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FOURTH
SECTION
CASE OF
SINGARTIYSKI AND OTHERS v. BULGARIA
(Application
no. 48284/07)
JUDGMENT
STRASBOURG
18 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Singartiyski and
Others v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48284/07) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by five Bulgarian nationals, Mr Ivan Iliev
Singartiyski, Mr Angel Ivanov Bezev, Mr Vasil Georgiev Stoychev, Mr
Emil Evtimov Evtimov and Mr Botyo Vangelov Tikov (“the
applicants”), on 18 October 2007.
- The
applicants were represented by Mr Y. Grozev, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
- The
applicants alleged they were banned from holding a meeting on 22
April 2007, and that that ban was neither prescribed by law nor
necessary in a democratic society.
- On
3 June 2008 the President of the Fifth Section, to which the case had
been allocated, decided to give priority to the application under
Rule 41 of the Rules of Court and to conduct the proceedings in the
case simultaneously with those in United Macedonian Organisation
Ilinden and Others v. Bulgaria (no. 2) (no. 34960/04), United
Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 2)
(no. 37586/04), and United Macedonian Organisation Ilinden –
PIRIN and Others v. Bulgaria (no. 2) (nos. 41561/07 and 20972/08)
(Rule 42 (former 43) § 2 of the Rules of Court).
- On
30 September 2008 the Court decided to give notice of the application
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
1 of the Convention).
- Following
the re composition of the Court’s sections on 1 February
2011, the application was transferred to the Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born respectively in 1953, 1964, 1951, 1960 and 1956,
and live in Musomishta, Koprivlen, Sandanski and Blagoevgrad.
- All
five of them are members and followers of the United Macedonian
Organisation Ilinden – Party for Economic Development and
Integration of the Population (“UMO Ilinden – PIRIN”),
a political party founded in 1998 and based in south western
Bulgaria (in an area known as the Pirin region or the geographic
region of Pirin Macedonia). The party was declared unconstitutional
by the Constitutional Court on 29 February 2000 and as a result
dissolved. In a judgment of 20 October 2005 this Court found that the
party’s dissolution had been in breach of its and its members’
right to freedom of association (see United Macedonian
Organisation Ilinden – PIRIN and Others v. Bulgaria, no.
59489/00, 20 October 2005). The party apparently has links with the
United Macedonian Organisation Ilinden (“UMO Ilinden”),
an association also based in south western Bulgaria and
advocating similar ideas (ibid., §§ 9 12, and Ivanov
and Others v. Bulgaria, no. 46336/99, § 10, 24 November
2005).
- On 6 March 2007 the applicants notified the Mayor of
Sandanski that UMO Ilinden – PIRIN intended to organise a rally
on Sunday 22 April 2007, first at the grave of Yane Sandanski near
the Rozhen Monastery and then in front of his monument in the town of
Melnik. The programme of the event, which was to take place between
10 a.m. and 4 p.m., included the laying of wreaths on the grave
between 10 and 11 a.m. and the singing of folk songs in front of the
monument between 11 a.m. and 4 p.m.
- In a letter to the applicants of 18 April 2007 the
Mayor of Sandanski allowed the rally, specifying that the laying of
wreaths had to take place between 10 and 11 a.m. and the musical
programme between 11 a.m. and 12 noon.
- On the same date the Regional Governor of Blagoevgrad,
acting of his own motion and relying on section 32(2) of the
Administration Act and Article 93 § 4 of the Code of
Administrative Procedure (see paragraph 24 below), annulled the
Mayor’s letter. He reasoned that it amounted to an
administrative decision, creating legal rights for UMO Ilinden –
PIRIN, and that it was unlawful. Firstly, the organisation was not
registered; on the contrary, in February 2007 the Supreme Court of
Cassation had upheld the Sofia City Court’s judgment turning
down its request to be registered as a political party (see UMO
Ilinden – PIRIN and Others v. Bulgaria (no. 2), no.
