BEHAR AND GUTMAN v. BULGARIA

 
 
 
Communicated on 2 May 2019
 
FIFTH SECTION
Application no. 29335/13
Gabriela Aron BEHAR and Katrin Borisova GUTMAN
against Bulgaria
lodged on 23 April 2013
STATEMENT OF FACTS
1.  The applicants, Ms Gabriela Aron Behar and Ms Katrin Borisova Gutman, are Bulgarian nationals who were born, respectively, in 1972 and 1968 and live in Plovdiv. They are represented before the Court by Ms A. Kachaunova, a lawyer practising in Sofia and working with the Bulgarian Helsinki Committee.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the applicants and emerging from publicly available sources, may be summarised as follows.
1.  Background to the case
3.  Ataka is a Bulgarian political party founded in 2005. At the parliamentary elections that year it gained 8.14% of the votes cast and obtained twenty-one seats in Bulgaria’s two-hundred-and-forty-seat Parliament. At the parliamentary elections in 2009 it gained 9.36% of the votes cast and again obtained twenty-one seats. Its figures for the 2013 parliamentary elections were respectively 7.30% of the votes cast and twenty-three seats. At the parliamentary elections in 2014 it gained 4.52% of the votes cast and eleven seats. It presented itself at the 2017 parliamentary elections as part of the coalition “United Patriots”, which gained 9.31% of the votes cast, and obtained eight out of the coalition’s twenty-seven seats.
4.  The party’s leader, Mr Volen Siderov, has been a Member of Parliament for Ataka since 2005. Before that, he worked as a journalist: in the early 1990s as editor-in-chief of the daily Demokratsia; then, in the early 2000s, as a columnist for the daily Monitor; and later as host of the daily television programme “Ataka” aired by the television station SKAT. In 2006 he ran for President of Bulgaria. He came second in the first round of voting, obtaining 21.5% of the votes cast, and in the run-off lost against the incumbent, Mr Georgi Parvanov, by 24.05% to 75.95%. In February 2011 Mr Siderov again announced his candidacy for President. At the first round of voting, which took place on 23 October 2011, he obtained 3.64% of the votes cast.
5.  The applicants described Ataka as a “racist-xenophobic populist party” and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-Semitic and more generally anti-minority propaganda, by way of books, articles in Monitor, and then in his television programme, making this the platform on which he had launched his bid to enter Parliament in 2005.
6.  Further information about Ataka’s activities and political positions can be found in Karaahmed v. Bulgaria (no. 30587/13, §§ 7-27, 24 February 2015).
2.  The proceedings under the Protection From Discrimination Act 2003
7.  In January 2006 the applicants and sixteen other people, as well as sixty-six non-governmental organisations, brought proceedings against Mr Siderov under section 5 of the Protection From Discrimination Act 2003 (see paragraph 26 below). They alleged that a number of public statements made by him had constituted harassment of, and an incitement to discrimination against, Roma, Turks, Jews, Catholics and sexual minorities.
8.  The Sofia District Court split the case into eight separate ones, based on the specific badge of discrimination alleged by each group of claimants. The case of the two applicants, both of whom are of Jewish ethnic origin, concerned chiefly Mr Siderov’s statements in relation to Jews and the Holocaust.
(a)  The statements by Mr Siderov at issue in the applicants’ case
9.  In their claim the applicants asserted that a number of passages in two books written by Mr Siderov had amounted to harassment and incitement to discrimination on the basis of Jewish ethnicity or religion. The applicants sought court orders against Mr Siderov to stop making such statements and to restore the status quo ante by publicly apologising for his statements.
