Freedom of Association Was Sacrificed in the Nationalist Dispute between Bulgaria and North Macedonia

Image: Dessislava Naydenova, Civic Alarm Clock Competition, 2019

Zahari Iankov, Senior Legal Expert, Bulgarian Center for Not-for-Profit Law

 

 

Background

After the fall from power of the nationalist government of Nikola Gruevski (VMRO-DPMNE) in 2016, North Macedonia began a seemingly quick procedure of strengthening its external relations with its neighboring States: Greece and Bulgaria, to continue the country's EU accession process. Thus, in 2017, the Republic of Bulgaria and the Republic of North Macedonia signed the Treaty of Friendship, Good-neighborliness, and Cooperation, and in 2018, North Macedonia signed the Prespa Agreement, which reached a compromise on the long-standing name dispute with Greece. Following these successful diplomatic moves, North Macedonia became a member of NATO in early 2020, and now that Greece had already withdrawn its perennial veto in the European Council, N. Macedonia's European path seemed to be set. 

All this changed, however, when at the end of 2020 Bulgaria, surprisingly for many, took up the baton from Greece and vetoed N. Macedonia's pre-accession process. Since then, the Bulgarian veto issue has been an immutable part of the domestic political rhetoric in both countries, and the inter-neighborhood dispute seems as difficult to be understood by other EU members as Greece's claims over the name "Macedonia" were before 2018. However, after some diplomatic pressure from the EU and a few other States, a compromise known as France’s Proposal was reached in 2022. According to it, N. Macedonia should include the Bulgarians in its constitution as an explicit minority alongside Albanians, Roma, Turks, and Vlachs, and, in return, Bulgaria should rescind its veto. France’s Proposal, however, suggests no signs of having solved the problem. The proposed constitutional changes encounter pressing opposition in N. Macedonia while senior politicians’ statements from both countries are becoming increasingly harsh.

Meanwhile, N. Macedonia has adopted controversial changes in its legislation, which limit the freedom of association of people identifying themselves as Bulgarians. All the while, Bulgaria continues its decades-long practice of violating the freedom of association of organizations aiming at protecting the interests of the Macedonian minority in Bulgaria (see cases below). Thus the fundamental human right of freedom of association appears to be held hostage to nationalist views in two neighboring States.

Commission on the Names of Associations and Foundations – The Case of N. Macedonia

In November 2022, N. Macedonia adopted amendments to the Law on Associations and Foundations,^[1] which introduced the following restriction:

The names, surnames, nicknames, aliases, abbreviations and initials of persons who for any reason, in any way or form have been or are associated with racial, religious, national, ethnic or other intolerance, hatred, genocide, extremism, propaganda or support for fascism, Nazism, National Socialism and the Third Reich, may not be used as names or abbreviated names of organizations.

The amendments to the aforementioned law also established a Commission on the Names of Associations and Foundations to monitor compliance with the newly introduced restriction. The Commission consists of representatives of the Ministry of Justice, the Ministry of Culture, The Institute of National History, and the Macedonian Academy of Sciences and Arts. Thus, soon after the adoption of the legal amendments, the “Ivan Mihailov” cultural center in Bitola² was deleted from the register of NGOs in N. Macedonia in March 2023. Then, in April 2023, the so-called Bulgarian Club "Tsar Boris III" in Ohrid³ was also repealed. Prior to their closure, the offices of both entities were targeted by local nationalists.^[2]

So the authority in N. Macedonia grossly violated the freedom of association. First, it failed to ensure the security of two non-profit legal entities related to the Bulgarian community in the country. Second, they adopted new restrictions on the right of association related to the names of organizations, which were tendentiously applied to repeal the same legal entities whose protection was not ensured.

It is crucial to take into account the settlement of a provision for restriction of the right of association into a law, which is only one of the conditions for introducing a legitimate and human rights-compliant restriction. Thus, in 2001, the Constitutional Court of Macedonia^[3] declared null and void the statute, consequently leading to the repeal of the Radko Association (the well-known pseudonym of Ivan Mihailov), arguing that by choosing this name the Association aimed to revive Ivan Mihailov's ideology that "a Macedonian ethnicity never existed."^[4] This case led to a judgment in the European Court of Human Rights (ECtHR) against Macedonia for violation of Article 11 ECtHR. According to the European Court:

Under those circumstances, the Court cannot but accept that the name “Radko” and his or his followers’ ideas were liable to arouse hostile sentiments among the population, given that they involved connotations likely to offend the views of the majority of the population. However, the Court considers that the naming of the Association after an individual who was negatively perceived by the majority of population could not in itself be considered reprehensible or to constitute in itself a present and imminent threat to public order. In the absence of any concrete evidence to demonstrate that in choosing to call itself “Radko,” the Association had opted for a policy that represented a real threat to the Macedonian society or the State, the Court considers that the submission based on the Association’s name cannot, by itself, justify its dissolution^[5].

Although recent amendments to the Law of Associations and Foundations of N. Macedonia have not yet been reviewed by the ECtHR, it is highly likely that their wording and manner of implementation do not meet international standards for permissible restrictions on the right of association, namely: that they are necessary in a democratic society; that they are precise, clear, and predictable; and that they pursue a legitimate aim, the scope of which cannot be interpreted extensively.^[6] By analogy with the “Radko” decision cited above, these legal restrictions could be described as "comprehensive preventive measures to suppress freedom of assembly and expression," which, although directed against shocking and unacceptable views or words used by the authorities, "damage democracy and often even threaten it."^[7]

In contrast to the current legislation of N. Macedonia, the practice of the Bulgarian courts and administration regarding the refusal to register organizations aiming to protect the rights of the Macedonian minority in Bulgaria, has been repeatedly reviewed by the ECtHR over the past 20 years. And despite the judgments against Bulgaria, the Bulgarian court continues to adhere to a vicious interpretation of the Constitution and violates the freedom of association…

More than 20 years of refusal to comply with ECtHR rulings – the case of Bulgaria^[8]

Since 2006, Bulgaria has been condemned six times by the ECtHR for unjustified refusals by the courts between 1999 and 2015 to register associations aiming to achieve recognition and protection of the interests of the "Macedonian minority in Bulgaria".

