B. The Court’s assessment
76. The Government expressed doubts as to the peaceful character of the applicant association’s meetings and on that basis disputed the applicability of Article 11 of the Convention.
77. The Court recalls that Article 11 of the Convention only protects the right to “peaceful assembly”. That notion – according to the Commission’s case-law – does not cover a demonstration where the organisers and participants have violent intentions (no. 13079/87, dec. 6.3.89, DR 60, p. 256; no. 8440/78, Dec. 16.7.80, DR 21, p. 138).
78. In the present case, having carefully studied all the material before it, the Court does not find that those involved in the organisation of the prohibited meetings had violent intentions (see above paragraphs 10, 12, 13, 16, 17, 20, 22, 28, 31 and 32-46). Article 11 is thus applicable.
2. Whether there has been an interference
79. The Court notes that on all occasions under examination the authorities prohibited the meetings planned by both applicants. That was, indeed, a practice that had been invariably followed ever since 1992 (see above paragraphs 17 and 74). In July 1994 the Chairman of the applicant association and another person were issued police warnings to stay away from the site of their planned commemorative meeting.
In one case, on 22 April 1995, despite the ban imposed by the mayor, supporters of the applicant association were allowed to approach the historical site where they wished to hold their meeting and were able to lay a wreath at the tomb of Yane Sandanski and light candles. That was only possible, however, on the condition that the participants abandoned their posters and slogans. No speeches were allowed to be made at the site. The participants were permitted to celebrate the event only from a certain distance (see paragraph 22 above).
That approach by the authorities, allowing members of the applicant association to attend the official ceremonies held at the same places and time on the occasion of the same historical events, provided that they did not carry their posters and did not hold separate demonstrations, was reiterated in the mayor’s decision of 11 April 1997 and the Government’s submissions to the Court (see paragraphs 24 and 66 above).
80. On the basis of the above, the Court considers that there has undoubtedly been an interference with both applicants’ freedom of assembly, within the meaning of Article 11 of the Convention.
3. Whether the interference was prescribed by law
81. The Court notes that the reasons given by the authorities for the prohibition of meetings fluctuated and were not elaborate. They repeatedly mentioned the lack of registration of the applicant association, a fact which could not in itself, under the applicable law, serve as ground for a ban on a meeting. On two occasions the mayors did not provide reasons and that was only partially rectified by the district courts in their judgments on appeal (see above paragraphs 19, 21, 23, 24, 29 and 30).
The Court observes, however, that the authorities referred to an alleged danger to public order which in accordance with domestic law was among the grounds justifying interference with the right to peaceful assembly. The fact that Ilinden had been refused registration was apparently considered relevant in the assessment of the alleged danger to public order (see above paragraphs 19 and 30 in fine). Furthermore, the prohibitions complained of were imposed by decisions of the competent mayors and courts in accordance with the procedure prescribed by the Law on Meetings and Marches.
82. In these circumstances the Court accepts that the interference with the applicants’ freedom of assembly may be regarded as being “prescribed by law”.
In so far as the applicants challenged the soundness of the authorities’ finding that there had been a danger to public order, that issue falls to be examined in the context of the question whether or not the interference with the applicants’ freedom of assembly had a legitimate aim and was necessary in a democratic society, within the meaning of Article 11 § 2 of the Convention.
4. Legitimate aim
83. In the Government’s view the measures taken against Ilinden’s commemorative meetings pursued several legitimate aims: the protection of national security and territorial integrity, the protection of the rights and freedoms of others, guaranteeing public order in the local community and the prevention of disorder and crime.
The applicants disputed that position. In their submission the disguised objective of the prohibitions complained of had been the denial of the collective rights of the Macedonian minority.
84. The Court recalls that the enumeration of exceptions to freedom of expression and assembly, contained in Articles 10 and 11, is exhaustive. The definitions of those exceptions are necessarily restrictive and must be interpreted narrowly (see, the Sidiropoulos v. Greece judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, §§ 37-39).
Having regard to all the material in the case the Court accepts that the interference was intended to safeguard one or more of the interests cited by the Government.
5. “Necessary in a democratic society”
(a) General principles in the Court’s case-law
85. The Court recalls that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11 (Freedom and Democracy Party (ÖZDEP) v. Turkey [GC] , no. 23885/94, § 37, to be published in the Court’s official reports.
Such a link is particularly relevant where – as here – the authorities’ intervention against an assembly or an association was, at least in part, in reaction to views held or statements made by participants or members.
86. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 23, § 49; Gerger v Turkey [GC], appl. 24919/94, § 46, 8 July 1999, unreported).
Likewise, the freedom of assembly as enshrined in Article 11 of the Convention protects a demonstration that may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote (the Plattform “Ärzte für das Leben” v. Austria judgment of 21 June 1988, Series A no. 139, § 32).
87. The expression “necessary in a democratic society” implies that the interference corresponds to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued.
The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with the rights protected by the Convention (see Gerger v Turkey, loc. cit., § 46).
