MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1383/H46-2

1 October 2020

1383rd meeting, 29 September – 1 October 2020 (DH) Human rights   H46-2 United Macedonian Organisation Ilinden and Others group v. Bulgaria (Application No. 59491/00) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)356, DH-DD(2020)582-rev, CM/Del/Dec(2019)1355/H46-5

 

Application	Case	Judgment of	Final on	Indicator for the classification
59491/00	UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS	19/01/2006	19/04/2006	Complex problem
34960/04	UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS (No. 2)	18/10/2011	08/03/2012
29496/16	THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS (No. 3)	11/01/2018	11/04/2018
70502/13	YORDAN IVANOV AND OTHERS	11/01/2018	11/04/2018
67197/13	MACEDONIAN CLUB FOR ETHNIC TOLERANCE IN BULGARIA AND RADONOV	28/05/2020	28/05/2020	See proposal to classify these cases (draft decision CM/Del/Dec(2020) 1383/B1-add2
23702/15	VASILEV AND SOCIETY OF THE REPRESSED MACEDONIANS IN BULGARIA VICTIMS OF THE COMMUNIST TERROR	28/05/2020	28/05/2020

Case description

These cases concern the unjustified refusals of the courts, between 1999 and 2015, to register associations the aim of which is to achieve the recognition of and protect the interests of "the Macedonian minority in Bulgaria”. The refusals were based on considerations of national security, protection of public order and the rights of others (alleged separatist ideas) and on the constitutional prohibition on associations pursuing political goals, as well as failure to meet formal legal requirements (violations of Article 11).

As concerns the considerations related to national security and protection of the rights of others, the Court found that the applicants had not advocated the use of violence or other undemocratic means to achieve their aims and that the expression of separatist ideas in speeches and programme documents should therefore benefit from the protection of Article 11 of the Convention. Regarding the 2014-2015 registration procedure of the “United Macedonian Organisation-Ilinden” (hereafter “UMO Ilinden”), the European Court considered that the Sofia Court of Appeal based its conclusion that there was a risk to public order on unspecified media sources, denying the association the possibility to comment on the reliability of these sources and information.

The Court also found that the fact that several of the goals of the associations were labelled as “political” was not a sufficient ground for refusing registration. It underlined that domestic law would not allow the associations to participate in elections and that there was therefore no “pressing social need” to require them to register as a political party.

Status of execution

The authorities provided most recently, on 14 April 2020 and 15 July 2020, two Addenda (DH-DD(2020)356and DH-DD(2020)582-rev) to their revised action plan of 20 October 2016 (see DH-DD(2016)1190).

Last examination by the Committee: In its decisions adopted in September 2019 (1355^th meeting (DH)), as regards the individual measures, the Committee noted with concern that the registration procedure of May 2019 of “UMO Ilinden” does not appear to have taken into account the Committee’s decisions of December 2018 as concerns the need to ensure proportionate and foreseeable application of formal legal requirements. Therefore, the Committee stressed again the importance of examining any new registration request of “UMO Ilinden” in full compliance with Article 11 of the Convention.

As concerns the general measures, the Committee urged the Bulgarian authorities to: (i) take resolute action to overcome the problems with the assessment of the lawfulness of the goals and the means for pursuing them of associations aiming to achieve “the recognition of the Macedonian minority in Bulgaria” ; (ii) ensure the coherent and foreseeable application of formal legal requirements; (iii) ensure sufficiently broad and effective application of the obligation of the Registration Agency to give instructions for supplementing and rectifying registration files; (iv) supplement the guidelines for the Agency staff to cover the issues examined in this group of cases. It also encouraged them to prepare user-friendly instructions for associations.

Finally, the Committee instructed the Secretariat to prepare a draft interim resolution for examination at their June 2020 DH meeting, in the event that no tangible progress is achieved by 1 February 2020 with the adoption of effective individual and general measures in the above areas. The examination of this group of cases was postponed to the present meeting following a request by the authorities.

