Communicated on 2 May 2019
FIFTH SECTION
Application no. 12567/13
Kremena Goshova BUDINOVA and Vasil Stoyanov CHAPRAZOV
against Bulgaria
lodged on 7 February 2013
STATEMENT OF FACTS
1. The applicants, Ms Kremena Goshova Budinova and Mr Vasil Stoyanov Chaprazov, are Bulgarian nationals who were born, respectively, in 1970 and 1945 and live, respectively, in Sofia and Sliven. Ms Budinova is represented before the Court by Ms A. Kachaunova, a lawyer practising in Sofia and working with the Bulgarian Helsinki Committee. Mr Chaprazov is represented before the Court by Mr K. Kanev, chairman of 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 “xenophobic party” and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-Roma and more generally anti-minority propaganda, by way of books, articles in Monitor, and then in his television programme, in effect making this his political platform.
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 20 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 cases, based on the specific badge of discrimination alleged by each group of claimants. The case of the two applicants, both of whom are Roma, concerned Mr Siderov’s statements in relation to Roma.
(a) The statements by Mr Siderov at issue in the applicants’ case
9. In their claim, the applicants asserted that a number of statements made by Mr Siderov in his television programme, interviews, speeches and a book had amounted to harassment and incitement to discrimination on the basis of Roma ethnic origin. 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 statements by Mr Siderov (arranged in the order they appeared in the particulars of claim):
Television programme “Ataka” aired on 1 June 2005,
having as its topic “Gypsy terror”
“... Professor [S.K.] died, expired, passed away. The man, beaten to a pulp after a terrorist attack by a Gypsy gang on peaceful Bulgarians staying in their own establishment and having fun. ...
... This scientist, Bulgarian, famous, with authority, enjoying a very good name in scientific circles, was killed like a dog by a gang of ferocious Gypsies. With premeditation, wilfully, sadistically ...
... This whole genocide, carried out against the Bulgarian community in the ‘Zaharna Fabrika’ neighbourhood. A genocide committed by an ethnic group of Gypsies. There is in Bulgaria a racial, ethnic discrimination against Bulgarians by the Gypsy ethnos. ...”
Television programme “Ataka” aired on 4 June 2005,
having as its topic “Gypsy terror”
“... A gang of Gypsies, eighty strong, carried out a terrorist attack against several Bulgarians who were celebrating the prom night of a man from the neighbourhood. People were thrashed in the course of this attack, one of them died. The fifty‑three‑year-old professor of history [S.K.] died after a beastly sadistic beating. It turned out that the problem was not confined to ‘Zaharna Fabrika’. This is a problem for the whole of Bulgaria. I have received information about similar happenings from all corners of the country. Some of the stories are harrowing and people say that they live in such fear that they dare not even complain to the police because they would not do anything in response. I got information from the village of Mechka, near Pleven, I have spoken about this village. There, in 2000, [P.T.] was killed in his own yard. Until this day this man’s killers have not been caught, have not been convicted. They are from among the Gypsies from the village’s Gypsy neighbourhood. After this case, it turned out that it was not only this murder that had not been investigated, but there had been seven more, villagers told me. Today they live in a fear that can only be compared with the fear of people living under foreign occupation, trembling each day for their life, for their property. ...”
Television programme “Ataka” aired on 7 June 2005,
having as its topic “Gypsy terror”
“... And Gypsy terror over Bulgarians is growing literally by the week. ...
... This shows that the authorities refuse to deal with Gypsy terror. This is a tremendous problem for Bulgaria. And I am telling you that if the authorities keep on refusing to address the issue, in two-three years, or five, Gypsy terror will become Bulgaria’s foremost problem. But it will then be too late, for Bulgarians will have self-organised and responded to violence with violence. ...
... Think very hard, if Euroroma [a political party] enter Parliament, what greater protection will terrorists from Gypsy ghettoes gain. Because the thing they carry out, it is organised terror against Bulgarians. This terror must be brought to a halt. This terror must be resisted. And I promise you that work is being done in that respect. Hard work is being carried out by Bulgarians who can no longer bear the terror on their compatriots and will do all they can for this to cease. ...”
