Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The European Court of Human Rights (ECtHR) held that conviction for hooliganism and fine for spray-painting a monument connected to the former communist regime in the context of political protests had been contrary to the European Convention of Human Rights (ECHR), Art. 10. The application was brought to the ECtHR by two applicants, a popular blogger and a political activist, following their conviction by the national courts of Bulgaria for hooliganism and a fine for spray-painting a monument to “partisans” on the anniversary of the 1917 Bolshevik Revolution, in the context of nation-wide protests against a government mainly supported by the Bulgarian Socialist Party, the dominant political force during the communist regime. The national courts found that the applicants’ intention was to scandalize society and demonstrate contempt toward it rather than to express views on a matter of public importance. The ECtHR held that there is no evidence that the applicants’ act caused serious or irreversible damage to the monument, or that the removing of the spray-paint required significant resources. The ECtHR found the a criminal conviction of the applicants of hooliganism and the resultant fines was “ not necessary in a democratic society” within the meaning of ECHR, Art.10.
On 14 June 2013, demonstrations erupted throughout the country against the government, led by Mr. Plamen Oresharski and supported in Parliament by Coalition for Bulgaria whose main member was the Bulgarian Socialist Party. At first, the demonstrators’ main grievance was the appointment of M. Delyan Peevski, a wealthy businessman, media-owner and member of Parliament as chairman of the State Agency for National Security. The Prime Minister and later the Parliament formally approved his nomination. One of the main slogans of those protests became the question “Who?”, interpreted to mean “Who proposed Mr. Peevski for that post?”.
Following the protest, the Parliament supported the proposal of two parliamentary groups to revoke the nomination of Mr. Peevski. Despite that, the daily protests continued until about January 2014. In July 2014, Mr. Oresharski’s government stepped down. Both applicants were active members of the informal organization “Protest Network” coordinating the protests. The first applicant, a blogger, frequently posted public comments and videos about the situation in Bulgaria on social media and was thus quite well known in Bulgarian society. The second applicant is an architect by profession. In 2015 the second applicant ran for municipal councilor in Sofia on the ticket of the Reformist Block, an electoral alliance formed in December 2013 and existing until 2017.
At about 4 a.m. on 7 November 2013 – the anniversary of the 1917 Bolshevik Revolution – the two applicants and four other people were near the central office of the Bulgarian Socialist Party in Sofia. Police officers spotted the applicants, who tried quickly to move away. The officers saw that a 1970s monument consisting of seven metal figures representing “partisans” had been freshly spray-painted, the heads in rose and the bodies in magenta, and had the words “WHO? BCP–SHAME! WHO!” written in rose spray-paint on its base.
When approached, the applicants explained to the officers that they had gone out for a walk and a coffee. The officers took the applicants and their four companions to a police station. The applicants agreed to have their hands and clothes swabbed for samples; while the others individuals refused. The applicants remained under arrest for about 20 hours. Later the police established that the applicants’ clothes, shoes, and the face-mask found in the first applicant’s possession, bore traces of the same spray-paints as the ones used to paint over and write on the monument. The spray-paint was later cleaned from the monument, with no information in about who did that or how much effort or cost it entailed.
The same day, the authorities opened criminal proceedings against the applicants concerning the above events. In February 2014 they were charged with hooliganism contrary to Article 325 § 1 of the Criminal Code During the criminal procedure, the prosecution maintained the indictment, but proposed to the Sofia District Court to waive the applicants’ criminal liability and replace it with administrative penalties, in application of Article 78a § 1 of the Criminal Code Counsel for each of the applicants argued, among others, that they had exercised their right to freedom of expression.
On 31 October 2014, the Sofia District Court acquitted the applicants. The court found that it was not proven that the applicants had spray-painted the monument. Regardless of that, their act had not amounted to hooliganism. The act was a non-verbal expression of political views. The applicants’ right to freedom of expression, protected under both the ECHR and the Convention had thus been engaged. The Court distanced from assessing the views advocated by the applicants or the monument’s artistic or historical value.
The prosecuting authorities appealed. However, at the appeal hearing the higher processor argued that the first-instance court had been correct to acquit the applicants. In response to the appeal, counsel for the applicants reiterated the argument that the applicants duly exercised their right to freedom of expression.
In a final judgment of July 2015, the Sofia City Court by a majority quashed the lower court’s decision and found the applicants guilty of hooliganism contrary to Article 325 § 1 of the Criminal Code. It waived their criminal liability and replaced it with administrative fines of approximately EUR 767 each and equivalent to EUR 231.40 in respect to costs incurred in the pre-trial proceedings. The court held that the available evidence, although circumstantial, was sufficient to find that it had been the two applicants who had spray-painted the monument. The court went on to say that the applicants’ act had amounted to hooliganism of the monument that was part of the country’s cultural heritage. The appeal court disagreed with the applicants that they had sought to express their views publicly, as they had acted at night, attempted to flee, and tried to conceal their participation in the events. One of the three appeal judges dissented. According to her, the applicants had merely expressed their views about the monument and about a past political regime. Holding otherwise run counter to ECHR, Art. 10.
The first applicant paid the fines and costs, whereas the second applicant paid them partially.
The ECtHR delivered a judgement by six votes to one finding a violation of ECHR, Art.10.
The central issue for the Court was whether the interference in the form of a penalty rather than of an order requiring the applicants to repair any damage caused to the monument was “necessary in a democratic society”.
The applicants explained that their act was a form of expression protected under ECHR, Art. 10. The monument represents “partisans” in general, which meant that acts directed against it could not affect the memory of specific individuals, bearing especially in mind that their act had been part of the wave of anti-governmental protests . They had not damaged the monument and had spayed no insulting words of objection on the monument’s base rather than on the sculptures of the partisans.