Individual measures:

1.     Registration proceedings under the former judicial registration mechanism (2010-2016)

After the first judgment of the European Court in 2006, the association “UMO Ilinden” was refused registration on three occasions, partly on grounds already criticised by the European Court. The Committee of Ministers followed these developments closely and insisted on the importance for the authorities to ensure the examination of its registration requests in line with the requirements of Article 11 of the Convention. The refusals from 2010-2013 and 2014-2015 are the subject of the judgments Yordan Ivanov and Others and United Macedonian Organisation Ilinden and Others (No. 3), finding new violations of Article 11.[1]

2.     Registration procedures under the new administrative registration mechanism (after 1 January 2018)

Against the background of the above difficulties, a new administrative registration mechanism was set up and started functioning in the beginning of 2018 (see below under general measures). “UMO Ilinden” then made several attempts at registration using the new mechanism.

- Registration requests in 2018: In two different procedures the Registration Agency (“the Agency”) refused registration on formal grounds and also due to a provision in the statutes which was not in line with the Electoral Code. The Sofia Court of Appeal confirmed the second registration refusal, solely on the ground related to the non-compliance with the Electoral Code and indicated to the association that the wording of its statutes could be corrected.

- Registration request of May 2019: On 20 May 2019, the Agency again refused registration of “UMO Ilinden” on formal grounds. The official noted that it had not produced a copy of the decision setting it up with the personal data erased (for publication), as required by the 2007 Ordinance on keeping and access to the commercial register and the register of non-profit non-governmental organisations (“the 2007 Ordinance”) and that the decision setting up the association was also deficient.

The official did not give instructions to rectify the file, considering that instructions were possible only if a document was missing.

The Blagoevgrad Regional Court confirmed the registration refusal, on one of the grounds referred to by the Agency – namely that the association had not provided a copy of the decision setting it up with the personal data removed (for publication) as required by the domestic law. It further observed that the goals of the association did not correspond to a provision which applies to public interest associations, although “UMO Ilinden” applied for registration as a private association. On 1 August 2019, the Sofia Court of Appeal quashed the above judgment, on the ground that the Agency should have given instructions to “UMO Ilinden” to provide a copy of the decision setting it up with the personal data removed.

The Registration Agency again refused registration on a procedural ground and its decision was annulled on 27 December 2019 by the Blagoevgrad Court. However, as one of the members of “UMO Ilinden” had died in the meantime, it was not possible to continue this procedure, as a new founding meeting had to be organised.

- Registration request of 8 January 2020: On 9 January 2020 the Registration Agency refused again the registration of “UMO Ilinden” without giving instructions, on the ground that one of the managing bodies of the association was not properly indicated in the application form. The refusal was confirmed by the Blagoevrad Regional Court and the Sofia Court of Appeal on 27 January and 15 April 2020. The courts observed that the statutes provided for two bodies of the association – “annual conference” and “managing council”. “UMO Ilinden” had included the former in the relevant section of the registration form, but not the latter. In addition, the application form mentioned the names of the members of the “managing council” and the “managing council” under a different section, which was also not correct.

- Registration request of 20 January 2020: On 21 January 2020, the Registration Agency refused again the registration of “UMO Ilinden” without giving instructions. It considered that it was unlawful for “UMO Ilinden” to use “annual conference” to describe one of its bodies instead of “general assembly” referred to in the legislation for this kind of bodies. The refusal was confirmed at first instance by the Blagoevgrad Regional Court on 12 May 2020. On 3 September 2020, the Sofia Court of Appeal confirmed this refusal. It held that the use of the expression “annual conference” was not unlawful, but considered that the decisions concerning the election of members of the managing council and a president of the association had to be signed by all founding members, while in the documents provided by “UMO Ilinden” they were incorporated in minutes signed only by the president and the person having prepared the minutes.

- Recent submissions of the Bulgarian Helsinki Committee (BHC): The BHC provided information on recent registration procedures concerning “UMO Ilinden”. It indicated that the use of the expression “annual conference” instead of “general assembly” in the statutes was not an irregularity and that many other associations have used a different expression than the one mentioned in the legislation (see
DH-DD(2020)376 and the authorities’ reply).

 

General measures:

1.     Former judicial registration mechanism

- Dissemination and awareness-raising measures: The authorities disseminated the judgments and organised a number of meetings, seminars and training activities.[2]

- Refusals to register associations similar to “UMO Ilinden”: Several associations similar to “UMO Ilinden” were refused registration under the old registration mechanism partially on grounds already criticised by the European Court in the UMO Ilinden judgments[3].