10.  The applicants referred in particular to the following passages in a book by Mr Siderov entitled “The Power of the Mammon” published in Sofia in 2004:
“... until Christ Judaism was a permanent renouncement of God in favour of the Mammon ...” (at p. 28)
“[Judaism] ... is an elitist, xenophobic, racist and Theomachist philosophy” (at p. 42)
“The demagoguery of authors who gloss over the secular robbery of Christians by the Jews as a trifle is astounding. ... [E]verywhere on the European continent Jews got under the skin of rulers, pushed them towards wars and cataclysms, so that they would fall in an acute need of money ...” (at p. 58)
“... The genocide against the Russian, Bulgarian and other Orthodox peoples was carried out under direct commands by Talmudic western circles, headed by the Rothschild family. This genocide comprised not only direct extermination through wars, ‘revolutions’ and terrorism (which has been a trademark of Judaism for centuries). This genocide was carried out also by way of the calculated and consistent looting of the money and resources of the Christian peoples ...” (at p. 135)
“... The Talmudic worldview is: enslavement ...” (at p. 143)
“... Elitism is the basis of the Judaic, Talmudic worldview. It comprises the notion that to rob the ‘other’ – the non-Jew – is a feat rather than a sin. That to ruin him is a good deed rather than a sin. ...” (at p. 147)
“... Tsarism and the Orthodox religion were loathed by the Jewish banking oligarchy in London and New York, and it gave enough money to liquidate its main enemies – the Christian Church and the monarchy of a Byzantine type. To liquidate the State of the Spirit, so that the kingdom of the Mammon could triumph. ...” (at p. 156)
11.  The applicants also referred to the following passages in the second edition of another book by Mr Siderov entitled “The Boomerang of Evil”, published in Sofia in 2002:
“... ‘Shoot the louses on the spot!’ was Ulyanov’s order to the war commissar Leo Bronstein-Trotsky. And the Russian Jew-Mason, member of the ‘Grand Orient’ lodge, carried out the order with sadistic contentment. ...” (at p. 72)
“... Who is that? Who will rejoice in the deaths of millions of Christians? While using as an instrument supposed other ‘Christians’ – pawns from the same countries in which the action is taking place? Those who estimate that they have been chosen to rule the world. Who a long time ago renounced God and bow to his enemy. Who have created the most perfectly chauvinistic and racist doctrine in the world – Judaism. Those are the sons of ‘Israel’ – the one who wrestles with God, in Bulgarian translation. ...” (at p. 75)
“... The victims of the Jewish-Bolshevik terror are reckoned to be more than 100 million throughout the whole period of Soviet rule. ...” (at p. 93)
“... Why is it that today no-one speaks of the genocide carried out by a Jewish establishment over 66 million Russians during 70 years of communism? ... In 1918 the Soviet Government consisted of 22 people, 18 of whom were Jews, one a Georgian, one an Armenian, and two Russian. The decision to decimate the Russian people was taken by non-Russians. ...” (at p. 113)
“... Enslaving other peoples has for centuries been the supreme goal of the Jewish world elite. ...” (at p. 156)
“... The lies about the ‘gas chambers’ that exterminated millions of Jews are also supported by the data of the English intelligence. ...” (at p. 169)
“... By using the legend of the ‘Holocaust’ the Jews reaped enormous advantages from the world. ... The ‘Holocaust’ lie is also very lucrative. According to Spiegel, issue 18 of 1992, since 1952 the Federal Republic of Germany has paid out to Jewish Zionist organisations a total of 85.4 billion of German marks! ...” (at p. 170)
“... The most powerful brainwashing instrument – television – is a monopoly of three men – the Jews Isner, Levin and Rotstein. CNN long ago ceased to be owned by Ted Turner; it is owned by Levin. ...” (at p. 205)
12.  The applicants further referred to the following passage from the first edition of the same book, also published in Sofia in 2002:
“... It is then that emerged the germ of the great hoax called ‘Holocaust’ – the version that 6,000,000 Jews were gassed and burned in the ovens of Hitler’s concentration camps. ...” (at p. 169)
13.  Lastly, the applicants referred to the following passages from two public speeches by Mr Siderov:
Speech at a pre-election rally of Ataka in Burgas on 22 June 2005
“... No to the Gypsification of Bulgaria. No to the Turkification of Bulgaria. ...
At long last Bulgarians will have their own representation in Parliament. It will not only be full of pederasts, Gypsies, Turks, aliens, Jews and all manner of others, but will consist only and exclusively of Bulgarians! Who will defend the honour, dignity and interests of the Bulgarian. ...
... We shall say that Bulgaria will not permit ... to become a Turkish province. It will not permit to become a Gypsy State. It will not permit to become a Jewish colony. Or any other colony. ...”
