FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52411/07 by Todor Stanislavov DEYANOV against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 30 November 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , Zdravka Kalaydjieva , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 14 November 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Todor Stanislavov Deyanov, is a Bulgarian national who was born in 1956 and lives in Sofia .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 8 May 2006 the applicant requested that the Supreme Administrative Court of Bulgaria initiate proceedings before the Constitutional Court and seek a ruling as to the constitutionality of section 140(1)(20) of the Ministry of the Interior Act 2006 (see “Relevant domestic law” below), in so far as it concerned non-profit organisations. He argued that that provision encroached upon the right to freedom of association guaranteed by the Constitution and international law.

On the same day the applicant forwarded identical requests to the Supreme Court of Cassation and the Chief Public Prosecutor. On 17 May 2006 he forwarded an identical request to the Ombudsman.

By letter dated 15 May 2006 the President of the Supreme Court of Cassation informed the applicant that the action requested was not within his powers. The Ombudsman replied on 16 January 2007, informing the applicant that he did not consider section 140(1)(20) of the Ministry of the Interior Act to be unconstitutional. The Chief Public Prosecutor replied on 15 February 2007, also considering that the disputed provision did not contravene the Constitution.

On 14 and 28 February 2007 the applicant lodged new requests with the Ombudsman and the Chief Public Prosecutor to initiate proceedings before the Constitutional Court . He reiterated his position that section 140(1)(20) of the Ministry of the Interior Act impinged upon the right to freedom of association. In addition, he challenged section 5 of the same Act, in so far as it provided that the police “represented society as a whole”. He received no reply.

On 8 October 2007 the applicant wrote directly to the Constitutional Court , requesting that it initiate proceedings and examine the constitutionality of the two above-mentioned provisions of the Ministry of the Interior Act. This request was refused, as Article 150 paragraph 1 of the Bulgarian Constitution does not entitle citizens to lodge constitutional complaints. The applicant was informed of the refusal on 10 October 2007.

B. Relevant domestic law

The Ministry of the Interior Act 2006 came into force on 1 May 2006.

Its section 5, as enacted, provided that in the performance of their duties the officials of the Ministry of the Interior were to “represent society as a whole”. In August 2008 the text of section 5 was amended and this phrase was repealed.

Section 140(1) of the Act provides that police operations can be carried out through:

“...

20. [S]etting up and using non-profit organisations or companies, subject to the conditions set out in law, to cover up the investigation by an undercover agent or to conduct undercover operations ...”.

The formation, registration and activities of non-profit organisations are governed by the Non-Profit Legal Persons Act 2000. Its section 2 provides that those organisations are free to define the goals they wish to pursue, which are to be stated in their articles of association.

Article 150 paragraphs 1 and 3 of the Constitution authorises certain State bodies, including the Supreme Administrative Court, the Supreme Court of Cassation, the Chief Public Prosecutor and the Ombudsman to initiate proceedings before the Constitutional Court in order to obtain a ruling as to the constitutionality of statutes adopted by Parliament. Citizens do not have the right to lodge a constitutional complaint.

COMPLAINTS

1. The applicant complained , relying on Article s 6, 10, 11, 13, 17 and 18 of the Convention , that he did not have access to the Constitutional Court in order to obtain a ruling on the constitutionality of sections 5 and 140(1)(20) of the Ministry of the Interior Act, as he was not able to directly institute proceedings before the Constitutional Court and the bodies entitled to do so had refused to take such a step .

2. The applicant also complained that section 140(1)(20) of the Ministry of the Interior Act 2006, authorising the police to set up or use non-profit organisations for their undercover operations, could lead to violations of human rights and harm civil society.

THE LAW

1. The applicant complained that he did not have access to the Constitutional Court in order to obtain a ruling as to the constitutionality of sections 5 and 140(1)(20) of the Ministry of the Interior Act 2006. However, neither Article 6, nor Article 13, nor any other provision of the Convention or its Protocols guarantees access to a court competent to annul statutes.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must therefore be rejected in accordance with Article 35 § 4.

2. The applicant also complained that section 140(1)(20) of the Ministry of the Interior Act 2006 authorised the police to set up and use non-profit organisations for the purposes of their undercover operations.

The complaint could, in principle, raise issues under Article 11 of the Convention, which guarantees the right to freedom of association.

However, the Court reiterates that, in order to be able to lodge a petition by virtue of Article 34, a person must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure: the Convention does not envisage an actio popularis for the interpretation of the rights it contains and does not permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Tănase v. Moldova [GC], no. 7/08 , § 104 , ECHR 2010 ‑ ...).

In the present case, the applicant did not claim to be directly affected by the disputed measure, because he did not state that he was a member of a non-profit organisation which had possibly been created by the police for the pursuit of goals different from the ones declared in its constitutional documents. In fact, the applicant did not indicate being or intending to become a member of any non-profit organisation: his complaints before the Court, as well as before the national authorities, are purely abstract. This is also evident from the fact that the applicant began his attempts to have the alleged unconstitutionality of section 140(1)(20) of the Ministry of the Interior Act declared on 8 May 2006, just several days after that Act ’ s entry into force on 1 May 2006. Therefore, the Court finds that the applicant does not have standing to raise the present complaint, which represents an actio popularis .

The Court considers that the present case differs from cases concerning secret surveillance measures, such as Association for European Integration and Human Ri ghts and Ekimdzhiev v. Bulgaria ( no. 62540/00, 28 June 2007 ) where it held as follows (see § 58):

“[T]o the extent that a law institutes a system of surveillance under which all persons in the country concerned can potentially have their mail and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification, it directly affects all users or potential users of the postal and telecommunication services in that country” .

Indeed, in the case at hand it could perhaps be argued that all people participating in non-profit organisations could potentially be affected by the impugned measures because they would never know whether that organisation had been set up by the police to serve an undercover operation and whether, therefore, their right to freedom of association was being perverted. However, as already mentioned, the applicant did not claim to be or intend to become a member of a non-profit organisation.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and therefore must also be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President