In National Turkish Union v Bulgaria [2017] ECHR (No. 4776/08) [French only], the National Turkish Union and its founder and president, Menderes Mehmet Kungyun, complained successfully that the Bulgarian authorities’ refusal to register the Union was a breach of Article 11 ECHR.

Background

In 2006 Mr Kungyun announced his intention to form an association dedicated to promoting the rights of the Muslim minority in Bulgaria. Following his announcement, several hostile press articles criticised the Union’s aims, claiming variously that Mr Kungyun wanted to create an ethnic Turkish party and that he was receiving funding from secret services abroad.

When Mr Kungyun and five other founder members applied to the Plovdiv Regional Court to have the Union registered, the court refused on the grounds that one of the Union’s declared aims – “the development of political pluralism with a view to the democratization and demonopolization of the Turkish community” – was political in nature and that, under the Constitution, only political parties were allowed to conduct political activities [9]. It also observed that the primary aims of a non-profit association could not include commercial activities [10]. Lastly, it noted a lack of precision in the statute concerning the Union’s representative bodies [11]. The Court of Appeal upheld the lower court, observing that an association’s name should not be misleading or contrary to public morals and that the name “National Turkish Union” implied the existence of a Turkish nation in Bulgaria and a separatist objective – and concluded that the name infringed Article 7 of the Law on Non-Profit Corporations and Article 44 (2) of the Constitution [14]. A further appeal to the Supreme Court of Cassation was unsuccessful.

The applicants alleged that the refusal to register the Union was a breach of their rights under Article 11 (assembly and association). The Government accepted that the refusal interfered with their freedom of association but argued that the interference was prescribed by law, necessary and proportionate to a legitimate aim and therefore did not infringe Article 11. The refusal to register was based on the Constitution and the Non-Profit Corporations Act and therefore fulfilled the requirements of accessibility, clarity and predictability and pursued the legitimate aims of defending order, preventing crime and protecting the rights and freedoms of others [26]. Moreover, the name “Turkish National Union” implied the existence of a Turkish nation on the national territory and demonstrated the Union’s separatist objectives – which in its view was a legitimate ground for refusing to register it [27]. The Government pointed to other irregularities such as the pursuit of political objectives [28] and the fact that the Union’s declared objects included commercial activities incompatible with its claimed status [29].

The judgment

The Court noted that freedom of association is not absolute; and states parties had the right to control the conformity of the purpose and activities of an association with the rules laid down by law. But that right had to be exercised in a manner consistent with obligations under the Convention and subject to the control of the treaty bodies. Consequently, the exceptions under Article 11 had to be interpreted strictly: only compelling reasons justifed restrictions on freedom of association and states parties had only a limited margin of appreciation in the matter [36].

It was not for the Court to substitute itself for the competent domestic courts: its task under Article 11 was to verify the domestic courts’ decisions. In doing so, it had to consider the interference complained of in the light of all the facts to determine whether it was “proportionate to the legitimate aim pursued” and whether the justification offered by the national authorities was “relevant and sufficient”. In doing so, the Court had to be satisfied that the national authorities had applied the rules in conformity with the principles  of Article 11 and on the basis of an acceptable assessment of the relevant facts. [37]

The Court concluded that it was not necessary to consider whether the interference complained of was prescribed by law and pursued a legitimate aim, because it considered that the interference was in any event not necessary in a democratic society [39]. The Court had already held in previous cases against Bulgaria that  the political nature of the aims of an association could not justify refusal to register: see United Macedonian Organization Ilinden and Others v Bulgaria (No. 2) [2006] ECHR (No. 59491/00) and Zhechev v Bulgaria [2007]  ECHR (No. 57045/00) in which it had held that there was no “compelling social need” to require any association wishing to pursue political objectives, in the broad sense, to constitute itself as a political party if it was not the intention of its founders to take part in elections. The situation would amount to imposing on an association a legal form that its founders did not intend to give it [41]. The same was true in the present case [43].

Finally, with regard to the Government’s contention, based on Gorzelik and Others v Poland [2004] ECHR (No. 44158/98), that the restriction was justified because the Union’s name implied the existence of a “Turkish nation” in Bulgaria, Gorzelik related to a different legal regime. In that case, the refusal to register an association on the grounds that its name and statutes defined it as an organisation of the Silesian national minority in Poland had been justified under Article 11 §2 because, under Polish law, the qualification of a “national minority” automatically entitled it to certain electoral privileges if the organisation decided to take part in the elections. That did not apply in the present case [47].

The refusal to register the applicant association was therefore not “necessary in a democratic society” and violated Article 11 of the Convention [48]. It was not necessary to examine the complaint under Article 14 [52].