The ECHR Ruling of February 16, 2021 in the case of Behar and Gutman v. Bulgaria (aplication No. 29335/13) and the ECHR Ruling of February 16, 2021 Budinova and Chaprazov v. Bulgaria (aplication No. 12567/13).
In 2013, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to Bulgaria.
The case successfully examined aplications about the circumstances of discrimination of applicants who are representatives of national minorities through a series of statements by the leader of a political party, voiced during a television program and in a book, which are insults and incitement to discrimination against Jews. The case involved a violation of the requirements of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants, who are Jews and Gypsies by ethnic origin, claimed that the leader of a political party (politician) made public statements that were insults and incitement to discrimination against Jews in Bulgaria: in the form of text in two books (in the case of Behar and Gutman v. Bulgaria), and Gypsies: in a series of statements voiced during the politician's television program, in his interview and book (in the case of Budinova and Chaprazov v. Bulgaria" (Budinova and Chaprazov v. Bulgaria)). The applicants claimed, inter alia, that each of them, as a representative of a national minority, had been personally hurt by these statements. The applicants' claims were rejected by the Bulgarian courts, and the appeal of the relevant court decisions was unsuccessful.
Regarding compliance with article 14 of the Convention, considered in conjunction with article 8 of the Convention
(a) Applicability. In the present case, the question was whether negative public statements addressed to a social group of the population could be considered as affecting the "private life" of individual representatives of this group to such an extent as to justify the application of article 8 of the Convention. The main conclusions in this area are set out in the case "Aksu v. Turkey" (See: The Ruling of the Grand Chamber of the European Court of Justice in the case "Aksu v. Turkey" (Aksu v. Turkey) dated March 15, 2012, complaints No. 4149/04 and 41029/04.): in order for a negative stereotypical statement about a group of persons to damage the sense of self-determination of an ethnic or social group and the feelings of self-esteem and self-confidence of representatives of these groups, it must reach a certain level. The fact of reaching this level can be established only on the basis of a study of all the circumstances of a particular case. However, the ways of reasoning that can influence the assessment can be found in the case-law of the European Court on this issue, as well as in the general approach to the applicability of Article 8 of the Convention set out in the case Denisov v. Ukraine (See the Ruling of the Grand Chamber of the European Court in the case Denisov v. Ukraine of September 25, 2018, complaint No. 76639/11 // Precedents of the European Court of Human Rights. Special Issue. 2018. N 11.), subsequently applied to other situations when the negative consequences of a statement or action for someone's "private life" went beyond the "extreme limits of cruelty".
In cases such as the one under consideration, the relevant factors which should be taken into account when deciding on the applicability of article 8 of the Convention, concluded in the following points (but they were not limited to):
(i) the characteristics of the group (e.g., its size, the degree of homogeneity, the particular vulnerability, the history of the special provisions and the position of the group vis-a-vis the rest of society as a whole);
(ii) the exact content of negative statements about the group (in particular, the degree of transmission of a negative impression about the group as a whole and the specific content of the stereotype);
(iii) the form and context in which the statements were made, the extent of their impact (may depend on the place and method of publication of the statements), the position and status of the author of the statements and the extent to which they can be considered to have influenced the key aspect of self-identification and dignity of the representatives of the group.
The interaction of all these factors is important. Also important may be the general context of each particular case, in particular, the social and political climate that prevailed at the time of the statements.
In Bulgaria, Jews (in Behar and Gutman v. Bulgaria) and Gypsies (in Budinova and Chaprazov v. Bulgaria), who were groups of persons targeted by the politician's statements, could be considered to be in a vulnerable position.
