Accountability and Supervision

Association of Citizens Radko & Paunkovski v the former Yugoslav Republic of Macedonia, 15 January 2009 [ECtHR]

Case no 74651/01

38. The applicants complained under Article 11 of the Convention that the Constitutional Court’s decision declaring the Association’s Articles and Programme null and void had violated their freedom of association, in that it led to the dissolution of the Association and deprived its members of the possibility jointly to pursue the purposes they had laid down in its Articles and Programme ...

1. Was there an interference with the applicants’ rights under  Article 11 of the Convention?

53.  The Court is satisfied that there was an interference with the applicants’ rights under Article 11 of the Convention on account of the Constitutional Court’s decision, which entailed, ipso jure, the Association’s dissolution. Moreover, the respondent Government conceded that the annulment of the Association’s constitutive acts had constituted interference (see paragraph 46 above).

2. “Prescribed by law”

54. As stated in the Court’s case-law, “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Furthermore, the level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the status of those to whom it is addressed (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 57, ECHR 2003-II).
55. Experience shows, however, that it is impossible to attain absolute precision in the framing of laws (see, mutatis mutandis, Ezelin v. France, 26 April 1991, § 45, Series A no. 202). It is, moreover, primarily for the national authorities to interpret and apply domestic law (see Vogt v. Germany, 26 September 1995, § 48, Series A no. 323).
56. In addition, 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 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 v. Poland [GC], no. 44158/98, § 65, 17 February 2004).
57. Turning to the instant case, the Court observes that the dispute under domestic law concerned the constitutionality of the constitutive acts of the Association and fell within the jurisdiction of the Constitutional Court. The written law most relevant to the question whether the interference was “prescribed by law” was the Constitution.
58. The Government stated that the legal basis of the measure complained of lay in Article 20 § 3 of the Constitution, which defined the boundaries of exercising the freedom of association. The same restrictions were set forth in Article 4 of the Associations of Citizens and Foundations Act (see “Relevant domestic law”, cited above). The applicants did not contest this assertion.
59. The Court notes that these provisions provide unequivocally, inter alia, that the programmes and activities of associations of citizens may not be directed towards violent destruction of the constitutional order, or to the encouragement of or incitement to military aggression or ethnic, racial or religious hatred or intolerance. The Constitutional Court held that the negation of the Macedonian ethnic identity, as the Association’s true objective, was aimed at violent destruction of the constitutional order and incitement to national or religious hatred or intolerance, since “... Macedonia is constituted as a national state of the Macedonian people and ... every activity directed towards denunciation of its identity is in fact directed towards violent destruction of ...” (see paragraph 29 above). The Court notes that it was both inevitable and consistent with the adjudicative role vested in the Constitutional Court for it to be left with the task of interpreting the notion of “violent destruction of ... or at encouragement of or incitement to ...” within the meaning of the Constitution, and assessing whether the Association’s Articles and Programme were in conformity with the Constitution.
60. The Court therefore considers that the above-cited provisions formed a sufficiently precise legal basis for the interference at issue, which was therefore “prescribed by law”.

3. Legitimate aim

61. The Government maintained that the impugned interference pursued a number of legitimate aims: ensuring national security and public safety, preventing disorder and protecting the rights and freedoms of others.
62.  In assessing the legitimate aim pursued by the interference, the Court refers to the grounds relied on by the Constitutional Court for annulling the Association’s Articles and Programme. In this connection, it observes that, according to that court, the Association’s real objective violated, inter alia, “the free expression of the national affiliation of the Macedonian people” (see paragraph 29 above). The Court therefore considers that the dissolution of the Association pursued at least one of the “legitimate aims” set out in Article 11, namely the protection of “the rights and freedoms of others”.

4. “Necessary in a democratic society”

(a) General principles emerging from the Court’s case-law

63. Notwithstanding its autonomous role and its particular sphere of application, Article 11 of the Convention 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 (see Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 44, ECHR 2005; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 37, ECHR 1999-VIII).
64. Freedom of expression 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 Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 86, ECHR 2001-IX; Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; and Gerger v Turkey [GC], no. 24919/94, § 46, 8 July 1999).
65. Although the Court recognises that it is possible that tension is created in situations where a community becomes divided, it considers that this is one of the unavoidable consequences of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see, mutatis mutandis, Ouranio Toxo and Others v. Greece, no. 74989/01, § 40, ECHR 2005; Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX).
66. The exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”. It is in the first place for the national authorities to assess whether there is a “pressing social need” to impose a given restriction in the general interest. While the Convention leaves to those authorities a margin of appreciation in this connection, their assessment is subject to supervision by the Court, going both to the law and to the decisions applying it, including decisions given by independent courts (see Gorzelik and Others v. Poland, cited above, §§ 95, 96).
67.  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” (see Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports of Judgments and Decisions 1998-IV; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, §§ 46 and 47, Reports 1998-I,).

