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European Court of Human Rights
Council of Europe
Strasbourg, France
PP 22876
Application
Under Article 34 of the European Convention on Human Rights and Rules 45 and 47 of the Rules of the Court
I. THE PARTIES
A. Applicants:
1. Name of the first applicant: Association of citizens “Radko”
2. Address of the first applicant: see the address of the second applicant
1. Name of the second applicant: Vladimir Paunkovski
2. Nationality: Macedonian and Bulgarian
3. Date and Place of Birth: 1954, Ohrid, the Republic of Macedonia
4. Permanent Address: 47 Galichitsa Str. 2/4 Ohrid 6000
5. Tel.: 0038 99 637 299
6. At present: see above
1. Name of the representatives – Yonko Grozev and Boyko Boev in association with the Bulgarian Helsinki Committee
2. Occupation of the representatives: Attorneys at Law
3. Address of the representative: 7 Varbitsa Str., floor 4, Sofia 1504 Bulgaria
4. Tel. No:+3592 943 4876
B. The High Contracting Party
Republic of Macedonia
II. THE FACTS
1. The first applicant, Association of Citizens “Radko” ( Здружение на грагани “Радко”) is a NGO, which was dissolved after its statute and programme were found unconstitutional by the Constitutional Court of Macedonia. The second applicant, Vladimir Paunkovski, born in 1954, was the association’s chairman prior to its dissolution. He resides in Ohrid.
2. This application stems from a judgment of the Macedonian Constitutional Court of 21 March 2001 on the constitutionality of the first applicant’s statute and programme. The petition for the proceedings was submitted by Jarnula Kunovska, Dushko Apostolski and Lefko Tanevski, all practicing lawyers from Skopie. The Constitutional Court found that the association’s statute and programme were directed at the violent destruction of the existing constitutional order and at encouragement or incitement to national hatred and intolerance in breach of the Constitution. The applicants will assert to the Court that the fact that their association was dissolved infringed their right to freedom of association as well as the second applicant’s right to freedom of expression, as guaranteed respectively by Article 11 and Article 10 of the European Convention of Human Rights.
3. Association “Radko” (hereinafter “Radko”, “the association”, “the first applicant”) was founded by ten Macedonian nationals in the city of Orhid on 24 May 2000. According to its statute the association is an independent, non-political and public organization, which studies and promotes the Macedonian Liberation Movement through all accepted democratic standards and principles (rule 3, para. 2).[1][1] The official symbols of the association are its emblem and seal, its banner and anthem. (rule 4, para. 1). The objectives and tasks of the association, enumerated in rule 7, are as follows:
“1. To raise and affirm the Macedonian cultural space (македонски културен простор”);
2. To re-establish traditional moral and human values;
3. To popularize of the objectives, tasks and ideas of the Macedonian Liberation Movement through publication of its own newspaper, publishing activity, library, through its own electronic media, seminars, conferences, forums and other cultural forms of action.”
4. The promotional leaflet of the association distributed in relation with the official presentation of the association repeated the objectives set out in rule 7 and supplements that the association will raise and affirm the Macedonian cultural space “with a priority on the cultural and historical identity of the Slavs from Macedonia who through the centuries presented themselves as Bulgarians”[2][2].
5. Rule 8 sets out that the association “Radko” will attain its objectives and tasks through:
1. “individual and group activities of its members, and the bodies and structures of the association;
2. collaboration of the association with similar associations and structures from the country and abroad”.[3][3]
6. Rule 9 provides that a member of the association could become every citizen who accepts its programme. Every citizen of the Republic of Macedonia or of another country who has completed the age of 18 may become a member after signing up a membership application (rule 10, para. 1).
7. The association’s programme of 24 May 2000 consists of the two following passages:
“The association is founded as a non-profit, non-party and non-political organization to raise and affirm the Macedonian cultural space, to re-establish the traditional moral and human values, to affirm the ideas of the Macedonian Liberation Movement through publication of its own newspaper, publishing activity, library, through its own electronic media, seminars, conferences, forums and other cultural forms of action.
For the above objectives the association shall organize and participate in forums with the participation of eminent cultural and scientific figures from the country and abroad through its local committees.”
8. The promotional leaflet provides information about the name of the association. It says:
“The Founders of the Association have named (the latter) “Radko” after the most popular pseudonym of Ivan Mihailov.
