Published on 25 March 2024
THIRD SECTION
Application no. 34020/20
Ognyan Isaev ISAEV
against Bulgaria
lodged on 4 August 2020
communicated on 7 March 2024
SUBJECT MATTER OF THE CASE
1. The applicant is a Bulgarian national of Roma ethnic origin. He is a journalist and a Roma-rights activist.
2. On 9 January 2015 an article titled “3,000 Skinheads Go on the Attack Against Refugees and Roma” was published on a website (www.blitz.bg) which was at that time owned by the private company Intermedia OOD. Many comments containing virulent anti-Roma statements were then posted under the article.
3. About two weeks after the publication of the article an employee of a non-governmental organisation, the Bulgarian Helsinki Committee, reported forty-two of those comments to the website via its dedicated interface. By June 2015 the comments had not been removed from the website.
4. In April 2016 the applicant brought a claim against Intermedia OOD under section 71(1) of the Protection Against Discrimination Act 2003. He alleged that the company’s failure to remove the comments from the website had amounted to racial harassment and aiding and abetting of discrimination. He sought a judicial declaration to that effect, an injunction against the company to desist from such conduct in the future, and damages.
5. In March 2018 the Sofia District Court dismissed the claim. It held that although some of the comments were extremely hostile, they had not amounted to harassment, and that the applicant was not entitled to redress in respect of them under the 2003 Act (see реш. № 359353 от 13.03.2018 г. по гр. д. № 23057/2016 г., СРС).
6. The applicant appealed. In February 2019 the Sofia City Court upheld the lower court’s judgment. It noted, inter alia, that the expression of negative views about an ethnic group was not in itself discrimination, and that the comments had in any event not targeted the entire Roma community but only those parts of it which engaged in crime. They could not, then, infringe the dignity of the applicant as a member of that community who did not himself engage in crime, or be seen as hate speech against all Roma, including the applicant. In the light of all the evidence, they were not harassment (see реш. № 892 от 07.02.2019 г. по гр. д. № 7669/2018 г., СГС).
7. The applicant appealed on points of law. On 29 November 2019 the Supreme Court of Cassation did not admit his appeal for examination. It noted, inter alia, that the relevant provisions of the 2003 Act could not be construed so as to ensure protection against any negative comment posted on any website, and that it was in any event incumbent upon the claimant in proceedings under the Act to prove the existence of facts which could give rise to a reasonable suspicion that he or she had fallen victim to discrimination (see опр. № 819 от 29.11.2019 г. по гр. д. № 2596/2019 г., ВКС, III г. о.).
8. The applicant complains under Article 8 of the Convention, alone and taken together with Article 14 of the Convention, that the courts dismissed his claim against Intermedia OOD and thus failed to protect him from racist hate speech. He further complains under Article 6 § 1 of the Convention, alone and taken together with Article 14 of the Convention, that by finding that the comments at issue had not amounted to harassment and incitement to discrimination, the courts hearing his claim demonstrated racial bias against him and were hence not impartial and deprived him of a fair trial.
QUESTIONS TO THE PARTIES
1. Are Articles 8 and 14 of the Convention applicable? In particular, did the website comments at issue in the case affect the applicant’s “private life” (see, mutatis mutandis, Budinova and Chaprazov v. Bulgaria, no. 12567/13, §§ 63 and 69, 16 February 2021)?
2. If Articles 8 and 14 of the Convention are applicable, was the dismissal of the applicant’s claim under the Protection Against Discrimination Act 2003 in breach of the positive obligations flowing from those provisions (see, mutatis mutandis, Budinova and Chaprazov, cited above, §§ 87-95, and Delfi AS v. Estonia [GC], no. 64569/09, §§ 110-17 and 131-62, ECHR 2015)?