(b) Application of these principles in the present case

68. The Court notes at the outset that the Association was formally registered on 19 June 2000 (see, a contrario, Sidiropoulos and Others v. Greece, cited above, § 31 and The United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, § 53, 19 January 2006, which concerned the refusal of the national authorities to register associations of “Macedonians”). Its public launch was on 27 October 2000.
69.  On 21 March 2001 the Constitutional Court declared the Association’s Articles and Programme null and void. According to the Constitutional Court, the Association’s true objectives were the revival of Ivan Mihajlov-Radko’s ideology according to which “... Macedonian ethnicity never existed ..., but belonged to the Bulgarians (P Болгари) from Macedonia and its recognition (i.e. that of Macedonian ethnicity) was the biggest crime of the Bolshevik headquarters committed during its existence” (see paragraph 27 above). That court further noted that the founders of the Association, as Ivan Mihajlov’s “ideological companions” (see paragraph 16 above), had sought to celebrate and continue his work. It declared the Association’s Articles and Programme unconstitutional as “every activity aimed at denunciation of its [Macedonian] identity is in fact directed towards violent destruction of the constitutional order of the Republic and towards encouragement of or incitement to national or religious hatred or intolerance and towards denunciation of the free expression of its national affiliation”.
70. In this context, the Court considers that this case should be distinguished from the Stankov case (Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, cited above, § 10) in which the applicants claimed “recognition of the Macedonian minority in Bulgaria”, as opposed to the present case in which the national identity of certain people was called into question.
71.  The Court recalls that the freedom of association is not absolute, however, and it must be accepted that where an association, through its activities or the intentions it has expressly or implicitly declared in its programme, jeopardises the State’s institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. Moreover, the statute and programme cannot be taken into account as the sole criterion for determining its objectives and intentions. An association’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 actions of the association’s members and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of an association, provided that as a whole they disclose its aims and intentions (see Gorzelik and Others, cited above, § 58 and Refah Partisi (the Welfare Party) and Others, cited above § 101).
72.  The Court, however, notes that the Constitutional Court made no suggestion that the Association or its members would use illegal or anti-democratic means to pursue their aims. The Constitutional Court did not provide any explanation as to why a negation of Macedonian ethnicity is tantamount to violence, especially to violent destruction of the constitutional order. Even in the proceedings before this Court, the respondent Government did not present any evidence that the applicants had advanced or could have advanced the use of such means. Despite the Government’s views about a certain historical context, the Constitutional Court did not characterise the Association as “terrorist”. Indeed, there was nothing in the Association’s constitutive acts to indicate that it advocated hostility. Moreover, that court did not even make any reference to the incident that occurred at the opening ceremony.
73. It transpires therefore that the crucial issue in declaring the Association’s constitutive acts null and void was the name of the Association and the teaching which Ivan MIhajlov-Radko pursued during his lifetime. That was implicitly confirmed by the Government in their observations.
74.  It is undisputed that the creation and registration of the Association under the pseudonym of Ivan Mihajlov “Radko”, generated a degree of tension given the special sensitivity of the public to his ideology, which was generally perceived by the Macedonian people not only as offensive and destructive, but as denying their right to claim their national (ethnic) identity. Even the applicants agreed that their ideas “related to the proper interpretation of the history of Macedonia and ethnic Bulgarians in Macedonia” might have been regarded as hostile and offensive by many citizens of the former Yugoslav Republic of Macedonia. The strong public interest was manifested by the media campaign and the tension became evident at the Association’s opening ceremony, when smoke bombs were thrown and a journalist was severely injured.
75. Under those circumstances, the Court cannot but accept that the name “Radko” and his or his followers’ ideas were liable to arouse hostile sentiments among the population, given that they had connotations likely to offend the views of the majority of the population. However, the Court considers that the naming of the Association after an individual who was negatively perceived by the majority of population could not in itself be considered reprehensible or to constitute in itself a present and imminent threat to public order. In the absence of any concrete evidence to demonstrate that in choosing to call itself “Radko” the Association had opted for a policy that represented a real threat to the Macedonian society or the State, the Court considers that the submission based on the Association’s name cannot, by itself, justify its dissolution (see, mutatis mutandis, Ouranio Toxo and Others, cited above, § 41 and United Communist Party of Turkey and Others, cited above, § 54).
76. The Court reiterates its case-law, under which a State cannot be required to wait, before intervening, until an association had begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy  (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others, cited above, § 102). However, 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. One of the principal characteristics of democracy is the possibility it offers of resolving 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 certain issues and to find, according to democratic rules, solutions (see Çetinkaya v. Turkey, no. 75569/01, § 29, 27 June 2006; Stankov and the United Macedonian Organisation Ilinden, cited above, §§ 88 and 97; and United Communist Party of Turkey and Others, cited above, § 57). To judge by its constitutive acts, the Court considers that that was indeed the Association’s objective. In addition, the Association confined itself to realising these objectives by means of publications, conferences and cooperation with similar associations. The Association’s choice of means could hardly have been belied by any practical action it took, since it was dissolved soon after being formed and accordingly did not even have time to take any action. It was thus penalised for conduct relating solely to the exercise of freedom of expression. In this connection, the Court points out that it is not in a position nor is it its role to take the side of any of the parties as to the correctness of the applicants’ ideas. It is therefore without relevance that the applicants did not distance themselves explicitly from what the Constitutional Court established as the Association’s real aim.
77. The Court also considers that there is no need to bring Article 17 into play as nothing in the Association’s Articles and Programme warrants the conclusion that it relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see United Communist Party of Turkey and Others, cited above, § 60).
78. Against that background, the Court considers that the reasons invoked by the authorities to dissolve the Association were not relevant and sufficient. The restrictions applied in the present case, accordingly, did not pursue a “pressing social need”. Being so, the interference cannot be deemed necessary in a democratic society. It follows that the measure infringed Article 11 of the Convention.


79.  The second applicant complained also under Article 10 that the dissolution of the Association amounted to a violation of his freedom of expression as the Association had served as a venue for expression of his views (and those of the Association’s other members) regarding the ethnic origin of certain segments of the population. In this context, he noted the media campaign and a statement by the then President of the respondent State, who had allegedly said that “there is no place for a man who claims that Macedonians are (ethnic) Bulgarians”. The second applicant inferred that that statement had referred to him ...
80.  The Court considers that the second applicant’s complaints under this head are closely connected to the facts and are difficult to separate from those based on Article 11, which is in the circumstances of the present case, a lex specialis in relation to Article 10 of the Convention. It therefore concludes that it is not necessary to take this provision into consideration separately (see Ezelin v. France, cited above, §§ 35 and 37).

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