MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1451/H46-8

8 December 2022

1451st meeting, 6-8 December 2022 (DH) Human rights   H46-8 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(2022)1251, DH-DD(2022)1052, CM/ResDH(2020)197, CM/Del/Dec(2022)1428/H46-7

 

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
23702/15	VASILEV AND SOCIETY OF THE REPRESSED MACEDONIANS IN BULGARIA VICTIMS OF THE COMMUNIST TERROR	28/05/2020	28/05/2020

Cases 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 (goals aiming at “the recognition of the Macedonian minority” and 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 European 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. Regarding the 2014-2015 registration procedure of the “United Macedonian Organisation-Ilinden” (hereafter “UMO Ilinden”), it 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 the 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

Previous examinations by the Committee: In October 2020, the Committee adopted Interim Resolution CM/ResDH(2020)197. In March 2022, it expressed its deep concern that almost 16 years after the first final judgment in this group, associations aiming to “achieve the recognition of the Macedonian minority” continue to be routinely refused registration mainly due to a wider problem of disapproval of their goals. 

Having noted the elaboration of guideline documents on registration (“Principle Positions” for registration officers and a manual for associations) and the high-level message on the execution of these cases included in a letter of the Minister of Justice of October 2021, the Committee nevertheless observed that the positive results of these steps remained to be demonstrated. It also strongly urged the authorities to take the outstanding measures to comply fully with the Interim Resolution and its decisions of June 2021, as concerns inter alia the publication of the above-mentioned guideline documents and completion of announced works to place broader obligation on the Registration Agency (“the Agency”) to give instructions to associations to rectify registration files, as well as the need to ensure the identification of all defects of a registration file. It also exhorted them again to ensure that any new registration request of the applicant associations or associations similar to them is examined in full compliance with Article 11 of the Convention.

Individual measures:

The information below concerns the registration procedures under the new administrative registration mechanism (after 1 January 2018).[1].

1.     Recent registration requests of UMO Ilinden[2]

- Registration request of 2 April 2021: On 5 April 2021, the Agency again refused the registration of “UMO Ilinden”, inter alia for reasons like those retained by the Sofia Court of Appeal on 10 February 2021. On 18 August 2021, the Sofia Court of Appeal upheld this refusal. It considered that the association’s goals suggested the existence of an ethnic Macedonian minority which is opposed to other Bulgarian citizens; they were thus aimed at dividing the nation and created preconditions for ethnic-based tensions.

- Registration request of 16 November 2021: On 17 November 2021, the Agency again refused

the registration of “UMO Ilinden”, noting inter alia that some of its goals: could not be registered as they imposed obligations on the State; did not correspond to the activity of a private association but were indicative of an attempt to circumvent the law by avoiding increased legal requirements applicable to public utility activity associations; alleged the existence of a minority which was contrary to the unity of the nation. On 1 December 2021, the Blagoevgrad Court confirmed the refusal. On 13 May 2022, the Sofia Court of Appeal confirmed the refusal holding that: the minutes of the founding meeting did not specify the time and venue, making it impossible to assess the existence of a simultaneous expression of will; some rules in the statutes on membership and property relations were deficient; this was sufficient to refuse registration and it was unnecessary to comment on the association’s goals.

- Registration request of 30 June 2022: On 1 July 2022, the Agency again refused registration on the ground that its goals suggested a will to “cultivate different national identity in part of the Bulgarian population”, they were thus aimed at dividing the nation and created preconditions for ethnic-based tensions and threatened the territorial integrity of the country. The refusal was upheld by the Blagoevgrad Court. On 11 October 2022, the Sofia Court of Appeal also upheld the refusal, agreeing with the grounds set out by the Registration Agency and noting that the goals suggested the existence of an ethnic Macedonian minority which is opposed to other Bulgarian citizens.

2.     Recent registration requests of “Society of the Repressed Macedonians in Bulgaria Victims of The Communist Terror” [3]

- Registration request of 26 July 2021: On 27 July 2021, the Agency refused again registration for reasons similar to those set out in the procedure of 16 November 2020, criticising the goals of the association as political, directed against the unity of nation and inciting ethnic tensions. Having reached the conclusion that the statutes authorised only persons repressed because of their Macedonian identity to become members, it held that such association on ethnic grounds would violate the rights of other Bulgarian citizens. On 4 February 2022 the Sofia Court of Appeal confirmed the refusal. It also held that: the association was directed against the unity of nation, as it aspired at cultivation among certain Bulgarian citizens of a different ethnic consciousness, which was not naturally formed historically; its goals were political, contrary to Article 12 of the Constitution.