Ivan Mihaijlov-Radko’s life, revolutionary, cultural and especially his writing and literary activities are closely woven into the history of Macedonia. Praised by many, including the founders of this Association, and denounced by his ideological adversaries, he became and still remains a legend. Although his work has yet to be evaluated, it is unquestionable that under his leadership the Macedonian Liberation Movement grew as an example of the human spirit’s love for freedom. He left the latter to the coming generations who must complete the holy liberation work.
Ivan Mihailov headed the movement for the longest and most difficult period, from 1925 to 1990. He remained and functioned as an intellectual and moral pillar of the revolutionary and cultural struggle of the Bulgarians from Macedonia. Precisely this allows us to state that his publications are the most authentic and authoritative evidence of the ideological content of the Macedonian Liberation Movement. Their factual reliability make them a pure historical source of unquestionable scientific value. That is why his written legacy to the present and coming generations is the most certain evidence of the revolutionary and cultural work of the Bulgarians from Macedonia. Among these the most important are his four-volume “Memoirs” which represent a national treasure of unchanging value in the new history of Macedonia.”
9. On 19 June 2000 association “Radko” was registered following a decision by the Ordinary court in Ohrid.[4][4]
Activities between the registration and the petition before the Constitutional Court
10. “Radko”’s members had only few activities between the registration and the petition before the Constitutional Court of Macedonia regarding the compatibility of the association’s programme and statute.
11. In the beginning of October 2000 they published a promotional leaflet which accompanied the invitation sent to media, embassies and associates for the official presentation cocktail party of the association.
12. On 24 October 2000 the Dnevnik newspaper, one of the most popular newspapers in Macedonia, published an article about the scheduled official presentation of “Radko” association. The article cited academician Blazhe Ristovski, a historian and former deputy prime minister, who stated that association “Radko”’s appearance in the public field was dangerous. According to him “it is nothing else but returning of the propaganda from Turkish times. In other words someone wants to complete the work of the terrorist Vanche Mihailov.” Academician Ristovski requested whether the Ordinary court in Ohrid has taken into account Article 20, paragraph 3 of the Constitution or “the Constitution was not important for it as well as to whether the use of all possible means for promoting the Vanche’s ideology for changing the national conscience of Macedonian people does not mean destruction of national texture and encouragement and incitement of national hatred and intolerance in the state?” He also posed the question whether the association is not used for “restoration of terrorism and fascism which were the most essential characteristics of Hitler’s co-worker Vanche Mihailov”. The article finished with a statement by Mr. Nikola Popovski, an MP from the then ruling Social Democratic Union, who said that he “believes that there are forces in Macedonia that through praising (Vanche Mihailov’s) political doctrine intend to carry out political actions in the direction in which Mihailov acted. It is well known that he openly negated the Macedonian original (ethnic) identity and for this reason we must openly resist”.[5][5]
13. On 26 October 2000 academician Blazhe Ristevski was the guest at the nationally broadcasted TV A1’s prime time news at 7 p.m. The interview was in connection with the scheduled for the next day official presentation of the Association. The academician repeated the allegations he made in the Dnevnik newspaper interview two days before.
14. On 27 October 2000 the official representation of the association took place in the Holiday Inn Hotel in Skopie. Although only 50 invitations were sent, more than 150 people attended the event. The organizers had hired a private security company to look after public order. The presentation began with the chairman’s speech. Soon after the beginning the speech was interrupted by three unknown youngsters who threw smoke bombs in the conference hall. They were immediately taken out of the building by officers of the hotel and the private security company. They were immediately released without being handed to the police. The meeting continued 30 minutes later when the smoke went away. During the intermission guests stayed outside the hotel. There Mr. Spass Shoplinovski, a retired journalist from Nova Macedonia newspaper, was identified by the security officers as an accomplice to the three troublemakers to the presentation party. Mr. Shoplinovski was requested to leave. He used the presence of journalists on the spot and reported to them that he was hit and taken down to the earth by the organizers.[6][6]
15. Later the police requested a video film recorded during the event to identify the three youngsters who caused the incident. Three days later the three youngsters accompanied by a lawyer surrendered at the police office. They told the media that their act was motivated by patriotic feelings and that they were proud of what they had done.[7][7]
16. Following the incident at the official presentation a large mass media campaign against association “Radko” was initiated in Macedonia.[8][8] “Because of hysteria in the media” Mr. Paunkovski wrote a letter to the President of the Republic of Macedonia in which he acquainted him with the objectives of the association and expressed concerns that the media created a stereotype of the Bulgarians as fascists. He requested the president to protect the Macedonian legal order and the democratic process in the country.[9][9] In answer to Paunosvki’s letter, the Macedonian president Mr. Boris Traikovski made a statement, published in the Utrinski Vestnik newspaper on 4 November 2000, pointed out that the judiciary was responsible to examine the validity of Radko’s registration. Nevertheless he added that “in the Republic of Macedonia there is no place for a man who claims that Macedonians are (ethnic) Bulgarians”.[10][10]
The petition before the Constitutional Court of Macedonia[11][11]
17. On 24 October 2000 Mrs. Yagnula Kunovska, Mr. Dushko Apostolski and Mr. Lefko Tanevski, all practicing lawyers from Skopie, filed a petition to the Constitutional court. They challenged the compatibility of the association’s statute and the programme with Article 20, paragraph 3 of the Constitution.
