Last Updated on November 30, 2021 by LawEuro
Information Note on the Court’s case-law 256
November 2021
Genov and Sarbinska v. Bulgaria – 52358/15
Judgment 30.11.2021 [Section IV]
Article 10
Article 10-1
Freedom of expression
Unjustified conviction and fine for spray-painting a monument connected to communist regime in the context of political protest: violation
Facts – The applicants were convicted of hooliganism and fined for spray-painting a monument to “partisans” on the anniversary of the 1917 Bolshevik Revolution, in the context of nation-wide protests against a government chiefly supported by the Bulgarian Socialist (formerly Communist) Party, which had been the dominant political force during the communist regime in Bulgaria. They complained that their Article 10 right to freedom of expression had been violated.
Law – Article 10:
(a) Existence of an interference
The applicants had not overtly admitted that it had been them who had spray-painted the monument, and had attempted to conceal their participation in that. A question might hence arise about whether there had been an interference at all with the exercise of their right to freedom of expression. The fact remained, however, that their conviction of hooliganism had been directed at activities falling within the scope of freedom of expression. That conviction had to therefore be regarded as an interference with their exercise of that right.
(b) Whether the interference was justified
The Court accepted that the interference had been prescribed by law and had pursued the legitimate aim of protecting morals and the rights of others. There had been, however, no indication that the interference had sought to protect the property rights of the monument’s owner (whose identity remained unclear), nor that it had been intended to protect “public safety”: the applicants’ act had been peaceful and had been carried out surreptitiously in the early hours of the morning. Nothing suggested that it had been likely to cause public disturbances.
The sanctions imposed on each of the applicants – administrative fines amounting to the equivalent of EUR 767 – had been mild, veering towards the minimum possible for the offence with which they had been charged. It followed that if the applicants’ conviction was considered justified, the sanctions which it had entailed could not be seen as disproportionate in themselves.
The question thus was, more specifically, whether it had been at all “necessary in a democratic society” to penalise the applicants’ act. The Court had recently held in Handzhiyski v. Bulgaria that measures, including proportionate sanctions, designed to dissuade acts which could destroy or damage a public monument could be seen as “necessary in a democratic society”, however legitimate the motives which might have inspired those acts. That was because (a) public monuments were often physically unique and formed part of a society’s cultural heritage, and because (b) 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. Here, the Court added that in this context, the physical damage to a monument, though not an exclusive factor for assessing the necessity of interferences with such acts, would in principle carry the greatest weight.
There had been no evidence that the applicants had caused any sort of irreversible harm to the monument. It was true that spray-painting, though usually not impairing an underlying surface, altered that surface visually. It was also true that spray-painting affected the visual appearance of a monument in a way which could be permanent, or at least long-lasting, in the absence of appropriate efforts to remove the paint and thus restore the monument to its unadulterated state. It remained the case, however, that the visual impairment which spray-painting produced, although requiring some inconvenience and expense to eliminate, was usually fully reversible. It did not therefore harm a monument in a way or to an extent which prevented it, after being cleaned, from continuing to form part of a country’s cultural heritage. That was exactly what had happened in this case, since the spray-painting had indeed been cleaned from the monument. In that context, the court which had convicted the applicants had found that their act had not caused any pecuniary damage and the Government had not submitted any evidence about how much it had cost to clean the spray-paint and who had covered that cost. Nor had there been any indication that the fines imposed on the applicants had been intended to contribute, or had in fact contributed, towards those expenses. In those circumstances, it could not be said that the applicants’ act had affected the monument to a degree sufficient to consider that it had damaged it.
If followed that the necessity of penalising the applicants’ acts had to be assessed in the light of the range of context-specific factors identified in Handzhiyski. As already noted, there was no evidence that the applicants’ act had caused serious or irreversible damage to the monument, or that the removing of the spray-paint had required significant resources. Nor could that act be qualified as vulgar or gratuitously offensive. The context clearly suggested that the intention behind the act had been to express disapproval toward the recent parliamentary record of the political party which had provided main parliamentary support for the government of the day, in the context of prolonged nation-wide protests initially sparked by that very parliamentary record. The act in addition had sought to condemn the overall role which that political party, which had ruled during the communist regime, and the “partisans” associated with it, had played in Bulgaria’s history. It could thus hardly be said that it had meant to express disdain for deep-seated social values. It had also to be noted that the monument had been put up during the communist regime in Bulgaria, and had clearly been connected to the values and ideas for which that regime had stood. It could thus hardly be seen as enjoying universal veneration in the country.
It followed that the interference with the applicants’ right to freedom of expression – the finding that they had been guilty of hooliganism and the resultant fines – had not been shown to be “necessary in a democratic society” within the meaning of Article 10.
Conclusion: violation (six votes to one).
Article 41: EUR 998.33 to the first applicant in respect of pecuniary damage; EUR 4,000 each in respect of non-pecuniary damage.
(See also Handzhiyski v. Bulgaria, 10783/14, 6 April 2021, Legal Summary)
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