PANAYOTOVA AND OTHERS v. BULGARIA

FIFTH SECTION
DECISION
Application no. 12509/13
Donka Kamenova PANAYOTOVA and Others
against Bulgaria
 
The European Court of Human Rights (Fifth Section), sitting on 7 May 2019 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 17 January 2013,
Having regard to the subsequent declaration of one of the applicants, Mr Rusinov, that he wishes to withdraw his complaints,
Having deliberated, decides as follows:
THE FACTS
1.  The applicants, Ms Donka Kamenova Panayotova, Ms Lilia Savkova Makaveeva and Mr Rumyan Sergeev Rusinov, are Bulgarian nationals who were born, respectively, in 1956, 1966 and 1967, and live, respectively, in Vidin, Plovdiv and Sofia. They were represented before the Court first by Ms M. Ilieva and then by Ms A. Kachaunova, both lawyers practising in Sofia and at the material time working with the Bulgarian Helsinki Committee.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the applicants and established by the Court on the basis of publicly available materials, 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.  At the local elections in 2011, which took place concomitantly with the presidential elections, Ataka also fielded candidates for many municipal councils and mayors.
6.  The applicants described Ataka as an “extreme nationalist party” and referred to Mr Siderov as the “face of extreme political xenophobia” in Bulgaria. They also pointed to a number of instances in which he had spoken publicly in a virulent manner against Roma and other minorities.
7.  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.  Ataka’s 2011 brochure
8.  In September or October 2011, following anti-Roma demonstrations in connection with a violent incident in the village of Katunitsa near Plovdiv on 23 September 2011, Ataka published a brochure entitled “Gypsy Criminality – A Danger for the State”. On its front page it featured a picture of a Roma man wielding a knife. On the second page it featured Ataka’s emblem and specified that it was a publication of the party. It ran to twenty‑eight pages, and consisted of nineteen pages of purported excerpts from 125 media articles dating from 2006-11 and describing a range of offences – murders, infanticides, assaults, rapes, pimping, thefts and robberies – said to have been carried out by Roma, followed by an article penned by Mr Siderov in Monitor in April 2000 under the title “Is Bulgaria Gypsyfying” and a speech that he had made in Kozloduy on 24 September 2011 in support of Ataka’s mayoral candidate there.
9.  The media articles of which the first nineteen pages of the brochure were purportedly a collection bore titles such as “A Chronology of Gypsy Banditry”, “12 Gypsies Beat Three Youngsters to a Pulp”, “Gypsies Cut Down Police Officers and Forest Rangers With Axes”, “Gypsies Control Prostitution in the Country”, “Gypsies Beat Up and Raped Two Girls for Over an Hour”, “A Roma Raped an Elderly Woman in the Vidin Region”, “Gypsies Beat Up an Old Man Over 5 Levs”, “Gypsies Killed Their Only Child After a Drunken Binge”, “Gypsies Sell Babies in Greece for 500 Levs Apiece”, “Gypsies Dug Up a Grave and Looted It”. Nearly all the titles contained the word “Gypsy”, and some referred to the people concerned as “monsters”, “savage and pitiless Gypsies”, “brazen Gypsies” and “Roma scum”.
10.  Mr Siderov’s April 2000 article in Monitor denounced a purported wide-scale media cover-up of Roma criminality, which according to him resulted from pressure by non-governmental organisations financed from abroad. It also expressed concern about the Roma’s higher birth rate relative to that of ethnic Bulgarians, which according to Mr Siderov would eventually result in a “‘Gypsification’ of Bulgaria akin to the ‘Albanisation’ of Kosovo”.
11.  Mr Siderov’s September 2011 speech in Kozloduy decried, inter alia, the authorities purported laxity towards “Gypsy criminality” and called for political discussions about the effective response to it.
3.  Complaint to the prosecuting authorities
12.  On 29 October 2011, a few days after the first tour of the 2011 presidential elections (see paragraph 4 above), several non-governmental organisations wrote to the Chief Prosecutor and the Sofia City prosecutor’s office with a request to (a) open criminal proceedings under Article 162 § 1 of the Criminal Code (see paragraph 22 below) against Mr Siderov in relation to his numerous virulent statements against various minorities and in particular the statements featuring in the above-mentioned brochure, and to (b) seek the dissolution of Ataka on the basis that it had since its founding systematically sought to stir up ethnic and religious hatred.
13.  Following a preliminary inquiry, on 17 February 2012 the police proposed to the Sofia City prosecutor’s office to open a formal criminal investigation against Mr Siderov.
