Legal summary
June 2023
Zhablyanov v. Bulgaria - 36658/18
Judgment 27.6.2023 [Section III]
Article 10
Article 10-1
Freedom of expression
Removal of a Deputy Speaker of Parliament for speeches and behaviour justifying repressions of the communist regime: no violation
Facts – The applicant was a member of the Bulgarian Parliament (MP) on the ticket of the Bulgarian Socialist Party (the BSP). The BSP was a successor to the Bulgarian Communist Party which had been ruling the country from 1948 until the fall of the communist regime. In 1990 the Bulgarian Communist Party had been rebranded as the BSP. In January 2018 the applicant was elected as one of Parliament’s five Deputy Speakers, after nomination from the BSP. In February 2018, after a proposal from a group of MPs from the GERB (the leading party in the ruling coalition) asserting that the applicant had systematically abused his powers within the meaning of Rule 5 § 1 (2) of the Assembly’s Rules, the Parliament removed him from his post of Deputy Speaker.
The alleged abuse concerned three incidents in January and February 2018. Firstly, during a plenary discussion of a treaty between Bulgaria and (as it then was) the former Yugoslav Republic of Macedonia, the applicant criticised the treaty, qualifying it as “a stillborn” and “a fabrication”, and a “cheap wheeling and dealing”. Secondly, in a plenary sitting, he interrupted a minute of silence proposed by the GERB for the victims of the communist regime, in particular those who had been sentenced to death or to long terms of imprisonment by “the People’s Court” which had been created following the coup d’état of 9 September 1944 by the new Communists-led government of Bulgaria to judge the leaders and collaborators of the previous monarchic regime. The applicant repeatedly took the floor saying that at the end of WWII such trials had been held across Europe to judge collaborators of the Axis Powers. In his words, victims of fascism and members of resistance movement should also be commemorated. After a warning the Speaker had to cut the applicant’s microphone.
Thirdly, the BSP issued a declaration proclaiming inter alia that “the People’s Court” had been established following a decision by the Allied Powers, and that it had been “necessary and inevitable wartime justice”. According to some media, the declaration had been drawn up by the applicant. The party almost immediately distanced itself from the declaration. When interviewed by a journalist the applicant denied writing it but agreed with it in essence.
The Constitutional court dismissed a request by sixty MPs to declare his removal unconstitutional. It found that the applicant had “systematically” abused his powers and that the “systematic” character of his conduct did not have a simply quantitative dimension. The applicant’s statements ran counter the 2000 Act declaring the communist regime in Bulgaria criminal. He had also violated parliamentary decorum.
Law – Article 10:
(a) Preliminary objection based on Article 17 – The Government argued that the applicant’s attempts to legitimise persecutions by the totalitarian communist regime fell outside the protection of Article 10 by virtue of Article 17. The Court noted that Article 17 applied directly only on exceptional basis and in extreme cases. In this case, it was not immediately clear that the statements in issue, in particular the statement about “the People’s Court”, had sought to deflect freedom of expression for ends contrary to the Convention’s values. Assessing that point required an in-depth analysis of the nature of the statements and of the context in which they had been made. The Court therefore dismissed the objection.
(b) Whether there has been an interference – The applicant’s removal had been in reaction to his statements and expressive conduct. When it came to professional posts, in the Court’s case-law, removals or suspensions from such posts and even refusals to appoint to them relating, overtly or covertly, to statements by the post-holders, or candidates, had consistently been seen as interferences with their right to freedom of expression. However, in all the cases, it was implicit that the posts in issue enjoyed some sort of stability or tenure, and that holding them had been chiefly premised on having certain professional qualifications. It was of particular importance that the applicant’s post had been a political rather than a professional one. The reasoning relating to professional posts could not thus automatically be transposed to political ones: they were as a rule inherently unstable and holding them was often premised on sharing the political views of the political force vested with the right to fill such a post.
The applicant had occupied his post of a Deputy Speaker as a representative of his faction rather than in his personal capacity, and he could be recalled at the faction’s request without any need for a justification. At the same time, he had not served in that post at the discretion of the Parliament but enjoyed a measure of non-removability vis-à-vis the parliamentary majority. Under the Assembly Rules, he could be voted out before the end of his term only if he had systematically abused his powers or had failed to carry out his duties. Indeed, the question whether those conditions had been fulfilled had been at the core of the debate preceding the vote to remove him and of the ensuing constitutional proceedings.
In conclusion, the question whether the applicant’s removal had amounted to interference with his freedom of expression was left open by the Court, since even if that had been the case, the interference had been justified for the following reasons.
