DISSENTING OPINION OF JUDGE BOTOUCHAROVA

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Прејди на прегледникот Прејди на пребарувањето

I voted against the finding of a violation of Article 11 of the Convention in the present case. My analysis starts from the same general principles as that of the majority: paragraphs 85-90 of the judgment, which set out the essence of the Court’s case-law on freedom of assembly and expression and, in particular, the criteria on the basis of which an interference with those freedoms in cases such as the present one may be considered justified. I accept fully the summary of those criteria.

In my opinion, however, their application to the facts of the case before us – a border-line case – may lead to a different conclusion if appropriate weight is given to the fact that the applicants’ demonstrations posed risks for public order in the local community. The authorities, when restricting the applicants’ right to hold commemorative meetings, repeatedly referred to the existing danger of clashes between the supporters of Ilinden and those participating in the official ceremonies which were held at the same place and time. The fears were based on past experience: there had been a number of previous incidents at events organised by Ilinden, and their attitude was characterised as “provocative” (see paragraph 17 of the judgment). That last element was of crucial importance as it meant that the authorities were convinced that Ilinden supporters might seek to provoke disorder and clashes. What is at issue in this case, however, is the freedom of peaceful assembly.

The protection of the rights of others, public safety and the prevention of disorder are legitimate aims that may justify, under Article 11 § 2 of the Convention, an interference with freedom of peaceful assembly provided that such interference is proportionate to the aims pursued. The Bulgarian authorities were apparently conscious of the requirement not to restrict Ilinden’s freedoms beyond what was necessary. The prohibitions complained of only concerned specific dates and places. On some of the dates when demonstrations were planned, the authorities did not prevent Ilinden’s supporters from reaching the historical sites, but required them to abandon provocative slogans.

The Court has established in its case-law that “by reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of the ... [necessity of an interference] ...The Court, which ... is responsible for ensuring observance of those states’ engagements, is empowered to give the final ruling on whether [an interference was justified] ... Consequently, Article 10 § 2 [as well as Article 11 § 2] leave[] to the Contracting States a margin of appreciation... The domestic margin of appreciation ... goes hand in hand with a European supervision” (the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, pp. 22-23).

Taking into account the domestic margin of appreciation, the Convention organs found in many cases that restrictions on demonstrations were justified on public-order grounds. To cite some examples, the following prohibitions on assemblies were considered in conformity with Article 11 § 2: a two-month ban on public processions other than customary ones in London (no. 8440/78, Dec. 16.7.80, DR 21 p. 138); a general ban on demonstrations on issues related to Northern Ireland in Trafalgar Square in London (no. 25522/94, Dec. 6.4.95, DR 81-A, p. 146); a four-day ban on assemblies within a radius of four miles from the Stonehenge Monument in view of past incidents and disorder caused by Druid followers (no. 31416/96, Dec. 19.10.98 (unreported).

In my opinion, the Bulgarian authorities in the particular circumstances of the present case did not overstep their margin of appreciation and restricted the applicants’ freedom of peaceful assembly to the extent strictly necessary for the protection of the rights of others, public safety and the prevention of disorder.

As I did not find a violation of Article 11 of the Convention, I also voted against the award on non-pecuniary damages to the applicants.