Television programme “Ataka” aired on 8 June 2005,
having as its topic “Gypsy terror”
“... There is no town, no settlement in Bulgaria that has not borne the brunt of Gypsy terror. ...
... I want to tell you also that the question of Gypsy terror can only be resolved by way of tackling, general tackling of this population, putting it where it belongs. They should work, learn to respect the laws, learn to meet their obligations, to pay their taxes and dues. ...”
Television programme “Ataka” aired on 14 June 2005,
having as its topic “The Gypsy killers of Professor [K.] are free”
“... Gypsy terror in Bulgaria continues. Gypsy terror in Bulgaria has never stopped. Something more, and this has now begun to be acknowledged by international studies, which show that the bulk of the crime in the country – upwards of 30% – is being carried out by Gypsies. At the same time, this ethnos amounts to a mere 5% of the general population. So we, Bulgarians, have been subjected to total Gypsy terror. Every day, every hour, in all corners of Bulgaria. ...
... An esteemed Bulgarian scientist was killed in a sadistic, barbaric manner by a gang of Gypsies. ...”
Television programme “Ataka” aired on 4 May 2005,
having as its topic “The racial discrimination against Bulgarians in Bulgaria”
“... At the same time, whole Gypsy neighbourhoods are not only not paying for their electricity but also beat up the fee collectors, attack the police vehicles which try to re-establish order, and thrash everything around them, loot shops, rob people, and nothing is being done to them. When you ask the high command of the police or the State in general why they have not taken any measures, they say – so as not to provoke an ethnic conflict. So a group of people in Bulgaria – non-Bulgarians – is being placed in a privileged position. ... This is called democracy, this is called integration, this is called wonderful names, which however conceal a single thing – discrimination and genocide against the Bulgarians in Bulgaria. ...”
Television programme “Ataka” aired on 6 May 2005
“... This huge wave of external and internal factors, which wish, which categorically wish and work to de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation. Work for its Gypsification, for its Turkification. Work for everything but the possibility for the Bulgarian people to consist of Bulgarians. I would like to tell you that according to official statistical data more than half of the children born in Bulgaria are either little Turks or little Gypsies. This is because nowadays, with plenty of outside money, anti-Bulgarian factors, aided by national traitors from within, have since long ago worked to separate the Bulgarian people. Work is being done to make Gypsies feel like a separate nationality, to pretend they are apart and to seek collective rights. Work is being done for all sorts of other ... to create all sorts of other invented nationalities in Bulgaria. The results are at hand – already more than half of all newborns in Bulgaria are not Bulgarian. This means that the de-Bulgarisation process is moving towards its high point, which means towards the end of the Bulgarian nation. ...”
Television programme “Ataka” aired on 25 May 2005,
having as its topic “Gypsy terror”
“... Today I would like to speak about a topic on which the so-called official media keep silent, and on which politicians keep silent too. This topic is Gypsy terror, the Gypsy terror carried out over Bulgarians in Bulgaria. This is a very serious topic, this is a drastic topic. But most media, as I said, keep silent about this topic. ...
... An awful thrashing has taken place in the ‘Zaharna Fabrika’ neighbourhood over Bulgarians, and more than eighty Gypsies have taken part in it. They thrashed up an establishment, beat up a police officer, beat up the establishment’s owner, beat up the people who were there, and yet I know not of any of them having been arrested. Here, see this material from the front page of Night Trud, the only newspaper that does not shirk from writing about the Gypsy topic, the topic about Gypsy terror over Bulgarians. ...
