Last Updated on May 2, 2023 by LawEuro
Legal summary
May 2023
Mestan v. Bulgaria – 24108/15
Judgment 2.5.2023 [Section III]
Article 10
Article 10-1
Freedom of expression
Freedom to impart information
Freedom to receive information
Administrative fine imposed as result of absolute statutory prohibition on the use of non-official languages by politicians in election campaigning: violation
Facts – The applicant, the leader of a political party and a candidate in the 2013 parliamentary elections, was ordered to pay an administrative fine of approximately 250 euros (EUR) for breaching the Electoral Code, on the grounds that he had spoken in a language (Turkish) other than the official language (Bulgarian) at a public event during his election campaign.
The Electoral Code contained an absolute prohibition on the use of any language in election campaigns other than the official language, and breaches of the legislation entailed administrative sanctions in the form of fines.
Law – Article 10:
The authorities’ decision amounted to interference with the exercise of the applicant’s right to freedom of expression. It had been prescribed by law in the 2011 Electoral Code and pursued the legitimate aims of preventing disorder and protecting the rights of others.
As Contracting States’ linguistic policies were influenced by a multitude of factors of a historical, linguistic, religious and cultural nature, it was extremely difficult, if not impossible, to find a common denominator. The Court had therefore held that the margin of appreciation afforded to the State authorities in this sphere was particularly wide in certain contexts.
However, in a democratic society the right to freedom of expression and the right to free elections under Article 3 of Protocol No. 1 were interdependent and the former had to be considered in the light of the latter. Free speech was essential in ensuring “the free expression of the opinion of the people in the choice of the legislature”. For that reason, it was particularly important in the period preceding an election that opinions and information of all kinds be permitted to circulate freely. In the context of political discourse and elections, the margin of appreciation afforded to States was narrow, especially in the run-up to elections or referendums, when the democratic stakes were highest. Restrictions on the freedom of political parties to express their opinions were therefore subject to rigorous supervision.
The case did not concern the use of a non-official language in the context of communications with public authorities or in dealings with official institutions; rather it concerned a linguistic restriction imposed on individuals in their relations with others, albeit in the context of a public meeting during an election campaign. Article 10 encompassed the freedom to receive and impart information and ideas in any language that allowed persons to participate in the public exchange of all varieties of cultural, political and social information and ideas; in such contexts, language as a medium of expression undoubtedly deserved protection under Article 10.
The Court was not called upon to examine in general whether a State should allow the use of any language other than the official language or languages during election campaigns, but rather to assess, where a restriction on such use existed, whether its scope and the manner in which it was applied were compatible with Article 10 standards.
The absolute nature of the prohibition in question had deprived the national courts of their power to exercise proper judicial scrutiny. The District Court had confined itself to verifying whether the applicant had addressed the rally in question in a language other than Bulgarian in the course of his election campaign. The Administrative Court had fully endorsed that approach, while emphasising the absolute nature of the prohibition. Its absolute nature was further borne out by the examples of previous rulings which showed that the courts, when called upon to rule on whether the decisions taken by regional governors in similar situations had been lawful, sought to ascertain whether the person accused of the offence was an individual, whether the remarks had been made in a language other than Bulgarian, and whether they amounted to “electioneering”.
States were entitled in principle to regulate the use of languages – in certain forms or in view of the circumstances relating to communication with the public – by candidates and other persons during election campaigns and, if need be, to impose certain restrictions or conditions that corresponded to a “pressing social need”. However, a regulatory framework consisting of a total prohibition on the use of non-official languages coupled with administrative sanctions could not be held to be compatible with the essential values of a democratic society, which included freedom of expression. In that connection the language used by the applicant in the present case, namely Turkish, was both his mother tongue and that of the minority population he had been addressing, which included older people who had a better grasp of Turkish than of Bulgarian. In view of the specific context of elections and the fact that free elections were inconceivable without the free circulation of political opinions and information, the right to impart one’s political views and ideas and the right of others to receive them would be meaningless if the possibility of using a language that could properly convey those views and ideas were diminished owing to the threat of sanctions, even if they were administrative in nature.
Of thirty-seven Contracting States surveyed, none apart from Ukraine had enacted legislative provisions of the kind applicable in Bulgaria. Furthermore, the relevant provision of the Bulgarian Electoral Code had been repeatedly criticised by the Advisory Committee on the Framework Convention for the Protection of National Minorities and by the Venice Commission and the OSCE/ODIHR, which had found that it deprived minorities of opportunities for effective participation in public affairs through elections. The recommendations and opinions of the competent international bodies also stressed the importance of allowing candidates from minority groups to use their mother tongue in election campaigning in order to guarantee persons belonging to such groups access to elections on an equal footing with other citizens.
Those considerations were consistent with the values of a “democratic society” promoted by the Court. In the context of the present case, the Court stressed the importance of pluralism, tolerance and the protection of minorities in a democratic society and observed that respect for minorities, far from weakening democracies, could only make them stronger.
In the light of the foregoing, and despite the margin of appreciation afforded to the national authorities, the prohibition in question did not correspond to a pressing social need and was not proportionate to the legitimate aims mentioned in Article 10 § 2. Accordingly, the interference resulting from the prohibition laid down in the Electoral Code as in force at the relevant time, and maintained in the 2014 Code, could not be considered “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41: EUR 1,200 in respect of non-pecuniary damage.
(See also Şükran Aydın and Others v. Turkey, 49197/06 et al., 22 January 2013, Legal summary)
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