14.  On 29 February 2012 the Sofia City prosecutor’s office refused to do so. It said that the making and dissemination of the brochure had not fulfilled the conduct elements of the offence in Article 162 § 1 of the Criminal Code (see paragraph 22 below). The brochure consisted of excerpts from media publications dating from 2006-11, all of which referred to offences carried out by people of Roma ethnic origin. Those publications had in turn been based on official statements by the police. The brochure did not contain any comment in relation to that, just facts. As for Mr Siderov’s 2000 article in Monitor and his 2011 speech in Kozloduy, these had amounted to a political assessment of crime in the country. Neither the brochure nor Mr Siderov’s speech contained anti-democratic statements or statements which could provoke racial hatred or lead to racial discrimination. It was true that the brochure had sought to focus society’s attention on offences committed by minorities and in particular Roma. But this was Mr Siderov’s personal opinion about crime in the country. It could not be said that the people who had made and disseminated the brochure had intended to instigate racial or ethnic hatred or enmity.
15.  On 9 April 2012 the applicants wrote to the Sofia appellate prosecutor’s office, asking it to overturn the refusal. They pointed out that the materials in the brochure had been purposely arranged in a way meant to engender fear from Roma and hatred toward them, by presenting them as a source of insecurity and an object of contempt. This had been achieved by depicting the offences to which the brochure referred in a deliberately distressing and repelling manner, and by emphasising that they had all been committed by Roma. The information in the brochure did not consist of facts, but of mere assertions and deliberately offensive characterisations. There was no evidence that this information was based on statements by the police or even real media publications. But even if it could be assumed that the brochure referred to actual offences, the hostile and obtrusive highlighting of the ethnicity of their perpetrators, flagged up prominently by its very title, showed that it had been meant to stir up racial hatred. It also had to be borne in mind that the brochure emanated from a political party notorious for its radical xenophobic views.
16.  On 26 April 2012 the Sofia appellate prosecutor’s office upheld the refusal to open a criminal investigation. It agreed with the reasons given by the Sofia City prosecutor’s office and added that there was no evidence that Mr Siderov had himself distributed the brochure.
17.  The applicants appealed to the Supreme Cassation Prosecutor’s Office, reiterating their arguments.
18.  On 18 July 2012 the Supreme Cassation Prosecutor’s Office likewise upheld the refusal to open a criminal investigation. It said that anyone could, in the exercise of their right to freedom of expression, point to publications in support of his or her views without thereby committing an offence. The right to be informed about pressing social issues was especially important during election time. Campaigning materials had to be seen in this light, as vehicles expressing the views of the political parties competing in elections, and they could not therefore be considered speech intended to stir up discrimination, violence or hatred. Since both the brochure and Mr Siderov’s speech in Kozloduy had been made in connection with the 2011 elections, they were to be regarded as his political assessment of a live social problem. The right to be informed was a prerequisite for a proper electoral contest.
B.  Relevant domestic law and practice
1.  Constitutional provisions
19.  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.”
20.  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 or family life and against infringements of their honour, dignity or good name.”
21.  By Article 39 § 2 of the Constitution, the right to freedom of expression must not be “exercised to the detriment of the rights and reputation of others, or for incitement to ... enmity or violence against anyone”.
2.  The offence of racist hate speech
22.  Article 162 § 1 of the Criminal Code, as worded since May 2011, criminalises racially, nationally or ethnically motivated hate speech in the following terms:
“Anyone who, by means of oral or written addresses, other means of mass communication, electronic information systems or otherwise foments or incites discrimination, violence or hatred based on race, nationality or ethnic identity shall be punished by one to four years’ imprisonment and a fine ranging from five thousand to ten thousand levs, as well as by public reprimand.”
23.  The Supreme Court of Cassation has explained that (a) the conduct element of this offence consists in the dissemination of value judgments developing, justifying and making known views capable of inciting racial enmity or hatred or of leading to racial discrimination; (b) the communication medium used to this end is irrelevant and may consist in articles, pictures, symbols, posters, video-clips, and so on, including materials published on the internet (see реш. № 80 от 24.02.2009 г. по к. н. д. № 34/2009 г., ВКС, I н. о.).
3.  Protection From Discrimination Act 2003
(a)  The prohibitions against discrimination and harassment
(i)  Statutory provisions
24.  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.
25.  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.
26.  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 commit discrimination.
27.  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
28.  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).
29.  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).
30.  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.).
