DISSENTING OPINION OF JUDGE LAZAROVA TRAJKOVSKA

I deeply disagree with the majority of my colleagues in declaring the application in this case admissible and finding a violation of Article 11. My dissenting opinion is based on two main concerns: the first is a formal one and has to do with the principle of exh austion of domestic remedies; the second counter-argument deals with the interpretation of the goals and activities of the Association of Citizens Radko.

The majority in the Chamber have accepted that this case concerns the Association ’ s dissolution based on the Constitutional Court ’ s decision from 21 March 2001 declaring the Association ’ s Articles and Programme unconstitutional.

From the facts of this case, it is clear that the dissolution of the Association is a result of the final decision that was taken by the Bitola Court of Appeal on 11 February 2002 when the resolution of the Ohrid Basic Court from 16 January 2002 became effective. This means that the Association was dissolved ten months after the Constitutional Court ’ s decision and seven months after the application was lodged with the European Court of Human Rights (on 30 July 2001). The majority of my colleagues ignored the fact that at the time the application was lodged the Association was registered and active and that the dissolution of the Association took place seven months after the application was lodged. In these circumstances it is not acceptable as a ground for a violation of Article 11.

After the decision of the Bitola Court of Appeal, the applicants had at their disposal a domestic legal remedy for the protection of human rights and freedoms that they did not use, but instead lodged their application with the European Court of Human Rights . The applicants did not make use of a constitutional complaint to the Constitutional Court , a prescribed domestic legal remedy provided for in Article 110 § 3 of the Constitution of the Republic of Macedonia . Thus, ignoring the domestic remedies and failing to exhaust them, the applicants decided to apply directly to the European Court of Human Rights before the Association was even dissolved. I am of the opinion that in this case the constitutional complaint was a unique and extremely important effective domestic remedy in respect of Articles 11 and 10 of the Convention. Therefore, the domestic courts were not able to address the applicants ’ claims that were submitted to the European Court of Human Rights.

Article 35 § 1 of the European Convention on Human Rights provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

What is the idea behind this provision of Article 35? To oblige applicants to use all available domestic remedies within a clearly prescribed period (six months from the date on which the final decision was taken). In the Nielsen case the Commission was clear on this rationale, stipulating that “[t]he respondent State must first have an opportunity to redress by its own means within the framework of its own domestic legal system the wrong alleged to have been done to the individual” ( Nielsen v. Denmark , no. 343/57, Commission decision of 2 September 1959, Yearbook 2, p. 438). This approach of the Commission was accepted and further developed by this Court when it strongly stressed (see Azinas v. Cyprus [GC], no. 56679/00, § 38 , ECHR 2004 ‑ III ) the following point:

“The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and where appropriate, to afford redress before that allegation is submitted to the Court.”

My second concern is about the approach towards the decision of the Constitutional Court . The decision of that court is connected only with the constitutionality of two legal acts of the Association and this decision was prescribed by law. Article 4 of the Associations of Citizens and Foundations Act reads as follows: “The Programmes and activities of associations of citizens and foundations shall not be directed towards: the violent destruction of the constitutional order of the Republic; ... encouragement of national, racial or religious hatred or intolerance”. The Constitution in its Article 20, third paragraph, stipulates: “The programmes and activities of political parties and other associations of citizens may not be directed at the violent destruction of the constitutional order of the Republic, or at encouragement of or incitement to military aggression or ethnic, racial or religious hatred or intolerance”.

In the decision of the Constitutional Court , the main argument is that the Association ’ s Articles and Programme “explicitly encourage an incitement to national hatred and intolerance and as such they are to be treated as aims and activities that are objectively directed towards what is banned by the Constitution”. The court decided that the denial of existence of the Macedonian nation (the main goal of the Association) by calling its people Slav Macedonians of Bulgarian origin was a serious and historically used ground for violence and national intolerance. In this regard the Constitutional Court played its role of safeguarding the Constitution and democracy in a democratic society and of protecting the rights and freedoms of others. The logic is that no one is allowed to misuse freedom of association with the aim of promoting ideas of disrespect and discrimination against others ’ rights.

The applicants were registered and were able to exercise freedom of association. In exercising their right to free expression and association, it was established that through their activities they provoked violent behaviour and disregard of the human rights of other citizens. The Constitutional Court judged that the grounds for such behaviour were laid down in the Programme and Articles of the Association.

I see this judgment as legitimate and in accordance with the Constitution of the Republic, and in accordance with the case-law of the European Court of Human Rights . Since Handyside v. the United Kingdom ( 7 December 1976, § 49 , Series A no. 24 ) this Court has, in many other cases, stipulated that the right to freedom of peaceful assembly and association is “applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any other sector of the population”. However, this broad and open approach does not cover hate speech that is offensive to others, or incitement to violence. It is indeed difficult to accept that the Association ’ s policy of denying the national identity of people in their State is in harmony with the Convention and the values of democratic society.

Freedom of association is not absolute. Article 11 does not deprive the State of the power to protect institutions and persons from an association which, through its activities or intentions (as expressly or implicitly declared in its programme), jeopardises the State ’ s institutions or the rights and freedoms of others. The Court, in Gorzelik and Others v. Poland (no. 44158/98, § 65 , 20 December 200 1) stated as follows:

“the applicants could easily have dispelled the doubts voiced by the authorities, in particular by slightly changing the name of their association and by sacrificing, or amending, a single provision of the memorandum of association ... Those alterations would not, in the Court ’ s view, have had harmful consequences for the Union ’ s existence as an association and would not have prevented its members from achieving the objectives they set for themselves.”

The Grand Chamber subsequently came to the same conclusion as the Chamber in that case.

In this particular case, the national authorities had assessed that there was a “pressing social need”, in the general interest, to impose a given restriction. The rationale of the Constitutional Court ’ s judgment was guided by the fact that no restrictions should be placed on the exercise of the right to freedom of peaceful assembly and to freedom of association with others, other than those that 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.

In the present case the pressing social need was to protect the right of the members of the Association to free expression and association whilst protecting at the same time the right of the majority of citizens of the Republic of Macedonia to enjoy freely their human right to self-identification as Macedonian nationals. The Constitutional Court reasoned legally that the Association ’ s Articles and Programme, as implemented in practice, meant and were understood as a denial of the Constitutional norm that the State of the Republic of Macedonia is constituted as the national State of the Macedonian people.

The denial of this historical fact runs against the argument that the Court developed in the case of Gorzelic v. Poland ( cited above, § 66 ) , when it stated as follows:

“ The Court would also point out that pluralism and democracy are, by the nature of things, based on a compromise that requires various concessions by individuals and groups of individuals. The latter must sometimes be prepared to limit some of their freedoms so as to ensure the greater stability of the country as a whole.”

In the light of that judgment, I confidently accept as legitimate and in accordance with the Convention the decision of the Constitutional Court of the Republic of Macedonia to interpret the Programme and Articles of the Association Radko as a basis for national intolerance and hatred, and thus to declare them unconstitutional. The applicants misused the right to freedom of assembly and association contrary to the text and spirit of the Constitution and the Convention. Therefore the interference of the Constitutional Court was necessary in a democratic society within the meaning of the Convention.

For the reasons set out above, justifying my two main concerns, my opinion is that application no. 74651/01, Association of Citizens Radko and Paunkovski v. the former Yugoslav Republic of Macedonia , should have been declared inadmissible.