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Objectives and Activities

Zhechev v Bulgaria, 21 June 2007 [ECtHR]

Case no 57045/00

24.  The applicant complained about the refusal of the courts to register the association chaired by him. In his initial application he alleged a breach of Article 10 of the Convention, whereas in his observations in reply to those of the Government he additionally relied on its Article 11. (...)

1  Legal characterisation of the applicant's complaint

33.  The Court notes that it is free to attribute to the facts of the case a characterisation in law different from that given by the parties (see, among many other authorities, Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, pp. 15‑16, § 44; Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, pp. 2895‑96, § 50; and K.-H.W v. Germany [GC], no. 37201/97, § 107, ECHR 2001‑II (extracts)). It notes that it has consistently stressed in its case‑law that the protection of opinions and the freedom to express them is one of the objectives of the freedom of association (see, among many other authorities, Gorzelik and Others v. Poland [GC], no. 44158/98, § 91, ECHR 2004‑I; Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 44, 3 February 2005; The United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, § 59, 19 January 2006; and Tsonev v. Bulgaria, no. 45963/99, § 49, 13 April 2006). The Court therefore considers that the applicant's complaint should be examined under Article 11 considered in the light of Article 10 (see APEH Üldözötteinek Szövetsége and Others v. Hungary (dec.), no. 32367/96, 31 August 1999; and, mutatis mutandis, Maestri v. Italy [GC], no. 39748/98, §§ 23 and 24, ECHR 2004‑I; and The Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §§ 71‑75, ECHR 2006‑...).

2. General principles in the Court's case-law on freedom of association

34.  The right to form an association is an inherent part of the right set forth in Article 11 of the Convention. The ability 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 (see Sidiropoulos and Others v. Greece, judgment of 10 July 1998,  aReports of Judgments and Decisions 1998-IV, pp. 1614‑15, § 40; The United Macedonian Organisation Ilinden and Others, cited above, § 57; The Moscow Branch of the Salvation Army, cited above, § 59; and Ramazanova and Others v. Azerbaijan, no. 44363/02, § 54, 1 February 2007).

35.  While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes are also important to the proper functioning of democracy. For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio‑economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively (see Gorzelik and Others, § 92; and The Moscow Branch of the Salvation Army, § 61, both cited above).

36.  Given that the implementation of the principle of pluralism is impossible without an association being able to express freely its ideas and opinions, the Court has also recognised that the protection of opinions and the freedom of expression within the meaning of Article 10 of the Convention is one of the objectives of the freedom of association (see paragraph 33 above and Gorzelik and Others, cited above, § 91, with further references). Such a link is particularly relevant where – as here – the authorities' stance towards an association was in reaction to its views and statements (see The United Macedonian Organisation Ilinden and Others, cited above, § 59, citing Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 85 in fine, ECHR 2001‑IX).

2. Was there an interference?

37.  The Court considers that the domestic courts' refusal to register the association chaired by the applicant amounted to an interference with the exercise of his right to freedom of association (see Sidiropoulos and Others, p. 1612, § 31; Gorzelik and Others, § 52; Partidul Comunistilor (Nepeceristi) and Ungureanu, § 27; The United Macedonian Organisation Ilinden and Others, § 53; Tsonev, § 43; The Moscow Branch of the Salvation Army, § 71; and Ramazanova and Others, § 60, all cited above).

38.  The Court must therefore examine whether the interference was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of Article 11 and was “necessary in a democratic society” for the achievement of those aims.

3. Was the interference “prescribed by law”?

39.  On this point, the Court notes that to refuse registration the domestic courts relied on several articles of the Constitution of 1991 (see paragraphs 10, 13 and 16 above). The applicant argued that these courts had erred in the interpretation and application of these legal provisions. However, the Court notes that it is primarily for the national courts to interpret and apply domestic law (see The United Macedonian Organisation Ilinden and Others, § 55; and Tsonev, § 45, both cited above). Firstly, it is prepared to accept that their holding that the aims of the association were contrary to the Constitution of 1991 did not go so far as to become arbitrary. Secondly, it is true that their categorization of these aims as “political” within the meaning of Article 12 § 2 of the Constitution of 1991 and their holding that the association could not pursue them without being a political party may appear questionable in view of the construction of this Article by the Constitutional Court and the tenor of the other relevant provisions of domestic law (see paragraphs 17, 19 and 22 above). However, the Court is mindful that legal opinions on the exact purport of such a wide notion open to largely diverse interpretations – “political” – may differ. It is therefore likewise prepared to accept that these holdings were not as patently unreasonable as to become arbitrary. Moreover, while the reasoning of the national courts, and especially that of the Supreme Court of Cassation, was indeed very scant, it was not altogether lacking, as claimed by the applicant.