18. The petitioners claimed that the association was directed at: a violent destruction of state order; impairment of the free expression of national affiliations of the Macedonian people; negation of its distinctive origin and incitement of national hatred and intolerance. The arguments of the petitioners were as follows[12][12]:
1. “The name of association was taken from the “the most popular pseudonym of Ivan Mihailov “RADKO” (“РАДКО” - outlined by the petitioners), because “his name, his life, his revolutionary activity like his cultural and writing activity were very closely ( “непремено” - outlined by the petitioners) woven into the history of Macedonia” and “left a legacy to the generation to complete the holy liberation work”. Because it was “Ivan Mihailov who headed most longer the movement (“движението”- outlined by the petitioners) (1925 – 1990), fighting and acting like a moral and intellectual pillar of the revolutionary and cultural struggle of the BULGARIANS IN MACEDONIA (“БОЛГАРИТЕ ВО МАКЕДОНИJA” - outlined and printed in bloc letters by the petitioners). It is also mentioned in the programme that “his publications are the most authentic and authoritative evidence (“свидетелство” - outlined by the petitioners) for the ideological content of the Macedonian liberation movement (“движение” - outlined by the petitioners) and with “ their factual reliability they are a historical source of undisputed scientific value. That is why his written heritages for the present and future generations are the most certain proofs (“доказателства” - outlined by the petitioners) for the revolutionary and cultural struggle of the BULGARIANS IN MACEDONIA (“БОЛГАРИТЕ ВО МАКЕДОНИJA” - outlined and printed in bloc letters by the petitioners)”.
2.“The association shall:
1. Raise and affirm the Macedonian cultural space with priority to the cultural and historical identity of THE SLAVS FROM MACEDONIA, WHO THROUGHOUT THE CENTURY PRESENTED THEMSELVES AS BULGARIANS;. . . (printed in bloc letters by the petitioners).
2. Affirm the ideas of the Macedonian liberation movement (“движение” - outlined by the petitioners).
3. The association shall attain its purposes through:
- it is own publishing (“книгоиздаческа”- outlined by the petitioners) activity, publication of a its own newspaper and its own electronic media (“медии” - outlined by the petitioners);
- holding conferences, seminars and forums with the participation of eminent figures of scientific and cultural field from the country and abroad;
- cooperation of the association with scientific, cultural and educational institutions, and with similar associations from the country and abroad.”
19. On the bases of the above abstracts the petitioners inferred that the association pursued to “infiltrate Bulgarian words in the Macedonian language and spelling, and even to abolish the rule of equalization between written and oral speech (“правилото за едначьение по звучност”) in order to follow the Bulgarian spelling”. It was argued that misuse of language must be sanctioned on if spelling was a law.
20. The petitioners noted that all association’s documents bore the banner of Vanche Mihailov (black and red) with a lion – like the ones of the Sofia VMRO and VMRO – DPMN from the congress in Kichevo (1995) “when Ljubcho Gerogievski proclaimed himself a successor of V. Mihailov”.
21. It was also reminded that the second applicant, Mr. Vladimir Paunkovski, chairman of the association, founded a BULGARIAN PARTY(written in block letters by the petitioners) which did not obtain registration, and after “some pro-Bulgarian manifestations left for Bulgaria where he obtained a Bulgarian citizenship” and “published (in Sofia) some anti-Macedonian declarations in the organs of the VMRO there, signing them with his changed family name “Pankov””.
22. According to the petitioners the statute and the programme of “Radko” were contrary to the Constitution of the Republic of Macedonia and in particular to Article 20, paragraph 3 for the following:
“- The association propagates actions by all possible means of Vanche’s ideology in order to change the national conscience of the Macedonian people in favor of another national conscience, in other words to destroy the Macedonian texture and encourage and incite national hatred and intolerance in the state.
