CASE OF CHOLAKOV v. BULGARIA

FOURTH SECTION

CASE OF CHOLAKOV v. BULGARIA

(Application no. 20147/06)

JUDGMENT

STRASBOURG

1 October 2013

FINAL

01/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Cholakov v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 10 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 20147/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Bulgaria and Sweden, Mr Stefan Dimitrov Cholakov (“the applicant”), on 17 May 2006. The applicant was not legally represented.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

3. The applicant alleged that he had been sentenced to ten days’ detention for statements uttered at a public place, in violation of his right to freedom of expression.

4. On 1 June 2010 the application was declared partly inadmissible and the complaint concerning the alleged breach of the applicant’s right to freedom of expression was communicated to the Government. It was also decided to rule on the admissibility and merits of this part of the application at the same time (Article 29 § 1 of the Convention).

5. The Swedish Government, having been informed of their right to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not avail themselves of that opportunity.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1944. He appears to live mainly in Växjö, Sweden, but also regularly spends time in Bulgaria, where he is politically and socially active.

7. Local elections were organised in Bulgaria on 28 October and 4 November 2007. The applicant, who was supporting one of the candidates for mayor of Vratsa, regularly campaigned in his support in the city’s centre.

8. On 23 October 2007 he entered into a conflict with police officers, for reasons which are unclear. The officers issued a report for an administrative offence and a warning order enjoining the applicant to refrain from “performing indecent and inappropriate actions breaching the prevailing norms of morals and behaviour on the streets, squares and other public areas, addressing indecent words to representatives of the public authorities, and breaching public order and quietness”.

9. On 1 November 2007 the applicant was once again campaigning in the central square of Vratsa. He had chained himself to a metal column and was using a loudspeaker, saying that the officials currently in power in Vratsa were corrupt and that he had informed the prosecution authorities of their alleged crimes. In particular, he used the following expressions: “All of them are criminals” (“Всички са престъпници”), “The prosecutor is a Mafioso” (“Прокурорът е мафиот”), “The mayor is a Mafioso” (“Кметът е мафиот”), “Political prostitutes” (“Политически проститутки”) and “A mass of political prostitutes” (“Политическа проститутска маса”).

10. The applicant was once again approached by police officers who invited him to remove the chain and accompany them. After he refused to do so, they cut the chain and drew up a report of an act of minor hooliganism. They noted in the document that the applicant had been “disturbing public order in the area, by uttering indecent words through a loudspeaker” and had “provoked the indignation of citizens who live in the area or were passing by”. The applicant signed the act, objecting in writing that he had not done anything wrong.

11. The officers arrested the applicant and brought him to the Vratsa District Court, where he was charged with an offence of minor hooliganism under the 1963 Decree on Combating Minor Hooliganism (“the Decree”, see paragraphs 18-20 below).

12. The Vratsa District Court held a hearing on the same day. The applicant had a lawyer.

13. The court heard several witnesses called by the police, including the officers who had arrested the applicant, who stated that they had felt indignation upon hearing the applicant’s words and had heard other people on the square say that these words had been inappropriate. The court heard also two witnesses called by the applicant, who considered that he had expressed a political message and that the people on the square had not been reacting in a negative manner.

14. The applicant’s lawyer stated that the applicant had been expressing his civic position, that he was a “rebel”, that he had not breached the Decree and that he had a constitutional right to express his opinion.

15. The Vratsa District Court delivered its judgment after the hearing. On the basis of the witness statements it established that the applicant had uttered the expressions described above and “other expressions addressed at the head of the Vratsa police directorate, the prosecution authorities and the police, as a whole”. These amounted to “indecent statements, made in a public place in front of many people” and to “offensive attitude towards public bodies” within the meaning of section 1 of the Decree. Therefore, the applicant was found guilty of minor hooliganism. Considering as an aggravating circumstance the fact that the expressions above had been uttered “deliberately, publicly, with a loudspeaker, in breach of public order in the centre of Vratsa, despite an earlier warning not to demonstrate in such a manner”, the Vratsa District Court sentenced the applicant to ten days’ detention.

16. The judgment was final and enforced immediately. The applicant remained detained in the police station in Vratsa until 11 November 2007.

II. RELEVANT DOMESTIC LAW

17. Article 39 of the 1991 Constitution of Bulgaria reads:

“1. Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way.

2. This right shall not be exercised to the detriment of the rights and reputation of others, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or enmity or violence against anyone.”

