Case no 26695/95
B. Justification for the interference
32. Such an interference will contravene Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims under paragraph 2 and was “necessary in a democratic society” for achieving them.
1. “Prescribed by law”
(...) 36. The Court considers that the interference was “prescribed by law”, as Articles 79 to 81 of the Civil Code allowed the courts to refuse an application to register an association where they found that the validity of its memorandum of association was open to question. More especially, the Court notes like the Government that an association’s aim, as set out in its memorandum of association, must be the one really pursued by it and not be contrary to law, morality or public order; Article 105 of the Civil Code, moreover, provides for the dissolution of an association already constituted where it proves to be pursuing an aim different from the one laid down in its memorandum of association (see paragraph 18 above).
2. Legitimate aim
37. The Government submitted that the interference in question pursued several aims: the maintenance of national security, the prevention of disorder and the upholding of Greece’s cultural traditions and historical and cultural symbols.
38. The Court is not persuaded that the last of those aims may constitute one of the legitimate aims set out in Article 11 § 2. Exceptions to freedom of association must be narrowly interpreted, such that the enumeration of them is strictly exhaustive and the definition of them necessarily restrictive.
39. The Court notes nevertheless that the Salonika Court of Appeal based its decision on the conviction that the applicants intended to dispute the Greek identity of Macedonia and its inhabitants and undermine Greece’s territorial integrity. Having regard to the situation prevailing in the Balkans at the time and to the political friction between Greece and the FYROM (see paragraph 42 below), the Court accepts that the interference in issue was intended to protect national security and prevent disorder.
3. “Necessary in a democratic society”
40. The Court points out that the right to form an association is an inherent part of the right set forth in Article 11, even if that Article only makes express reference to the right to form trade unions. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association’s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions.
Consequently, the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts.
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 delivered in the exercise of their discretion. 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 whether it was “proportionate to the legitimate aim pursued” 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 (see, the United Communist Party of Turkey and Others judgment cited above, p. 22, §§ 46 and 47).
(...) 44. The Court notes, in the first place, that the aims of the association called “Home of Macedonian Civilisation”, as set out in its memorandum of association, were exclusively to preserve and develop the traditions and folk culture of the Florina region (see paragraph 8 above). Such aims appear to the Court to be perfectly clear and legitimate; the inhabitants of a region in a country are entitled to form associations in order to promote the region’s special characteristics, for historical as well as economic reasons. Even supposing that the founders of an association like the one in the instant case assert a minority consciousness, the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (Section IV) of 29 June 1990 and the Charter of Paris for a New Europe of 21 November 1990 – which Greece has signed – allow them to form associations to protect their cultural and spiritual heritage.
In the second place, in justifying its refusal of the application for registration, the Salonika Court of Appeal decided that it had “good reasons … to believe that the purpose of using the term ‘Macedonian’ [was] to dispute the Greek identity of Macedonia and its inhabitants by indirect and therefore underhand means, and discern[ed] in it an intention on the part of the founders to undermine Greece’s territorial integrity”.
In reaching that decision, the Court of Appeal, of its own motion, took into consideration as evidence material which the applicants maintained they had not been able to challenge during the proceedings as it had not been placed in the case file.
45. The Court reiterates that the taking of evidence is governed primarily by the rules of domestic law and that it is in principle for the national courts to assess the evidence before them (see, among many other authorities, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43).
However, careful study of the press articles in question (see paragraphs 14 and 15 above), which had a decisive influence on the outcome of the proceedings, shows that they reported matters some of which were unconnected with the applicants and drew inferences derived from a subjective assessment by the authors of the articles. Relying on those articles and having regard to the political dispute that then dominated relations between Greece and the FYROM (the latter of which had not yet even proclaimed its independence at the material time), the national courts held that the applicants and the association they wished to found represented a danger to Greece’s territorial integrity.
That statement, however, was based on a mere suspicion as to the true intentions of the association’s founders and the activities it might have engaged in once it had begun to function.
The Court also takes into account in this context the fact that Greek law does not lay down a system of preventive review for setting up non-profit-making associations. Article 12 of the Constitution provides that the forming of associations cannot be made subject to prior authorisation (see paragraph 17 above); Article 81 of the Civil Code allows the courts merely to review lawfulness and not to review desirability (see paragraph 18 above).
46. In the United Communist Party of Turkey and Others judgment cited above (p. 35, § 58) the Court held that it could not rule out that a political party’s programme might conceal objectives and intentions different from the ones it proclaimed. To verify that it did not, the content of the programme had to be compared with the party’s actions and the positions it defended.
Similarly, in the instant case the Court does not rule out that, once founded, the association might, under cover of the aims mentioned in its memorandum of association, have engaged in activities incompatible with those aims. Such a possibility, which the national courts saw as a certainty, could hardly have been belied by any practical action as, having never existed, the association did not have time to take any action. If the possibility had become a reality, the authorities would not have been powerless; under Article 105 of the Civil Code, the Court of First Instance could order that the association should be dissolved if it subsequently pursued an aim different from the one laid down in its memorandum of association or if its functioning proved to be contrary to law, morality or public order (see paragraph 18 above).
47. In the light of the foregoing, the Court concludes that the refusal to register the applicants’ association was disproportionate to the objectives pursued. That being so, there has been a violation of Article 11.back