;
2. Holds by six votes to one that
there has been a violation of Article 11 of the Convention;
3. Holds by six votes to one, that the respondent State is
to pay jointly to Mr Stankov
and Mr Ivanov, within three
months from the date on which the judgment becomes final according to Article
44 § 2 of the Convention, 40,000 (forty thousand) French francs for
non-pecuniary damage;
4. Holds unanimously, that the respondent State is to pay
jointly to Mr Stankov
and Mr Ivanov, within three
months from the date on which the judgment becomes final according to Article
44 § 2 of the Convention, 36,127 (thirty six thousand one hundred twenty seven)
French francs for costs and expenses, together with any value-added tax that
may be chargeable;
5. Holds unanimously, that simple interest at an annual
rate of 4.26% shall be payable from the expiry of the above-mentioned three
months until settlement;
6. Dismisses unanimously the remainder of the applicants’
claims for just satisfaction.
Done in English, and delivered in
writing on
Michael O’Boyle Elisabeth
Palm
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mrs
Botoucharova is annexed to this judgment.
E.P.
M.O’B.
DISSENTING OPINION OF JUDGE BOTOUCHAROVA
I voted against the finding of a violation of Article 11 of the
Convention in the present case.
My analysis starts from the same general principles as that of
the majority: paragraphs 85-90 of the judgment, which set out the essence of
the Court’s case-law on freedom of assembly and expression and, in particular,
the criteria on the basis of which an interference with those freedoms in cases
such as the present one may be considered justified. I accept fully the summary
of those criteria.
In my opinion, however, their application to the facts of the
case before us – a border-line case – may lead to a different conclusion if
appropriate weight is given to the fact that the applicants’ demonstrations
posed risks for public order in the local community. The authorities, when
restricting the applicants’ right to hold commemorative meetings, repeatedly
referred to the existing danger of clashes between the supporters of Ilinden and those participating in the official ceremonies
which were held at the same place and time. The fears were based on past
experience: there had been a number of previous incidents at events organised by Ilinden, and their
attitude was characterised as “provocative” (see
paragraph 17 of the judgment). That last element was of crucial importance as
it meant that the authorities were convinced that Ilinden
supporters might seek to provoke disorder and clashes. What is at issue in this
case, however, is the freedom of peaceful assembly.
The protection of the rights of others, public safety and the
prevention of disorder are legitimate aims that may justify, under Article 11 §
2 of the Convention, an interference with freedom of peaceful assembly provided
that such interference is proportionate to the aims pursued.
The Bulgarian authorities were apparently conscious of the
requirement not to restrict Ilinden’s freedoms beyond
what was necessary. The prohibitions complained of only concerned specific
dates and places. On some of the dates when demonstrations were planned, the
authorities did not prevent Ilinden’s supporters from
reaching the historical sites, but required them to abandon provocative
slogans.
The Court has established in its
case-law that “by reason of their direct and continuous contact with the vital
forces of their countries, state authorities are in principle in a better
position than the international judge to give an opinion on the exact content
of the ... [necessity of an interference] ...The Court, which ... is
responsible for ensuring observance of those states’ engagements, is empowered
to give the final ruling on whether [an interference was justified] ...
Consequently, Article 10 § 2 [as well as Article 11 § 2] leave[] to the
Contracting States a margin of appreciation... The domestic margin of
appreciation ... goes hand in hand with a European supervision” (the Handyside v. the United Kingdom judgment of 7 December
1976, Series A no. 24, pp. 22-23).
Taking into account the domestic margin of appreciation, the
Convention organs found in many cases that restrictions on demonstrations were
justified on public-order grounds. To cite some examples, the following
prohibitions on assemblies were considered in conformity with Article 11
§ 2: a two-month ban on public processions other than customary ones in
London (no. 8440/78, Dec. 16.7.80, DR 21 p. 138); a general ban on
demonstrations on issues related to Northern Ireland in Trafalgar Square in
London (no. 25522/94, Dec. 6.4.95, DR 81-A, p. 146); a four-day ban on
assemblies within a radius of four miles from the Stonehenge Monument in view
of past incidents and disorder caused by Druid followers (no. 31416/96,
Dec. 19.10.98 (unreported).
In my opinion, the Bulgarian authorities in the particular circumstances
of the present case did not overstep their margin of appreciation and
restricted the applicants’ freedom of peaceful assembly to the extent strictly
necessary for the protection of the rights of others, public safety and the
prevention of disorder.
As I did not find a violation of Article 11 of the Convention, I
also voted against the award on non-pecuniary damages to the applicants.