Judgment of the ECHR of September 03, 2020 in the case "Yordanovi v. Bulgaria (Yordanovi v. Bulgaria)" (aplication No. 11157/11).
In 2011, the applicants were assisted in the preparation of the aplication. The aplication was subsequently communicated to Bulgaria.
The case successfully considered an aplication about the initiation of criminal proceedings against the applicants, who were found guilty and sentenced to punishment for trying to create a party "on a religious basis". The case violated the requirements of article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In September 2009, the applicants, who were brothers and belonged to a Muslim group in Bulgaria, held a meeting attended by approximately 100 people, at which it was decided to establish a political party, the party's charter was adopted, and the governing bodies of the party were elected. A few days later, a criminal case was opened against the applicants, and the applicants were eventually convicted and found guilty of attempting to establish a party "on a religious basis".
Regarding compliance with article 11 of the Convention. The institution of criminal proceedings against applicants who have been found guilty and sentenced to punishment for attempting to form a party "on a religious basis" and are therefore punished for exercising their right to associate with other people or to form parties should be considered as a "restriction" of the applicants ' right to freedom of association.
The restriction was based on article 166 of the 1968 Bulgarian Criminal Code, which prohibited, inter alia, the establishment of political organizations "on a religious basis". In view of the precise wording of this article, the applicants knew or should have known, using legal aid if necessary, that their actions in September 2009 should have resulted in criminal liability.
Indeed, in the absence of any case-law on the application of article 166 of the Bulgarian Criminal Code since the entry into force of the Bulgarian Constitution in 1991, the interpretation of the relevant norms by the Bulgarian criminal courts could not be determined definitively. Nevertheless, the position of the courts in the applicants ' case was reasonably predictable, taking into account, in particular, the interpretation given in 1992 by the Bulgarian Constitutional Court of article 11, paragraph 4, of the Bulgarian Constitution, which contained almost identical wording and which was eventually referred to by the courts in the present case. Consequently, there was no unforeseen departure from case law or, mutatis mutandis, an expansive interpretation of the criminal law norm.
In the light of the parliamentary debate, when the amendment to article 11, paragraph 4, of the Bulgarian Constitution was adopted, and the interpretation of this article by the Bulgarian Constitutional Court, the criminal case against the applicants had the legitimate aim of "preventing riots" and "protecting the rights and freedoms of others".
Even in the absence of the need to assess the analysis carried out by the Bulgarian criminal courts as to whether the party the applicants wanted to form could legitimately be considered as having "religious grounds", and thus to consider whether the Bulgarian courts based their decision on an acceptable assessment of the relevant facts, the Court expressed serious doubts as to whether it was necessary, under article 11, paragraph 2, of the Convention, to accompany the prohibiting measures in the present case with a criminal penalty. However, what mattered was not the severity of the sanctions imposed as a result of the criminal proceedings against the applicants, but rather the fact that the said proceedings, which ended with the decision of the applicants ' sentence and the imposition of a criminal penalty, took place at all.
It should be noted that the applicants did not complete the registration procedure for the political party, the decision to establish which was made in September 2009. In accordance with the Bulgarian legislation, the result of this circumstance was that the party could not exist and carry out any activity. Consequently, the result that the Bulgarian authorities wanted to achieve, namely, to ensure the peaceful coexistence of various ethnic and religious groups, could be achieved through such a procedure by refusing to grant the application for registration of a political party. The Bulgarian authorities also had the opportunity to dissolve the party, which was declared unconstitutional by the Bulgarian Constitutional Court. In this connection, the Court has not found any explanation as to why, in the circumstances of the present case, the prosecution for attempting to establish a political party, which resulted in the sentencing of the applicants and their criminal prosecution, and which thus constituted an extremely harsh criminal procedure measure against the applicants by the Bulgarian authorities, was necessary in the presence of the above-mentioned possibilities.
Moreover, article 166 of the 1968 Bulgarian Criminal Code was in force long before the adoption of the 1991 Bulgarian Constitution. In fact, the purpose of this provision was to prevent the re-emergence of any "capitalist" political parties that existed before the establishment of the political regime in the country, and which still took place in the "capitalist countries", and not to guarantee religious and ethnic tolerance among the population of Bulgaria. Article 166 of the 1968 Bulgarian Criminal Code dealt only with the establishment of political parties on a religious basis, while article 11, paragraph 4, of the 1991 Bulgarian Constitution also prohibited the establishment of political parties on an ethnic and racial basis.
In view of the above, the initiation of criminal proceedings against the applicants for attempting to establish a political party on a religious basis was not necessary in a democratic society.
The case involved a violation of the requirements of article 11 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The Court held that the finding of a violation would in itself constitute sufficient just compensation for non-pecuniary damage.