31.  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
32.  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)).
33.  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
34.  Those complaining of discrimination can, alternatively, directly bring proceedings in the civil courts and seek declaratory or injunctive relief or damages (section 71(1)). 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)).
4.  Relation between a racist hate-speech conviction and sanctions for a breach of section 5 of the 2003 Act
35.  The Supreme Administrative Court has held that a statement giving rise to a conviction under Article 162 § 1 of the Criminal Code (see paragraph 22 above) cannot then also be sanctioned by the Commission for Protection From Discrimination under section 5 of the 2003 Act (see paragraph 25 above) because that would be in breach of the principle of non bis in idem, Article 162 § 1 and section 5 being both meant, albeit with differing levels of intensity in terms of sanctions, to ensure protection against racial, ethnic and other forms of discrimination. On that basis, the court upheld a decision by the Commission to discontinue proceedings before it against someone who had said on television that “all Bulgarians deserve to die” after his conviction in relation to that under Article 162 § 1. But the court went on to say that the conviction did not preclude the aggrieved parties from engaging the civil liability of the statement’s author (see реш. № 8385 от 14.06.2011 г. по адм. д. № 5117/2011 г., ВАС, петчл. с-в).
COMPLAINTS
36.  The applicants complained under Article 3 of the Convention read in conjunction with Article 14 that the brochure’s extreme anti-Roma content and the manner in which it had been publicised and in effect endorsed by the Sofia City prosecutor’s office, which had referred to the statements in the brochure as “facts”, had amounted to inhuman or degrading treatment. They further complained under the same provisions that the prosecuting authorities had refused formally to investigate the matter on the basis of arbitrary and internally inconsistent reasons.
37.  The applicants alternatively argued that these matters had amounted to breaches of Article 8 of the Convention read in conjunction with Article 14.
38.  Lastly, the applicants submitted that the reaction of the prosecuting authorities to their complaint had deprived them of an effective remedy, in breach of Article 13 of the Convention.
THE LAW
A.  Mr Rusinov’s wish to withdraw his complaints
39.  In a letter dated 22 June 2018 the applicants’ representative said that one of the three applicants, Mr Rusinov, wished to withdraw his complaints.
40.  Nothing suggests that this declaration was not free and informed, or not made at Mr Rusinov’s initiative (see, mutatis mutandis, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 32, ECHR 2005-X). He can, then, be seen as no longer willing to pursue his application within the meaning of Article 37 § 1 (a) of the Convention. Since the issues thrown up by his complaints fully match with those raised by the other two applicants, respect for human rights does not require the continued examination of his complaints by reference to Article 37 § 1 in fine (see Shesti Mai Engineering OOD and Others v. Bulgaria, no. 17854/04, § 62, 20 September 2011, with further references).
41.  It follows that the application, in so far as it concerns Mr Rusinov, is to be struck out of the Court’s list of cases.
B.  Complaints under Article 3 of the Convention read in conjunction with Article 14 of the Convention
42.  Article 3 of the Convention provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
43.  Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
44.  The applicants did not suggest that any public authorities had been involved in the preparation or dissemination of the brochure. It follows that the complaints, in so far as they concern the actions of Mr Siderov and other members and supporters of Ataka, are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4. It also follows that no issue arises in relation to that in terms of the negative obligations of the Bulgarian State under the Convention.
45.  In so far as the applicants suggested that the reasons on the basis of which the prosecuting authorities refused to open a criminal investigation into the matter in effect endorsed the statements in the brochure, the point will be examined as part of the analysis of whether that refusal reveals any breach of the State’s positive obligations under Articles 3 and 14 of the Convention in relation to the brochure.
46.  The principles governing this assessment have been set out in Karaahmed v. Bulgaria (no. 30587/13, § 73, 24 February 2015) and R.B. v. Hungary, no. 64602/12, §§ 39-45, 12 April 2016).
47.  The complaint was based on the psychological effect which the brochure had had on the applicants and all other members of the Roma community. But in a case arising out of an individual application under Article 34 of the Convention the Court can only take into account the situation of the applicants, not of others; the Convention does not provide for an actio popularis (see, among other authorities, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 50, ECHR 2012).