Speech at the first session of the newly elected Parliament on 11 July 2005
“... This is what I had to say – Bulgaria above all, Bulgaria for Bulgarians!”
(b)  The course of the proceedings in the applicants’ case
(i)  At first instance
14.  On 10 February 2009 the Sofia District Court dismissed the applicants’ claim. It held that it had not been demonstrated that by making the impugned statements Mr Siderov had sought to impinge on their dignity or honour or create an intimidating, hostile or offensive environment. Nor had it been shown that he had wilfully encouraged, given instructions or coaxed anyone to carry out discrimination, since it had not been proved that his statements had been capable of influencing negatively the people before whom he had spoken. It was true that in his speech before the newly elected Parliament he had said “Bulgaria above all, Bulgaria for Bulgarians”. But the applicants were also Bulgarian citizens, irrespective of their ethnic identity. It had not been categorically proved that Mr Siderov had not just been exercising his freedom to express his opinion, in writing and orally, rather than inciting to discrimination. Nor had it been shown that his statements had caused any of their recipients to treat the applicants less favourably than others owing to their ethnicity. The constituent elements of harassment or incitement to discrimination were therefore not in place (see реш. от 10.02.2009 г. по гр. д. № 2855/2006 г., СРС).
(ii)  On appeal
15.  The applicants and the other claimant in the case appealed, arguing that the court’s findings were divorced from reality and arbitrary. The court had in effect turned a blind eye to the intent behind Mr Siderov’s extreme anti-Semitic statements. This was all the more glaring in the face of the fact that he was a politician notorious for his anti-minority agitation. The finding that his statements could not sway public opinion was likewise inadequate. If the leader of a political party who had come second in the presidential elections could not do so, through books, public speeches and speeches in Parliament, no-one ever could. The court had also erred by holding that harassment required both intent and result; the two were alternative. Nor was it true that incitement presupposed concrete results. It could not be accepted that Mr Siderov had legitimately exercised his right to freedom of expression. Under European Union law and this Court’s case-law, racist and anti-Semitic speech and Holocaust denial were not protected expression.
16.  On 20 December 2010 the Sofia City Court upheld the lower court’s judgment. It held that in assessing whether the impugned statements had been in breach of the 2003 Act it had to bear in mind that each of the parties was relying on fundamental rights guaranteed by the Constitution and international agreements: on the one hand, the right to honour and dignity, and, on the other, the right to express an opinion. The court reviewed in some detail the case-law of the Constitutional Court on the balance between those rights, and noted that this Court’s case-law under Article 10 of the Convention differentiated between the defence of unpopular and offensive ideas and calls to hatred or violence.
17.  The court went on to say that there was no evidence that Mr Siderov had sought to infringe the applicants’ honour or dignity owing to their ethnic identity. His statements had rather expressed his beliefs about topics which were in his view of social importance, and had not intended to stir up hatred, violence or tension. It was true that his statements contained negative assessments which could shock or offend. But this was not sufficient to limit his freedom of expression by recognising his statements as unlawful and an incitement to harassment or discrimination.
18.  The court further held that only statements directed against a well‑defined group of people or a specific person could be regarded as expression to the detriment of the rights of others. This was not the case with the impugned statements. They had not targeted anyone in particular; even less the applicants. They had been directed towards the public at large, had been capable of being perceived by it, and had exposed Mr Siderov’s views on political, historical, religious and ethnic issues. It had not been proved that he had meant to infringe the applicants’ dignity or honour or create an intimidating, hostile or offensive environment. Nor had it been shown that he had wilfully encouraged, given instructions or coaxed anyone to carry out discrimination. This also applied to the statements in his books. There was no evidence that any of his public speeches – in particular that at the rally in Burgas – had caused their recipients to treat the applicants less favourably owing to their ethnicity. As for his statement in Parliament, it could not have affected the applicants, as they were also Bulgarian citizens, irrespective of their ethnic identity. It could not be seen as a call for unequal treatment since all ethnic groups in Bulgaria were Bulgarian nationals.
19.  The Sofia City Court thus agreed with the court below that the constituent elements of harassment or incitement to discrimination were not present (see реш. № 2935 от 20.12.2010 г. по гр. д. № 80/2010 г., СГС).