41561/07, §§ 8 19, 18 October 2011). Since it was
accordingly unlawful under Bulgarian law, it had no standing to give
notice of its intention to hold a rally. Secondly, the proposed rally
would put public order at risk. Both the Rozhen Monastery and Melnik
were places visited by many tourists, especially on Sundays. It was
therefore inappropriate to allow the staging of rallies there.
Moreover, rallies and meetings were being organised at those
locations at the same time by the local authorities and
non-governmental organisations. As clashes between supporters of UMO
Ilinden – PIRIN and others had taken place in the past, it was
necessary to ban its rally. Finally, the activities of the
organisation were contrary to Bulgarian law, as they consisted in
propaganda against the country’s sovereignty and territorial
integrity and aroused national and ethnic hatred. The Governor
specified that his decision was to be served on the Mayor of
Sandanski for execution. It was not served on UMO Ilinden –
PIRIN or on any of the applicants.
- On 20 April 2007 the members of the managing board of
UMO Ilinden – PIRIN, as well as the first and second
applicants, Mr Singartiyski and Mr Bezev, were summoned by the
police. They were issued orders under section 55 of the 2006 Ministry
of Internal Affairs Act (see paragraph 27 below) not to organise or
take part in the rally in front of Yane Sandanski’s grave near
the Rozhen Monastery.
- On
the same day the third applicant, Mr Stoychev, was told by telephone
by an employee of the local branch of the National Electricity
Company that no electrical power would be provided for the rally in
Melnik, as it had been banned by order of the regional governor.
- On
21 April 2007 a number of drivers of buses hired to transport the
participants to the rally in Melnik informed the fourth applicant,
Mr Evtimov, that they could not provide the requested service.
Mr Evtimov then approached a number of travel agencies in
Blagoevgrad, all of which advised him that the police had apprised
them of the regional governor’s decision and that they would
not provide transportation for fear of suffering negative
consequences. Mr Evtimov eventually managed to hire four buses in a
nearby village.
- Similar
transportation problems were experienced by persons from the towns of
Petrich and Razlog who wished to attend the rally.
- The
parties’ accounts of the events of 22 April 2007 differed
somewhat.
- According to the Government, on the morning of that
day the transport police carried out routine checks of some of the
motor vehicles transporting people to the rally. As the police found
certain irregularities, they sanctioned individual drivers and then
allowed the buses to proceed to Melnik. After that both UMO Ilinden –
PIRIN and UMO Ilinden were able to go ahead with the events planned
by them, respectively in Melnik and near the Rozhen Monastery. As
required by law, the police dispatched forces to ensure public order
during the events. At about 10.30 a.m. a group of about fifty
supporters of UMO Ilinden laid a wreath and flowers at Yane
Sandanski’s grave. UMO Ilinden’s chairman made a short
speech, and then the rally continued with a musical programme. No
breaches of public order were noted. UMO Ilinden – PIRIN was
not allowed to hold a rally in front of the Rozhen Monastery. A
compromise solution was reached with the organisation to hold the
rally in Melnik. At about 12 noon approximately two hundred members
and supporters of UMO Ilinden – PIRIN gathered in front of Yane
Sandanski’s monument in Melnik. They laid a wreath and flowers.
Then the organisation’s leaders made short speeches about his
life and work; in the Government’s view, most of those speeches
contained insults against the Bulgarian people and State. There were
also a number of negative remarks against the police, threats of
violence against the Regional Governor and insults against the
chairperson of the National Assembly, the Prime Minister and other
high ranking politicians. The musical programme continued after
the allotted time slot. The police did not allow drunk individuals to
breach public order. Journalists from “the former Yugoslav
Republic of Macedonia” interviewed the leaders of UMO Ilinden
and UMO Ilinden – PIRIN and a number of supporters.