18. Decree No. 904 of 28 December 1963 on Combating Minor Hooliganism (“the Decree”) was passed by the then existing Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It was published in the State Gazette on 31 December 1963, as required under section 37(1) of the Normative Acts Act 1973, as worded at that time. The Supreme Administrative Court has on a number of occasions said that the Decree has the same force as an Act of Parliament (see опр. № 9959 от 7 ноември 2003 г. по адм. д. № 9327/2003 г., ВАС, I о.; опр. № 10286 от 10 декември 2004 г. по адм. д. № 9761/2004 г., ВАС, петчленен с-в; опр. № 14673 от 3 декември 2009 г. по адм. д. № 15200/2009 г., ВАС, I о.; and опр. № 12764 от 1 ноември 2010 г. по адм. д. № 13284/2010 г., ВАС, I о.).

19. Section 1(2) of the Decree defines minor offences of hooliganism as, inter alia, “indecent statements, made in a public place in front of many people”, or “[showing an] offensive attitude towards citizens, public bodies or the society”, which breach public order and quietness. Such acts, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days’ detention in the premises of the Ministry of Internal Affairs or a fine.

20. The Decree provides for an expedited procedure for judging minor offences of hooliganism, which has been described in more detail in the Court’s judgment in the case of Borisova v. Bulgaria (no. 56891/00, §§ 21‑26, 21 December 2006).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

21. The applicant complained that his conviction of 1 November 2007 for an act of minor hooliganism had breached his right to freedom of expression. He did not rely on a particular provision of the Convention. The Court is of the view that the complaint falls to be examined under Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

22. The Government considered that there had been no violation of Article 10, because the applicant’s conviction and detention had been provided for by law and had been necessary. They argued that the applicant had failed to comply with the warning order of 23 October 2007 (see paragraph 8 above) and to request an authorisation for his demonstration on 1 November 2007. They considered also that his statements had exceeded what was acceptable in terms of moral behaviour and that the measures against him had not been taken in response to his negative attitude towards the authorities, but as a result of the “indecent and uncensored language” he had used in the central part of the city and in the presence of adults and children. They stressed that freedom of expression was not absolute and carried with it “duties” and “responsibilities”. Without providing details, the Government pointed out that the applicant had already used similar “indecent” language in statements “in the media and the internet”. They considered that the Vratsa District Court’s judgment of 1 November 2007 had been correct and pointed out that the applicant had only been punished for an act of minor hooliganism, as provided for by the Decree, and not for aggravated hooliganism under the Criminal Code.

23. The applicant disputed the Government’s arguments and considered that the proceedings against him had been “political”. He contested the quality of the Decree as a “law” within the meaning of the Convention and argued that his statements on 1 November 2007 had not been indecent or scandalous. He considered that he had been arrested to prevent him from criticising the authorities in Vratsa and campaigning in support of one of the candidates at the upcoming local elections.

A. Admissibility

24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

25. The Court notes that the parties seem to agree that the conviction of the applicant for minor hooliganism and his ensuing ten days’ detention amounted to interference with his right to freedom of expression under Article 10 of the Convention. The interference was prescribed by domestic law, namely the Decree.

26. However, the applicant challenged the quality of the Decree as “law” within the meaning of Article 10 § 2 of the Convention. The Court recalls that it has already examined the Decree’s status in the domestic legal system in its recent case of Zhelyazkov v. Bulgaria (no. 11332/04, § 31, 9 October 2012), where it found that the fact that the Decree had not been adopted by the Parliament did not deprive it of its quality of “law” for the purposes of the Convention. The Court noted in particular that under Bulgarian law decrees adopted by the Presidium of the National Assembly under Articles 35 § 5 and 36 of the 1947 Constitution were valid sources of law and had the same force as Acts of Parliament, a conclusion which has been confirmed many times by the Supreme Administrative Court (see paragraph 19 above). The Court sees no reason to reach a different conclusion in the case at hand. It notes, moreover, that the term “law” in Article 10 § 2 of the Convention must be understood in its substantive sense, not its formal one (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005-XI; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 83, 14 September 2010; and Pasko v. Russia, no. 69519/01, § 73, 22 October 2009). Accordingly, the Court concludes that the interference with the applicant’s right to freedom of expression in the case was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.

27. The Court is, in the next place, prepared to accept that the interference with the applicant’s rights pursued the legitimate aims of preserving public order and the reputation and rights of others and of maintaining the authority of the judiciary.

28. The central issue which falls to be determined is thus whether the interference was “necessary in a democratic society”, that is to say whether such interference corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities were relevant and sufficient (see, among others, Diena and Ozoliņš v. Latvia, no. 16657/03, § 76, 12 July 2007). The Court further recalls that, subject to paragraph 2 of Article 10 of the Convention, freedom of expression is applicable not only to “information” and “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, for example, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)).