40.  The Court does not furthermore perceive a problem in the alleged vagueness of Article 12 § 2 of the Constitution of 1991. It is not possible to attain absolute rigidity in the framing of laws, and many of them – especially a national constitution – are inevitably couched in terms which, to a greater or lesser extent, are vague. The level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question and the field it is designed to cover (see Maestri, cited above, § 30 in fine). It must also be borne in mind that, however clearly drafted a legal provision may be, its application involves an inevitable element of judicial interpretation, since there will always be a need for clarification of doubtful points and for adaptation to particular circumstances. The mere fact that such a provision is capable of more than one construction does not mean that it fails to meet the requirement of “foreseeability” for the purposes of the Convention. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice (see Gorzelik and Others, cited above, § 65).

41.  The Court is thus satisfied that the interference was “prescribed by law”.

4  Did the interference pursue a legitimate aim?

42.  While the Government were not specific on this point, the Court is prepared to accept that the interference aimed at protecting national security, preventing disorder and protecting the rights and freedoms of others.

5. Was the interference “necessary in a democratic society”?

(a)  General principles in the Court's case‑law

43.  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 (see, among many other authorities, Sidiropoulos and Others, cited above, pp. 1614‑15, § 40; The United Macedonian Organisation Ilinden and Others, § 61; Tsonev, § 51; and The Moscow Branch of the Salvation Army, § 76, all cited above).

44.  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 were “relevant and sufficient”. In so doing, the Court has to satisfy itself that these 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 Sidiropoulos and Others, pp. 1614-15, § 40; Partidul Comunistilor (Nepeceristi) and Ungureanu, § 49; The United Macedonian Organisation Ilinden and Others, § 62; Tsonev, § 52; and The Moscow Branch of the Salvation Army, § 77, all cited above).

(b)  Application of these principles to the present case

45.  The Court must now, in light of the principles set out above, scrutinise the grounds relied on to justify the interference and the significance of that interference.

(i) Grounds relied on to justify the interference

46.  The Court notes that the domestic courts in their judgments and the Government in their pleadings relied on two groups of arguments justifying the interference (see paragraphs 10, 13, 16 and 32 above). That being so, the Court will examine these groups in turn.

(α) Alleged incompatibility of the association's aims with the Constitution of 1991

47.  Regarding the alleged incompatibility of the association's aims with the Constitution of 1991, the Court considers that even if it may be assumed that what the association was trying to achieve – repealing that Constitution, reinstating the Constitution of 1879, and restoring the ancient coat of arms and the monarchy – was indeed contrary to Articles 1 § 1 and 164 of the Constitution of 1991, that does not mean that the interference was justified. An organisation may campaign for a change in the legal and constitutional structures of the State if the means used to that end are in every respect legal and democratic and if the change proposed is itself compatible with fundamental democratic principles (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002‑II; Refah Partisi (The Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 98, ECHR 2003‑II; and The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria, no. 59489/00, § 59, 20 October 2005). There is no indication that these conditions were not present. Monarchy is not incompatible in itself with the principles of democracy, as shown by the example of a number of member States of the Council of Europe. Nor has it been argued that the Constitution of 1879 was undemocratic. It provided for a parliamentary monarchy, separation of powers, universal suffrage, and enshrined a number of fundamental rights (see paragraph 23 above).

48.  Moreover, it does not seem that the proposed “abolition” or “opening” of the border between the former Yugoslav Republic of Macedonia and Bulgaria, found to be contrary to Article 2 § 2 of the Constitution of 1991, could jeopardise in any conceivable way those countries' territorial integrity or national security. Firstly, it does not appear that it truly amounted to a request for territorial changes. Secondly, even if it was so, the mere fact that an organisation demands such changes cannot automatically justify interferences with its members' freedoms of association and assembly (see The United Macedonian Organisation Ilinden – PIRIN and Others, cited above, § 61, citing Stankov and the United Macedonian Organisation Ilinden, cited above, § 97).

49.  There is furthermore no indication, and it has not been suggested by the domestic courts or the Government, that the association would use violent or undemocratic means to achieve its aims.