- Registration request of 7 March 2022: On 8 March 2022, the Agency refused registration on the ground that: the association’s registration application did not include a request to register some of the bodies foreseen in the statutes; an association on ethnic principle was envisaged, which was unconstitutional; organising rallies and demonstrations was foreseen, contrary to the prohibition for associations to carry out activities of political party. While three previous registration requests based on identical statutes were refused, the deficiencies identified by the Agency and the courts, related to the unlawfulness of the aims and the means of achieving them, had not been removed. On 12 April 2022, the Blagoevgrad Court confirmed the refusal. On 21 June 2022, the Sofia Court of Appeal also confirmed it, while also identifying issues with the powers of the president of the association. It further held that promoting certain ethnical identity was contrary to the unity of the nation; celebration of historical events was foreseen, but they were not sufficiently specified to allow assessing their relevance to a particular ethnic group or to the history of the Bulgarian nation.

- Registration request of 19 September 2022: On 20 September 2022, the Agency refused registration referring to grounds identical to those retained in the judgment of the Sofia Court of Appeal of 21 June 2022.

3.     Registration request of Macedonian Club for Ethnic Tolerance in Bulgaria

In a procedure initiated on 16 November 2020, the Agency refused registration of this association. The Blagoevgrad Court confirmed this refusal on 1 February 2021 and Sofia Court of Appeal upheld it on 8 June 2021. Registration was refused mainly on the ground that there was no Macedonian minority in Bulgaria, which meant that the association’s goals were directed against the sovereignty, the territorial integrity of the state and the unity of the nation and were inciting national enmity. It was also considered that the association’s goals were political, as they concerned “global political questions”. The Sofia Court of Appeal stated that the European Court’s judgment favourable to the association was not validly presented as evidence and even admitting that it was validly presented, it could not be decisive, because it concerned registration refusal from 2013 concerning different association with similar name and statutes.

4.     Recent NGO submission

In a submission of 25 October 2022 (DH-DD(2022)1171), the Bulgarian Helsinki Committee (BHC) provided extensive information on the recent registration refusals concerning the applicant associations. It noted, in particular, that the judgment of 13 May 2022 of the Sofia Court of Appeal confirmed the registration refusal concerning UMO Ilinden on formal grounds, which did not correspond to any genuine requirements of domestic law but served the purpose “to find a technical ground for refusing its registration, no matter how unlawful, and to avoid basing its refusal on the association’s goals”. It stated further that certain provisions in the statutes, although repeatedly reviewed, had never been criticised previously by the domestic authorities.

The BHC also indicated that in 2022 the members of UMO Ilinden had split in two separate organisations: the original UMO Ilinden in Sandanski and a branch - UMO Ilinden-Blagoevgrad. Both organisations’ registration requests, of 3 June and 30 June 2022 respectively, were refused by the Agency on the grounds that their goals were directed against the unity of nation and created prerequisites for ethnic tensions, and the Blagoevgrad Court confirmed both refusals. The Bulgarian authorities replied to this communication on 18 November 2022 (see DH-DD(2022)1271).

On 9 November 2022, the applicant associations and a similar association – “Civil Association for the Protection of Fundamental Individual Rights” submitted a communication (…). As concerns the individual measures, they complained that the Agency refused registration without giving instructions to improve the registration documents; that the formal requirements applied in respect of the associations were disproportionate, as there was a “willingness to seek irregularities”; and that the refusals violated not only the right to freedom of association, but also the right to freedom of expression or self-determination. They insisted that the Committee initiates infringement proceedings and that a “fact-finding mission” to Bulgaria be established. The Bulgarian authorities replied to this communication on 6 December 2022 (see
DH-DD(2022)1377).