The association justifies and legalizes terrorism and fascism which were the main feature of the activity of Hitler’s co-worker Vanche Mihailov, and “his holy liberation work” which he left to SOME (written in block letters by the petitioners) to complete it. Europe does not tolerate such a revival of neofascism.
“The Slavs in Macedonia who presented themselves Bulgarians throughout the centuries . . .” are not known in the Republic of Macedonia. They do not exist like a nation, nationality or other entity. There are Macedonians in Macedonia, (other like) Bulgarians, Serbs . . . may exist only like representatives of another people or nation, but there are not any “Slavs from Macedonia who are Bulgarians”.”
23. By a letter of 8 November 2000 the secretary of Constitutional Court informed the association about the petition. He invited it to send its statute and programme and present written observation to the arguments brought up in the petition.[13][13]
24. By the end of November the second applicant presented the requested documents and his written observations on behalf of the association. With respect to the petition Mr. Paunkovski pointed to the following:
“The founders of association “Radko” had a common to all humans motive – to be free and be (recognized as) persons.” . . .
“Association “Radko” is a civil and non political association and has declared its intent to act on the cultural and educational, and information field.”
25. With respect to the numerous linguistic arguments in the petition Mr. Paunkovski cited Benedetto Croce’s Esthetics who said that any “language is an on-going creation. . . It (language) is not an arsenal of good and polished weapons, language is not a dictionary, which is a dead collection of abstractions, graveyards of so to say well mummified dead persons.”
26. The second applicant claimed that “every legal standardization of language is “shameless prostituting, diversion toward the natural development of it as a psychological organism and an on-going creation.” He added that the legal standardization of language also leads to “usurpation of private freedom and free creativity, a frivolous intervention into the most private property of the individual – his private style as a sublime materialization of his spirit.”
27. The second applicant rejected the claims for “infiltration of Bulgarian words”. He contended that from a formal and legal point of view, the absence of a dictionary of the Macedonian language made impossible to determine the words which were or not Macedonian in reality.[14][14]
28. The second applicant then examined the origin of the words from the association’s official documents which were pointed by the petitioners as evidence of the infiltration of the Bulgarian language. He noted that the existing Dictionary of the Macedonian language with Serb and Croatian explanations contained the word “свидетелство” (evidence). As to the word “непремено” (here very closely) he pointed that it was a Slavonic word which exists in all Slavonic languages. The word was out dated and that is why it was not in the dictionary. The applicant maintained that in reality this word existed in many Macedonian dialects. He also alleged that the word “Болгари” (Bulgarians) can be also found in the above dictionary and still existed in many dialects. As a proof of that Mr. Paunkovski pointed to the fact that the eminent Mecedonophil Gorgi Marjanovic used it. Finally it was noted that the words “книгоиздавачка” (publishing) and “медии”(media) were of a Serbian origin and thus the association cannot be accused of using Bulgarian words.
29. According to the second applicant, “[a] typical characteristic of the Macedonian linguistic puritanism is avoidance of dialects, but for every linguist it is more than clear that it is the dialects that are the basic and never failing source of the immense linguistic wealth, that the literary language is a mosaic of dialects, and avoiding them is a dangerous retardation of the language.”
30. Regarding the allegation that the members of the association did not respect the rule of equalization between written and oral speech Mr. Paunkovski observed that that allegation was made with respect to the association’s name Radko which was written with letter “d” instead of “t” as the name sounds. Mr. Paunkovski rejected the allegation by reminding that Radko was a pseudonym and as such orthographic rules did not apply to it.
31. The second applicant rejected the argument that the affiliation of the association with Vanche Mihailov was an example of connections with the domestic or international fascists. He pointed to the fact that Ivan Mihailov lived in Italy until his death without being ever prosecuted for fascist or other illegal activities.
32. As to the lion, used as a symbol on the association’s banner the applicant argued that by analogue the Constitutional Court must decide whether the political party VMRO DPMNE must be prohibited to use this symbol only because it was identical to the one of the Sofia VMRO.
33. The applicant claimed that as a free citizen of the Republic of Macedonia he could found political parties and obtain a citizenship of his choice. If by doing so he violated any law competent organs and the judiciary in Macedonia could sanction him.
34. The applicants considered that the accusation that the association “propagated action by all possible means of the Vanche’s ideology for change of the national conscience of Macedonian people in favour of another national conscience” was malicious. They claimed that the programme objectives of the association were in conformity with the Macedonian Constitution and laws and that it intended to use all legal means for the attainment of its goal.