48.  In view of the brochure’s content and the manner in which the materials in it were arranged and presented, it can be accepted that its publication was premeditated and revealed virulent anti-Roma sentiment and a wish to stigmatise Roma in Bulgaria as a group. But the applicants have not pointed to any facts which can enable the Court to find that the level of mental suffering that they experienced as a result of the brochure – or as a result of the reasons for which the prosecuting authorities refused to open criminal proceedings in relation to it – came close to the level in cases, such as P.F. and E.F. v. the United Kingdom ((dec.), no. 28326/09, §§ 15 and 38, 23 November 2010), Begheluri and Others v. Georgia (no. 28490/02, §§ 102-31, 7 October 2014) and Identoba and Others v. Georgia (no. 73235/12, §§ 68-71, 12 May 2015), in which Article 3 was found to be engaged with respect to situations of abuse on discriminatory grounds (see, mutatis mutandis, Karaahmed, § 75, and R.B. v. Hungary, §§ 48-50, both cited above). Indeed, it appears that in their submissions to the prosecuting authorities the applicants rather acted in their capacity as concerned citizens, following up on the initiative of several concerned non-governmental organisations (see paragraphs 12 and 15 above).
49.  It follows that the minimum level of severity required for the matter to fall within the ambit of Article 3 has not been attained. The complaint concerning the authorities’ alleged failure to fulfil their positive obligations under that provision read in conjunction with Article 14 of the Convention is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4.
C.  Complaints under Article 8 of the Convention read in conjunction with Article 14 of the Convention
50.  Article 8 of the Convention provides, in so far as relevant:
“1.  Everyone has the right to respect for his private ... life ...”
51.  The text of Article 14 of the Convention has been set out in paragraph 43 above.
52.  For the same reasons as in paragraph 44 above, the complaints, in so far as they concern the actions of Mr Siderov and other members and supporters of Ataka, are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4.
53.  It remains to be established whether (a) the circumstances of the case engaged the applicants’ rights Articles 8 and 14 of the Convention and, if so, whether (b) the refusal to open a formal criminal investigation in relation to the brochure amounted to a breach of Bulgaria’s positive obligations under these provisions in relation to the applicants.
54.  In considering both of these points, the Court will be guided by the overarching principle, noted in paragraph 47 above, that in a case arising out of an individual application it can only take into account the situation of the applicants themselves, and that the Convention does not provide for an action popularis.
55.  On the first point, it should be noted at the outset that in this case the question whether Article 8 applies is indistinguishable from the question whether the applicants can claim to be victims of a breach of that provision (see, mutatis mutandis, L.Z. v. Slovakia (dec.), no. 27753/06, § 69, 27 September 2011). For its part, Article 14 has no independent existence and only applies if the facts at issue fall within the ambit of one or more of the substantive provisions of the Convention or its Protocols (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)).
56.  In view of its content, arrangement and manner of presentation, the brochure clearly sought to portray Roma in Bulgaria as exceptionally prone to crime and depravity, and thus to stigmatise and vilify them (see paragraphs 8 to 11 above). The Court has already held that the negative stereotyping of a group, when it reaches a certain level, can impact on the group’s sense of identity and on its members’ feelings of self-worth and self-confidence, and thus be regarded as affecting their private life (see Aksu, cited above, § 58). Since the assertions in the brochure were way stronger than the statements at issue in Aksu (ibid., §§ 10-13 and 28), it can be accepted that they affected the applicants’ private life, and that Article 8 is thus applicable (see also, mutatis mutandis, Perinçek v. Switzerland [GC], no. 27510/08, § 227, ECHR 2015 (extracts), and contrast L.Z. v. Slovakia, cited above, §§ 72-78).
57.  Since the brochure had a prima facie discriminatory intent, the circumstances of the case also engaged Article 14 (contrast Aksu, cited above, § 45). This may reflect on the extent and content of the positive obligations under Article 8, because racial discrimination – which includes discrimination on account of a person’s actual or perceived ethnic origin – is a particularly invidious kind of discrimination and requires special vigilance on the part of the authorities (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005-XII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 176, ECHR 2007-IV; and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 43, ECHR 2009).
58.  As to the second point, it has long been accepted that the positive obligations flowing from Article 8 may entail measures designed to secure respect for private life even when it comes to relations between private persons. But it is also settled that the choice of means to secure compliance with Article 8 in this domain normally falls within the High Contracting States’ margin of appreciation, and that the nature of the obligation depends on the particular aspect of private life that is in issue. More specifically, in relation to serious encroachments on physical and psychological integrity, such as rape, sexual abuse, and even acts which do not involve physical violence but nonetheless intrude into the private sphere in a very serious way – such as deliberately making a minor a target for approaches by paedophiles – these obligations may require criminal-law measures. But this is not necessarily so in respect of acts which do not have such a serious impact on the people concerned. In such cases, these obligations could be discharged by remedies of a civil-law nature (see Söderman v. Sweden [GC], no. 5786/08, §§ 78-85, ECHR 2013, with further references).