- The applicants started by pointing out that two events
took place on 22 April 2007. The first was the one which their
organisation, UMO Ilinden – PIRIN, held in Melnik, in
front of Yane Sandanski’s monument. The other was the one held
by UMO Ilinden – a similar but separate organisation – at
Yane Sandanski’s grave near the Rozhen Monastery. UMO Ilinden –
PIRIN’s members and supporters, including the applicants, were
not able to approach the Monastery as originally planned because they
were stopped en route by the police. They were allowed to drive only
to Melnik. They could not tell whether members and supporters of UMO
Ilinden had been allowed to hold a rally near the Monastery.
- The applicants further stressed the difference between
the way in which UMO Ilinden – PIRIN intended to conduct the
rally and the way in which it actually unfolded. The original plan
was to proceed in the manner described in paragraph 9 above. As a
result of the Regional Governor’s decision and the ensuing
actions of the police, UMO Ilinden – PIRIN’s members and
supporters were able to go only to Melnik. On their way there, four
buses carrying participants in the rally from Blagoevgrad were
stopped several times by the police, who carried out lengthy checks
of the drivers’ and the vehicles’ papers and imposed
penalties for purported violations of the traffic rules. Buses with
participants travelling from Gotse Delchev to Melnik were also
stopped by the police three times, for about one hour each time. The
third applicant, Mr Stoychev, who was travelling by car, was also
stopped by the police, told that the rally was unlawful, and forced
to throw away a wreath which he was carrying.
- Upon their arrival in Melnik the applicants saw that
Yane Sandanski’s monument was surrounded by about fifty or
sixty police officers, who prevented the participants in the rally
from laying a wreath, only allowing them to lay flowers individually.
The officers also forced the participants to take away ribbons with
the inscription “For Yane – from grateful Macedonians”
and did not let them make speeches in front of the monument. At about
2 p.m. the officers advised the bus drivers that if they did not
leave Melnik in one hour they would be fined.
- The applicants were adamant that no agreement on how
to proceed with the rally was ever made between them and the
authorities, and that, contrary to what was asserted by the
Government, they did not agree to any changes to their original plan.
They also pointed out that the Government’s allegations that
participants in the rally had made offensive speeches and had acted
in a disorderly manner were not supported by any evidence.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the 1991 Constitution and
the 1990 Meetings and Marches Act are set out in paragraphs
48 51 of the Court’s judgment in the case of Stankov
and the United Macedonian Organisation Ilinden v. Bulgaria (nos.
29221/95 and 29225/95, ECHR 2001 IX), in paragraphs 72 76
of the Court’s judgment in the case of United Macedonian
Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98,
20 October 2005) and in paragraphs 24 28 of the Court’s
judgment in the case of Ivanov and Others v. Bulgaria (cited
above). For the purposes of the present case, particular mention
needs to be made of section 12(6) of the 1990 Act, which provides for
a possibility to seek judicial review of a mayoral ban of a rally,
and directs the court hearing such an application to determine it by
means of a final decision not later than five days after it has been
referred to it.
- Under section 31(1) of the 1998 Administration Act,
regional governors (a) carry out governmental policy and coordinate
the operations of the branches of central government in their
respective regions; (b) seek to achieve a balance between national
and local interests and interact with the local authorities; (c) are
responsible for safeguarding State property in their respective
regions; (d) uphold legality in their regions and supervise the
enforcement of administrative decisions; (e) control the lawfulness
of the decisions and the actions of local authorities; (f) coordinate
and control the operations of the territorial branches of ministries
and other central authorities, as well as the enforcement of their
decisions; (g) organise civil defence; (h) preside the regional
security councils; and (i) carry out the region’s international
contacts.
- Under Article 93 § 4 of the 2006 Code of
Administrative Procedure, all mayoral decisions may be challenged
before regional governors. Under section 32(2) of the 1998
Administration Act, regional governors may annul unlawful mayoral
decisions. Their decisions to do so are subject to judicial review
(section 32(3) of the Act).
- Regional governors’ decisions, like all
administrative decisions, are subject to judicial review by the
competent regional administrative courts (Article 132 §§ 1
and 2 of the 2006 Code of Administrative Procedure), whose judgments
are appealable before the Supreme Administrative Court (Article 208
of the Code).