35. The applicants requested the Constitutional Court to reject the petition on the ground that the association’s statute and programme did not violate Article 20, paragraph 3 of the Constitution of Macedonia
36. On 17 January 2001 the Constitutional Court declared the petition admissible. It examined in the light of Article 20, paragraphs 1, 2 and 3 of the Constitution the provisions regarding the name of the association; the objectives of the association; the methods for attainment of the objectives; the tasks of the association. The Constitutional Court found that there was a well-founded doubt that the association’s statute and programme were directed at the violent destruction of the constitutional order of the Republic of Macedonia and incitement to national or religious hatred or intolerance.
37. The court noted that “according to Ivan Mihailov “Radko”’s teaching the Macedonian ethnicity never existed on the territory (of the Republic of Macedonia), the latter belonged to the Bulgarians from Macedonia, that its recognition (of the Macedonian ethnicity) was the biggest crime the Bolchevic headquarters (the Communist International) committed during their ruling. In particular, according to his teaching, the process of debulgarization of Macedonia which was violently carried out after the World War II was in other words Serbocomminist rule, and that the Serbocommunist doctrine continued to be the official doctrine of the state even after the independence of the Republic of Macedonia in 1991”.
38. The constitutional justices also inferred that “affirmation of the ideas of the Macedonian liberation movement, according to the association, mean in reality liberation from “Macedonianism” as Serbocommunist doctrine and from “the fabricated Macedonian nation”, which was made to stay as an open door for bringing the entire Macedonia into the framework of Yugoslavia”.
39. In the view of the Court “the freedom of and the right to association, organization and action as a part of the bill of people and citizens’ freedoms and rights is a basic value aimed at the protection and development of the democratic relations in the government of the Republic of Macedonia” and as such it was guaranteed by Article 20, paragraph 1 and 2 of the Constitution. However, this freedom could not be granted with regard to Radko’s objectives and the means for their attainment. The Constitutional Court relied on Article 20, paragraph 3 which “prohibited associations’ programmes and actions to be directed at the violent destruction of the constitutional order of the Republic, or at encouragement or incitement to national or religious hatred or intolerance, as well as Articles 1, 3 and 8 of the Constitution under which citizens are bound to respect the sovereignty and the territorial integrity of the Republic”.
40. The Constitutional Court noted that it “took into consideration also the Preamble of the Constitution of the Republic of Macedonia which establishes on the basis of the historical fact that Macedonia was founded as a national state of the Macedonian people and that every action intentionally directed at negation of its self origin, is in reality directed at violent destruction of the established order of the Republic, at encouragement or incitement of national or religious hatred or intolerance or at negation of the free expression of its national belonging.”
41. On 21 March 2001 the Constitutional Court of Macedonia delivered its decision. It repealed the association’s programme and statute using the arguments set out in the admissibility decision.[15][15]
III. AS TO THE RELEVANT DOMESTIC LAW:
42. The provisions of the Constitution, the Law for the Constitutional Court, the Associations of Citizens and Foundations Act
Constitution
Article 1
(1) The Republic of Macedonia is a sovereign, independent, democratic and social state.
(2) The sovereignty of the Republic of Macedonia is indivisible, inalienable, and nontransferable.
Article 3
(1) The territory of the Republic of Macedonia is indivisible and inviolable.
(2) The existing borders of the Republic of Macedonia are inviolable.
(3) The borders of the Republic of Macedonia can only be changed in accordance with the Constitution and on the principle of free will, as well in accordance with generally accepted international norms.
(4) The Republic of Macedonia has no territorial pretensions towards any neighboring state.
Article 8
(1) The fundamental values of the constitutional order of the Republic of Macedonia are:
- the basic freedoms and rights of the individual and citizen, recognized in international law and set down in the Constitution;
- the free expression of national identity;
- the rule of law;
- the division of state powers into legislative, executive and judicial;
- the legal protection of property;
- the freedom of the market and entrepreneurship;
- humanism, social justice and solidarity;
- local self-government;
- proper urban and rural planning to promote a congenial human environment, as well as ecological protection and development; and
- respect for the generally accepted norms of international law.
(2) Anything that is not prohibited by the Constitution or by law is permitted in the Republic of Macedonia.
Article 20
(1) Citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions.
(2) Citizens may freely establish associations of citizens and political parties, join them or resign from them.
(3) The programmes and activities of political parties and other associations of citizens may not be directed at the violent destruction of the constitutional order of the Republic, or at encouragement or incitement to military aggression or ethnic, racial or religious hatred or intolerance.