2.     New administrative registration mechanism before the Agency

                        a) Legal framework, awareness-raising and statistics

- Legal framework for the new mechanism: a new administrative registration procedure was set up before the Registration Agency of the Ministry of Justice (responsible also for the registration of companies and commercial transactions) on 1 January 2018.

Currently, a request for registration is examined by an official of the Agency chosen at random. The aim of the examination is to verify, inter alia, whether the documents required by law have been submitted and whether it is possible to establish on the basis of these documents that the association has been set up in compliance with the law. If documents are missing, the Agency should give instructions to the applicant to remove the irregularities. If after a period of three days the request is still incomplete, it must be rejected, but the applicant can introduce a new request using the documents submitted previously. According to Section 93 of the 2007 Ordinance, any registration refusal should contain an exhaustive list of reasons.

A decision of the Agency granting registration is final. A refusal decision can be appealed to the regional court and thereafter to the Court of Appeal, whose decision is final. If a court annuls a refusal decision, it gives instructions to the Agency to carry out the registration. The appeal is normally examined in camera but the authorities indicated, by reference to a legal opinion, that the court can decide to hold a public hearing.

- Initial measures aimed at securing the good functioning of the new registration mechanism: in 2017, the authorities organised a seminar and meetings for judges and registration officials from the Agency, with the participation of representatives of the Registry of the European Court and the Department for the Execution of Judgments, published a training document and amended the 2007 Ordinance.

- Statistical data on the registration of non-profit associations: between January 2018 and 14 October 2018, the Agency received 1,615 requests for initial registration of associations, of which it registered 803 and refused 805 (refusal rate of approximately 50%). Between 15 October 2018 and June 2019, it received 2,281 requests for initial registration of associations and refused 880 (refusal rate of approximately 38.6%).

b) Refusals to register associations similar to “UMO Ilinden” under the new procedure

i)    Refusals to register the “Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror”^[4]

In the first half of 2018 the Agency refused on four occasions to register the association for failure to fulfil formal legal requirements. These refusals were not appealed.

In a procedure initiated on 11 July 2018, the Agency issued a refusal of registration on formal grounds which was upheld by the Blagoevgrad Court. On 27 September 2018, the Sofia Court of Appeal confirmed the refusal, but on one ground only - that the statutes did not contain a definition of the association’s additional economic activity. It rejected the other grounds raised by the Agency, requiring signature of the statutes by all the founding members and those raised by the Blagoevrad Court, disallowing the association’s goals (e.g. “protection and popularisation of the Macedonian historical and cultural heritage”) as goals of public utility. 

In a procedure initiated on 28 November 2018, the Agency gave instructions to the “Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror” to correct imprecisions in its statutes and to provide a copy of the decision setting it up with the personal data removed. On 4 December 2019, the Agency refused registration, on the ground that the deficiencies had not been remedied and the courts confirmed the refusal on the same ground.

In a procedure initiated on 18 June 2019, the Agency refused registration on the ground that the association had not properly indicated the object of its main activity and its additional economic activity  and had also failed to prove that the registration tax has been paid. In a final judgment of 24 October 2019, the Sofia Court of Appeal confirmed the registration refusal. It considered that the registration of an association aiming at protecting the interests of “a Macedonian minority” would be contrary to national unity, because no such minority existed and that the association’s statutes violated the constitutional prohibition on associations pursuing political goals.

In a procedure initiated on 17 February 2020, the Agency again refused registration. In a final judgment of 8 June 2020, the Sofia Court of Appeal confirmed this refusal on grounds similar to those already set out in the judgment of 24 October 2019 cited above. 

ii) Refusal to register the association “Civil Initiative for the Recognition of the Macedonian National Minority in Bulgaria and for the protection of the rights of Bulgarian citizens who determine themselves as Macedonians”

On 14 May 2020, the Agency refused registration of the above association on formal grounds. By a judgment of 12 June 2020, the Blagoevgrad Regional Court observed that the application form did not disclose formal irregularities but considered that registration should nevertheless be refused, because registering an association aiming at protecting the interests of a Macedonian minority was contrary to national unity. On 21 July 2020, the Sofia Court of Appeal confirmed the registration refusal on similar grounds.

c) Successful registration of two associations that appear similar to “UMO Ilinden” and procedure for the dissolution of one of these associations

In the second half of 2019, the Registration Agency registered two associations - “Civil Association for the Protection of Fundamental Individual Rights” and “Ancient Macedonians”. The former aims at “protecting the human rights of the Macedonians and other ethnic minorities in Bulgaria”, while the latter does not claim explicitly that it will protect the rights of Bulgarian citizens who consider themselves Macedonians.