- Article 127 § 1 of the Code provides that the
administrative courts must rule on each application within a
reasonable time. Article 172 § 1 of the Code requires the court
to deliver its judgment not later than one month after the last
hearing in the case.
- Under section 55(1) of the 2006 Ministry of Internal
Affairs Act, the police may, if necessary for the performance of
their duties, issue orders to individuals or organisations. Those
orders are binding unless they obviously impose the commission of an
offence (section 55(4)). Section 55(5) provides that such orders,
when issued in writing, are subject to judicial review in accordance
with the provisions of the Code of Administrative Procedure.
- Section 1(1) of the 1988 State Responsibility for
Damage Caused to Citizens Act (on 12 July 2006 its name was changed
to “State and Municipalities Responsibility for Damage Act”
– hereinafter “the 1988 Act”) provides that the
State is liable for damage suffered by private persons as a result of
unlawful decisions, actions or omissions by civil servants committed
in the course of or in connection with the performance of their
duties.
III. RELEVANT DOCUMENTS OF THE COMMITTEE OF MINISTERS
- The Committee of Ministers concluded the examination
of application no. 44079/98 (United Macedonian Organisation
Ilinden and Ivanov v. Bulgaria) and application no. 46336/99
(Ivanov and Others v. Bulgaria) on 8 June 2011, by
adopting Resolution CM/ResDH(2011)46, which reads, in so far as
relevant:
“The Committee of Ministers, ...
Recalling that the violations of the Convention found by
the Court in these cases concern the infringement of the freedom of
assembly of organisations which aim to achieve “the recognition
of the Macedonian minority in Bulgaria” due to prohibitions of
their meetings between 1998 and 2003 (violation of Article 11) and
the lack of effective remedies to complain against these prohibitions
(violation of Article 13) (see details in Appendix);
Recalling that a finding of violations by the Court
requires, over and above the payment of just satisfaction awarded in
the judgments, the adoption by the respondent state, where
appropriate, of
– individual measures to put an end to
the violations and erase their consequences so as to achieve as far
as possible restitutio in integrum; and
– general measures preventing similar
violations;
Having noted that two other applications presently
pending before the European Court concern allegations relating to
bans or to the holding of certain meetings of the applicants
initially scheduled between March 2004 and September 2009;
Having considered, without prejudging the judgment the
Court could deliver in respect of these applications, that in view of
the positive trend observed concerning the holding of the applicants’
meetings in particular since 2008 and the absence of complaints from
them as regards 2010, no further individual measure seemed required
in these cases;
Having also examined the general measures and in
particular the awareness raising measures taken by the Bulgarian
authorities to ensure that applicable domestic law is interpreted in
conformity with the Convention and thus to prevent violations similar
to that found by the European Court (see details in Appendix);
Having satisfied itself that, within the time-limit set,
the respondent state paid the applicants the just satisfaction
provided in the judgments (see details in Appendix),
DECLARES, having examined the measures taken by the
respondent state (see Appendix), that it has exercised its functions
under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicants complained that they were banned from holding a meeting on
22 April 2007. They relied on Article 11 of the Convention, which
provides:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
A. Admissibility
- The
Government submitted that the applicants had failed to exhaust
domestic remedies. Under the 1990 Meetings and Marches Act, they
could have sought judicial review of the Regional Governor’s
order, but had failed to do so. In support of that assertion the
Government cited a decision and judgment in
which the Supreme Administrative Court held that mayoral bans of
rallies were subject to judicial review (опр.
№ 8132 от 14 август
2007 г. по адм. д. №
5942/2007 г., ВАС, ІІІ о.)
and examined whether one such ban
could amount to discrimination (реш.