(4) Military or paramilitary associations which do not belong to the Armed Forces of the Republic of Macedonia are prohibited.
Article 108
The Constitutional Court of Macedonia is a body of the Republic protecting constitutionality and legality.
Article 110
The Constitutional Court of Macedonia.
- decides on the answerability of the programmes and status of political parties and associations of citizens;
Article 112
. . .
The Constitutional Court shall repeal or invalidate a collective agreement, other regulation or enactment, statue or programme of a political party or association, if it determines that the same does not conform to the Constitution or law.
The decisions of the Constitutional Court are final and executive.
Article 113
The mode of work and the procedure of the Constitutional Court are regulated by the enactment of the Court.
Law on associations of citizens and foundations
Article 2
Citizens may freely associate in associations of citizens and establish foundations in order to promote and protect economic, social, cultural, scientific, technical, humanitarian, educational, sport and other rights, interests and beliefs in compliance with the Constitution and the law.
Article 4
The programmes and activities of associations of citizens may not be directed at:
- violent destruction of the constitutional order of the Republic;
- encouragement or propagation to military aggression and
- incitement to ethnic, racial or religious hatred or intolerance.
Article 5
Associations of citizens and foundations shall have a statute.
Associations of citizens and foundations shall be independent in organizing and attaining its objectives, interests and activities set out in the statute.
Associations of citizens and foundations shall enjoy their rights, duties and responsibilities in accordance with the Constitution, the law and the statute.
Article 43
Associations of citizens and foundations shall be registered by the ordinary court on which territory is their office.
. . .
Article 47
. . .
The court shall not conduct registration when it finds that the objectives and activities, the act of establishment, the statute and programme of the association of citizens or foundation are not in conformity with Article 3 and 4 of this law.
Article 52
Associations of citizens shall be dissolved:
. . .
if the Constitutional court of the Republic of Macedonia finds that the programme and statute of an association is not in conformity with the Constitution.
. . .
IV. AS TO THE LAW
43. The applicants maintain that the fact that association “Radko”’s programme and statute were declared unconstitutional which led to the dissolution of the association violated their right to association, guaranteed by Article 11 of the Convention. In addition the second applicant claims that the Constitutional court’s judgment violated his right to freedom of expression, guaranteed by Article 10 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
Compliance with Article 11
Whether there is an interference
44. The applicants assert that the Constitutional Court’s judgment on the constitutionality of “Radko”’s statute and programme and the consequent dissolution of the association amount to an interference with the right to freedom of association of its members.
45. The applicants point out that the objective of Article 11 is to allow individuals to come together for the expression and protection of their common interests and purposes. By decision of the Constitutional court which led to the dissolution of the association deprived its members, including the second applicant, of possibility to jointly pursue the purposes they had laid down in the association’s statute and programme and of thus exercising the right, guaranteed by Article 11. The Court had said that “[t]hat citizens should be able to form a legal entity in order to act collectively in a filed 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”.[16][16]
Whether the interference is justified
46. The applicants point out that an interference to be justified it should be ‘prescribed by law’, pursue one or more legitimate aims under paragraph 2 and be ‘necessary in a democratic society’ for the achievement of those aims.
a. ‘Prescribed by law’
46. The applicants argue that the interference in his expression rights was not lawful. The Court ruled in the Sunday Times v. UK case[17][17] that an interference with a right guaranteed under the Convention is lawful only when it meets several conditions. The law on which the interference is based must be adequately accessible which means it should be formulated with sufficient precision to enable individuals to regulate their conduct accordingly[18][18]. Where the law provides for discretionary powers, the limits of such discretion should be clear to avoid abuse.[19][19] Any interference based on law, which does not meet the standard of being clear and foreseeable, is thus in violation of the Convention.
47. In the applicants’ view Article 20, paragraph 3 and Articles 4 of the Law on Citizens’ Associations and Foundations do not meet the Convention’s requirement for clear and foreseeable powers of the Constitutional court when it examines the constitutionality of associations’ statutes and programmes.
