FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46336/99 by Kiril Kostadinov IVANOV and Others against Bulgaria

The European Court of Human Rights ( First Section) , sitting on 9 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 15 January 1999 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Kiril Kostadinov Ivanov, Mr Vladimir Ivanov Kot z elov, Mr Dimcho Dimitrov Hristov and Mr Angel Georgiev Sharov, are Bulgarian nationals who were born in 1942, 1939, 1955 and 1934 respectively and live in Blagoevgrad. All four applicants describe themselves as being of Macedonian ethnicity and are members of the “United Macedonian Organisation ‘ Ilinden ’ – PIRIN” (“the Organisation”). They are represented before the Court by Mr Y. Grozev and Ms V. Terzieva, lawyers practising in Sofia . The respondent Government are represented by Ms M. Kotzeva , co ‑ agent , of the Ministry of Justice .

A. The circumstances of the case

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

1. Rally planned for 10 August 1998

On 3 August 1998 the second applicant, acting on behalf of the members and the followers of the Organisation, informed the mayor of Sofia that a rally had been planned for 10 August – the anniversary of the 1913 Bucharest Treaty [1] – in the garden in front of the National Theatre. The expected participants were approximately one hundred. The applicant assured the mayor that no disturbances would occur during the event.

On t he same day, 3 August 1998 , the mayor of Sofia issued an order prohibiting the rally pursuant to section 12(2)(2) of the Meetings and Marches Act. He held, without giving further reasons, that the event would “create conditions for breaches of public order”. A copy of the order was sent to the Sofia police authorities for enforcement.

Apparently the applicants did not seek to appeal against the order.

2. Rally planned for 12 September 1998

On 1 September 1998 the first applicant, acting on behalf of the members and the followers of the Organisation, informed the mayor of Sofia that a rally was planned for 12 September between 12 noon and 2 p.m. in front of the National Theatre. He stated that the event would be in commemoration of the “[d]ay of the genocide against Macedonians”. Approximately one hundred and twenty persons were expected to take part. The first applicant assured the mayor that the event would be entirely peaceful and that no disturbances would occur .

On t he next day, 2 September 1998 , the mayor issued an order banning the rally pursuant to section 12(2)(2) of the Meetings and Marches Act . The order stated that the event would “create conditions for breaches of public order”, without giving further reasons. A copy of the order was sent to the Sofia police authorities for enforcement.

The same day the first applicant lodged an appeal against the order with the Sofia District Court. He argued that the order was not reasoned and that there were no grounds to anticipate that the planned rally would pose a threat to public order. If the local authorities were allowed to prohibit public events without specifying the reasons for doing so, that would open the road to arbitrary encroachments on freedom of assembly.

On 8 September 1998 the Sofia District Court ruled in private that it had no jurisdiction. It held that the mayor ’ s order was subject to appeal first before the Executive Committee of the People ’ s Council, and only then before the court. Accordingly, the court discontinued the proceedings and sent the appeal to the Executive Committee of the People ’ s Council. The first applicant was not informed of the ruling.

Since on 12 September 1998 the appeal had not yet been examined , the applicants informed the members and followers of the Organisation that the event was cancelled.

On 17 September 1998 the first applicant appealed against the Sofia District Court ’ s ruling to the Sofia City Court. He argued that the court had erred in referring the appeal to the Executive Committee of the People ’ s Council. This body was mentioned in the Meetings and Marches Act , which Act had been adopted prior to the Constitution of 1991, at a time when municipal authorities had been structured differently. Under the Constitution of 1991 the Executive Committee had ceased to exist and, being a part of the municipal executive, had been superseded by the mayor. Thus, it was erroneous to hold that the Municipal Council – the municipal legislative body – was the successor to the Executive Committee and as such competent to examine appeals against orders of the mayor. Moreover, the Municipal Council convened at long intervals of time, which had prevent ed it from examining the appeal in time for the planned rally.