№ 11295 от 16 ноември
2007 г. по адм. д. №
6407/2007 г., ВАС, петчленен
състав). The Government
further submitted that the police orders served on some of the
applicants had been subject to judicial review under the Code of
Administrative Procedure; there was no indication that such review
had been sought. Lastly, they submitted that the applicants could
have brought a claim under section 1 of the 1998 Act and sought
compensation for any pecuniary or non pecuniary damage flowing
from the alleged breach of their right to freedom of peaceful
assembly.
- The
applicants pointed out that, as evident from its plain textual
meaning, section 12(6) of the 1990 Meetings and Marches Act concerned
only mayoral decisions; the Government had not presented evidence in
support of their assertion that it was also applicable to regional
governors’ orders. There was no indication that the Bulgarian
courts would adopt an extensive interpretation of that provision and
accept for examination an order issued by a regional governor, who
clearly had no powers in connection with the holding of meetings or
rallies. The decision and the judgment referred to by the Government
were plainly inapposite, as they concerned mayoral decisions. The
standard judicial review available in respect of regional governors’
orders was not an effective remedy because, unlike the speedy
procedure under the Meetings and Marches Act, which was designed to
allow the examination of the case before the date of the planned
event, it took on average six months. It would thus not allow
consideration of the lawfulness of an order banning a rally in time
for the event to proceed. The judicial review of police orders under
the Code of Administrative Procedure suffered from the same drawback.
The possibility to seek damages under the 1988 Act was not an
effective remedy either, for two reasons. First, it would clearly not
have allowed the applicants to hold their rally as planned. Secondly,
the Government did not cite any relevant precedents showing that such
claims had ever been successful.
- The
Court observes at the outset that under its case law, where
assemblies are concerned, and provided their organisers give timely
notice to the authorities, the notion of an effective remedy implies
the possibility of obtaining a determination of a legal challenge to
a ban before the time of the planned event (see Cisse v. France,
no. 51346/99, § 32 in fine, 9 April 2002; Ivanov and
Others, cited above, § 74; Zeleni Balkani v. Bulgaria,
no. 63778/00, §§ 44 and 45, 12 April 2007; and
Bączkowski and Others v. Poland, no. 1543/06, §
81, 3 May 2007; and Alekseyev v. Russia, nos. 4916/07,
25924/08 and 14599/09, § 98, 21 October 2010). In the instant
case, the applicants amply complied with the above condition: they
gave notice of the rally that they intended to organise a month and a
half in advance (see paragraph 9 above). They were therefore entitled
to a remedy that would, if successful, make it possible for them to
hold the intended rally.
- Turning
to the first prong of the Government’s objection, the Court
observes that the 1990 Meetings and Marches Act does not envisage any
participation of regional governors in the regulation or policing of
rallies (see paragraph 22 above). It thus seems that the strict
time limit for determining applications for judicial review of
mayoral bans of such rallies under section 12(6) of that Act did not
apply to the Regional Governor’s decision. The Government, who
bear the burden of proof on that point, have not cited any examples
in support of their assertion that the Governor’s decision was
reviewable under the Act. On the contrary, it appears that his
decision was amenable to judicial review under the general provisions
of the Code of Administrative Procedure (see paragraphs 24 and 25
above). However, unlike section 12(6) of the Act, those provisions do
not require the courts to determine the case by means of a final
decision within a brief period, and the procedure involves two levels
of jurisdiction (see paragraph 26 above). Given that the Regional
Governor’s decision was made just four days before the planned
rally (on a Wednesday, when the rally was to take place the following
Sunday) and was not served on the applicants (see paragraph 11
above), it is unrealistic to assume that it would have been reviewed
in time for the rally – whose timing was crucial for the
organisers – to proceed (see Stankov and the United
Macedonian Organisation Ilinden, nos. 29221/95 and 29225/95,
Commission decision of 29 June 1998, unreported). It does not
therefore seem that in the circumstances that remedy would have
provided adequate redress to the applicants (see Bączkowski
and Others, § 83, and Alekseyev, § 99, both
cited above).