48. Finally the applicants maintain that the interference with their right to freedom of association was not lawful because the association’s programme and statute did not violate the law and the Constitution. The applicants note that by registering the association the Ordinary court in Ohrid pronounced that the latter was in compliance with national law (see paragraph 3 above).
b. Legitimate aim
49. The applicants observe that the Constitutional Court declared the association’s statute and programme unconstitutional on the ground that the two were directed at a violent destruction of the established constitutional order in Macedonian as well as incitement of national hatred or intolerance. These grounds make possible to infer that the dissolution of the association pursues at least two legitimate aims set out in Article 11 of the Convention: the prevention of disorder and the protection of the rights and freedoms of others.
c. “Necessary in a democratic society”
50. In the case of Sidiropoulos and Others v. Greece[20][20] the Court stated that “when it 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 determined 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 the above case the Court reiterated its position expressed in the Socialist Party and Others case that the Court “must satisfy itself that the national authorities have based their decisions on an acceptable assessment of the relevant facts”.[21][21]
51. The applicants maintain that the “Radko”’s dissolution is not necessary in a democratic society. Their position is made on two grounds:
A. The dissolution of the association is not proportionate to the legitimate aims pursued;
B. The reasons adduced by the national authorities to justify the dissolution were not “relevant and sufficient”.
As to proportionality of the restriction
52. The applicants contend that the restriction was not proportionate to the legitimate aims pursued. The interference in question was radical: the association was dissolved with immediate and permanent effect. The applicants recall the position of the Court in the case of Socialist Party and Others against Turkey that dissolution as a measure may only be applied in the most serious cases.[22][22]
53. Although for some people “Radko”’s ideas might have been shocking or disturbing the association did not call into question the need for compliance with democratic principles and rules. There was nothing in its activity, statute or programme to indicate that the association had advocated the use of violence or of undemocratic or unconstitutional means. The “Radko”’s members declared that they will attain the association’s objectives “through all accepted democratic standards and principles” (rule 3, para. 2). The official promotion cocktail party which was the only activity of the association prior to the petition before the Constitutional court was held in conformity with these democratic standard.
54. The applicants contend that mention of the consciousness of belonging to the Bulgarians and “preservation and development of a minority’s culture could not be said to constitute a threat to “democratic society””[23][23]. They allege that in a pluralistic and parliamentary system people should have the right to express their opinion on the ethnic origin of certain segments of the population.
55. Finally the applicants contend that the very quick dissolution was a very harsh measure which did not correspond to the character of the association, the number of its members and its very short existence.
Lack of relevant and sufficient reasons for the dissolution
56. The applicant submit that all the arguments put forward by the Constitutional court are baseless, vague and unproven and do not correspond to the concept of “pressing social need”.
57. The Constitutional court held that “Radko”’s programme and statute were not lawful without having regard to public acts of the association and regardless of the fact that they did not find anything in the case file to suggest that any of the applicants wished to undermine Macedonia’s public order or the protection of the rights and freedoms of others. The judgment was made on the presumption that “every action directed at negation of the ethnic origin of the Macedonian people and national state was directed at violent destruction of constitutional order and encouragement to and incitement for national or religious hatred or intolerance”. Thus only on the reference to “Vanche Mihailov’s teaching” with regard the Macedonian ethnicity and the justices’ assumption that “affirmation of the ideals of the Macedonian liberation movement . . . means violent destruction of the established constitutional order in the Republic of Macedonia and incitement of national or religious hatred or intolerance” the association was dissolved.
ALLEGATION OF VIOLATION OF ARTICLE 10
57.The second applicant claims on the dissolution of the association following the judgment of the Constitutional court together with the media intolerance and the statement of the president of the Republic that “there is no place (in the Republic of Macedonia) for a man who claims that Macedonians are (ethnic) Bulgarians” (see paragraph 16 above) violated his right to freedom of expression guaranteed by Article 10 of the Convention.
Applicability of Article 10
58. The second applicant asserts that Article 10 is applicable in the instant case because he and the other founders of the association sought to use the latter for the expression of their common views regarding the ethnic origin of certain segments of the population in the territory of the Republic of Macedonia. The connection between Article 10 and 11 is obvious and it has been noted on many occasions by the Court which said that “[t]he protection of opinions and the freedom to express them is one of the objectives of the freedom of assembly and association as enshrined in Article 11”.[24][24]
Whether the applicant was a victim/whether there was interference with his freedom of expression
59. The second applicant alleges that there was an interference with his freedom of expression because the dissolution of association “Radko” is a sanction imposed on the expression of his opinion regarding the ethnic origin of certain segments of the population in the Republic of Macedonia.
60. The second applicant contends that the judgement of the Constitutional court made on the presumption that “every action intentionally directed at negation of (the Macedonian people’s) ethnic origin is in reality directed at violent destruction of the established order of the Republic, at encouragement or incitement of national or religious hatred or intolerance or at negation of the free expression of its national belonging” (see paragraph 40 above) has a chilling effect on the future expression of his opinion.