When the Court 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 took. 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 determine, after having established that it pursued a “legitimate aim”, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports 1998-I, § 47).
88. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see, mutatis mutandis, the Wingrove v. the United Kingdom judgment of 25 November 1996, Reports 1996-V, § 58).
One of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when those problems are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a group solely because it seeks to debate in public the situation of part of the State’s population and to find, according to democratic rules, solutions capable of satisfying everyone concerned (the United Communist Party of Turkey judgment, loc. cit., § 57).
89. The inhabitants of a region in a country are entitled to form associations in order to promote the region’s special characteristics. The fact that an association asserts a minority consciousness cannot in itself justify an interference with its rights under Article 11 of the Convention (see the Sidiropoulos judgment, loc. cit., § 44).
90. Admittedly, it cannot be ruled out that an organisation’s programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the organisation’s actions and the positions it defends (the United Communist Party of Turkey judgment, loc. cit., § 58).
An essential factor to be taken into consideration is the question whether there has been a call for the use of violence, an uprising or any other form of rejection of democratic principles (Freedom and Democracy Party (ÖZDEP) v. Turkey, loc. cit., § 40). Where there has been incitement to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression (see the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 48 and Sürek (No. 1) v. Turkey [GC], no. 26682/95, § 61, ECHR 1999-IV).
(b) Application of the general principles to the present case
91. The authorities referred to the fact that the applicant association had been refused registration because the courts found that it was anti-constitutional (see paragraphs 11-13 above).
92. The Court considers, however, that while past findings of national courts which have screened an association are undoubtedly relevant in the consideration of the dangers that its gatherings may pose, an automatic reliance on the very fact that an organisation has been considered anti-constitutional – and refused registration – cannot suffice to justify under Article 11 § 2 of the Convention a practice of systematic bans on the holding of peaceful assemblies. The Court must rather scrutinise the particular grounds invoked to justify the interference and the significance of that interference.
(i) Grounds invoked to justify the interference
(α) Alleged possession of arms
93. The Government produced a photocopy of a typewritten flyer announcing the creation of armed groups (see paragraph 44 above). It has not been established, however, that it emanated from the applicant association. The Government have not provided any details. Nor have they explained the relevance of the newspaper article submitted by them (see paragraph 43 above) which reported that a man was suspected of certain offences, some of them apparently concerning a private business conflict.
In the Court’s opinion it is evident that if there had been preparation for armed action the Government would have been able to adduce more convincing evidence in this respect.
(β) Alleged threat to public safety
94. The Government argued that incidents had occurred in the past, when the applicant association had held meetings and that there was a likelihood of recurrence. There is no evidence, however, of serious disturbances having been caused by the applicants. The incidents referred to were of a minor nature and did not result in prosecutions (see paragraphs 17, 18 and 46 above). The decisions of the mayors and the local courts referred only to a hypothetical danger for public order, without providing further details.
The risk of minor incidents thus did not call for a ban on Ilinden’s meetings.
(γ) Alleged dangers stemming from Ilinden’s goals and declarations Separatist ideas
95. The Government stressed that the applicant association imperilled Bulgaria’s territorial integrity as it sought secession from Bulgaria.
The applicants stated that the sole purpose of their meetings had been to commemorate historical events and that they did not pursue separatist goals.
96. On the basis of all the evidence, the Court finds that at the relevant time it was not unreasonable for the authorities to suspect that certain leaders of the applicant association – or small groups which had developed from it – harboured separatist views and had a political agenda that included the notion of autonomy for the region of Pirin Macedonia or even secession from Bulgaria. That is borne out by various statements made by those leaders (see paragraphs 16, 33, 34 and 35). The Court also takes into account the findings of the Supreme Court from 1990 and 1991 and of the Constitutional Court in its judgment of 29 February 2000 (see paragraphs 12, 13 and 39-41 above).
It follows that the authorities could anticipate that separatist slogans would be broadcast by some participants during the commemorative ceremonies.
97. The Court reiterates, however, that the fact that a group of persons calls for autonomy or even requests secession of part of the country’s territory – thus demanding fundamental constitutional and territorial changes – cannot automatically justify a prohibition of its assemblies. Demanding territorial changes in speeches and demonstrations does not automatically amount to a threat to the country’s territorial integrity and national security.
Freedom of assembly and the right to express one’s views through it are among the paramount values in a democratic society. The essence of democracy is its capacity to resolve problems through open debate. Sweeping measures of a preventive nature to suppress freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities, and however illegitimate the demands made may be – do a disservice to democracy and often even endanger it. 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 assembly as well as by other lawful means.
98. The Court finds, therefore, that the probability that separatist declarations would be made at meetings organised by Ilinden could not justify a ban on such meetings. Alleged propagation of violence and rejection of democratic principles
99. The Government referred to statements which could be interpreted as inviting the Bulgarians to leave the Pirin region to the Macedonians (see above paragraphs 16, 17 and 33) and suggested that even if the separatist aims of Ilinden had not thus far been pursued by them in an openly violent manner, there had nevertheless been some indications that that would happen.
