by Emma Várnagy (The Hague University of Applied
Sciences)
Introduction
The Budinova and Chaprazov v Bulgaria
judgment, issued on 16 February 2021, concerns anti-Roma
statements made by a politician in Bulgaria. Another judgment issued on the same day, Behar and Gutman v Bulgaria
is about the anti-Semitic nature of the same statements. In this post the focus
is on the former case, for the reasoning is more complex in this one. The
question that the European Court of Human Rights (the Court or Strasbourg
Court) had to address in these cases, is not whether the statements were directly
attributable to the state, but instead, whether the refusal of the Bulgarian
courts to accord redress to the applicants regarding the statements was in
breach of positive obligations under Article 8 in conjunction with Article 14.
The reasoning provides the reader with a crystal-clear guidance on how the
context and severity of such statements are to be considered.
The facts of the case
Ataka
(‘Attack’) is a political party, which, since its foundation in 2005, has steadily
held around twenty seats in Bulgaria’s two-hundred-and-forty seat parliament,
and since 2017 is part of the coalition forming the government. The party
leader, Volen Siderov, is an author and journalist by profession and as such,
he hosts a regular program on Ataka’s very own TV channel. As a
politician he delivers various public speeches and is a regular interview
subject.
In the
months leading up to the 2005 elections Mr Siderov has, on at least 10
occasions, talked about ‘Gypsy-terror’ in his television program. Among others
he talked about reverse racial bias describing a ‘huge wave of external and
internal factors, which wish, which categorically wish and work to
de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation.
Work for its Gypsification (…)’ And he insisted that ‘this terror must
be brought to a halt. This terror must be resisted. And I promise you that work
is being done in that respect. Hard work is being carried out by Bulgarians who
can no longer bear the terrorising of their compatriots and will do all they
can for this to cease.’ (See excerpts in paragraph 11)
The
applicants - themselves journalists and Bulgarian citizens of Roma origin -
sought orders from the domestic courts to stop Mr Siderov from making these
statements and to publicly apologise.
In the
first hearing, the Sofia District Court listened to audio recordings of Mr
Siderov’s statements. However, the minutes of the hearing did not include
certain key passages, for example the quotes above. The applicants complained
that the minutes were not complete and requested for rectification. The first
instance court dismissed their claims. It argued that the statements, negative
as they might be towards Roma, did not place them as a group in a less
favourable position, nor did they constitute incitement to discrimination.
Since the case, according to the domestic court, turned on the content of the
statement, rather than its form of wording, Mr Siderov’s right to express an
opinion prevailed over the claims brought under the 2003 Protection from
Discrimination Act.
In their
appeal the applicants argued that the District Court’s approach was formalistic
and itself racially biased by turning a blind eye to the effect the statements
had on society. However, the City Court upheld the judgment, and subsequently,
the Supreme Court of Cassation declined to accept the appeal for examination.
The Strasbourg Court judgment
The European
Court of Human Rights was concerned with the manner in which the domestic
courts reviewed the applicants’ complaints. This way the Court could look at
the context in which the statements were made and assess their implication
beyond their harm on the applicants as the individual victims. Acknowledging
that the applicants were personally and directly affected by the domestic
courts’ dismissal of their case, it examined whether the Bulgarian authorities
properly discharged their obligations to respond adequately to discrimination
on account of the applicants’ ethnic origin. (See § 41-42)
Another
important aspect before delving into the reasoning is looking at third party
submissions. The intervenors, The Greek Helsinki Monitor and the European Roma
Rights Centre brought several arguments to point out the importance of
countering stereotypes and the corresponding wide practice in various United
Nations and Council of Europe bodies. The intervenors also emphasized the
standpoint of the Committee on the Elimination of Racial Discrimination, namely
that individuals may be seen as victims even in cases when offensive remarks
are directed not against them personally, but the entire ethnic group of which
they are members. And finally, the intervenors highlighted that however well
developed the Court’s case-law regarding hate speech was under Article 10, protection
from it under Article 8 has not yet been brought in line with the international
trends just described.
Previous
case-law and emerging principles
In its
present judgment, the Court reviewed its previous case-law and distilled the
essential guiding principles. The first two cases in which the Court was confronted
with similar issues were declared inadmissible. They raised the question
whether discriminatory statements were attributable to the State. In Pirali v Greece
they were not and they concerned a large group, namely all immigrants in Greece,
therefore the applicant could not be seen as personally affected. In L.Z. v Slovakia
the measures were attributable to the State, but the complaints were of a
public interest nature rather than showing a negative effect on the applicant’s
private life.