61. On the bases of the arguments with respect to the violation of Article 11 the applicant claims that there was no justification for the interference with his right to freedom of expression and thus it was in breach of Article 10 of the Convention.
V. STATEMENT ON EXHAUSTION OF DOMESTIC REMEDIES
As the Constitution is the supreme law of the land, and there is no available procedure for appeal nor possible grounds for appeal against a judgment of the Constitutional Court.
V. STATEMENT OF THE OBJECTIVE OF THE APPLICATION
The objective of the application is a finding by the Court of a violation of Article 10 and Article 11 of the Convention, and a just compensation.
VI. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS
Have you submitted the above complaints to any other procedure of international investigation or settlement?
No complaint has been submitted to any other international procedure of investigation or settlement.
VII. LIST OF DOCUMENTS:
1. Statute of the Association “Radko” - Exhibit No. 1
2. Promotional leaflet - Exhibit No. 2
3. Programme of the Association “Radko” Exhibit No. 3
4. Decision of the Ordinary court in Ohrid of 19 June 2000 - Exhibit No. 4
5. Copy of article published in Dnevnik newspaper on 24 October 2000 - Exhibit No. 5
6. Copy of article published in Utrinski Vestnik newspaper on 30 October 2000 - Exhibit No. 6
7. Copy of article published in Utrinski Vestnik newspaper on 1 November 2000 - Exhibit No. 7
8. Copy of article published in Utrinski Vestnik newspaper on 4 Nevember 2000 - Exhibit No. 8
9. Petition of 24 October 2000 to the Constitutional Court of the Republic of
Macedonia Exhibit No. 9
10. Letter by the Secretary of the Constitutional Court to Association “Radko” - Exhibit No. 10
11. Written Observations to the application regarding the constitutionality of association “Radko” - Exhibit No. 11
12. Decision on the admissibility of 17 January 2001 of the Constitutional Court of the Republic of Macedonia – Exhibit No. 12
13. Request of 5 September 2001 to the Constitutional Court for access to Radko’s case file – Exhibit No. 13
14. Refusal in writing of 6 September 2001 of the Constitutional Court for assess to the case-file – Exhibit No.14
15. Judgement of 21 March 2001 of the Constitutional Court of the Republic of Macedonia – Exhibit No. 15
16. Letter of authority
VIII. STATEMENT OF PREFERRED LANGUAGE
The applicants prefer to receive the Court’s judgment in English.
Declaration and Signature
I hereby declare that, to the best knowledge and belief, the information I have given in my application is correct and that I will respect the confidentiality of the Court’s proceedings.
I do not object to my identification being disclosed.
Place: Sofia Date: 26 September 2001
Signature of the applicant
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[1][1] See Exhibit No. 1
[2][2] See Exhibit No. 2
[3][3] See Exhibit No. 3
[4][4] See Exhibit No. 4
[5][5] See Exhibit No. 5
[6][6] See Exhibit No. 6
[7][7] See Exhibit No. 7
[8][8] See Exhibit No. 8
[9][9] See Exhibit No. 9
[10][10] See Exhibit No. 10
[11][11] During the preparation of the instant application Mr. Paukovski and the second counsel, Mr. Boyko Boev, were not given access to the Constitutional court’s case-file regarding association “Radko”. As the applicants were not allowed to read the case-file they are not responsible for deliberate omissions in the facts under this heading. See Exhibit No. 11 and 12
[12][12] See Exhibit No. 13
[13][13] See Exhibit No. 14
[14][14] The applicant points to the fact that there is no official dictionary of the Macedonian language. The existing dictionary of the Macedonian language contains Serb and Croatian explanations to words. See para. 28 below.
[15][15] Exhibit No. 13
[16][16] See Sidiropoulos and Others v. Greece judgment of 10 July 1998 para.31 and para. 40
[17][17] Sunday Times v UK, Judgment of 27 October 1978, Series A 30 para. 49.
[18][18] Ibid.
[19][19] See Silver and others v UK, Judgment of 25 March 1983, Series A 61, para. 87-88.
[20][20] See ibid. 15 para. 40
[21][21] See, judgment of 25 May 1998, para. 44
[22][22] See, ibid. 20, para.51
[23][23] See ibid. 20, para.41
[24][24] See the case of Young, James and Webster v the UK, judgment of 13 August 1981, Series A No.44, p. 23, para 57
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