T he Sofia City Court dismissed the appeal in a decision of 19 March 2002 . It held that by section 12(4) of the Meetings and Marches Act the organiser o f a rally could appeal against the mayoral b an to the Municipal Council, which had to rule on the appeal within twenty ‑ four hours. Only if the Municipal Council dismissed the appeal the dispute could be brought before the court. Under section 35(2) of the Administrative Procedure Act , judicial review of administrative acts was only possible if the administrative remedies had been exhausted or the time ‑ limit for exhausting these remedies had expired. In the case at hand no administrative appeal had been lodged, whereas the appeal to the Sofia District Court had been lodged on 2 September 1998 , i.e. before the expiry of twenty ‑ four hour time ‑ limit laid down in section 12(4) of the Meetings and Marches Act. The court went on to state that the argument that the Municipal Council convened at long intervals and was hence not in a position to examine the appeal in time was ill ‑ founded, because , on the one hand , an infelicitous legal rule still had to be complied with, and on the other , if the administrative body failed to rule on the appeal within twenty ‑ four hours, the planned event could take place, as provided by section 12(5) of the Meetings and Marches Act. Furthermore, it could not be said that the Municipal Council did not have the power to rule an appeal against the mayoral ban, because by the terms of section 21(2) of the Local Self ‑ Government and Local Administration Act it could decide on all questions of importance for the local community.

The first applicant appealed to the Supreme Court of Cassation , reiterating his arguments.

T he Supreme Court of Cassation dismissed the appeal in a final decision of 11 March 2003 . It held that the Sofia City Court ’ s disposition of the case had been correct , but for different reasons that those given by that court. A t the time the Sofia City Court had decided the case – more than three and a half years after the date of the planned event – the first applicant had no longer had any interest of appealing against the mayoral ban. Moreover, such an interest had been lacking even at the time of the lodging of the appeal against the Sofia District Court ’ s ruling.

B. Relevant domestic law

The provisions of the Constitution of July 1991 concerning freedom of assembly read as follows:

Article 43

“1. Everyone shall have the right to peaceful and unarmed assembly at meetings and marches.

2. The procedure for organising and holding meetings and marches shall be provided for by Act of Parliament.

3. Permission shall not be required for meetings to be held indoors.”

Article 44 § 2

“Organisations whose activities are directed against the sovereignty or the territorial integrity of the country or against the unity of the nation, or aim at stirring racial, national, ethnic or religious hatred, or at violating the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to achieve their aims through violence, shall be prohibited.”

The legal requirements for the organisation of meetings are set out in the Meetings and Marches Act of 1990 („ За кон за събранията, митингите и манифестациите “) . Its relevant provisions are as follows:

Section 2

“Meetings, rallies and marches may be organised by individuals, associations, political or other public organisations.”

Section 8(1)

“Where a meeting or rally is to be held outdoors the organisers shall notify the [respective] People ’ s Council or mayor ’ s office in writing at least 48 hours before its beginning and shall indicate the [name of] the organiser, the aim [of the meeting or rally], and its place and time.”

Prohibitions against meetings are also regulated by the Meetings and Marches Act:

Section 12

“1. Where the time or place of the meeting or rally or the itinerary of the march would create a situation endangering public order or traffic safety, the President of the Executive Committee of the People ’ s Council, or the mayor, respectively, shall propose their modification.

2. The President of the Executive Committee of the People ’ s Council or the mayor shall be competent to prohibit the holding of a meeting, rally or march, where reliable information exists that:

1. it aims at the violent overturning of Constitutional public order or is directed against the territorial integrity of the country;

2. it would endanger public order in the local community;

...

4. it would breach the rights and freedoms of others.

3. The prohibition shall be imposed by a written reasoned act not later than 24 hours after the notification.

4. The organiser of the meeting, rally or march may appeal to the Executive Committee of the People ’ s Council against the prohibition referred to in the preceding paragraph. The Executive Committee shall decide within 24 hours.

5. Where the Executive Committee of the People ’ s Council has not decided within [the above] time-limit, the march, rally or meeting may proceed.

6. If the appeal is dismissed, the dispute shall be referred to the respective district court which shall decide within five days. That court ’ s decision shall be final.”

The Meetings and Marches Act was adopted in 1990, when the Constitution of 1971 was in force. Under the Constitution of 1971 the executive local state organs were the Executive Committees of the district People ’ s Councils. The mayors referred to in some of the provisions of the Meetings and Marches Act were representatives of the E xecutive C ommittee acting in villages and towns which were under the jurisdiction of the respective people ’ s councils.

The 1991 Constitution abolished the Executive Committees and established the post of mayor, elected by direct universal suffrage, as the “organ of the executive power in the municipality” (Article 139).