59.  As regards, in particular, psychological abuse on discriminatory grounds, the Court has accepted that criminal-law measures were required with respect to direct verbal assaults and physical threats motivated by discriminatory attitudes (see R.B. v. Hungary, cited above, §§ 80 and 84-85, and Király and Dömötör v. Hungary, no. 10851/13, § 76, 17 January 2017, both of which concerned aggressive anti-Roma rallies inside Roma neighbourhoods, and Alković v. Montenegro, no. 66895/10, §§ 8, 11, 65 and 69, 5 December 2017, which concerned the intimidation of a Roma man by his neighbours by way of gunshots towards his balcony, racial invective, and threatening messages and signs painted near the entrance of his home).
60.  But the situation in this case is different. The applicants do not suggest that they have been directly confronted with verbal abuse, or that the brochure itself produced an atmosphere of intolerance or racial strife which specifically affected them in some way. They complained about it about half a year after its publication, and did not base their complaint – which, as already noted, followed up on a complaint by non-governmental organisations – on its pernicious effects on them specifically, but on its broader social impact (see paragraph 15 above, and compare with L.Z. v. Slovakia, cited above, §§ 73-75).
61.  The only case in which the Court has accepted that negative statements about an ethnic group – Roma, as here – which did not specifically target and had no concrete relation to the people concerned called for positive measures on the part of the authorities involved civil proceedings (see Aksu, cited above, §§ 61 and 82). The Court later clarified that the extent to which such general statements have affected the members of the respective community must normally be reviewed in the light of the particular circumstances of the case (see Perinçek, cited above, § 253).
62.  In view of the general principle, as set out in Söderman (cited above, §§ 84-85), that criminal-law measures are only required in cases of serious encroachments into private life, it cannot be accepted that in the absence of any evidence about the way in which the brochure specifically affected the two applicants, Article 8 required such measures in this case. The fact that Article 14 is also engaged does not, on the facts, lead to a different conclusion.
63.  It must be emphasised in this connection that the issue at hand is not whether any criminal-law measures in relation to the brochure would have been justified under Article 10 of the Convention (for references to cases relating to that point, see Perinçek, cited above, §§ 205-07), or whether such measures were required under other international-law provisions, but whether such measures were required to protect the applicants’ rights under Articles 8 and 14.
64.  At the same time, the applicants were not without recourse in respect of the brochure (compare with Tamiz v. the United Kingdom (dec.), no. 3877/14, § 82, 19 September 2017). Since 2004 there has existed in Bulgaria a mechanism for seeking redress in respect of discriminatory harassment by private persons, in the form of proceedings under section 5 of the Protection From Discrimination Act 2003 (see paragraph 25 above). Such proceedings can be taken either before the Commission for Protection From Discrimination and then before a civil court, should any issues of monetary compensation arise, or directly before a civil court. The possible forms of redress in either case are injunctions and awards of damages, and the Commission may also impose fines (see paragraphs 32 to 34 above). In these circumstances, as outlined above, this remedy would have been sufficient to discharge the positive obligations flowing from Article 8 of the Convention read in conjunction with Article 14.
65.  At the time of the events at issue here there had already been at least two examples in which such proceedings had been used with success in similar situations (see paragraphs 28 and 29 above). There is no indication that the applicants attempted to do so, and nothing suggests that they were for some reason unable to.
66.  It follows that the complaint, in so far as it concerns the alleged failure of the authorities to comply with their positive obligations under Articles 8 and 14 of the Convention, is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
D.  Complaint under Article 13 of the Convention
67.  Article 13 of the Convention 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.”
68.  In view of the conclusions in paragraphs 44, 49, 52 and 66 above, the complaints under Articles 3, 8 and 14 of the Convention do not give rise to an arguable claim of a breach of a Convention right. Article 13 of the Convention does not therefore apply (see Tamiz, cited above, § 94).
69.  This complaint is, then, incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4.
For these reasons, the Court, unanimously
Decides to strike the application out of the list in so far as it concerns Mr Rusinov;
Declares the application, in so far as lodged by Ms Panayotova and Ms Makaveeva, inadmissible.
Done in English and notified in writing on 6 June 2019.
Milan BlaškoGabriele Kucsko-Stadlmayer
Deputy RegistrarPresident

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