(iii)  Before the Supreme Court of Cassation
20.  The applicants and the other claimant in the case appealed on points of law. Among other arguments, they again pointed out that under this Court’s case-law hate speech and Holocaust denial were not protected expression, and that in his capacity as a politician Mr Siderov could really influence public opinion.
21.  On 15 November 2012 the Supreme Court of Cassation refused to admit the appeal for consideration. It noted that the notions of harassment and incitement to discrimination were comprehensively defined in the 2003 Act. The meaning of the relevant provisions was clear, and the applicants had not referred to divergent case-law on the point. Its own case‑law under sections 4 and 5 of the Act was settled and did not need to be reappraised in the light of any fresh developments (see опр. № 1215 от 15.11.2012 г. по гр. д. № 533/2012 г., ВКС, IV г. о.).
B.  Relevant domestic law and practice
1.  Constitutional provisions
22.  Article 6 § 2 of the 1991 Constitution provides for equality before the law in the following terms:
“All citizens shall be equal before the law. There shall be no restrictions of rights or privileges on grounds of race, nationality, ethnic identity, sex, origin, religion, education, opinions, political affiliations, or personal, social or property status.”
23.  Article 32 § 1 of the Constitution enshrines the right to protection of one’s private life and dignity in the following terms:
“Citizens’ private life shall be inviolable. All shall be entitled to protection against unlawful interferences with their private ... life and against infringements of their honour, dignity or good name.”
24.  Article 39 § 1 of the Constitution provides that everyone is entitled to express an opinion and publicise it through words, whether written or oral, sounds or images, or in any other way. By Article 39 § 2, this right must not be “exercised to the detriment of the rights and reputation of others, or for incitement to ... enmity or violence against anyone”.
2.  Protection From Discrimination Act 2003
(a)  The prohibitions against discrimination and harassment
(i)  Statutory provisions
25.  The Protection From Discrimination Act was enacted in 2003 and came into force on 1 January 2004. It prohibits, in section 4(1), any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or any other grounds laid down in statute or an international treaty to which Bulgaria is party.
26.  By section 5, harassment based on any of the grounds under section 4(1), as well as sexual harassment, or incitement to discrimination, persecution and racial segregation, is deemed to be discrimination.
27.  Paragraph 1(1) of the additional provisions defines “harassment” as any unwanted conduct motivated by the grounds in section 4(1), whether expressed through physical gestures, words or otherwise, which is either meant to infringe or results in infringing the dignity of the people concerned and the creation of an intimidating, hostile, degrading, humiliating or offensive environment. Paragraph 1(5) defines “incitement to discrimination” as direct and wilful encouragement, instructions, pressure or coaxing to carry out discrimination.
28.  The Supreme Administrative Court has explained that direct discrimination and harassment are related but nevertheless distinct notions, a difference in treatment being irrelevant in relation to harassment, which is rather characterised by its special aim or result, as set out in paragraph 1(1) (see реш. № 8105 от 08.06.2011 г. по адм. д. № 8708/2010 г., ВАС, VII о., upheld by реш. № 156 от 05.01.2012 г. по адм. д. № 13389/2011 г., ВАС, петчл. с-в).
(ii)  Case-law relating to public statements about Roma as a group
29.  In a March 2009 judgment, upheld on appeal in December 2009, the Supreme Administrative Court found that statements by a mayor in a radio interview that “even cows in [his municipality] would obstruct less than a Gypsy neighbourhood” and that “such a Roma neighbourhood wold be ten times more dangerous than a rubbish dump in the proximity of living quarters” had amounted to harassment within the meaning of the above provisions as they had infringed the dignity of a large number of people and had created an insulting environment based on ethnicity. The fact that the mayor had expressed his opinion in relation to a public-policy issue could not justify his comparing a minority ethnic group to “cows” and a “rubbish dump”. Nor was it a defence that the mayor had not meant to offend the people concerned; it was enough that his words, which had been widely publicised in the Roma community, had led to that result (see реш. № 3019 от 06.03.2009 г. по адм. д. № 9485/2008 г., ВАС, VII о., upheld by реш. № 14472 от 01.12.2009 г. по адм. д. № 11158/2009 г., ВАС, петчл. с-в).
