Published on 17 July 2023
THIRD SECTION
Application no. 38741/19
Asen Martinov Asenov
against Bulgaria
lodged on 15 July 2019
communicated on 30 June 2023
SUBJECT MATTER OF THE CASE
The applicant is of Roma ethnic origin.
On 17 December 2014 Mr Valeri Simeonov – at that time leader of the political party National Front for the Salvation of Bulgaria and chairman of the parliamentary group of the coalition United Patriots, of which his party was a member (later, between May 2017 and November 2018, Mr Simeonov was Deputy Prime Minister) – made a statement in the Bulgarian Parliament. The statement concerned the alleged criminality and lawlessness of a large part of the Roma community in Bulgaria, its allegedly systemic failure to pay taxes and utility bills, and its alleged abuse of social-assistance programmes.[1]
In January 2015 the applicant complained about that statement to the Commission for Protection from Discrimination under section 50 of the Protection from Discrimination Act 2003. He alleged that it had demonstrated racism towards the whole Roma community in Bulgaria, had disparaged all of its members, and could stir up ethnic hatred and result in discrimination. The applicant, as a member of that community, had thus felt discriminated against and insulted by the statement. In March 2017 the Commission found that part of the statement had amounted to discriminatory harassment and to incitement to discrimination, fined Mr Simeonov 1,000 Bulgarian levs (equivalent to 511 euros), and directed him to refrain from such acts in the future (see реш. № 119 от 29.03.2017 г. по пр. № 24/2015 г., КЗД).
Mr Simeonov sought judicial review of the Commission’s decision. In March 2018 the Burgas Administrative Court dismissed his claim (see реш. № 564 от 23.03.2018 г. по адм. д. № 1786/2017 г., БАС).
Mr Simeonov appealed on points of law. On 15 January 2019 the Supreme Administrative Court quashed the Burgas Administrative Court’s judgment and the Commission’s decision. It noted that Mr Simeonov’s statement had not been directed against a specific person and in particular against the applicant, and held that it had thus not amounted to harassment. Nor had Mr Simeonov intended to cause negative consequences personally for the applicant. Moreover, his statement had not specifically resulted in a hostile environment for the applicant. By finding that general statements about reprehensible conduct by an ethnic group such as Roma could provoke negative attitudes towards all members of that group, the Commission had engaged in “aggressive moralising”. Its conclusion that the negative stereotyping of the Roma community had created a hostile environment was puzzling, and its finding that Mr Simeonov had misused his constitutional right to freedom of expression could not be accepted, since he had not targeted anyone in particular or sought to stir up hatred. The right to freedom of expression included the possibility of airing all sorts of opinions, irrespective of whether or not they were correct, benevolent, agreeable, polite, non-racist, non-xenophobic, particular, and so on. Holding otherwise would amount to censorship. The tension between the antidiscrimination legislation and the civil liberties could not be resolved to the detriment of the latter, as that would transform the antidiscrimination protection into a tool for restricting, suppressing or controlling the right to express one’s opinion (see реш. № 636 от 15.01.2019 г. по адм. д. № 7229/2018 г., ВАС, V о.).
The applicant complains under Article 8 of the Convention that by quashing the Commission’s decision with respect to Mr Simeonov, the Supreme Administrative Court deprived his “private life” of protection from insulting and hostile speech. The applicant further complains under Article 14 read in conjunction with Article 8 of the Convention that the reasons given by the Supreme Administrative Court manifested disregard towards the protection of the rights of minorities.
QUESTIONS TO THE PARTIES
1. Are Articles 8 and 14 of the Convention applicable? In particular, did Mr Simeonov’s statement at issue in the case affect the applicant’s “private life” (see Budinova and Chaprazov v. Bulgaria, no. 12567/13, § 63, 16 February 2021)?
2. If so, was the decision of the Supreme Administrative Court to quash the decision of the Commission for Protection from Discrimination with respect to Mr Simeonov in breach of the positive obligations flowing from Articles 8 and 14 of the Convention in such situations (see, mutatis mutandis, Budinova and Chaprazov, cited above, §§ 87-95)?
[1]. The applicants in no. 60342/19, Budinova and Isaev v. Bulgaria (the proceedings in which are being conducted simultaneously with those in the present case) brought a civil claim against Mr Simeonov in relation to that statement, as well as a similar one, which he made on 11 March 2015, under section 71(1) of the Protection from Discrimination Act 2003.