The Third Section of the European Court of Human Rights delivered a unanimous decision. The central issue for the Court’s determination was whether the prohibition on non-official languages during an election was necessary in a democratic society, and so justifies the interference with the right to freedom of expression.

Mestan argued that having been subjected to an administrative sanction for the sole reason that he had expressed himself in the Turkish language during an election campaign was a restriction of his right to freedom of expression. He submitted that the Bulgarian authorities had subjected him to discriminatory treatment contrary to Article 14 of the Bulgarian Constitution and Article 10 of the Convention, and that the limitation imposed on a minority’s language in a democratic society infringes Article 10.

Mestan argued that Article 133’s absolute prohibition of the use of a language other than Bulgarian in electoral campaigns limited the scope of a judicial review of the governor’s decision because it denied the courts the opportunity to properly assess the necessity and proportionality of the interference imposed on freedom of expression. He argued that the legal provision prevented domestic courts from taking into consideration that the Turkish language is, in fact, the native tongue and the language of socialization of many people in Bulgaria, especially of the elderly who only speak Turkish and that the fact that those people could not effectively receive information provided in Bulgarian could compromise their effective access to the political dimension of the electoral process.

Mestan argued that his right to freedom of expression had been restricted by a law that did not pursue a legitimate aim because using a language other than the official one did not constitute a violation of national security or territorial integrity (especially as the content of his speech did not threaten national interests). He referred to the case of Şükran Aydın v. Turkey, where the Court had held that there was a violation of Article 10 because of criminal sanctions imposed on an individual based on a Turkish legal provision prohibiting the use of any language other than Turkish in election campaigns. Mestan submitted that when the Government imposed the restriction on freedom of expression it did not take into account the content of the his speech as the penalty was imposed for the sole reason that the speech was in Turkish and not in Bulgarian and so the restriction to his freedom of expression was not necessary in a democratic society.

Mestan sought 15,000 euros for non-pecuniary damage and 4,500 euros for costs and expenses of the proceedings and his representation before the Court, and requested that the amount be paid into the bank account of the Bulgarian Helsinki Committee.

The Bulgarian Government argued that Article 133 was sufficiently clear to justify an administrative sanction on Mestan and that the restriction imposed on freedom of expression pursued several legitimate aims, particularly the protection of national security, territorial integrity and public order and the protection of the rights of others. It submitted that this restriction was proportionate and necessary in a democratic society as it constituted a pressing social need. The Government referred to Bulgarian political and social history and to social events that have taken place between Bulgaria and Turkey in recent years, including the forced change of names of citizens of Turkish origin that occurred in Bulgaria in 1984, the displacement of a large number of Bulgarian citizens to Turkey in 1898, and the democratic transition that succeeded the totalitarian regime in 1989. It stressed that the Bulgarian Constitution recognized the right of citizens to study and use their native language, but did impose compulsory learning of the Bulgarian language. It submitted that many initiatives have been put in place to promote the integration of Turks in Bulgaria but emphasized that the Turkish ethnic group is the largest minority group in the country and so the social implications of this integration must be weighed against the particularities of the electoral process which is directly linked to the sovereignty of the State, its national security and public order. Accordingly, the Government maintained that the sanction it imposed on Mestan did not exceed the wide margin of appreciation left to States in terms of language policies that regulate electoral processes and so was proportionate to the legitimate aims pursued. The Government maintained that the requirement to use the Bulgarian language during election campaigns was intended to enable authorities to monitor the conduct of elections and preserve national democratic life, and so the restrictions were coherent and limit the formation of political parties of the basis of ethnic, religious or racial criteria. It submitted that the restriction imposed on freedom of expression was intended to protect the rights of citizens who do not speak Turkish as the use of a minority language would entail the risk of losing mutual trust of Bulgaria’s different ethnic communities and would undermine efforts of integration.

The Government argued that the present case should be distinguished from the Şükran case as the population of Turkish origin in Bulgaria was, in fact, participating in the Bulgarian social life and were successfully integrated, unlike the minority population in the Şükran case which suffered from deep-rooted problems; the penalty imposed in the present case was administrative in nature, whereas it was criminal in the Şükran case; Mestan spoke in Turkish to a Bulgarian audience who, partly, did not understand Turkish, whereas the plaintiff in the Şükran case had spoken in Kurdish to a Turkish audience who did not understand Turkish at all; and that the Bulgarian courts were unable to carry out a proportionality review given the absolute prohibition by law on speaking a language other than Bulgarian, unlike domestic courts in the Şükran case. The Government did not contest Mestan’s argument that many people in the audience, and particularly the elderly, only spoke Turkish or, at least, understood Turkish better than Bulgarian.