30.  In a July 2009 judgment, upheld on appeal in February 2010, the same court held that a television programme portraying Roma as prone to anti-social behaviour could lead to negative stereotypes and thus fell under the prohibition in section 5 of the 2003 Act without being capable of being justified on freedom-of-expression grounds. This was so in view of, in particular, the special duties and responsibilities of journalists and the widely held prejudice against Roma (see реш. № 9983 от 23.07.2009 г. по адм. д. № 2059/2009 г., ВАС, VII о., upheld by реш. № 1476 от 04.02.2010 г. по адм. д. № 14286/2009 г., ВАС, петчл. с-в).
31.  In a March 2016 judgment the same court held that by using a derogatory term with respect to Roma in the name of a computer file, a computer specialist employed by the presidential administration had committed harassment under paragraph 1(1) of the 2003 Act (see реш. № 2445 от 02.03.2016 г. по адм. д. № 1248/2015 г., ВАС, V о.).
32.  By contrast, in a final January 2019 judgment the same court held that a statement by the Vice-Prime Minister in Parliament in which he had referred to offences committed by Roma in negative terms had amounted to a legitimate exercise of his freedom of expression (see реш. № 636 от 15.01.2019 г. по адм. д. № 7229/2018 г., ВАС, V о.).
(b)  Proceedings before the Commission for Protection From Discrimination and follow-up claims for damages
33.  The authority chiefly responsible for ensuring compliance with the 2003 Act is the Commission for Protection From Discrimination (section 40). It can act of its own motion or pursuant to complaints by the aggrieved parties or reports by concerned persons or authorities (section 50). If the Commission finds a breach of the Act, it can order that it be averted or stopped, or that the status quo ante be restored (section 47(2)). It can also impose sanctions, such as fines, order coercive measures, or give compulsory directions (section 47(3) and (4)). The Commission’s decisions are amenable to judicial review (sections 68(1) and 84(2)).
34.  People who have obtained a favourable decision by the Commission and wish to obtain compensation for damage suffered as a result of the breach established by it can then bring a claim for damages against the persons or authorities that have caused the damage (section 74(1)).
(c)  Proceedings before the civil courts
35.  Those complaining of discrimination can, alternatively, directly bring proceedings in the civil courts and seek declaratory or injunctive relief or damages (section 71(1)(1)-(1)(3)). The claim can be brought on behalf of the aggrieved party by a non-governmental organisation (section 71(2)). If the alleged discrimination has affected many people, the non-governmental organisation can even bring the claim in its own name, in which case those directly affected can join the proceedings as third parties (section 71(3)).
36.  The Plovdiv Court of Appeal has held that the rights of action under section 71(1)(1) and (1)(2) are strictly personal and cannot be pursued by the heirs of the alleged discrimination’s direct victim (see реш. № 177 от 06.04.2011 г. по гр. д. № 82/2010 г., ПАС, appeal on points of law not admitted by опр. № 156 от 03.02.2012 г. по гр. д. №1004/2011 г., ВКС, III г. о.).
COMPLAINTS
37.  The applicants complain under Articles 8 and 14 of the Convention that by dismissing their claim against Mr Siderov the courts in effect legitimised his statements.
38.  The applicants further complain under Article 13 of the Convention that by dismissing their claim against Mr Siderov the courts denied them an effective remedy with respect to their complaint under Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1.  Did the public statements by Mr V. Siderov at issue in the present case affect the private life of the applicants such that Article 8 of the Convention applies with respect to them and that they can pretend to be victims owing to the dismissal of their claim in relation to those statements (see, mutatis mutandis, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, §§ 53-54 and 60-61, ECHR 2012; Perinçek v. Switzerland ([GC], no. 27510/08, § 227, ECHR 2015 (extracts); and L.Z. v. Slovakia (dec.), no. 27753/06, §§ 65-78, 27 September 2011)?
 
2.  Was Article 14 of the Convention engaged as well (see, mutatis mutandis, Aksu, cited above, § 45)?
 
3.  If so, was the dismissal of the applicants’ claim in breach of the positive obligations flowing from those provisions?

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