... In this case, in particular, police officers were hurt as well. Though they tried to shoot stop-cartridges in the air, they were attacked and some were hit and beaten up by the Gypsies. This is not the first such case. You recall that a village police officer in a village near Burgas was beaten up – attacked by a gang of Gypsies. Forest rangers were attacked in Botevgrad and the vicinity. Forest workers were attacked near Samokov. Terror is constantly being generated across Bulgaria. By a population which calls itself ‘a minority’. Except that in many towns and villages in Bulgaria it is no longer a minority but the majority. There are today hundreds of villages in Bulgaria in which the prevailing population is Gypsy. Not only does it not integrate, something that parrots getting food from foreign foundations talk about, it also terrorises the Bulgarian population there. This terror continues under the benevolent gaze of the ruling clique, which not only does nothing but also stops the law‑enforcement authorities from intervening. Usually, when something like this happens, as in the case of this terror over Bulgarian citizens in ‘Zaharna Fabrika’, then orders come from somewhere high-up for the police not to intervene, for investigators to keep mum, for prosecutors not to sweat too much, and for the judicial system to, like, close its eyes and not put the ruffians, the rapists, the killers, very often of Gypsy origin, in prison. ...
... The Bulgarian State nowadays tolerates Gypsy terror against Bulgarians. ...”
Television programme “Ataka” aired on 30 May 2005,
having as its topic “Gypsy terror”
“... Today I continue with the topic of Gypsy terror. ... These are between 1,500 and 2,000 Gypsies, no-one can say how many exactly, who have come from the whole country, have settled there, without registering their address. All of them are deemed to inhabit the same address – [...] – and live there illegally. They do not pay taxes, do not pay fees, do not pay for electricity, do not pay for water supply. They pay for nothing. But what do they do – they beat up Bulgarians, rob them, ill-treat them, rape women, kill, there have been several murders already. I categorically promise you, dear Bulgarians, that I will investigate these cases, because this is not simply terror, Gypsy terror, as I have entitled my programme, this is genocide. This is to commit genocide against the Bulgarian ethnos in Bulgaria. This genocide is being manipulated and stimulated from abroad. I have information that these Gypsy raids are being paid for, paid so that they be organised and stir up unrest. Someone wishes this place to become like Kosovo. ...”
Television programme “Ataka” aired on 22 March 2005,
having as its topic “Gypsy terror”
“... And this is just one episode from the long series of Gypsy violence, which is now an everyday occurrence in the capital. As you can see, we are talking about a central school in the capital, in ‘Ovcha Kupel’. And what about localities in the countryside, smaller settlements, villages, which are being constantly subjected to Gypsy violence? ...
... There are whole regions, dear Bulgarians, where settlements have in the last few years turned from Bulgarian, predominantly Bulgarian, to predominantly Gypsy. Someone would say that this is already a demographic issue. For my part, I say that this is a question of genocide against the Bulgarians, since Gypsy criminality is deliberately not being prosecuted. ...
... I must say that during the last few years, the last perhaps seven or eight years, about 102 towns and villages in Bulgaria have turned from predominantly Bulgarian to predominantly Gypsy. This means a conquest of Bulgaria, a Gypsification which will lead to ... I personally dare not paint the picture that might result, because the impudence of those groups, ethnic groups, is growing like an avalanche. ...”
Television programme “Ataka” aired on 23 June 2004
“... We see how in the park – Borisova Gradina – the busts of a number of Bulgarian national writers and revolutionaries have gone missing, stolen by Gypsy gangs and melted for recycling. ...”
Interview with Mr Siderov aired by SKAT television in June 2005
“... I shall not detain people here with details about the dozens of instances of marauding, of crime left simply without repercussions, just because it would cause ethnic unrest, as are now saying the people in power. ... They refuse to take a stance and thus encourage whole groups of people, who simply know that they will not be sanctioned, and do as they please. The examples are dozens. ... Villages, towns are simply squirming under a living terror. And this terror is becoming greater each day, and I believe that this should all be brought to a halt. There is a way to bring it to a halt. These ways ... so, at first they seem violent, administrative, but they are being applied in developed countries. And I shall again point to America, so very beloved by all democrats and liberal-mongering politicians. Where anyone who commits an offence or attacks you in your home, in your property, which is inviolable and sacred by constitution – you can literally shoot him, protecting your home, and not be held liable. I am categorically in favour of that. I want the Bulgarian to be protected in his own home. To be able to protect his family, his property, and not wonder whether, if he defends himself, he would tomorrow become a target for the judicial system, be branded as a violent offender, as has happened in some cases ...