50.  Finally, it does not appear that the association had any real chance of bringing about changes which would not meet with the approval of everyone on the political stage (see Yazar and Others, § 58 in fine; and The United Macedonian Organisation Ilinden – PIRIN and Others, § 61, both cited above). It appears that its public influence was negligible (see, as an example to the contrary, Refah Partisi (The Welfare Party) and Others, cited above, §§ 107‑10).

51.  In sum, the Court considers that the aims of the association were not as such a sufficient ground to refuse its registration.

(β)  Alleged “political” character of the association's aims

52.  The national courts found that some of the aims of the association – the restoration of the Constitution of 1879 and of the monarchy – were “political goals” within the meaning of Article 12 § 2 of the Constitution of 1991 and could hence be pursued solely by a political party.

53.  The Court has already expressed certain misgivings in relation to these holdings (see paragraph 39 above). However, it is not for it to give an authoritative opinion on the correct interpretation of domestic law, that task being reserved for the national courts. It will therefore proceed on the assumption that this law was construed correctly and will examine whether its application with regard to the applicant led to results compatible with the Convention (see Gorzelik and Others, cited above, § 100).

54.  The Court must therefore verify whether it is necessary in a democratic society to prohibit organisations, unless registered as political parties, from pursuing “political goals”. In so doing it must examine whether this ban corresponds to a “pressing social need” and whether it is proportionate to the aims sought to be achieved (ibid., §§ 94‑105).

55.  The first thing which needs to be noted in this connection is the uncertainty surrounding the term “political”, as used in Article 12 § 2 of the Constitution of 1991 and as interpreted by the domestic courts. For instance, in the present case these courts deemed that a campaign for changes in the constitution and the form of government fell within that category. In another recent case these same courts had, more questionably, stated that the “holding of meetings, demonstrations, assemblies and other forms of public campaigning” by an association campaigning for regional autonomy and alleged minority rights also amounted to political goals and activities within the meaning of Article 12 § 2 of the Constitution of 1991. The Court found this holding unwarranted (see The United Macedonian Organisation Ilinden and Others, cited above, §§ 17, 19, 21 and 73). The Constitutional Court has, for its part, adopted a different definition of “political”, which was centred on “participation in the process of forming the bodies through which ... the people exercise[d] its power” (see paragraph 22 above). Against this background and bearing in mind that this term is inherently vague and could be subject to largely diverse interpretations, it is quite conceivable that the Bulgarian courts could label any goals which are in some way related to the normal functioning of a democratic society as “political” and accordingly direct the founders of legal entities wishing to pursue such goals to register them as political parties instead of “ordinary” associations. A classification based on this criterion is therefore liable to produce incoherent results and engender considerable uncertainty among those wishing to apply for registration of such entities.

56.  If associations in Bulgaria could, when registered as such, participate in elections and accede to power, as was the case in Gorzelik and Others (cited above), it might be necessary to require some of them to register as political parties, so as to make them subject to, for instance, stricter rules concerning party financing, public control and transparency (see paragraph 20 above). However, under Bulgarian law, as it stood at the material time and as it stands at present, associations may not participate in national, local or European elections (see paragraph 21 above). There is therefore no “pressing social need” to require every association deemed by the courts to pursue “political” goals to register as a political party, especially in view of the fact that, as noted above, the exact meaning of that term under Bulgarian law appears to be quite vague. That would mean forcing the association to take a legal shape which its founders did not seek. It would also mean subjecting it to a number of additional requirements and restrictions, such as for instance the rule that a political party cannot be formed by less than fifty enfranchised citizens (see paragraph 19 above), which may in some cases prove an insurmountable obstacle for its founders. Moreover, such an approach runs counter to freedom of association, because, in case it is adopted, the liberty of action which will remain available to the founders of an association may become either non‑existent or so reduced as to be of no practical value (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, p. 23, § 56; Sigurður A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15‑16, § 35; and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 114 in fine, ECHR 1999‑III).

57.  The Court therefore considers that alleged “political” character of the association's aims was also not a sufficient ground to refuse its registration.

(ii)  The significance of the interference

58.  The Court notes that, in its impact on the applicant, the impugned measure was radical: it went so far as to prevent the association from even commencing any activity (see Gorzelik and Others, § 105; The United Macedonian Organisation Ilinden and Others, § 80; and Tsonev, § 63, all cited above).

(iii)  The Court's conclusion

59.  In the light of the foregoing, the Court concludes that the reasons invoked by the respondent State to refuse the registration of the association chaired by the applicant were not relevant and sufficient. That being so, the interference with the applicant's freedom of association cannot be deemed necessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention.

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