The general rules of procedure for administrative appeals and judicial review of administrative acts are set out in the Administrative Procedure Act . Section 19(1) of the Act provides that administrative acts may be hierarchically appealed before the higher administrative body or official . The appeal must be examined by the administrative body or the official which is immediately superior to the body or the official which has issued the act (section 27(1)) . T he acts of the mayors may be appealed before the regional governors (section 27(3)). Administrative acts may also be appealed before the competent courts (section 33(1) ) . The appeal must be lodged after the administrative remedies have been exhausted or the time ‑ limit for lodging an administrative appeal has expired (section 35(2)).

Section 21(1) of t he Local Self ‑ Government and Local Administration Act of 1991 („ Закон за местното самоуправление и местната администрация “) sets out the powers of the Municipal Council . No mention is made therein of a power to review the acts of the mayor. Section 21 (2) provides that the Municipal Council is also competent to decide other questions of importance for the local community which do no t fall within the competence of other bodies.

COMPLAINTS

1. The applicants complain ed under Article 11 of the Convention that the two bans on the peaceful rallies they had intended to organise had been imposed in violation of the requirements of domestic law and had thus not been “prescribed by law”. They also submit ted that the bans had not been necessary in a democratic society. They further submitted, relying on Article 14 of the Convention, that the unfavourable treatment they had received by the authorities had been due to their Macedonian ethnicity.

2. The applicants complain ed under Article 13 of the Convention that the courts had refused to examine their appeals against the orders imposing the bans.

THE LAW

1. The Court considers that the applicants ’ complaint about the bans of the two rallies they had intended to organise falls most naturally within the scope of Article 11 of the Convention. Accordingly, it will consider it under that provision only.

Article 11 provides, as relevant:

“ 1. Everyone has the right to freedom of peaceful assembly...

2. No restrictions shall be placed on the exercise of [this right] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”

a) The Government raised an objection, claiming that the applicants had not exhausted domestic remedies.

They firstly submitted that the applicants could have lodged administrative appeal s against both mayoral bans with the Municipal Council. By section 12(5) of the Meetings and Marches Act , in such a case the events would continue to be banned only if the C ouncil had ruled within twenty ‑ four hours after the lodging of the appeals.

T he Government secondly argued that there was no indication that the applicants had lodged an appeal against the first ban with the Sofia District Court.

The applicants submitted that neither a theoretical appeal to the Municipal Council, nor an appeal to the Sofia D istrict C ourt could be deemed available and effective remed ies . They argued that a remedy against the ban of a planned public event – where timing was of t he essence – should, in addition to complying to other requirements of Article 35 § 1 of the Convention, also be speedy and resulting in a decision delivered before the date of the planned event. None of the remedies advanced by the Government satisfied this requirement.

Concerning the possibility to lodge an administrative appeal with the Municipal Council, the applicants firstly submitted that domestic law did not clearly provide for such a procedure. Section 12 of the Meetings and Marches Act made reference to a nonexistent body, the Executive Committee of the People ’ s Council . There were no legal grounds on which to conclude that that body had been superseded by the Municipal Council. Secondly , such a construction of section 12 of the Meetings and Marches Act was illogical, because it provided that the appeal had to be examined within twenty ‑ four hours, whereas the Municipal Council ’ s sessions only took place once o r twice a month. Thirdly, the Government had no t produced a single decision of a municipal council delivered pursuant to an appeal against a mayoral ban of a public event. Fourthly, the facts of the case indicated that an appeal to the Municipal Council would be pointless, because the Council had never ruled on the appeal referred by the Sofia District Court to the Executive Committee of the People ’ s Council . Finally, the applicants averred that the Sofia Municipal Council could not have considered an appeal in a timely manner, because it did not hold sessions in August 1998 and after that had held a session only on 17 September 1998 , whereas the planned events were scheduled for 10 August and 12 September 1998 and had been banned on 3 August and 1 September 1998 respectively.