In reaction to the above registrations, the deputy Prime Minister who is also Minister of the Defence asked the Prosecutor’s Office, to request the dissolution of the two associations, on the ground that the first association’s goals were contrary to the unity of nation and that the second association was founded by persons linked to the political party “OMO Ilinden – PIRIN”, which had been declared unconstitutional.[5]

On 21 November 2019, a prosecutor requested the dissolution of the “Civil Association for the Protection of Fundamental Individual Rights”. He argued that, because the association aimed to protect the rights of a non-existent Macedonian minority, its activity was contrary to the unity of nation. Also, the constitutional prohibition on associations pursuing political goals was violated, as the association intended to express positions on national or international political questions. The association was also “anti-Bulgarian”, because of publications describing one Bulgarian region as “the third ‘Pirin part’ of Macedonia” and because it used the same website as the unregistered political party “UMO Ilinden-Pirin”. 

On 20 July 2020, the Blagoevgrad Regional Court ordered the dissolution of the association, on the ground that it had been unlawfully created, as its goals were contrary to Articles 12 § 2 and 44 § 2 of the Constitution which protect the unity of nation, the territorial integrity of the country and prohibit associations pursuing political goals. According to the Blagoevgrad court, there was however no evidence that the association’s activities between its registration on 21 August 2019 and the request for dissolution of 21 November 2019 had been unlawful. It is not clear whether this judgment has been appealed.

The authorities note that there is no dissolution request concerning the association “Ancient Macedonians”.

- Recent NGOs submissions: The BHC observed that while for some years the courts have tried to conceal the true motives for the registration refusals, the judgment of 24 October 2019 of the Sofia Court of Appeal has abandoned this approach and “directly links the Macedonian character of the association to the constitutional provision prohibiting the associations whose activities are directed against ‘unity of the nation’” (see DH-DD(2020)376 and DH-DD(2020)622-rev and the authorities’ reply). In a submission of 21 November 2019 (DH-DD(2019)1469), the “Civil Association for the Protection of Fundamental Individual Rights” also provided information on the general measures.

- Additional measures to ensure consistent application of legal requirements: On 17 June 2019 the Agency published instructions for its officials to ensure consistent practice on specific issues.

Following an analysis of the reasons for registration refusals in this group of cases, the government has recently provided the Agency a document containing proposals for supplementing the guidelines for the registration officials and for preparing user-friendly instructions to associations.

Analysis by the Secretariat

- As concerns the individual measures

It is important to recall that after the first judgment in this group in 2006, “UMO Ilinden” was unable to benefit from a Convention-compliant registration procedure, as the Bulgarian courts, under the former judicial registration mechanism, refused on three occasions to register the applicant association. These refusals gave rise to new findings of violation by the European Court.

The new registration mechanism allowed some progress to be noted in December 2018, as the final judgment of the Sofia Court of Appeal of 5 November 2018 refusing registration of “UMO Ilinden” appeared based on a ground related to an imprecision in the statutes, rather than the type of reasoning criticised by the European Court.[6] 

However, in 2019 and 2020 “UMO Ilinden” was again unable to benefit from a Convention-compliant procedure, due to a formalistic and inconsistent application of formal legal requirements, coupled with the Agency’s predominant practice not to give instructions to rectify registration files, except in limited situations, and its failure on certain occasions to indicate all defects of a registration file (to allow the association to produce valid file after a refusal).

More specifically, in the procedure initiated in May 2019, the Agency did not explain clearly what defects it had found in the decision setting up the association, while the Blagoevgrad Court relied on a ground for refusal which is apparently inapplicable to private association like “UMO Ilinden” (i.e. that the goals of the association failed to meet the requirements for public utility). The Sofia Court of Appeal did not address the above incoherencies, as it quashed the refusal only on the ground that the Agency had failed to give instructions to “UMO Ilinden” to produce a document with erased personal data. 