General measures:[4]

1.     New administrative registration mechanism

            a) Legal framework, refusals to register associations, awareness-raising and statistics[5]

The current 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. 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.

b) Refusal to register UMO Ilinden-Blagoevgrad

On 3 June 2022, the Agency refused registration on grounds similar to those retained in its refusal of 17 November 2021 concerning UMO Ilinden and its decision was confirmed by the Blagoevgrad Court on 17 June 2022. On 12 October 2022, the Sofia Court of Appeal confirmed the refusal on grounds broadly similar (albeit not entirely identical as concerns the technical shortcomings established) to those featuring in its judgment of 13 May 2022 concerning UMO Ilinden.  

c) Procedure for the dissolution of an association similar to UMO Ilinden

In 2019, the Agency registered two associations - “Civil Association for the Protection of Fundamental Individual Rights” and “Ancient Macedonians”, but the then deputy Prime Minister who was also Minister of Defence asked the Prosecutor’s Office to request the dissolution of these associations.

Following a prosecutor’s request, in July 2020 the Blagoevgrad Court ordered the dissolution of “Civil Association for the Protection of Fundamental Individual Rights”, on the ground that its goals were contrary to constitutional provisions protecting the unity of the nation and territorial integrity and prohibiting associations pursuing political goals, even though there was no evidence that the association’s activities had been unlawful. The association’s appeal was rejected due to irregularity. Subsequently, a legal challenge against the courts’ refusal to restore the deadline for appeal was filed. According to information provided on 9 and 11 November 2022, by four NGO and by the authorities, this challenge was rejected at last instance by the Supreme Court of Cassation on 6 October 2022. The four NGOs alleged that certain rules of domestic procedural law were erroneously applied, and that the dissolution was not in line with the requirements of the Convention. They indicated that the president of the association has until April 2023 to finalise its liquidation.

2.     Main measures adopted in 2021 and 2022

In August 2021, the government adopted a road map for the execution of judgments of the European Court which foresees, inter alia, preparation of legislative or other appropriate measures to ensure a broader and more effective obligation of the Agency to instruct associations to correct their documents where objectively possible. On 1 October 2021, the Minister of Justice sent a letter to the Agency, the Blagoevgrad Court, the Sofia Court of Appeal and the Supreme Cassation Prosecutor's Office explaining the execution requirements set out in the decisions of the Committee of Ministers and conveying the message that such associations should not be refused registration or dissolved on grounds criticised by the European Court.

In January 2022 the authorities published “Principle Positions” for registration officers and manual for associations and revised them in September 2022. These guideline documents clarify formal legal requirements related to: i) signing the statutes and the decision for the establishment of the association; ii) interpretation of the statutes, which must not contradict their actual wording; iii) the fact that if an association does not intend to carry out an additional business activity, it should not request registration of such activity.

They identify recurrent deficiencies of statutes concerning: iv) property relations upon termination of membership or after satisfaction of creditors; v) property contributions; vi) convening a general meeting. As to the goals of associations, it is clarified that: i) they may engage in demonstrations, proposals for changes in legislation, etc., which are not part of political activity; ii) private benefit NGO may pursue any non-profit purpose, subject to the restrictions in the Constitution and legislation. The provisions of Article 11 of the Convention and relevant constitutional provisions are recalled.

3.     NGO submissions

On 22 April 2021, the BHC provided information on the individual and general measures
(DH-DD(2021)448), in which it noted that only associations seeking to achieve the recognition of a “Macedonian minority in Bulgaria” systematically faced difficulties with obtaining registration and that the real reasons for this situation was the reluctance of the Agency and the courts to register a Macedonian association and “to thus recognise that there are Macedonians in Bulgaria”. The Bulgarian authorities replied to this submission on 12 May 2021 (see DH-DD(2021)449). In their submission of 25 October 2022, the BHC noted also that the guideline documents published by the Bulgarian authorities did not address the main questions raised by the execution of these judgments, in particular the assessment of the goals of similar associations in the light of the requirements set out in the European Court’s judgments. The Bulgarian authorities replied to this communication on 18 November 2022 (see DH-DD(2022)1271).

Analysis by the Secretariat

- Developments since the last examination by the Committee

As concerns the individual measures, it should be deplored that, in the most recent registration proceedings concerning the applicant associations, the Agency and the courts have again, for the reasons explained below, failed to respect the principles set out in the Court’s judgments and the Committee’s Interim Resolution CM/ResDH(2020)197 concerning the requirements of Article 11 of the Convention.