... Gypsification is an enormous problem. It is not such an easy problem. Because I know of no country in Europe which has managed to integrate its Gypsy population, fully and completely. There is no such country. The problem is that in Bulgaria, unlike in a Germany or a France, this population is a serious percentage. There, even if there are Gypsies, they are a lot less in terms of percentage and do not create such a problem. If no measures are taken, and that at State level, as a programme, this problem, I am categorically certain in that, I assure all viewers, all Bulgarians, that this problem will become paramount for Bulgaria in only five-six years. Because this population, let’s say it honestly, directly, understands sanctions. As does, by the way, a serious part of the population of the Earth, when they are subjected to sanctions. And we cannot be confident that self-education, moral scruples will prevail and that one fine day we will see ourselves surrounded by a Gypsy ethnos that will be at a moral level so as to by itself heed all laws and moral precepts. ...”
Speech by Mr Siderov at a pre-election rally of Ataka
in Burgas on 22 June 2005
“... All Gypsy gangs, marauders, who torture, ill-treat, rape and loot in all towns of Bulgaria will be put in their place. ...
... Now is the time when we must begin to stop this process of Gypsification of Bulgaria. ...”
Speech by Mr Siderov at the first session of
the newly elected Parliament on 11 July 2005
“... Because a gigantic genocide of the Bulgarian nation was carried out during this eight-year period. At the insistence of foreign factors, hostile to Bulgaria, it is envisaged to leave three-and-a-half to four million from our people. This is the plan of the Bulgarophobes, and this plan is being carried out before our very eyes. If someone asks how, I will point out: by stripping Bulgarians of the right to be masters in their own State, by leaving them to die of misery and lack of medicine and medical treatment, by subjecting them to terror by Gypsy gangs, who every day attack, loot, rape and ill-treat the Bulgarian nation, and then, deliberately, no-one seeks to uncover the crimes committed by them, because the foreign directive is like that – not to investigate offences committed by these minority groups. The goal is for Bulgarians to live in fear, to lose faith, to be crushed, submissive. ...”
Interview with Mr Siderov aired by Darik Radio in July 2005
“Host: Now, the other topic – Roma. How to resolve the problem with illegal logging and Roma?
Mr Siderov: ... I know that in this region this is an everyday occurrence, this happens all the time, Gypsies with carts, with saws, with equipment – quite decent, by the way – are constantly cutting down, and there is illegal logging going on. ... This is well-known, all know this, just ask around the region, they will tell you. And in the fact that what happened here was a clash between such poaching Gypsies who break the law – this should be said clearly, no-one has done it until today – and law‑enforcement authorities or forest rangers, I am not sure – this will surely be elucidated in the future investigation, this is simply the consequence of something that is happening; measures against this illegal logging should have been taken long ago, to put the perpetrators in prison and make it so that they do not think again of cutting down Bulgarian forests, because the damage is dreadful. This damage will not be made good for decades. This is simply an invasion of termites which destroys Bulgaria.
Host: This is one side of the medal, Mr Siderov, and would you say that, should it be established that the gendarmerie or the forest rangers or the police have beaten up Gypsies, would you say that they should also be punished?
Mr Siderov: If it is established that Gypsies have beaten up – because I know of a case, in which today or yesterday – not sure, let me avoid an error – but a very recent case, in which in Burgas Gypsies attacked fee collectors and beat them up. Fee collectors who were on their way to stop water supply which had not been paid for for three years.
Host: They should obviously be punished. And should those who beat up Gypsies likewise be punished?
Mr Siderov: Those who lay their hands on a law-enforcement officer should be punished with the full severity of the law. I am simply categorically in favour of that. In the case of this gendarmerie, I fully excuse the actions of the gendarmerie there, because in this case specifically we have a crime, we have illegal logging, we have an offence that has gone on for years. It was, you know, high time for the gendarmerie to intervene. I am for that.