In the procedure initiated on 8 January 2020, the Agency did not give instructions to “UMO Ilinden” to correct what appeared to be a minor defect related to the contents of a registration application. In the procedure initiated on 20 January 2020, the Agency identified for the first time a problem related to the use of the expression “annual conference”, even though the association had systematically used the same expression in statutes examined in several earlier registration procedures and that other registered associations have used expressions such as “national conference” or “congress” instead of “general assembly”. This ground was finally rejected by the Sofia Court of Appeal, which however refused registration as it identified (apparently for the first time) problems with the signing of certain decisions.

The Committee could therefore express deep concern at the fact that “UMO Ilinden” has been unable to benefit from Convention-compliant registration procedures since 2006. It could exhort the authorities again to ensure that any new registration request of “UMO Ilinden” is examined in full compliance with Article 11 of the Convention, as regards formal legal requirements that must be applied in a proportionate, foreseeable and consistent manner, and also as regards the assessment of the lawfulness of the association’s goals and the means for pursuing them. This implies that apparently neutral requirements should not be used to hinder “UMO Ilinden”’s registration.

The Committee could also urge the authorities to adopt legislative or other appropriate measures to place a broader and more effective obligation on the Agency to give instructions to associations to rectify registration files, as this seems to be the only avenue to reconcile the Agency’s practice of strict application of formal rules with the requirements of Article 11. It could finally encourage them to ensure that the Agency identifies all defects of a registration file, as required by law, to help associations produce valid files. As to the more recent cases in the group, the Committee could note that these are at a very initial stage of examination.

- As concerns the general measures

It is recalled that in December 2018 the Committee noted some progress with the assessment of goals of associations similar to “UMO Ilinden”, as in September 2018 the Sofia Court of Appeal held that the goals of the “Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror ”, were lawful and compatible with public utility status. However, subsequent developments have taken a direction which is clearly negative.

In particular, the refusals of 2019 and 2020 to register the above mentioned association and another association similar to “UMO Ilinden” are of serious concern, as they are based on grounds which have been constantly criticised by the European Court, such as risk to national unity caused by the associations’ intention to defend the interests of a “Macedonian minority” and the constitutional prohibition on associations pursuing political goals. In this context it may be observed that the European Court has also recently criticised other registration proceedings concerning the “Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror”, which ended in 2015.  

The dissolution procedure of the “Civil Association for the Protection of Individual rights” is also very concerning. It raises similar factual and legal issues to the registration refusals above, because the dissolution request and the first instance court’s judgment were motivated by a negative assessment of association’s goal to defend the interests of a “Macedonian minority” and not by actual unlawful activities. It is all the more worrying that the prosecutor’s dissolution request was filed at the suggestion of a senior member of the government. It would certainly be futile to insist on a Convention-compliant registration procedure, if the authorities were to immediately request the dissolution of such associations without proper justification.

In the light of the above, the Committee could express deep concern at the fact that since 2006 associations similar to “UMO Ilinden” have been repeatedly refused registration on grounds, which have been criticized by the European Court. It could urge the authorities to convey a message and to continue their efforts to raise awareness that associations aiming to achieve “the recognition of the Macedonian minority in Bulgaria” should not be refused registration on grounds criticized by the European Court related to their goals, and that the competent authorities should not initiate dissolution procedures on similar grounds.

The expected measures and legislative reforms set out under the individual measures (concerning the application of formal legal requirements, the obligation to give instructions to associations, etc.) are also relevant for the general measures. In addition, the Committee could urge again the authorities to finalise their work on guidelines for the registration officers and instructions for associations.

- Proposal to adopt an Interim Resolution

Regrettably, no tangible progress has been achieved in any of the areas identified by the Committee in its decisions of September 2019, on the contrary, there appear to have been negative developments both as concerns the individual and the general measures. In these circumstances, it is proposed to the Committee to adopt the draft interim resolution prepared by the Secretariat. 

As concerns individual measures, only the individual measures concerning “UMO Ilinden” are subject to the proposal for Interim Resolution, because the question of the individual measures, which need to be adopted in the new cases Vasilev and Society of the Repressed Macedonians in Bulgaria Victims of the Communist Terror v. Bulgaria and Macedonian Club for Ethnic Tolerance in Bulgaria and Radonov v. Bulgaria is at a very initial stage of examination by the Committee.

Financing assured: YES