The Court examined Bulgarian law and the international human rights conventions ratified by Bulgaria. It noted that Bulgaria, like most contracting States, does not stipulate in their legislation that election campaigns must be conducted solely in the official languages, and so candidates can use minority languages verbally in public events without receiving any sanction.

The Court found that Mestan had been subjected to an administrative sanction for having spoken in the Turkish language at an event organized as part of his election campaign and that this sanction constituted an interference with his exercise of his right to freedom of expression and speech. It applied the three-part test to establish whether the interference with Mestan’s freedom of expression was prescribed by law, whether it pursued a legitimate aim and whether it was necessary in a democratic society. The Court accepted that the interference was prescribed by law (through Article 133) and that it served the legitimate aim of defending public order and protecting the rights of others.

In assessing whether the restriction on using a non-official language in an election campaign was necessary in a democratic society and corresponded to a pressing social need, the Court referred to its cases of Handyside v. United Kingdom, Morice v. France, Pentikäinen v. Finland, and Bédat v. Switzerland, and examined whether  the Bulgarian judgments complied with Article 10, whether the interference was relevant and sufficient and whether the administrative sanction was proportionate to the legitimate aim pursued.

The Court accepted that States enjoy a wide margin of appreciation when it comes to estimating the proportionality and relevance of an interference but that in the context of elections this margin is relatively narrower as the democratic stakes are at their highest. The Court referred to the rights guaranteed by Article 3 of Protocol no. 1 in emphasizing the importance of the interdependence of the right to freedom of expression and the right to free elections in a democratic society. It noted that freedom of expression is essential for “the free expression of the people’s opinion on the choice of the legislature” and it is particularly important, in election periods, for opinions and information to circulate freely. [p. 16]

The Court noted that, apart from the rights set out in Article 5(2) and Article 6(3), the Convention does not guarantee the right to use a particular language in the context of elections, nor the right to receive information in a specific language. Article 10 protects the freedom to receive and impart information in any language which permits participation in a public exchange of cultural, political and social information and ideas. It held that the present case is similar to the Şükran case in that the administrative sanction concerned a linguistic restriction imposed on individuals in their relations with other individuals, and not with official institutions, even though the present case took place in the context of elections and public events.

The Court found that Article 133 does prohibit the use of any language other than the official language in election campaigns and that any infringement entails administrative sanctions under Article 299. It disagreed with the Government’s position that the present case was distinguishable from the Şükran case and held that the absolute nature of this prohibition deprived domestic courts – precisely, the District Court and the Administrative Court – of the possibility of exercising adequate judicial review. The Court accepted that, in principle, States have the right to regulate the use of languages during election campaign as they see fit and, when appropriate, to impose restrictions that correspond to a pressing social need but held that an absolute prohibition in this context could not be regarded as compatible with the essential values of a democratic society – including the right to freedom of expression. It noted that the language used by Mestan was, in essence, his native language and that of a minority population he was addressing. Accordingly, the Court held that Mestan’s right to communicate his political ideas and the right for this minority to receive such information would be meaningless if the possibility of using the Turkish language was obviated by the threat of administrative sanctions.

The Court stressed that Bulgaria is a contracting State and so cannot prohibit candidates from expressing themselves in a language other than the official one. It acknowledged the criticisms of Article 133 from the Advisory Committee of the Framework Convention for the Protection of National Minorities and by the Venice Commission and the OSCE/ODIHR which had stressed the importance of guaranteeing candidates from minority groups the rights to use their native language and of ensuring equal access to elections. The Court noted that this would be in harmony with the values of a democratic society and stressed the importance of pluralism, tolerance and the protection of minorities in a democratic society.

Accordingly, the Court held that the interference did not meet a pressing social need and, therefore, was not proportionate to the legitimate aims in Article 10 and so there had been a violation of Article 10. It held that the prohibition in Article 133 was contrary to the Convention’s principles and its application resulted in non-material damages to Mestan. The Court awarded Mestan 1,200 euros for non-pecuniary damage, plus any amount that may be due by way of tax on this sum, and 3,200 euros for costs and expenses incurred in the proceedings, plus any tax that may be due to this latter sum.