Information Note on the Court’s case-law 250
Handzhiyski v. Bulgaria – 10783/14
Judgment 6.4.2021 [Section IV]
Freedom of expression
Unjustified conviction and fine for placing Santa Claus accessories on a communist leader’s statue in the context of political protest: violation
Facts – The applicant, a local politician, was convicted of minor hooliganism and fined for placing a Santa Claus cap and red bag, with the word “resignation” attached to it, on a statue of Mr Dimitar Blagoev on Christmas day. Mr Blagoev was the founder of the Social-Democratic Party, which had operated during the communist regime in Bulgaria and continued to operate as the Bulgarian Socialist Party. The act took place in the context of nation-wide protests against the government, which was supported in Parliament by a coalition whose main member was the Bulgarian Socialist Party. The statue of Mr Blagoev had earlier been painted by unidentified persons in red and white so as to resemble Santa Claus and spray-painted with the words “Father Frost”.
Article 35 § 3 (b): Whether applicant suffered a significant disadvantage – The fine imposed in the minor hooliganism proceedings against the applicant had not been criminal in nature, its amount had been quite modest, and there was no indication that they had led to any serious adverse consequences for the applicant. However, in the present case the practical and in particular the pecuniary effects on the applicant could not be the sole criterion for assessing whether he had suffered a “significant disadvantage”. He had been found guilty of and fined for an act which had, in his view, amounted to a proper exercise of his right to freedom of expression on a matter of public interest. The case thus validly concerned a point of principle of him. Indeed, his complaint gave rise to issues of general importance. Moreover, his case appeared to have received wide media coverage and to have given rise to public debate in Bulgaria. It could not therefore be accepted that he had not suffered a “significant disadvantage”.
The same considerations amounted to grounds to find that “respect for human rights as defined in the Convention” in any event required an examination of the complaint on the merits.
Conclusion: preliminary objection dismissed (unanimously).
Article 10: Whether there was a violation of the right to freedom of expression – The conduct which had led to the applicant’s conviction of minor hooliganism could be regarded as “expression” within the meaning of Article 10 § 1. The applicant had been a local opposition politician who had combined a symbolic act intended to mock publicly the monument of the founder of the political party which had been providing the main parliamentary support for the government in power, with a call for that government to resign. He had also acted in the course of a prolonged nation-wide protest against that government. It was therefore clear that, with his act, he had sought to engage in political protest, and “impart” his “ideas” about the government and the political party which had supported it.
His conviction and the resultant fine had amounted to an interference with his right to freedom of expression which had been “prescribed by law” and pursued the legitimate aim of protecting the “rights of others”. There was, however, no indication that it had meant to protect “public safety”, as the applicant’s act had been entirely peaceful; nor was there any indication that it had been likely to cause public disturbances, or that when sanctioning the applicant the authorities had had that in mind. In terms of proportionality, the sanction imposed on the applicant had been the mildest possible under the legal provision that he had been found to have breached. It had been quite lenient, consisting solely of an administrative fine equivalent to EUR 51, which the applicant had been able to pay almost immediately and apparently without any difficulty. Moreover, it had not been entered in his criminal record. The salient question was thus whether it had been at all justified to sanction the applicant’s act.
As seen, the applicant’s expression had concerned a matter of public interest which in principle was entitled to heightened protection. Further, although it had not been meant as a form of artistic expression, the act could also be seen as having elements of satirical expression, any interference with which had to be examined with particular care.
The justification for limiting the channels through which people and organisations can express themselves could be even stronger when the “expression” at issue consisted, wholly or in part, in conduct, as it did in the case at hand. However, the applicant had not been prevented from approaching the monument and placing the cap and sack on it; he had later been sanctioned for having done so. When an interference with the right to freedom of expression took the form of a “penalty”, it inevitably called for a detailed assessment of the specific conduct sought to be punished.
Public monuments were frequently physically unique and formed part of a society’s cultural heritage. Measures, including proportionate sanctions, designed to dissuade acts which could destroy them or damage their physical appearance, might therefore be regarded as “necessary in a democratic society”, however legitimate the motivates which might have inspired such acts. 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. However, the applicant had not engaged in any form of violence and had not physically impaired the monument in any way. It had not been suggested that the applicant had somehow coordinated his actions with the unidentified people who had earlier painted the statue. The question of whether the interference could be “necessary in a democratic society” was therefore more nuanced. In such situations, the precise nature of the act, the intention behind it, and the message sought to be conveyed by it could not be matters of indifference. For instance, acts intended to criticise the government or its policies, or to call attention to the suffering of a disadvantaged group, could not be equated to acts calculated to offend the memory of the victims of a mass atrocity. The social significance of the monument in question, the values or ideas which it symbolised, and the degree of veneration that it enjoyed in the community would also be important considerations.
In the present case, the intention behind the applicant’s act had been to protest against the government of the day and the political party which had supported it, in the context of a prolonged nation-wide protest against that government, rather than to condemn Mr Blagoev’s historical role or to express contempt towards him. The applicant had simply used Mr Blagoev’s monument as a symbol of the political party he had wished to criticise, and it could thus hardly be said that his act had meant to show disdain for deep-seated social values. That was further confirmed by the fact that reactions to it had been mixed. The statue had been put up during the communist regime in Bulgaria and appeared to have been seen as connected to the values and ideas for which that regime had stood. It could hardly be compared with, for instance, memorials to soldiers who had given their lives for the defence of their country (contrast Sinkova v. Ukraine, 9496/11, 27 February 2018).
While it could be accepted that the applicant’s symbolic gesture had been hurtful to some of the people who had witnessed it directly or learned about it from the media, freedom of expression was applicable also to “information” or “ideas” that offended, shocked or disturbed the State or any other sector of the population.
It followed that the interference – the finding that the applicant had been guilty of minor hooliganism and the resultant fine – had not been “necessary in a democratic society”, notwithstanding the margin of appreciation enjoyed by the national authorities in that domain.
Conclusion: violation (six votes to one).
Article 41: EUR 2,000 in respect of non-pecuniary damage; EUR 54.66 in respect of pecuniary damage.
(See also Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Legal Summary)