- The
possibility of seeking judicial review of the police orders issued to
some of the applicants just two days before the rally (see paragraph
12 above) cannot be regarded as an effective remedy for the same
reasons. Those orders were reviewable under the Code of
Administrative Procedure (see paragraph 27 above). There is nothing
to indicate that any legal challenges to them – which could
involve two levels of jurisdiction – would have been determined
in time for the rally to proceed. Moreover, the Government have not
cited any examples showing that an application for judicial review of
those orders would have stood a reasonable chance of succeeding.
- Lastly,
the Court finds that a claim under section 1(1) of the 1988 Act (see
paragraph 28 above) cannot, in the circumstances of this case, be
deemed an effective remedy, for two reasons. First, the Government
have not shown – by, for instance, citing relevant case law
– that such a claim would have had a reasonable prospect of
success (see Zeleni Balkani, cited above, § 46, and Hyde
Park and Others v. Moldova (nos. 5 and 6), nos. 6991/08 and
15084/08, § 34 in fine, 14 September 2010). Secondly and
more importantly, such a claim cannot be considered as providing
sufficient redress in itself, because it can result solely in an
award of compensation. In cases where – as here – the
authorities, through deliberate actions, prevent a group of
individuals or an organisation from holding a rally in the manner
chosen by them, the alleged breach of Article 11 cannot be made good
exclusively through such an award. If States were able to confine
their response to such incidents to the mere payment of compensation,
without putting in place effective procedures ensuring the
possibility of staging such rallies, it would be possible in some
cases for the authorities arbitrarily to deprive groups of
individuals and organisations of their right to freedom of peaceful
assembly. Were that to be the case, that right, which, along with the
rights to freedom of expression and association, and the right to
take part in free and fair elections, is one of the essential
features of a vigorous and healthy democracy, would be ineffective in
practice (see, mutatis mutandis, Petkov and Others v.
Bulgaria, nos. 77568/01, 178/02 and 505/02, §
79, ECHR 2009 ..., with further references).
- The
Government’s objection must therefore be dismissed.
- The
Court further considers that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- The
Government submitted that the planned rally had in fact taken place,
with the participation of about three thousand people, tourists and
officials, including representatives of the Ministry of Foreign
Affairs of “the former Yugoslav Republic of Macedonia”.
The authorities had complied with their positive obligations under
Article 11 and ensured that the event proceeded smoothly. The web
page of UMO Ilinden – PIRIN indicated that all events planned
by them for 2008 had taken place normally.
- The
applicants submitted that the interference with their right to
freedom of assembly stemmed from the Regional Governor’s order
which banned the rallies that they had planned and which was enforced
by the police. As a result, the applicants were forced to change
their initial plan to celebrate near the Rozhen Monastery. The police
also interfered with their rights by carrying out unusually lengthy
checks of their vehicles (which delayed the event by almost two
hours), and preventing them from approaching the Monastery and from
organising the event in Melnik as planned. Those interferences were
neither lawful nor necessary in a democratic society.
- The
Court notes the differences between the parties’ accounts of
the events of 22 April 2007, especially as to what actually happened
in Melnik (see paragraphs 17 21 above). It observes that earlier
the Regional Governor banned both the rally that UMO Ilinden –
PIRIN intended to hold at Yane Sandanski’s grave near the
Rozhen Monastery and the one it wanted to stage in front of Yane
Sandanski’s monument in Melnik (see paragraph 11 above). It
also notes that as a result the police ordered the members of UMO
Ilinden – PIRIN’s managing board and the first and second
applicants to refrain from organising or taking part in the two
rallies (see paragraph 12 above). Those measures clearly indicate an
intention to prevent the rally. They had a chilling effect on the
individuals concerned and on the other participants in the rallies,
and thus amounted in themselves to interference with the applicants’
right to freedom of assembly (see Stankov and the United
Macedonian Organisation Ilinden, § 79; United Macedonian
Organisation Ilinden and Ivanov, § 101; and Bączkowski
and Others, §§ 66 68, all cited above).