The Court
then referred to the Grand Chamber judgment of Aksu v Turkey,
in which it laid down that ‘any
negative stereotyping of a group, when it reaches a certain level, is capable
of impacting on the group’s sense of identity and the feelings of self-worth
and self-confidence of members of the group. It is in this sense that it can be
seen as affecting the private life of members of the group.’ (See § 58)
With this the Court acknowledged for the first time that recognizing the
applicant’s victim status as a member of the group affected is an important
element of effective protection against discrimination. For this
recognition the judgment has been widely praised (eg. here
and here).
However, the judgment did not clarify any factors that influence the ‘certain
level’ of the stereotyping.
The Court
listed the following considerations which may bear on the assessment of public statements
about a social or ethnic group alleged to have affected the private life of its
members within the meaning of Article 8 of the Convention (See § 63):
a) the characteristics of the group,
including for instance its vulnerability and history of stigmatization
b) the content of the statement, in
particular the degree of the negative stereotypes it conveys
c) the form and context of the
statement, including the position of their author and their capacity to affect
the core aspect of the group’s identity and dignity
d) the overall prevailing social and
political climate at the time of the statements
Application
of principles to the facts, and the relevance of the case
Applying
these principles in the case of Budinova and Chaprazov the Court boldly highlighted
the interplay of different factors and how they may reinforce each other. The
starting point was acknowledging the disadvantaged and vulnerable position of
Roma in Bulgaria. In the Court’s view the statements amounted to extreme
negative stereotyping, which were enhanced by the fact that due to Mr Siderov’s
many channels, they have likely reached a wide audience. Furthermore, his
anti-Roma stance was a core element of his politics, which, seen in the light
of the fact that shortly after the statements in question Ataka became
the second largest party, amounted to a deliberate vilification of Roma. (See §
64-68) While emphasizing that each case has to be examined in light of its
specific circumstances, it cannot but shine through the judgment that the Court
affords great relevance to the precise implications of a statement, beyond its
individual author and beyond the individual applicant. In this sense the
‘certain level’ requirement reveals to be very sensitive to the ‘capabilities’
of a statement, which demands careful consideration if the domestic authorities
are to comply with their obligations under the Convention.
The very
lengthy consideration – 13 out of the 18-page-long reasoning – determined whether
or not the complaint fell within the ambit of Article 8. This assessment decides
the relative weight ascribed to the two rights, freedom of speech and freedom
from discrimination. With this in mind, the Court was short and unanimous in their
conclusion about the domestic authorities’ balancing exercise. Since the
domestic courts essentially ignored any indicators that Mr Siderov’s statements
may justify hatred towards Roma and did not engage in meaningful assessment of
the circumstances the Strasbourg Court found a breach of Article 8 in
conjunction with Article 14.
Commentary
The Court in
this judgment goes beyond the usual reiteration of previous case-law and
relevant principles. It makes a gesture, on the one hand, of bringing the case-law
in line with international ‘best practice’ as highlighted by the third-party
intervenors. On the other hand, the gesture is to summarise, lay down and
clarify in one place the ‘how to’ of assessing the context of discriminatory
public remarks. The importance of this cannot be overemphasised.
First and
foremost, in discrimination cases, the sheer number of applications may be
indicative of a systemic issue, which in turn needs a systemic approach to
remedying it. The Court itself has acknowledged this connection in its education
segregation cases (see post on these eg. here,
here
and here)
and has made some remarks to the alarming number of applications from Roma
victims of ill-treatment in police
custody in several of its judgments. By choosing this present case to summarily
clarify how the context and severity of discriminatory attitudes are to be
considered under Article 8, the Court conveys a strong message regarding the
effectiveness of protection from discrimination. Second, it is extremely
helpful for potential victims and their attorneys to understand what types of
considerations the domestic courts are expected to carry out in accordance with
the Convention. Being able to prepare evidence that fits into this framework
will help strengthen their case and accordingly allow for stronger protection
of their rights. Finally, clarifying the applicable principles may also be an
attempt from the Court to ease its own case load, inasmuch as the accessibility
and wider awareness of the Court’s case-law has
a strong effect on achieving this goal.
Whether we
look at this judgment as a checklist for domestic courts, serving up the
homework on a silver plate to legal practitioners, researchers and law
students, or an attempt to ease the Court’s case load, it is an absolute
win-win scenario. This courteous gesture of putting precedent and principles in
order would be definitely welcome in some other areas of discrimination where
the Court has long been called to improve
its case-law.