The applicants rejected these allegations as groundless and stressed the peaceful character of their meetings.
100. There is no doubt that seeking the expulsion of others from a given territory on the basis of ethnic origin is a complete negation of democracy.
It is noteworthy, however, that the Supreme Court, when refusing to allow the registration of the applicant association in 1990 and 1991, and the Constitutional Court in its judgment of 29 February 2000 (see above paragraphs 12, 13 and 39-41) did not state that Ilinden’s goals and activities involved incitement to violence or rejection of democratic rule. Furthermore, no relevant criminal proceedings against members of Ilinden or participants in meetings have ever been brought (see above paragraph 46).
101. Most of Ilinden’s declarations and statements emphasised their reliance on public debate and political pressure for the achievement of their goals and expressly rejected violence (see paragraphs 10, 16, 37 and 38). Those statements which could be interpreted as calling for violence or rejection of democracy appear isolated against the background of all material in the case. Moreover, since various persons and groups associated with Ilinden had divergent views, not all the material cited necessarily reflected ideas and goals that dominated the applicant association’s agenda.
102. In its judgment in the case of Incal v. Turkey the Court found that the mere fact that a message read out at a commemorative ceremony to a group of people – which already considerably restricted its potential impact on national security, public order or territorial integrity – contained words such as “resistance”, “struggle” and “liberation”, did not necessarily mean that it constituted an incitement to violence, armed resistance or an uprising (loc. cit., § 50). In the present case the Court takes into account the fact that some of Ilinden’s declarations apparently included an element of exaggeration as they sought to attract attention.
103. In the Court’s opinion, there is no indication that the applicant association’s meetings were likely to become a platform for the propagation of violence and rejection of democracy with a potential damaging impact that warranted their prohibition. Any isolated incident could adequately be dealt with through the prosecution of those responsible.
“Conversion” of the Bulgarian population into a Macedonian population
104. The Government submitted that the applicant association had sought the “conversion of the population in the region into a Macedonian population” in order to achieve its final goal – secession from Bulgaria.
The applicants maintained that Ilinden was an association of the Macedonians in Bulgaria.
105. The Court does not accept the argument that it was necessary to limit the applicants’ right to demonstrate in order to protect those whom they were allegedly trying to “convert”. It has not been shown that unlawful means of “conversion”, infringing the rights of others, have been or were likely to be employed by the applicants.
Statements perceived as offensive by the public opinion
106. It appears that Ilinden’s meetings generated a degree of tension given the special sensitivity of public opinion to their ideas which were perceived as an offensive appropriation of national symbols and sacred values (see paragraphs 13, 17, 18 in fine, 24 and 47 above). In particular, the applicants sought to commemorate historical events, to which they attached a different significance to that which was generally accepted in the country. They considered as Macedonian martyrs historical personalities who were commonly and officially celebrated in the country as Bulgarian national heroes and therefore sought to organise their meetings at the same times and places as the traditional official ceremonies.
107. However, if every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion.
The fact that what was at issue touched on national symbols and national identity cannot be seen in itself – contrary to the Government’s view – as calling for a wider margin of appreciation to be left to the authorities. The national authorities must display particular vigilance to ensure that national public opinion is not protected at the expense of the assertion of minority views no matter how unpopular they may be.
(ii) The significance of the interference
108. The Government suggested that a fair balance was achieved through the relative flexibility shown – when supporters of Ilinden were allowed to approach the historical sites provided that they did not brandish banners or make speeches –, and that the applicants should have chosen other sites for their meetings.
109. The Court considers that depriving the applicants of the right to express their ideas through speeches or slogans at meetings cannot reasonably be characterised as evidence of flexibility. Indeed, the authorities had adopted the practice of imposing sweeping bans on Ilinden’s meetings (see above paragraphs 17 and 74).
Furthermore, it was apparent that the time and the place of the ceremonies were crucial to the applicants, as well as for those attending the official ceremony. Despite the margin of appreciation enjoyed by the Government in such matters the Court is not convinced that it was not possible to ensure that both celebrations proceeded peacefully either at the same time or one shortly after the other.
(iii) The Court’s conclusion
110. As the Government have pointed out, the applicant association had only about 3,000 supporters, not all of whom were active.
The authorities nonetheless resorted to measures aimed at preventing the dissemination of the applicants’ views at the demonstrations they wished to hold.
111. That approach, in the circumstances where there was no real foreseeable risk of violent action or of incitement to violence or any other form of rejection of democratic principles was in the Court’s view not justified under paragraph 2 of Article 11 of the Convention.
112. In sum, the Court finds that the authorities overstepped their margin of appreciation and that the measures banning the applicants from holding commemorative meetings were not necessary in a democratic society, within the meaning of Article 11 of the Convention.
There was therefore a violation of that provision.