- The
Court also observes that it is not disputed that the police carried
out a number of checks on vehicles transporting participants to the
rally (see paragraph 19 above). While describing those checks as
“routine”, the Government did not dispute the applicants’
assertion that they had taken an unusually long time and had thus
delayed the rally (see paragraph 17 above). The Government also
conceded that, as alleged by the applicants, the police had blocked
the road to the Rozhen Monastery and had thus prevented the
participants in the rally from approaching their chosen site (see
paragraphs 17 and 18 above). Bearing in mind that the time and the
place of the event were crucial to the participants, the Court finds
that those actions also amounted to interference with the applicants’
right to freedom of assembly (see Stankov and the United
Macedonian Organisation Ilinden, § 109 in fine, and
United Macedonian Organisation Ilinden and Ivanov, § 103,
both cited above).
- The
Court observes in that connection that an interference does not need
to amount to a outright ban, legal or de facto, but can
consist in various other measures taken by the authorities. The term
“restrictions” in Article 11 § 2 must be interpreted
as including both measures taken before or during an assembly, and
those, such as punitive measures, taken after that (see Ezelin
v. France, 26 April 1991, § 39, Series A no. 202). For
instance, a prior ban can have a chilling effect on the persons who
intend to participate in a rally and thus amount to an interference,
even if the rally subsequently proceeds without hindrance on the part
of the authorities (see Bączkowski and Others, cited
above, §§ 66 68). A refusal to allow an individual to
travel for the purpose of attending a meeting amounts to an
interference as well (see Djavit An v. Turkey, no.
20652/92, §§ 59 62, ECHR 2003 III). So do
measures taken by the authorities during a rally, such as a dispersal
of the rally or arrests of participants (see Oya Ataman v. Turkey,
no. 74552/01, §§ 7 and 30, ECHR 2006 XIII, and Hyde
Park and Others, cited above, §§ 9, 13, 16, 41, 44
and 48), and penalties imposed for having taken part in a rally (see
Ezelin, cited above, § 41; Osmani and Others v. “the
former Yugoslav Republic of Macedonia” (dec.), no.
50841/99, ECHR 2001 X; Mkrtchyan v. Armenia, no. 6562/03,
§ 37, 11 January 2007; Galstyan v. Armenia, no.
26986/03, §§ 100 02, 15 November 2007; Ashughyan
v. Armenia, no. 33268/03, §§ 75 77, 17 July
2008; and Sergey Kuznetsov v. Russia, no. 10877/04, §
36, 23 October 2008).
- Such
interference gives rise to a breach of Article 11 unless it can be
shown that it was “prescribed by law”, pursued one or
more legitimate aims as defined in paragraph 2 and was “necessary
in a democratic society” to achieve those aims.
- The
Court has misgivings as to whether the above measures were
“prescribed by law”, for several reasons. First, the 1990
Meetings and Marches Act envisages no role for regional governors in
the policing of rallies (see paragraph 22 above). Secondly, in
banning the rally the Regional Governor relied on some clearly
irrelevant grounds, such as UMO Ilinden – PIRIN’s lack of
registration (see paragraph 11 above, as well as Stankov and the
United Macedonian Organisation Ilinden, § 81, and United
Macedonian Organisation Ilinden and Ivanov, § 108, both
cited above). Thirdly, section 55(1) of the 2006 Ministry of Internal
Affairs Act, which served as a basis for the orders issued by the
police, is formulated in very general terms and gives no indication
of the circumstances in which the police may use the power conferred
on them (see paragraphs 12 and 27 above and, mutatis mutandis,
United Macedonian Organisation Ilinden and Ivanov, cited
above, § 109). Fourthly, no legal basis has been cited for the
police block of the road to the Rozhen Monastery (see paragraphs 17
and 18 above, as well as, mutatis mutandis, Djavit An,
cited above, § 66). However, the Court does not consider it
necessary to determine whether the interference was “prescribed
by law” or pursued a legitimate aim, as it finds, for the
reasons set out in the following paragraph, that, even if it did, it
cannot be regarded as being “necessary in a democratic society”
(see Alekseyev, cited above, § 69).