29. As to the limits of acceptable criticism, they are wider with regard to public officials than in relation to a private individual. A public official is certainly entitled to have his reputation protected, but the requirements of that protection have to be weighed against the interests of open discussion of political and social issues, since exceptions to freedom of expression must be interpreted narrowly (see, among other authorities, Oberschlick v. Austria (no. 2), 1 July 1997, § 29, Reports of Judgments and Decisions 1997-IV).

30. In the present case the applicant was sentenced to ten days’ detention for having uttered in a public place the slogans “All of them are criminals”, “The prosecutor is a Mafioso”, “The mayor is a Mafioso”, “Political prostitutes” and “A mass of political prostitutes”, and also “other expressions” addressed at the prosecution authorities and the police in Vratsa. In the view of the Vratsa District Court these represented “indecent statements” amounting to “offensive attitude towards public bodies” (see paragraph 15 above).

31. The Court notes that the applicant’s statements were part of what appears to have been an attempt by him to contribute to a public debate on the way the city of Vratsa was governed, in the wake of the local elections (see paragraph 9 above). Such statements relating to issues of public concern and therefore amounting to “political expression” require, in principle, a high degree of protection under Article 10 (see Steel and Morris v. the United Kingdom, no. 68416/01, § 88, ECHR 2005-II). The authorities were thus under an obligation to adduce particularly relevant and sufficient reasons to show that the interference with the applicant’s rights was proportionate to the legitimate aims pursued.

32. The Court is not convinced that such reasons were shown to exist in this case. In its judgment convicting the applicant, after concluding that he had uttered “indecent statements, made in a public place in front of many people” and had demonstrated “offensive attitude towards public bodies”, as indicated by section 1 of the Decree, the Vratsa District Court concluded automatically that the applicant had been guilty of an offence of minor hooliganism (see paragraph 15 above). It failed to weigh the alleged gravity of his conduct against his right to freedom of expression and to provide specific reasons showing the necessity of imposing a penalty on the applicant. No attempt was made to account for the fact that the impugned statements were in the main aimed at contributing to a debate of public interest and that the applicant’s criticism was addressed at public bodies and officials, in respect of which, as mentioned above, the limits of acceptable criticism should be wider than in respect of private citizens. The Court has on a number of occasions said that in determining whether an interference with the right to freedom of expression was justified, it has to satisfy itself, inter alia, that the national authorities applied standards which were in conformity with the principles embodied in Article 10 (see, among other authorities, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; Uj v. Hungary, no. 23954/10, §§ 19 and 24-25, 19 July 2011; Fratanoló v. Hungary, no. 29459/10, §§ 22 and 27, 3 November 2011; and John Anthony Mizzi v. Malta, no. 17320/10, §§ 32 in fine and 40, 22 November 2011); it does not consider that this was the case here.

33. In their submissions to the Court the Government pointed out that the applicant had failed to abide by the warning order of 23 October 2007. In addition, they noted that he had failed to seek an authorisation for his demonstration of 1 November 2007 and mentioned statements made by the applicant “in the media and the internet” (see paragraphs 8 and 22 above). However, the Court does not consider that these circumstances, insofar as substantiated, amount to relevant and sufficient reasons showing that the interference with the applicant’s rights was justified and necessary. Moreover, only the first of the circumstances above, namely the existence of the warning order of 23 October 2007, was referred to, as an aggravating factor, in the Vratsa District Court’s judgment of 1 November 2007 (see paragraph 15 above).

34. The Court notes that, despite being, to some extent, provocative, the applicant’s impugned statements were not particularly scandalous, shocking or calumnious (see, mutatis mutandis, Erla Hlynsdόttir v. Iceland, no. 43380/10, § 62, 10 July 2012). The applicant’s behaviour when uttering the statements, in particular his having chained himself and his using a loudspeaker, does not appear disturbing or shocking either, and it was clear that he was taking a “political” stance. In any event, even though according to some of the witnesses passers-by reacted with indignation and comments that this was not appropriate (see paragraph 13 above), the Court noted already (see paragraph 28 above) that Article 10 of the Convention protects not only statements that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb.

35. Despite the above, the applicant was convicted for an act of minor hooliganism and a penalty was imposed which was disproportionate in the circumstances, namely ten day’s detention. As already noted, this was done without a sufficient justification or a meaningful analysis of the different interests at stake.

36. The foregoing is sufficient to enable the Court to conclude that the interference with the applicant’s right to freedom of expression was not proportionate to the legitimate aims pursued and thus not “necessary in a democratic society”, as required by Article 10 of the Convention.

37. There has accordingly been a violation of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

38. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

39. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention.

Done in English, and notified in writing on 1 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosIneta Ziemele
RegistrarPresident

 

Full & Egal Universal Law Academy