Complaint	Case	Decision from	Finalized on
59491/00	UNITED MACEDONIAN ORGANISATION "ILINDEN" AND OTHERS	19/01/2006	19/04/2006
34960/04	UNITED MACEDONIAN ORGANIZATION "ILINDEN" AND OTHERS (No. 2)	18/10/2011	08/03/2012
29496/16	UNITED MACEDONIAN ORGANIZATION "ILINDEN" AND OTHERS (No. 3)	11/01/2018	11/04/2018
70502/13	JORDAN IVANOV AND OTHERS	11/01/2018	11/04/2018
67197/13	MACEDONIAN CLUB FOR ETHNIC TOLERANCE IN BULGARIA AND RADONOV	28/05/2020	28/05/2020
23702/15	VASSILEV AND THE SOCIETY OF REPRESSED MACEDONIANS IN BULGARIA, VICTIMS OF COMMUNIST TERROR	28/05/2020	28/05/2020

The first attempt to register OMO Ilinden in the court in Blagoevgrad in 1999 was unsuccessful. The reason for refusal was the aim of the association to protect the interest of the “Macedonian minority”, which would contradict the unity of the Bulgarian nation, since such a minority does not exist.

According to the ECtHR, the request of a group of people to secede a part of the territory of a State and the corresponding insistence on fundamental territorial and constitutional changes does not automatically lead to a legitimate restriction of their right of association. Expressing separatist ideas, demanding territorial changes in speeches, demonstrations or Programming Documents are not in themselves threats to a nation's territorial integrity or national security. As shocking as such views may seem to the authorities, or the majority of the population, it is not enough to suppress them. According to the decision of the ECtHR, 'in a democratic society based on the rule of law, political ideas which challenge the existing order, without calling into question the foundations of democracy, and the pursuit of which is promoted by peaceful means, should be given an appropriate opportunity of expression through, inter alia, participation in the political processes’. The refusal to register OMO Ilinden, based on the organization being a threat to national security, is based on suspicions, without any proven violence or even a clear intention to do so.

However, since 2006 OMO Ilinden has been denied registration three times by the Bulgarian court, partly on grounds that have already been criticized by the European Court. Non-compliance with the ECHR and ECtHR rulings has continued after 2018 by the Registry Agency, which is responsible for the registration of non-profit organizations ever since. From 2018, OMO Ilinden and organizations with similar objectives have submitted multiple applications for registration, all of which have been rejected mainly on formal grounds. There are also a number of court decisions in relation to the appeals against the refusals by the Registry Agency, which continues to uphold the ECtHR's rejection of the restriction on the right of association: Decision No. 82 of 15.07.2022 of the District Court (DC) – Blagoevgrad in case No. 153/2022^[9], upheld at second instance by Judgment No. 631 of 11.10.2022 of the Court of Appeal of Sofia (CAS) in case No. 791/2022^[10]; Judgment No. 10 of 31.01.2023 of the DC – Blagoevgrad in case No. 205/2022^[11], confirmed in the second instance Decision No. 256 of 20.04.2023 of the CAS in case No. 156/2023^[12], and Decision No. 22 of 15.03.2023 of the DC – Blagoevgrad in case No. 31/2023.^[13]. These decisions are mainly motivated by interpretations of the Constitution rejected by the ECtHR. For example, the decision of the DC – Blagoevgrad of 15.03.2023 draws the following contradictory conclusion:

 

“Protection of the human and minority individual rights of the Macedonians and other ethnic minorities in Bulgaria", suggesting the existence of ethnicities and calling for the protection in particular and the defense of the Macedonian ethnicity, as well as through the means listed – to the defense and protection of the Macedonian cause constitute an activity directed against the unity of the Bulgarian nation, as a fundamental constitutional principle within the meaning of Article 44, paragraph 2 of the Constitution.^[14]

It is interesting to add that in the “Radko” case, in which Macedonia was convicted by the ECtHR, the Bulgarian State defended the Radko Association in complete contradiction to the practice of the Bulgarian national courts:

In its written submissions, the Bulgarian government states that any initiative by citizens and their associations that may bring about change in the State is legitimate if the objectives pursued are compatible with fundamental democratic principles and the means used are legal and democratic….Besides, they maintain that the Constitutional Court [AN of Macedonia] found that the objectives of the association were not in accordance with the constitutional order only by placing them arbitrarily in a certain historical and ideological context.^[15]

Image: Edze Ziyaeva, Civic Alarm Clock Competition 2019

Freedom of association in the grip of politics and prejudice

The human rights protection system, established through international treaties and national constitutions, has one main purpose: to protect everyone from arbitrary authority, even when this arbitrariness enjoys wide public approval in the State. To protect human rights, however, it is not enough to sign a convention, nor is it enough to have a guilty verdict. It is, however, essential to have a strong civil society, demanding that the authorities abide by conventions and judgements. Therefore, beyond personal bias, we must stop tolerating the decades-long violation of the right of association. At the same time, we should support an adequate reaction by the Bulgarian authorities against the violation of the right of association in N. Macedonia. Condemnation of human rights violations and a diplomatic response should be the responsibility of any State that claims to be democratic.