Two decades of violation of the right of association – the case of United Macedonian Organisation: Ilinden and others against Bulgaria

At a meeting of the Committee of Ministers of the Council of Europe held on 7-9 June 2021, Bulgaria was once again invited to comply with the decisions of the European Court of Human Rights in connection with the refusal to register the UMO Ilinden Association and similar organizations.

According to the Committee of Ministers, any new application for registration of organizations aiming to achieve recognition and protection of the interests of the "Macedonian minority in Bulgaria" should be considered in a manner that does not violate the European Convention on Human Rights (Article 11) – freedom of assembly and association). In addition, the Committee insists on providing a more comprehensive and effective obligation for the Registration Agency to provide instructions to associations to rectify registration files and to ensure that it identifies all defects of a registration file in order to help associations produce valid files. (the recommendation was given in relation to the lack of guidance on how to fix deficiencies in the documents submitted during registration or a non-exhaustive indication of any deficiencies admitted or detected).

The case-law against Bulgaria

Since the year 2006, Bulgaria has been convicted six times by the ECtHR for unjustified refusals by courts between 1999 and 2015 to register associations aimed at achieving recognition and protection of the interests of the "Macedonian minority in Bulgaria".

In the first of a series of decisions, the ECtHR found a violation of Art. 11 of the ECHR (right of association), rejecting all the arguments of the court for refusal to register the organization. However, since the year 2006, UMO Ilinden has been denied registration three times by the Bulgarian court, partly on grounds that have already been criticized by the ECtHR.

Non-compliance with the ECHR and the decisions of the ECtHR continues after 2018 by the Registration Agency, to which the registration of non-profit organizations has been transferred. Since 2018, UMO Ilinden has submitted five applications for registration, all of which have been rejected mainly on formal grounds.

If there is a desire, there are motives

In the ongoing during the past two decades attempts of UMO Ilinden and similar organizations to register, we have observed various, often inconsistent and in general contrary to the ECtHR rulings arguments for refusals put forward by the Bulgarian court and later by the Registry Agency.

At this stage, it seems that the law has been set aside and for the Bulgarian court all methods, even those violating the Constitution and the Convention, as well as the established practice towards other organizations, are justified as long as the association in question is not allowed to register. Thus, the case of UMO Ilinden has no longer been just a violation of the right of association of the founders of the organization. The permanent violation of the constitutional right of certain people is a violation of the principles of the rule of law and poses a threat to the exercise of the rights of all citizens.

In the first decision of the ECtHR from 2006, three main grounds for refusals to register the association and arguments for their unfoundedness have been specified:

1. Deficiencies in the documentation provided for the registration purposes

In the first attempt of UMO Ilinden to register, the Supreme Court of Cassation of Bulgaria in its capacity of a third instance claims that the articles of association the organization should be signed by all founders and this rule excludes the possibility of submitting a list on a separate sheet with the signatures of those who adopted the articles of association.The ECtHR did not agree with this argument, referring to the Bulgarian legislation in force at the time, which did require the association's statutes to be signed by the founders, with the obvious aim of establishing that all founders agreed with it, but did not specify the technical manner in which the articles had to be signed.Thus, according to the ECtHR, in the absence of established regulatory requirements for the technical requirements for the preparation of the articles, it cannot be considered that providing a list of signatories on a separate sheet is a violation of the law.

Attempts by UMO Ilinden to register its organization after 2018 through the Registration           Agency were also refused due to deficiencies related to the documentation. For example, refusal due to lack of documents with deleted personal data. According to the case law, when the application for registration or the documents attached to it contain personal data which is not required by law, it is assumed that the people who provided it have given their consent for its processing by the Agency and for the provision of public access to it (in this sense is Decision № 45 of 20.06.2019 of the General Assembly – Kyustendil on the trade case

№ 61/2019).

2. Contradiction of the statute of the organization with the Constitution and other legal acts

Further examining the first case in the case of UMO Ilinden by the ECtHR, it has to be mentioned that the Sofia Court of Appeals held that the fact that one of UMO Ilinden’s goals was to seek an “autocephalous status of the Macedonian church in Pirin Macedonia” is actually a  religious activity that can only be carried out by religious organizations that are subject to another registration procedure. However, the ECtHR notes that under current Bulgarian law, religious organizations carry out preaching and religious education, rather than the goal set by UMO Ilinden.

According to the Bulgarian court, the goals of "holding peaceful assemblies, meetings, rallies and demonstrations" as well as "nominating independent candidates" in elections are also political goals that can only be pursued by political parties. According to the ECtHR however, “the proscription of Article 12 § 2 of the Constitution of 1991 in essence means that only parties may participate in elections as such, not that an organisation not registered as a political party may not support independent candidates for elections. As early as the year 2006, the ECtHR found that the support of independent (and party) candidates from non-party organizations seems to be a routine occurrence in Bulgarian politics.

In 2020, the Registration Agency refused to register UMO Ilinden without giving instructions how to fic its documents in accordance with the law and criticizing its goals to provide programs in the Macedonian language in the media as imposing obligations on the state. This argument by the Agency contradicts the nature of civil society organizations – they intercede with the state and its institutions to take certain actions to protect the rights and interests that a certain organization represents, and this cannot be interpreted as imposing any obligation on the statе to perform the requested actions.

When appealing against one of the refusals of the Registration Agency, the Sofia Court of Appeal indicated that UMO Ilinden should have applied for registration as a public benefit association. However, this clearly contradicts the Law on Non-Profit Legal Entities, according to which "non-profit legal entities are free to define their goals and can self-identify as organizations for carrying out activities in public or private benefit." Forcing UMO Ilinden to adopt the legal form of a public benefit association (which implies certain advantages, but also stricter conditions for registration and accounting) raises serious doubts about possible unlawful  restriction of the right of association.

3. Alleged threats arising from the objectives of the organization

Since the first unsuccessful attempt of UMO Ilinden to register in the court in Blagoevgrad in 1999, it has been pointed out as grounds for refusal that an association aimed at protecting the interests of the "Macedonian minority" would be contrary to the unity of the nation, as such a minority does not exist. The same argument was used in subsequent refusals, including refusals by the Registration Agency in 2019 and 2020.

This issue has been thoroughly analyzed by the ECtHR since the first decision on the case in 2006. According to the ECtHR, the request of a group of people to separate part of the territory of a country and the insistence on fundamental territorial and constitutional changes does not automatically lead to a legitimate restriction of their right of association. Expressing separatist ideas, insisting on territorial changes in speeches, demonstrations or program documents are not in themselves threats to the territorial integrity of the nation or the national security. However shocking and unacceptable certain views or words used might have appeared to the authorities and the majority of the population, and however illegitimate UMO Ilinden’s demands might have been, their suppression does not seem warranted in the circumstances of the case. According to the ECtHR ruling, in a “In a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association as well as by other lawful means ”. At this point, however, all refusals to register UMO Ilinden related to a threat to national security are based on suspicion, without any proven violence or even a clear intention to do so.

Freedom of association captive to politics and prejudice

At this point, the UMO Ilinden case seems unsolvable. The long-term violation of a number of decisions of the ECtHR and the creation of case-law with motives contrary to the law could have long-term negative consequences on the protection of the right of association in Bulgaria.

Author: Zahari Yankov, BCNL