- The Regional Governor’s decision, which
apparently prompted all of the ensuing actions of the police, relied
on exactly the same grounds as those given to ban previous rallies of
UMO Ilinden or UMO Ilinden – PIRIN, in respect of which the
Court has, on no less than three occasions, found violations of
Article 11 (see Stankov and the United Macedonian Organisation
Ilinden, §§ 93 107; United Macedonian
Organisation Ilinden and Ivanov, § 114; and Ivanov and
Others, §§ 63 and 64, all cited above). Those grounds
were the organisation’s unregistered status, a conjectural
threat to public order, the holding of meetings of other
organisations at the same time and place, and lastly, and most
importantly, “propaganda against the country’s
sovereignty and territorial integrity” (see paragraph 11
above). The fact that the Regional Governor should rely on grounds
which the Court had, at the time when the Governor made his decision,
already found deficient is indicative of a troubling disregard for
the Court’s judgments and the applicants’ right to
freedom of peaceful assembly (see, mutatis mutandis, Verein
gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2)
[GC], no. 32772/02, §§ 83 88,
ECHR 2009 ..., and United Macedonian Organisation Ilinden and
Ivanov, cited above, § 116).
- There
has therefore been a violation of Article 11 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 12,000 euros (EUR) in respect of non pecuniary
damage. They submitted that the ban of the meeting in issue in the
present case had been only one of many such bans. They also pointed
out that despite the numerous rulings by the Court relating to
earlier breaches of their rights under Article 11 of the Convention,
the Bulgarian Government’s policy toward them had improved
little if at all. This had made them feel a particularly acute sense
of injustice and helplessness, and had exacerbated the distress
suffered by them on account of the breach of their right to freedom
of peaceful assembly.
- The
Government submitted that the claim was exorbitant. They pointed out
that they were working on the adoption of a new legal framework for
the conduct of meetings and demonstrations. The draft law had been
reviewed by the Venice Commission, and the remarks made were being
examined by the national authorities. In the Government’s view,
in those circumstances the finding of a violation constituted
sufficient compensation. Failing that, the amount of any such
compensation should not exceed the sums awarded in similar cases and
should take into account the living standard in Bulgaria.
- The
Court notes that the ban imposed on the rally was one of a series of
such bans, some of which have given rise to previous applications to
the Court and to findings of a violation of Article 11 (see paragraph
46 above). The applicants therefore had reason to feel a heightened
sense of distress and frustration (see, mutatis mutandis,
Burdov v. Russia (no. 2),
no. 33509/04, § 156, 15 January 2009). The possible
adoption of better rules in that domain in the future, while
certainly to be welcomed, can hardly make good the damage already
suffered by them. In these circumstances, the Court awards the
applicants EUR 9,000. To that amount is to be added any tax that may
be chargeable.
B. Costs and expenses
- The
applicants sought reimbursement of EUR 1,520 incurred in fees for
nineteen hours of work by their lawyer on the proceedings before the
Court, at EUR 80 per hour. They requested that any amount awarded be
made payable directly to their legal representative.
- The
Government submitted that the hourly rate was excessive compared with
the usual lawyers’ fees in Bulgaria.
- According
to the Court’s settled case law, costs and expenses can be
awarded under Article 41 only if it is established that they were
actually and necessarily incurred and are reasonable as to quantum.
In the present case, having regard to the information in its
possession and the above criteria, the Court considers it reasonable
to award the applicants the full amount claimed (EUR 1,520), plus any
tax that may be chargeable to them. That amount is to be paid into
the bank account of the applicants’ legal representative, Mr Y.
Grozev.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts, to
be converted into Bulgarian levs at the rate applicable on the date
of settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
1,520 (one thousand five hundred and twenty euros), plus any tax that
may be chargeable to the applicants, in respect of costs and
expenses, to be paid into the bank account of the applicants’
legal representative, Mr Y. Grozev;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