(c) Justification for the alleged interference – The applicant had argued that his statements had not amounted to a “systematic abuse” of his powers as a Deputy Speaker within the meaning of Rule 5 § 1 (2) of the Assembly’s Rules. However, that matter had been carefully examined by the Constitutional Court of Bulgaria. The majority’s interpretation of the term “systematic” had not been manifestly erroneous or arbitrary, though perhaps unorthodox. It had been apparently the first time the Constitutional Court had considered that aspect of the Rule or its predecessors. Parliamentary rules of procedure inevitably comported an element of vagueness and were subject to interpretation in parliamentary practice. The applicant’s removal had been therefore “prescribed by law”. Further, it had sought to protect “morals” and “the rights of others”, under Article 10 § 2.
The Court thus focussed on the necessity of the interference.
The applicant’s first statement had contained trenchant criticism of an international treaty and could hardly be seen as capable of justifying the measure taken against the applicant. An opposition member of parliament was entitled to use strong language when criticising the government and its policies. However, as it not been even mentioned in the Constitutional Court’s judgment, that statement could not be considered in the necessity assessment.
The second statement - the applicant’s insistence on also commemorating the victims of fascism - had been made on the day dedicated to the commemoration of victims of communism. The applicant had spoken as a representative of the political party which had been the successor of the communist party, most responsible for the creation and operation of the “People’s Court”. He had glorified the political violence in which that party had engaged in the past, ridiculed the MP who had proposed the minute of silence and his assessment of the “People’s Court”, defended the operation of that tribunal”, and in essence had disparaged all people convicted by it, going against the values underpinning the Convention. It did not therefore deserve the heightened protection normally accorded to expression on issues of public interest. Finally, he had intervened during a minute a silence without being given the floor.
As to the third statement, as tacitly accepted by the majority of the Constitutional Court, the applicant had been the author of the part of the declaration which had justified “the People’s Court”. While the Court was not to pronounce on matters of pure historical fact, the perception of the role of “the People’s Court” in Bulgaria’s history was important to understand the meaning of the applicant’s words. In the 1990s many convictions handed down by “the People’s Court” had been overturned, as having been, inter alia, politically motivated and not based on concrete evidence. Both the Supreme Court and the Constitutional Court had characterised “the People’s Court” as an extraordinary tribunal running counter to basic tenets of criminal law and justice and failing to meet the requirements of due process. In 2000 the legislature had enacted a memorial law condemning “the People’s Court” as a tool for political reprisals. For the Court itself, any categorical and wholesale justification of such a tribunal, which had been contrary to the most basic fair trial requirements, could be seen as running counter to the underlying values of the Convention. Indeed, the Court had consistently emphasised the prominent place held in a democratic society by the right to a fair trial and it was with reference to this aspect of the case that Article 17 of the Convention had an important role to play, in guiding the assessment of the necessity of the interference with the applicant’s right to make the statement.
The applicant’s statement had no nuance, it had not been made in the heat of the moment but was in writing and its wording by all appearances had been quite deliberate. It had therefore been at odds with the democratic values and did not deserve the heightened protection
The necessity of removing the applicant from his post had to be assessed against the backdrop of the post-WWII history of Bulgaria and the totalitarian nature of the communist regime. Given their recent history, States which had experienced communist repressions and atrocities had a special moral responsibility to distance themselves from them. The absence of a proper investigation of those atrocities and the comparatively poor public awareness of them, noted in Resolution 1481 (2006) of the Parliamentary Assembly of the Council of Europe, made that responsibility even more pressing in a sense. It could hardly be said that statements about the “People’s Court” in Bulgaria were of historical significance only. The passage of time had not therefore made it inappropriate for the authorities to react in some form to the applicant’s statement.
Lastly, as to the severity of the sanction, the applicant had not enjoyed full tenure, and his removal from the position of the Deputy Speaker had been preventive rather than punitive in character. The effect of that measure had been rather symbolic and had no-long consequences for the applicant, even though it had entailed a reduction in pay. The applicant had not lost his mandate as an MP and had not been prevented from disseminating his views. His political party could and did replace him with another Deputy Speaker.
In the light of all the above factors – the nature of the statements in issue, the context in which the Bulgarian authorities had reacted to them, and the nature of the measure which they had taken in response – the alleged interference with the applicant’s right to freedom of expression could be seen as “necessary in a democratic society”.
Conclusion: no violation (six votes to one).
(See also Ždanoka v. Latvia [GC], 58278/00, 16 March 2006, Legal Summary; Pastörs v. Germany, 55225/14, 3 October 2019, Legal Summary; Resolution 1481 (2006) of the Parliamentary Assembly of the Council of Europe (PACE) on the need for international condemnation of crimes of totalitarian communist regimes of 25 January 2006)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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