Prosecution and conviction for founding a political party on a religious (Muslim) basis violated its freedom of association

JUDGMENT

Yordanovi v. Bulgaria 03.09.2020 (app. no. 11157/11)

see here

SUMMARY

The case concerned the complaint by the two applicants about criminal proceedings brought against
them for attempting to set up a political party on a religious basis. They complained of unjustified
interference with their right to freedom of association and also of discrimination against them.

The Court emphasised that a criminal conviction represented one of the most serious forms of
interference with the right to freedom of association, one of whose objectives was the protection of
opinions and the freedom to express them, especially where political parties were concerned.

The applicants had not completed the requisite procedure in order to register a political party. The
legal consequence of that failure was that the party could not exist or engage in any activity. The
authorities’ aim – to ensure the peaceful coexistence of ethnic and religious groups in Bulgaria –
could thus be fulfilled through such a procedure, in this case by refusing to register the would-be
political party. The Court further noted that the authorities could have dissolved the party if it was
declared unconstitutional by the Constitutional Court. It did not see any reason why, in the
circumstances of the case, criminal proceedings should have been brought against the applicants

PROVISION

Article 11

PRINCIPAL FACTS

The applicants, Rosen Marinov Yordanov and his brother Atanas Marinov Yordanov, are Bulgarian
nationals. They are businessmen and belong to the Turkish-Muslim minority in Bulgaria.
In 2008 the applicants set up and registered an association for the integration of the
Turkish-speaking population in Bulgaria.

In June 2009 they decided to erect a monument on private land belonging to them in their home
village of Slavyanovo, commemorating the Muslim and Christian soldiers killed during the
Russo-Turkish war of 1877-78 (which resulted in Bulgaria gaining independence from the Ottoman
Empire). In July 2009 the regional buildings inspectorate ordered the building work to be suspended.
The applicants decided to set up a political party, the Muslim Democratic Union. The constituent
assembly was to meet on 26 September 2009, the end of Ramadan, in the centre of Slavyanovo.
That morning the police informed the first applicant that it was illegal to hold a gathering without
following the statutory procedure.

Several hundred people gathered on 26 September 2009 in the centre of Slavyanovo. An employee
of Popovo municipality served an order on the first applicant for the dispersal of the meeting, on the
grounds that it had not been notified in advance. The meeting nevertheless continued for a further fifteen minutes approximately, during which time a vote was passed setting up the party, adopting its constitution and electing members to the party’s decision-making bodies. A press conference was held immediately afterwards.

According to the Government, during the press conference the applicants had stated that the party’s
aim was to “defend the rights of Muslims in Bulgaria” and that “the State [had] done nothing for
Muslims in Bulgaria”, that Bulgaria had not officially recognised the Turkish minority, and that “it
[was] a mistake to present Bulgaria in Europe as a one-nation State”.

Over the following days the Popova district prosecutor’s office brought criminal proceedings againstthe applicants for setting up a political organisation on a religious basis, an offence punishable under Article 166 of the Criminal Code, and for a breach of the peace in connection with building the monument. The first applicant was also charged with holding an unauthorised meeting, an offence
under Article 174a § 2 of the Code, in connection with the continuation of the gathering at which the
political party had been set up, despite the mayor’s order prohibiting it.

On 1 September 2010 the District Court found the two applicants guilty of setting up a political party
on a religious basis, in breach of Article 166 of the Criminal Code. The court sentenced the first
applicant to a suspended one-year prison term. It held that the second applicant was not criminally
liable and ordered him to pay an administrative fine of 4,000 Bulgarian levs (BGN) (2,045 euros
(EUR)). The court also found the first applicant guilty of not putting an end to a public meeting that
had been prohibited by the mayor, in breach of Article 174a § 2 of the Criminal Code, and sentenced
him to a suspended term of six months’ imprisonment. Combining the two sentences, the court
imposed an overall suspended sentence of one year’s imprisonment. It acquitted the applicants on
the charge of breaching the peace.

The applicants appealed. On 22 October 2010 the Targovishte Regional Court upheld the District
Court’s conviction and sentences. It observed that the requirement for party members to adopt
Islamic values meant that the party would have “a religious basis”. However, the Regional Court
found that the facts should be reclassified as an attempted offence, given that the setting-up of the
party had not been completed.

THE DECISION OF THE COURT…

Article 11

The Court had to ascertain whether the criminal proceedings brought against the applicants for
attempting to set up a party in breach of Article 166 of the Criminal Code had been necessary in a
democratic society.

Without considering the assessment by the Bulgarian courts as to whether the political party in
question could be regarded as having a “religious basis”, the Court expressed serious doubts about
the need for criminal sanctions in addition to the ban on such parties. A criminal conviction
represented one of the most serious forms of interference with the right to freedom of expression.
This was also true for the right to freedom of association, one of whose objectives was the
protection of opinions and the freedom to express them, especially where political parties were
concerned.

The Court observed that the applicants had not pursued until completion the requisite procedure for
registering a political party. The legal consequence of that failure was that the party could neither
exist nor engage in any activity. The result sought by the authorities – namely the peaceful
coexistence of ethnic and religious groups in Bulgaria – could thus be fulfilled through such a
procedure, in this case by refusing to register the would-be political party.

The Court further noted that the authorities had the possibility of dissolving a party if it was declared
unconstitutional by the Constitutional Court. It did not see any reason why, in the circumstances of
the case, criminal proceedings were necessary in addition to the other options.

In addition, Article 166 of the Criminal Code of 1968 had not been adopted, in the Communist era,
with the aim of preventing a religious community from using democratic institutions to rise to power
to the detriment of others, but rather to rule out any possible reappearance of so-called “capitalist”
parties, and therefore not to defend religious and ethnic tolerance in Bulgaria.

Having regard to the above, the Court found that the criminal proceedings against the applicants for
attempting to set up a political party on a religious basis was not necessary in a democratic society
and had thus entailed a violation of Article 11.

Article 14

Having regard to its finding of a violation of Article 11, the Court decided that there was no need to
examine the admissibility or merits of this complaint.

Just satisfaction (Article 41)

The Court held unanimously that the finding of a violation of Article 11 constituted in itself sufficient
just satisfaction for any non-pecuniary damage and that Bulgaria was to pay the applicants 2,320
euros in respect of costs and expenses.

Separate opinions

Judge Raycheva expressed a separate opinion, which is annexed to the judgment

 


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