Information Note on the Court’s case-law 248
Behar and Gutman v. Bulgaria – 29335/13
Judgment 16.2.2021 [Section IV]
Failure of domestic courts to discharge positive obligation to afford redress to Jewish and Roma individuals for discriminatory public statements made by politician: violation
[This summary also covers the judgment Budinova and Chaprazov v. Bulgaria, no. 12567/13, 16 February 2021]
Facts – The applicants, ethnic Jews and Roma, alleged that the leader of a political party (the politician) had made public statements which constituted harassment of and incitement to discrimination against Jew through passages in two books (in Behar and Gutman) and Roma in Bulgaria in a series of statements made in his television programme, interviews, speeches and a book (in Budinova and Chapzarov). They argued, inter alia, that each of them, as a member of a minority, had been personally affected by those statements. The applicants’ complaints were dismissed by the domestic courts, and they appealed unsuccessfully.
Law – Article 14 in conjunction with Article 8:
The question in the present cases was whether negative public statements about a social group could be seen as affecting the “private life” of individual members of that group to the point of triggering the application of Article 8. The general proposition in that domain had been laid down in the case Aksu v. Turkey: to be seen as capable of impacting on the sense of identity of an ethnic or social group and on the feelings of self-worth and self-confidence of that group’s members to the point of triggering Article 8 applicability, the negative stereotyping of the group had to reach a certain level. That point could only be decided on the basis of the entirety of the circumstances of the specific case. However, the kinds of considerations which might bear on the assessment could be distilled from the Court’s case-law on that point, and in the general approach to the applicability of Article 8 in the case Denisov v Ukraine [GC], subsequently applied to other issues, in which the negative effect of a statement or an act on someone’s “private life” had to rise above a “threshold of severity”.
In cases such as the present ones, the relevant factors for deciding whether Article 8 was applicable included, but were not necessarily limited to:
1. the characteristics of the group (for instance its size, its degree of homogeneity, its particular vulnerability or history of stigmatisation and its position vis-à-vis society as a whole);
2. the precise content of the negative statements regarding the group (in particular, the degree to which they could convey a negative stereotype about the group as a whole, and the specific content of that stereotype);
3. the form and context in which the statements had been made, their reach (which might depend on where and how they had been made), the position and status of their author, and the extent to which they could be considered to have affected a core aspect of the group’s identity and dignity.
It was the interplay of all of these factors which was important. The overall context of each case, in particular the social and political climate prevalent at the time when the statements had been made, might also be an important consideration.
Jews (in Behar and Gutman) and Roma in Bulgaria (in Budinova and Chaprazov), both groups targeted by the content of the politician’s statements, could be seen as being in a vulnerable position.
In the former case, the statements had been virulently anti-Semitic. Although some of them had referred to specific facts, they all had rehearsed timeworn anti-Semitic narratives. In particular, regarding the statements denying the reality of the Holocaust and casting it as a story contrived as a means for financial extortion, this Court and former Commission had invariably seen such statements as attacks on the Jewish community and as incitement to racial hatred, anti-Semitism and xenophobia. Regarding the latter case, the statements appeared to have been deliberately couched in inflammatory terms, visibly seeking to portray Roma in Bulgaria as exceptionally prone to crime and depravity. They had been systematic and characterised by their extreme virulence. In both cases, the statements had amounted to extreme negative stereotyping meant to vilify those groups and to stir up prejudice and hatred towards them.
While the most virulent of the politician’s statements in Behar and Gutman had been made in two books which had not been in massive circulation, his later becoming the chairman of an ascendant political party and winning second place in a presidential election a few years later must have added considerably the notoriety of his statements about Jews. In Budinova and Chaprazov, the politician had frequently repeated his core message on many channels of communication, and it could be accepted that they had reached a wide audience. When making most of those statements, he had been a well-known figure in Bulgarian society and, moreover, his vehement anti-Roma stance appeared to have constituted a core component of his party’s political message. The applicants in both cases had lodged their claims against the politician at precisely the time when his political career had been on the rise and when his utterances had thus been gaining more notoriety.
In view of all those factors, which pointed in the same direction and reinforced each other, the impugned statements had been capable of having a sufficient impact on the sense of identity of Jews and Roma in Bulgaria, and on their feelings of self-worth and self-confidence, to have reached the “certain level” or “threshold of severity” required. It had thus affected the applicants’ “private life”. Article 8, and, therefore, Article 14, were applicable.
(b) Whether the authorities discharged their positive obligation
The Bulgarian authorities had not assessed the tenor of the politician’s statements in an adequate manner. Although they had acknowledged their vehemence, they had downplayed their capacity to stigmatise both groups and arouse hatred and prejudice against them, and apparently had seen the statements as no more than part of a legitimate debate on matters of public concern. However, it could readily be seen, in Behar and Gutman, that the impugned statements in his two books had meant to vilify Jews and stir up prejudice and hatred towards them. Viewed in the light of those earlier statements and of the anti-Semitic discourse in which his political party had been engaging, the politician’s statements at the pre-election rally and in Parliament could be seen as directed against, inter alia, Jews. In Budinova and Chaprazov, his statements had gone beyond being a legitimate part of a public debate about ethnic relations and crime in Bulgaria, amounting as they did to extreme negative stereotyping meant to vilify Roma in that country and stir up prejudice and hatred towards them.
The Court had consistently held that sweeping statements attacking or casting in a negative light entire ethnic, religious or other groups deserved no or very limited protection under Article 10, read in the light of Article 17. That was fully in line with the requirement, stemming from Article 14, to combat racial discrimination. The fact that the author of those statements was a politician or had spoken in their capacity as a member of parliament did not alter that. By in effect ascribing considerable weight to the politician’s freedom of expression in relation to the impugned statements, and by playing down their effect on the applicants’ right to respect for private life as respectively ethnic Jews and ethnic Roma living in Bulgaria, the domestic courts had failed to carry out the requisite balancing exercise in line with the Court’s case-law. By refusing to grant the applicants redress in respect of the politician’s discriminatory statements, they had failed to comply with their positive obligation to respond adequately to discrimination on account of the applicants’ ethnic origin and to secure respect for their “private life”.
Conclusion: violation (unanimously).
Article 41: Finding of violation sufficient in respect of non-pecuniary damage.
(See also Aksu v. Turkey [GC], 4149/04 and 41029/04, 15 March 2012, Legal Summary; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal Summary; Beizaras and Levickas v. Lithuania, 41288/15, 14 January 2020, Legal Summary)