The sanctions had not at all been necessary to interfere with their right to freedom of expression by way of a criminal prosecution. The applicants’ case highlighted that criminal courts did not duly differentiate between legitimate political protest and hooliganism. It was not clear to the applicants how their conviction had contributed to public safety or prevention of morals.
The Government argued that the interference with the applicants’ rights under that provision had been lawful and justified to protect public safety and the rights of others and to prevent crime. The interference had also been “necessary in a democratic society” for several reasons. Firstly, the applicants painted a cultural heritage, a monument that they had impaired. Secondly, the applicants had not been journalists or politicians so they were not entitled to express their political views in any way they saw fit. Thirdly, the appeal court had properly balanced the competing interests and issued moderate administrative fines.
The ECtHR noted that even though the applicants did not admit they had spray-painted the monument, their conviction was directed at activities falling within the scope of freedom of expression. The ECtHR concluded that conviction must be regarded as interference with their rights under ECHR, Art 10. “Holding otherwise would be tantamount to requiring the applicants to acknowledge the act of which they stood accused, whereas the right not to incriminate oneself, although not specifically set out in Article 6 of the Convention, is a generally recognised international standard which lies at the heart of the notion of a “fair hearing” under that provision” [para. 63]. If the ECtHR placed too much weight on the applicant’s denial in being involved in the act, that would “lock them in a vicious circle depriving them of the protection of the Convention” (see Müdür Duman v. Turkey  15450/03, § 30; İmrek v. Turkey  45975/12, § 29; and Kilin v. Russia  10271/12, § 55) [para.63].
The ECTHR went on to apply the three-step test.
The ECtHR agreed with the Government that the interference was based on Article 325 § 1 of the Bulgarian Criminal Code and was “prescribed by law , a law that was sufficiently foreseeable by the applicants. The ECtHR reiterated that it is not its role to asses whether the national authorities property characterized the applicants act as hooliganism, except in cases of flagrant non-observance or arbitrariness (see Yordanova and Toshev v. Bulgaria  5126/05, § 41, and Nenkova-Lalova v. Bulgaria  35745/05, § 54). The Court found that the ruling of the second instance court was not arbitrary or manifestly contrary to the law.
Referring to the case-law of the former Bulgarian Supreme Court and the Supreme Court of Cassation under Article 325 § 1, the ECtHR was satisfied that the applicants’ act could reasonably be characterized by the Bulgarian courts as hooliganism within the provision’s meaning (see, mutatis mutandis, Shvydka v. Ukraine  17888/12, § 39 and Handzhiyski v. Bulgaria  10783/14 § 46).
The ECtHR also accepted that the interference pursued the legitimate aims of protecting morals and the rights of others (as in Handzhiyski, § 47). The ECtHR accepted that the general public has an interest in preserving cultural heritage (see Margulev v. Russia  15449/09, § 37).
The ECtHR then move on to analyse whether the interference was “necessary in a democratic society”.
The ECtHR held that the sanctions were mild (compared to Margulev v. Russia  53899/00, § 56, and Rumyana Ivanova v. Bulgaria,  36207/03) and did not caused financial hardship to the applicants. Therefore if the conviction is considered justified, the sanctions cannot be seen as disproportionate in themselves (see Handzhiyski, § 49). But the central question before the ECtHR was whether it was at all “necessary in a democratic society” to penalize the applicants’ act.
The Court reiterated the importance of monuments and that proportionate sanctions designed to dissuade acts which could destroy or damage a public monument could be seen as “necessary in a democratic society”. “This was because (a) public monuments were often physically unique and formed part of a society’s cultural heritage, and because (b) in a democratic society governed by the rule of law, debates about the fate of a public monument had to be resolved through the appropriate legal channels rather than by covert or violent means” (see Handzhiyski, § 53) [para.75]. The ECtHR added that in this case the physical damage to a monument would be the most important factor for assessing the necessity of interferences with such acts.
Therefore the ECtHR went on to assess whether the spray-painting of the monument damaged it.
The ECtHR agreed with the applicants that there is no evidence that they caused any irreversible harm to the monument. The EtHR held that the visual impairment which spray-painting produces, although requiring some expense to eliminate, is, usually fully reversible. It does not harm a monument to an extent which prevents it, after being cleaned, from continuing to form part of a the cultural heritage. In those circumstances, the ECtHR concluded that the applicants’ act had not affected the monument to a degree sufficient to consider that it damaged it.
Referring to the context-specific factors identified in Handzhiyski, the ECtHR assessed the necessity of penalizing the applicants’ act. The Court found that the act can not be “qualified as vulgar or gratuitously offensive” [para. 81.] The context clearly suggests that the intention behind the act was to express disapproval toward the political party in the context of a prolonged nation-wide protests. The act sought to condemn the role which that political party had played in Bulgaria’s history and it was not “meant to express disdain for deep-seated social values – in contrast to, for instance, the desecration of tombstones” [para. 82]. The ECtHR concluded that the interference with the applicants’ right to freedom of expression was not “necessary in a democratic society” and therefore breached ECHR, Art. 10.
Judge Vehabović delivered a dissenting opinion as the judge believes the ECtHR took a different approach than in the case of Sinkova v. Ukraine  39496/11. According to the judge, it is up to to the authorities to protect monuments and “evaluate acts by individuals that publicly mock statues and monuments and what they represent, in the light of the “necessary in a democratic society” test” [p. 21].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR expanded freedom of expression by using the criteria developed in Handzhiyski v. Bulgaria  10783/14, but also by adding another one as the most important factor in this case- the physical damage, or rather the absence of damage, to a monument.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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