It is in particular deeply concerning that more than 16 years after the first final judgment in this group, associations aiming to “achieve the recognition of the Macedonian minority” continue to be routinely refused registration, clearly due to a wider disapproval of their goals. In this context, the Committee may wish to stress that while the present judgments do not give rise to an obligation to recognise a group of persons as a minority, they require the domestic authorities not to refuse registration on the grounds repeatedly rejected by the European Court related to the associations’ goals.

Moreover, the negative practice persists of raising new grounds for refusal even though the documents had been repeatedly examined by the Agency and the courts. The Agency previously examined three applications based on identical statutes of the “Society of the Repressed Macedonians in Bulgaria Victims of The Communist Terror”; in March 2022 it examined them again and established new grounds to refuse registration (and so did the Sofia Court of Appeal), even though the statutes remained unchanged. Similarly, some provisions in the statutes of UMO Ilinden were only criticised by the Sofia Court of Appeal in May 2022, even though they had appeared in the statutes of that organisation at least since 2019.   

The practice of the Agency and the courts over the last years thus casts serious doubts on the capacity of the registration mechanism in place since 2018 to ensure Convention-compliant examinations of the applicants’ registration requests. Whilst the State is free to choose the means whereby they will comply with a judgment, in light of the persistent failure of the existing system to ensure Convention compliant examinations, it appears particularly relevant to recall that the practice currently in place is not consonant with the case-law of the European Court.

That case-law favours the registration of an association and not the prior control of its legality, when domestic law provides for clauses allowing the monitoring of its activity a posteriori[6], an approach shared also by the Venice Commission[7].

As concerns the general measures, while it is positive that the authorities published “Principle Positions” for registration officers and a manual for associations, these documents do not address sufficiently the need to ensure a Convention-compliant assessment of an association’s goals. Moreover, it should be noted with concern that neither these documents, nor the high-level message included in a letter of the Minister of Justice of October 2021 appear to have permitted an alignment in the practice of the Agency and courts with the requirements of the Convention. In addition, there have been apparently no developments related to the extension of the obligation of the Agency to give instructions for the rectification of registration files, as foreseen in the 2021 road map.

As concerns the developments presented in the addendum of the authorities of 11 November 2022 and in the communication of four NGOs of 9 November 2022 (concerning, inter alia, a refusal to register an organisation which separated from UMO Ilinden), a more thorough assessment will be prepared for the next examination of these cases. That said, it should be recalled that the dissolution of “Civil Association for the Protection of Fundamental Individual Rights” has already been assessed negatively by the Committee in its Interim Resolution CM/ResDH(2020)197, as based on grounds similar to those rejected by the European Court in the present judgments and that the dissolution proceedings which ended in October 2022 only concerned a procedural issue. Therefore, the Committee could note with concern that the above association has now been dissolved in a final manner, on grounds motivated by a negative assessment of its goal, as rejected by the European Court in the present judgments, and not by actual unlawful activities. It would certainly be futile for the Committee to insist on a Convention-compliant registration procedure, if the authorities were to immediately request the dissolution of such associations without appropriate justification.

- Outstanding measures and future examination

The Committee could exhort again the authorities to ensure that any new registration request of the applicant associations or associations similar to them is examined in full compliance with Article 11 of the Convention. It could also strongly urge again them to take all the necessary outstanding measures to comply fully with its Interim Resolution CM/ResDH(2020)197 and its subsequent decisions, in particular by adopting the necessary reforms to extend the obligation of the Agency to give instructions for the rectification of registration files.

The Committee could request the authorities to provide information on all the above issues by 31 May 2023 and resume examination of these cases in September 2023. It could also affirm its readiness, in the absence of tangible progress, to consider taking new action to ensure that the respondent State abides fully and effectively by its obligations deriving from the Court’s judgments, by inviting the Chair of the Committee of Ministers to address a letter to the Bulgarian authorities. It could note in this context that achieving a tangible progress requires the Agency and the competent courts to:

i)              abandon the practice of refusing registration on the grounds that the goals of an association are unconstitutional because they assert a minority identity or are perceived as political, repeatedly rejected by the European Court;

ii)             exhaustively identify all deficiencies of the registration documents of the applicant associations and associations like them, to allow submission of accurate registration requests.

Financing assured: YES