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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). 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".
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”.
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.[
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”.
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.
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.
16. Following the incident at the official presentation
a large mass media campaign against association “Radko”
was initiated in Macedonia. “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. 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”.
The petition before the Constitutional Court of
Macedonia
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]:
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.
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.
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.
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”.
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 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. Where the law provides for
discretionary powers, the limits of such discretion
should be clear to avoid abuse. 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. Greecethe
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”.
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.
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””. 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”.
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 |