In the case "Behar and Gutman v. Bulgaria" (Behar and Gutman v. Bulgaria), the statements were clearly anti-Semitic in nature. Although some of them referred to specific facts, all featured long-known anti-Semitic examples. In particular, with regard to statements about denying the reality of the Holocaust and presenting this phenomenon as a story invented for financial extortion, the European Court and the former Commission on Human Rights invariably consider such statements as attacks on the Jewish community and incitement to racial hatred, as anti-Semitism and xenophobia. As for the case "Budinova and Chaprazov v. Bulgaria" (Budinova and Chaprazov v. Bulgaria), the statements seem to have been deliberately composed in inflammatory terms, clearly with the aim of portraying the Roma in Bulgaria as persons exceptionally prone to crimes and immoral behavior. Such statements were systematic in nature and were exceptionally vicious attacks on a group of a national minority. In both cases, the statements were an extremely negative stereotype intended to humiliate the population groups in question and to incite reprehensible attitudes and hatred towards them.
Although the most negative statements of the politician in the case "Behar and Gutman v. Bulgaria" (Behar and Gutman v. Bulgaria) were made in two books that were not massively published, the fact that the politician became the leader of a majority political party, and a few years later took second place in the presidential elections of the country, must have added weight to the statements of this man about Jews. In the case of Budinova and Chaprazov v. Bulgaria (Budinova and Chaprazov v. Bulgaria) the politician has often repeated his main idea in many mass media, and we can agree that it has reached a wide audience. When the politician voiced most of these statements, he was a well-known figure in Bulgarian society, and, moreover, his vehement anti-Roma statements, apparently, were the main element of the position of his political party. In both cases, the applicants filed complaints against the politician precisely at a time when his career was on the rise and, consequently, when his actions were gaining more prominence.
In view of all these factors, which pointed in the same direction and reinforced each other, the contested statements were able to have a sufficiently significant impact on the sense of self-determination of Jews and Gypsies in Bulgaria, as well as on their self-esteem and self-confidence, so that their impact reached a "certain level" or the required "degree of cruelty". Thus, the statements affected the applicants' private life. Consequently, articles 8 and 14 of the Convention were applicable to the case.
(b) Whether the Bulgarian authorities have fulfilled their positive obligation. The Bulgarian authorities did not properly assess the tone of the politician's statements. Although they acknowledged the emotionality of these statements, they downplayed their ability to stigmatize ethnic groups and arouse hatred and prejudice against them, and clearly viewed the politician's statements as nothing more than part of a legitimate debate on issues of public interest. However, in Behar and Gutman v. Bulgaria (Behar and Gutman v. Bulgaria) it was clearly seen that the contested expressions used by the politician in his two books were intended to offend Jews and cause hatred and prejudice towards them. Considered in the light of these early statements and taking into account the anti-Semitic course followed by the politician's party, the statements of the politician made during the election race and during speeches in Parliament could be considered as directed directly against, inter alia, Jews. In the case of Budinova and Chaprazov v. Bulgaria (Budinova and Chaprazov v. Bulgaria) the politician's statements went far beyond the legitimate public debate on ethnic relations and crime in Bulgaria, being an attempt to create an exclusively negative stereotype designed to denigrate the Roma community in Bulgaria and incite prejudice and hatred against them.
The European Court has repeatedly ruled that indiscriminate statements aimed at attacking or exposing whole ethnic, religious or other groups in a negative light did not deserve the protection guaranteed by article 10 of the Convention, considered in conjunction with article 1 of the Convention, or such protection should be very limited. This fully corresponded to the requirement arising from article 14 of the Convention to combat racial discrimination. The fact that the author of the relevant statements was a politician or acted in such a capacity as a member of Parliament did not change the situation. In fact, while attaching significant importance to the freedom of the politician to express his opinion in relation to the contested statements and downplaying the impact of these statements on the applicants' right to respect for their private life as, respectively, ethnic Jews and ethnic Gypsies living in Bulgaria, the Bulgarian authorities have not established the appropriate balance of interests required by the case-law of the European Court. By denying the applicants compensation in connection with the discriminatory statements of the politician, the Bulgarian courts failed to fulfill their positive obligation to respond appropriately to discriminatory statements about the applicants' ethnic origin and to ensure that the applicants' right to respect for their "private life" was respected.
The requirements of article 14 of the Convention were violated in the case (adopted unanimously).
In the application of Article 41 of the Convention, the European Court ruled that the finding of a violation of the Convention is sufficient just compensation for moral damage.