Host: ... And yet, should Gypsies be beaten up in ... when they are being arrested?
Mr Siderov: This is not a correct question, because what is ‘should they be’ supposed to mean? Offences should be prevented ...
Host: Do you approve of violence against Gypsies?
Mr Siderov: If offenders put up resistance, they should be neutralised, including by force. This is the law. So there must have been some resistance, because there is more than one case in which Gypsies have attacked police officers, have attacked law‑enforcement officers; there were police officers, patrols, and so on, who had been beaten up. This is inadmissible, in each civilised country such people are simply neutralised on the spot, the very second, by all possible means. And this is absolutely lawful, within the bounds of the law.
Host: And do you approve, because there were even such cases against Bulgaria in Strasbourg, the thrashing of Gypsies in investigation facilities? When they have already been caught, do not put up resistance – they are being tied up and beaten up.
Mr Siderov: And I would ask you: do you approve of an attack on a law‑enforcement officer by a poacher, a law-breaker, a criminal?
Host: If we are to remain on humorous terrain – you are adamant to preserve your image.
Mr Siderov: ... I am against Strasbourg’s decision. If someone approves of a police officer being attacked, I, according to me ... my personal opinion is that he should have permission and the right to shoot to kill in such cases, because this is how law‑enforcement authorities operate. This is how it is in America, this how it is, you know, in developed countries – the police are inviolable – they cannot be attacked, especially by someone who is committing an offence. This is the same as ... he should become a target for the police officer, for the law-enforcement officer who is doing his duty, and be neutralised, including by using firearms. ...”
Passages from Mr Siderov’s book “Bulgarophobia”,
published in Sofia in 2003
“... They steal out of poverty, say the waged human-rights defenders, they have no jobs. They skip over the tiny fact that Gypsy families retain their children from school en masse and they remain illiterate. What kind of work can they get later? If you offer them agricultural work, they balk. They prefer to steal the fruit. To steal wires and scavenge all things made of metal. According to villagers, it is chiefly Gypsies who now burn the forests, so that they can smuggle wood after that. ...” (at p. 288)
“... According to the statistics, unemployment benefits in Bulgaria are distributed as follows: 65.2% of the money goes for Roma, 14.6% for Bulgarians. Again, the few Bulgarians in active working age who remain in Bulgaria support a gigantic percentage of Gypsies who for their part only use benefits, do not pay, and are on top of everything the main thieves of electricity wires, which has caused the State losses of hundreds of millions and is everywhere treated as terrorism, but we are broad‑minded. If this is untrue, let the police and the investigators who deal with electric-wire theft rebut me. ...” (at p. 315)
“... Throughout all those years, when Gypsies-bandits stole away, cut tons of electric wires, which in civilised countries is a terrorist act, and left whole regions without electricity, causing millions of levs in damages, non-Gypsies were hanging themselves from the ceiling out of despair ...” (at p. 332)
“... The brazenness of demonstrative Gypsy banditry comes from statements such as that of the leader of the Roma Association [T.T.] made before the newspaper Trud on 14 August 2001: ‘Bulgaria will become Kosovo’. The prophecy (or threat) of the Roma leader is evidently turning into a reality. In the absence of State authority in Bulgaria, the next stage is terrorist acts and murders of non-Gypsies. ‘What are we to do?’ asks hopelessly the police chief in Plovdiv. Our advice is, first tender your resignation. And until then let someone who knows how to deal with terrorists and street vandals take the post. ... ” (at p. 333)
(b) The course of the proceedings in the applicants’ case
(i) At first instance
11. On 15 October 2008 the Sofia District Court dismissed the applicants’ claim. It began by noting that the case turned on whether Mr Siderov’s statements had been a proper exercise of his right to freedom to express an opinion, guaranteed by Article 39 § 1 of the Constitution (see paragraph 18 below), or whether they had amounted to an exercise of that right with a view to fomenting ethnic strife. The court went on to say that the assertion that the impugned statements had constituted harassment or incitement to discrimination were not supported by the facts. The statements, though revealing a negative attitude towards Roma as a group, had not meant to place them at a disadvantage vis-à-vis other ethnic groups, but rather the opposite, as they contained appeals that Roma be treated on an equal footing with other Bulgarian citizens. It was true that the statements, which touched upon the integration of Roma, had been phrased in a way which could not be reconciled with a correct tone and the need for tolerance when discussing issues of public importance. But this was not in