Case Summary and Outcome

The European Court of Human Rights found that the conviction and fine against a local politician for placing Santa Claus accessories on a communist leader’s statue in Bulgaria violated the right to freedom of expression. After the local politician placed a red Santa Claus cap and a red sack on an already-vandalized statue of former political leader Dimitar Blagoev, founder of the main party in the government coalition, he was convicted of minor hooliganism. He then approached the Court arguing that his conviction infringed his right to freedom of expression. The Court held that the sanctions were an unjustified interference with his right to freedom of expression as they were not necessary in a democratic society. The Court reasoned that the assessment of whether it is necessary to impose sanctions in relation to acts which do not destroy or physically impair monuments is nuanced and requires consideration of the nature and intention of the act, the message conveyed, and the social significance of the monument.

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Facts

On December 25, 2013, the statue of Dimitar Blagoev – the founder of the Bulgarian Social-Democratic Party, which later became the Communist Party and then the Socialist Party – was vandalized. The statue was painted by unknown persons in red and white so as to resemble Santa Claus and the words “Father Frost” were sprayed on the monument. Kaloyan Tomov Handzhiyski, a local politician who at the time of the events was chairman of the Blagoevgrad chapter of the political party Democrats for a Strong Bulgaria, saw reports of the vandalism and went to the statue and placed a red Santa Claus cap on its head and a red sack (with the word “resignation” on it) at its feet.

This incident was part of a wave of demonstrations which had erupted in June 2013 against the newly-elected government of Bulgaria. The Bulgarian Socialist Party was the main member of the Coalition for Bulgaria which supported the Prime Minister. Handzhiyzki’s party was not represented in Parliament and supported the anti-government protests. The government resigned in July 2014.

Handzhiyzki was arrested, searched and detained for 24 hours on suspicion of having committed hooliganism contrary to article 325(1) of the Criminal Code. On December 26, 2013, he was charged with minor hooliganism contrary to article 1(2) of the 1963 Decree on Combating Minor Hooliganism (the 1963 Decree), for having placed the cap and the sack on Blagoev’s statue. Article 1(2) defines minor hooliganism as, inter alia, “indecent statements, made in a public place in front of many people”, or “[showing an] offensive attitude towards citizens, public authorities or society”, which breach public order and quietness but which, owing to their lower degree of seriousness, do not amount to the criminal offence of hooliganism laid down in Article 325(1). Minor hooliganism is punishable by up to fifteen days’ detention, or by a fine ranging from Bulgarian levs (BGN) 100 to BGN 500 (equivalent to EUR 51 to EUR 256). After being charged, Handzhiyzki was released from detention.

On December 30, 2013, the Blagoevgrad District Court found Handzhiyzki guilty of minor hooliganism. Handzhiyzki had argued that his actions were intended as a political protest and that it had “made a good political joke” [para. 14]. Article 39 of the Bulgarian Constitution protects the right to express an opinion or publicize it “through words, written or oral, sound, or image, or in any other way,” but does state that it “shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone”. Handzhiyzki argued that his actions were protected by this right. The Court held that, because the right to express an opinion allows for exceptions, the 1963 Decree did not violate the right. It added that it was “immaterial whether Mr Blagoev was a controversial historical figure”, as Handzhiyzki had argued, and stated that it was important that the statue be “respected and preserved” [para. 16]. The Court described Handzhiyzki’s conduct as “unbecoming of the activists of a responsible political party” and stated that “the ‘thin red line’ between a proper political Christmas joke and hooliganism had been crossed” [para. 16]. The Court fined Handzhiyzki BGN 100 (BGN (the equivalent of EUR 51) – the “lowest possible fine” because of the absence of aggression, lack of criminal record and unemployment status [para. 17].

Handzhiyzki appealed the judgment and the appeal Court confirmed the lower Court’s decision, holding that Handzhiyzki seeking to express a political opinion did not “entitle him to protest by breaching the law” [para. 19].

Handzhiyzki paid the fine on January 20, 2014 and then lodged an application with the European Court of Human Rights, arguing that his conviction had interfered with his right to freedom of expression under Article 10 of the European Convention on Human Rights as it had not been necessary in a democratic society.

Article 10 states: “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.”

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Decision Overview

Judge President Tim Eicke delivered the majority judgment of the European Court of Human Rights. Judges Grozev, Motoc, Harutyunyan, Kucsko-Stadlmayer and Martins concurred with the majority. Judge Vehabović delivered a minority, dissenting judgment. The central issue before the Court was whether the sanctions imposed on Handzhiyski were “necessary in a democratic society” and so whether they constituted a justifiable interference with the right to freedom of expression under Article 10 of the Convention.

Handzhiyski argued that the 1963 Decree’s intention of protecting public order did not fall under the permissible “legitimate aims” allowing for limitation of the right under Article 10(2): he said that the protection of public order was not equivalent to the prevention of disorder and crime and that his “harmless prank” could not have caused disorder, crime or affected the rights of others. He also submitted that Bulgarian law “did not properly distinguish between legitimate political protest and wanton acts of vandalism and hooliganism” [para. 42].

The Bulgarian government conceded there had been an interference with Handzhiyski’s freedom of expression but that it had met the requirements of Article 10(2): the government submitted that the 1963 Decree was “sufficiently accessible and precise”; that it had sought to “protect public safety and the rights of others”; and that the interference had been necessary and proportionate [para. 43-44]. The government maintained that “political expression enjoyed heightened protection, but it could be interfered with if the means used for it disturbed public order or the everyday functioning of society” [para. 44].