As regards the second avenue of redress suggested by the Government, t he applicants conceded that no appeal had been lodged with the Sofia District Court against the first mayoral ban, but pointed out that when they had lodged an appeal against the second ban, the Sofia District Court had not examined it, but had referred it to the Executive Committee of the People ’ s Council instead . The construction of section 12 of the Meetings and Marches Act given by the Sofia District Court was not the only one possible, as evidenced by the facts of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (nos. 29221/95 and 29225/95, §§ 24 and 25, ECHR 2001 ‑ IX) . There , another district court had proceeded to examine an identical appeal without referring it to the Executive Committee of the People ’ s Council . In the case at hand the Sofia District Court had not referred the appeal to the Municipal Council, but to the Executive Committee of the People ’ s Council , which had ceased to exist in 1991. It was only the Sofia City Court that had taken the time to explain that this body was no longer existing and that its functions in respect of the examination of appeals against mayoral bans of public events had been taken over by the Municipal Council. In the applicants ’ view, this stance of the courts had served as an excuse to examine the appeal on its merits and had operated to deny them an effective remedy. The applicants thus concluded that given this interpretation of section 12 of the Meetings and Marches Act by the Sofia courts, an appeal against the first ban would have been futile .

The Court finds that the question of exhaustion of domestic remedies in respect of the complaint under Article 11 of the Convention about the bans of the rallies is closely related to the merits of the complaint under Article 13 of the Convention about the lack of effective remedies in this respect. Hence, to avoid prejudging the latter issue, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits and reserved for later consideration .

b) Concerning the merits of the complaint, the Government submitted that the restrictions of the applicants ’ freedom of assembly had been justified.

Firstly, s ince the administrative body to which the Sofia District Court had send the appeal against the second ban had failed to rule in time, the applicants could have proceeded with the event planned for 12 September 1998 , as provided in section 12(5) of the Meetings and Marches Act. This had been confirmed by the Sofia City Court in its decision of 19 March 2002 .

The Government further argued that the bans had been prescribed by law, namely section 12( 2 ) (2) of the Meetings and Marches Act. Also , t he measures complained of had pursued a wide range of legitimate aims : protecting national security and public safety , guaranteeing public order in the local community , protecting the rights and freedoms of others and preventi ng disorder and crime . They had also been necessary in a democratic society, because the authorities had acted in conformity with the laws of the country, their actions had not been arbitrary and they had complied with their positive obligations to guarantee the citizens ’ rights under Article 11 of the Convention. Referring to the case of Gustafsson v. Sweden (judgment of 25 April 1996 , Reports 1996 ‑ II, pp. 652 ‑ 53 , § 45), the Government submitted that the Contracting States enjoyed a wide margin of appreciation in their choice of the means to be employed to attain a legitimate aim.

The applicants submitted that there had clearly been interferences with their freedom of assembly with regard to both events they had intended to organise. It was not them who had appealed to the Municipal Council , i t was the Sofia District Court that had referred the appeal to a nonexistent body – the Executive Committee of the People ’ s Council . It was therefore hardly surprising that that body had not ruled on the appeal. It would be farfetched to conclude that in these circumstances the second ban had ceased to have effect. Neither the applicants , nor the police, which w ere under orders to prevent the applicants from holding the event, had been informed in due time about the referr ing of the appeal.

The applicants further submitted that the bans of the planned rallies had lacked reasons and had thus been arbitrary and not prescribed by law. The lack of reasons also made it impossible to draw conclusions in respect of the proportionality of these measures , but, in the applicants ’ view, the bans had not been based on relevant and sufficient reasons.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. In respect of their complaint that the courts had refused to examine their appeals against the orders imposing the bans on the rallies they had intended to organise the applicants relied on Article 13 of the Convention.

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submitted that section 12 of the Meetings and Marches Act provided a sufficient mechanism for obtaining redress against the mayoral bans of public events. It provided a possibility to lodge an administrative appeal and then to seek judicial review by the competent district court. The Government conceded that the Meetings and Marches Act was in certain respects not fully consistent with the changes which took place after the adoption of the Constitution of 1991, but submitted that overall it was a democratic law providing effective guarantees against interferences with the right to peaceful assembly and that in applying it the authorities were taking into account all intervening changes in the law.

The applicants submitted that they had not h ad effective remedies in respect of their complaint under Article 11 of the Convention.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the question of the exhaustion of domestic remedies in respect of the applicants ’ complaint about the bans of the rallies they intended to organise;

Declares the application admissible, without prejud ging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President

[1] . Treaty, concluded between Bulgaria , Greece , Montenegro , Romania and Serbia on 10 August 1913 , which brought an end to the Second Balkan War (1912 ‑ 13).