itself indicative of incitement to discrimination, since that hinged on a statement’s content rather than its form or wording. Mr Siderov had, whether this had been justified or not, sought to focus the public’s attention on “the fact that certain ethnic minority groups commit[ted] offences against the person, which remained without punishment, and [did] not fulfil their obligations, as was expected of all Bulgarian citizens, namely not to disrupt public order and to pay their debts to the State and the various utility companies”. Calls for the investigation and punishment of offences committed by the members of one or another ethnic group, and for them to abide by the laws, did not amount to discrimination, but were rather directed towards the equal treatment of the members of the various ethnic groups. Accepting that ethnicity could be grounds to treat an individual or a group differently and to waive their criminal and civil liability would amount to legitimising discrimination against people with a different ethnic self-consciousness, which was proscribed by the Constitution and the 2003 Act. Mr Siderov’s public manifestation of his negative views about the conduct of the Roma community did not in itself amount to discrimination, since his statements were not intended to place that community in a less favourable position, but called for – as was indeed required by law – equal treatment (see реш. от 15.10.2008 г. по гр. д. № 2858/2006 г., СРС).
(ii) On appeal
12. The applicants and the four other claimants in the case appealed, arguing that the court’s findings were formalistic and contrary to common sense. When a politician publicly spoke of an ethnic group using such crude terms, he in effect instilled fear and hatred towards it. It was not necessary for him directly to call for violence or discrimination against it. By holding otherwise, the court had erred in the application of the 2003 Act. Also, by referring to Mr Siderov’s assertions as a “fact”, it had itself displayed racial bias.
13. On 21 June 2010 the Sofia City Court upheld the lower court’s judgment. It held that the available evidence did not permit a conclusion that the impugned statements had subjected the applicants to differential treatment vis-à-vis the rest of the population, or had constituted harassment or incitement to discrimination. Mr Siderov had not in his publications, his public statements made over a considerable period of time, or his speech in Parliament in 2005 directly or wilfully encouraged discrimination based on Roma ethnicity. In particular, his remark in the book “Bulgarophobia” that the inhabitants of a Roma neighbourhood owed six million Bulgarian levs to the electricity company and that no steps were being taken to collect that debt could not be qualified as harassment (see реш. № 2935 от 21.06.2010 г. по в. гр. д. № 2703/2010 г., СГС).
(iii) Before the Supreme Court of Cassation
14. The applicants and the four other claimants in the case appealed on points of law. They argued that the Sofia City Court had failed to give cogent reasons and properly to analyse Mr Siderov’s statements in the light of the definitions of harassment and incitement to discrimination in the 2003 Act. They again emphasised that he was a well-known politician who had actively sought to vilify a whole ethnic group.
15. On 8 August 2012 the Supreme Court of Cassation refused to admit the appeal for consideration. It held that there was no indication that there was divergent case-law in relation to the points at issue in the case, or that it threw up special issues relating to the correct application of the law or its development (see опр. № 972 от 08.08.2012 г. по гр. д. № 1672/2011 г., ВКС, IV г. о.).
B. Relevant domestic law and practice
1. Constitutional provisions
16. 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.”
17. 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.”
18. 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
19. 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.
20. 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.
21. 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.
22. 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
23. 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).
24. 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).
25. 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.).
26. 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
27. 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)).
28. 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
29. 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)).
30. 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
31. 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.
32. The applicants also complain under Articles 6 and 14 of the Convention that by dismissing the claim against Mr Siderov and by referring to his assertions as a “fact” the Sofia District Court, whose judgment was upheld by the courts above, in effect legitimised Mr Siderov’s racist attitudes, displayed racial bias, denied the applicants a fair trial, and discriminated against them.
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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