The Court confirmed that Handzhiyski’s conduct constituted expression – it stated that Handzhiyski’s act was one of political protest – and that his conviction and fine had interfered with his right to freedom of expression. The Court applied the three-part test in determining whether the interference in Handzhiyski’s right was justifiable and accepted that it passed the first two prongs. The Court held that the interference was “prescribed by law” in terms of the 1963 Decree, and that it pursued the legitimate aim of “protecting the rights of others” [para. 46-47].

Satisfied with the first two elements of the three-part test of validity, the Court examined whether the interference was “necessary in a democratic society”. The Court referred to the general principles governing this point as set out in its own judgment in Perinçek v. Switzerland [GC] App. No. 27510/08, 2015. The Court noted that Handzhiyski’s fine was the “mildest possible” sanction under the law and that the conviction had not led to a criminal record. Accordingly, the Court held that the interference in Handzhiyski’s right was proportionate. It described the “salient question” as being whether “it was at all justified to sanction [his] act” [para. 49]. The Court emphasized that Article 10 requires that any interference be “necessary”, and said that this does not allow for an interference that is merely “useful”, “reasonable” or “desirable” [para. 49].

With reference to its cases of Animal Defenders International v. the United Kingdom [GC], App. No. 48876/08, 2013, Perinçek and Mariya Alekhina v. Russia, App. No. 38004/12, 2018, the Court stressed that expression on matters of public interest is “entitled to heightened protection” and that Article 10 provides “little scope” for its limitation [para. 50]. The Court also characterized Handzhiyski’s conduct as having an element of satire, and stated that “any interference with the use of this form of expression must be examined with particular care” [para. 51].

The Court acknowledged that Article 10 does allow states to limit the fora and channels through which expression can occur but noted that – as in the present case – when the interference in expression consists of a “penalty” (that is, a sanction after the fact) there needs to be a “detailed assessment of the specific conduct sought to be punished” [para. 52]. The Court also recognized that measures to protect monuments may be “necessary in a democratic society” because they are “frequently physically unique and form part of a society’s cultural heritage” [para. 53]. However, it emphasized that Handzhiyski’s conduct did not damage the statue of Blagoev, and described the situation where sanctions prevent this sort of conduct as “more nuanced” [para. 55]. The Court said that factors to be considered here include an analysis of the nature and intention of the act, the message conveyed, the social significance of the monument, the values or ideas which it symbolized, and the “degree of veneration” that it enjoyed in the community [para. 55]. It provided the example of “acts intended to criticize the government or its policies, or to call attention to the suffering of a disadvantaged group” as being completely different to acts which “offend the memory of the victims of a mass atrocity” [para. 55].

In applying these factors to the present case, the Court held that Handzhiyski’s intention was to protest against the government and that Blagoev’s statue was simply a symbol of the government. It accepted that the gesture was hurtful to some people but, with reference to its cases of Handyside v. the United Kingdom App. No. 5493/72, Müller v. Switzerland App. No. 10737/84, 1988, Perinçek, and Stern Taulats and Roura Capellera v. Spain, App. Nos. 51168/15 and 51186/15, 2018, reiterated that freedom of expression is also applicable to those ideas or information that offend, shock or disturb the state or any sector of the population [para. 58]. The Court also noted that the Blagoev statue had been erected during Bulgaria’s communist regime and “appears to have been seen as sufficiently connected to the values and ideas for which that regime stood to have been removed from its place, albeit for a few years only, shortly after the regime came to an end” [para. 57]. It distinguished this history from that of “memorials to soldiers who have given their lives for the defence of their country” such as in the case of Sinkova v. Ukraine App. No. 39496/11, 2018.

Accordingly, the Court concluded that the interference with the Handzhiyski’s right to freedom of expression was not “necessary in a democratic society” notwithstanding the margin of appreciation enjoyed by the national authorities in that domain.

The Court ordered pecuniary damages and that Handzhiyski be paid the equivalent of the fine he paid, plus interest, which amounted to BGN107.15 (the equivalent of EUR 54.66). It also ordered non-pecuniary damages of EUR 2000, and costs of EUR 2762.76.

Judge Vehabović delivered a dissenting judgment, disagreeing with the majority that there had been a violation of Article 10. He stated that the present case had many similarities with the Sinkova case but that the two outcomes were different, and that this inconsistency by the Court “would not enhance its public image” [p. 24]. He specifically criticized the majority’s statement that the statute of Blagoev had been put up during the communist era in Bulgaria and commented that “[i]t appears that the majority are of the opinion that anything that was put up during the communist regime and that can be identified with that regime is by default wrong and that it is subject to mockery” [p. 23]. He added that, in respect of commemorations of history, “[w]hat is acceptable to one person might be unacceptable to another” and that authorities have a duty to protect existing monuments [p. 23-24]. Vehabović stated that authorities are required to evaluate citizens’ acts that “publicly mock statues and monuments and what they represent”, which relates to the test of whether an interference in a right is “necessary in a democratic society” [p. 24].

Vehabović disagreed with the majority’s finding that as Handzhiyski had not damaged the statue or been violent the sanctions against him were not necessary. Again, he referred to the Sinkova case where the Court had held that it was a legitimate interference to punish an individual who had fried an egg on flame honoring military veterans, and said that the message of the majority’s decision in the present case is that acts of non-violent protest at a monument are justified. He said that this sets a dangerous precedent as it undermines the rule of law and “could be understood as an invitation to similar non-violent acts against any statue, monument or sacred places, acts that may well injure the feelings of those who support their existence” and which goes against the Court’s jurisprudence [p. 24-25].

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