The ECHR Ruling of April 06, 2021 in the case "Khandji v. Bulgaria" (application No. 10783/14).
In 2014, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Bulgaria.
In the case, an application was successfully considered against the unjustified finding of the applicant guilty by the court and the recovery of a fine from him for placing Christmas accessories on the statue of the Communist leader in the context of a public protest action. The case involved a violation of the requirements of article 10 of the Convention.
CIRCUMSTANCES OF THE CASE
The applicant, a local politician, was convicted of petty hooliganism and fined for hanging a Santa Claus hat and a red bag with the word "resignation" on it on Christmas Day on the statue of Dmitry Blagoev. Dmitry Blagoev was the founder of the Social Democratic Party, which existed in Bulgaria during the communist regime and continued to operate under the name of the Socialist Party of Bulgaria. The applicant's actions were carried out within the framework of nationwide protests against the Government, which was supported in the Bulgarian Parliament by a coalition, the main participant of which was the Socialist Party of Bulgaria. The statue of Dmitry Blagoev was previously painted by unknown persons in red and white so as to resemble Santa Claus, and the inscription "Santa Claus" was painted on it.
LEGAL ISSUES
Regarding compliance with subparagraph "b" of paragraph 3 of article 35 of the Convention. Whether the applicant suffered significant damage. The fine levied from the applicant for minor hooliganism was not of a criminal nature, its size was quite insignificant, and there was no evidence that this circumstance would have entailed any serious consequences for the applicant. However, in the present case, the practical, and in particular material, consequences for the applicant could not be the only criterion for assessing whether he had suffered "significant damage". The applicant was found guilty and a fine was levied against him for an act which, in the applicant's opinion, was an appropriate exercise of the right to freedom of expression on a matter of public interest. Thus, the present case really concerned a matter of principle for the applicant. His complaint certainly raised issues of great importance. Moreover, it appears that the applicant's case was widely covered in the media and caused public debate in Bulgaria. Consequently, it cannot be accepted that the applicant has not suffered "significant damage". The same arguments allow us to conclude that "respect for human rights guaranteed by the Convention", in any case, required consideration of the complaint on the merits.
RESOLUTION
The preliminary objection of the Bulgarian authorities must be rejected (adopted unanimously).
Regarding compliance with article 10 of the Convention. Whether there has been a violation of the right to freedom of expression. The conduct that led to the applicant's conviction for petty hooliganism could be regarded as "expression" within the meaning of article 10, paragraph 1, of the Convention. The applicant was a representative of the local political opposition who combined a symbolic action intended to publicly make fun of the monument of the founder of the political party that provided the main parliamentary support to the current Government with a call for the Government to resign. The applicant also acted in the context of a nationwide prolonged protest against the current Government. Consequently, it was clear that by his actions the applicant was trying to participate in a political protest and "convey" his "ideas" about the Government and the political party that supported him.
The applicant's conviction and the fine levied against him were an interference with the applicant's right to freedom of expression, which was "provided for by law" and pursued the legitimate aim of protecting "the rights of others". However, there was no evidence that the intervention was intended to ensure "national security", since the applicant's actions were exclusively peaceful. Moreover, there was nothing to indicate that the applicant's actions could have led to public unrest or that the Bulgarian authorities would have taken this factor into account when imposing punishment on the applicant. As for proportionality, the punishment imposed on the applicant was the mildest possible according to the relevant norms, in violation of which the applicant was found guilty. The punishment was quite lenient, as it consisted of a single administrative fine equivalent to 51 euros, which the applicant was able to pay almost immediately and, apparently, without any difficulties. Moreover, this act did not provide for a criminal record. Thus, the main question was whether it was justified in principle to punish the applicant for his act.
It is obvious that the applicant's act concerned a matter of public interest, which in principle enjoyed increased protection. In addition, although the applicant's act was not conceived as a creative project, it could also be considered as an act with elements of satire, any interference in which should be considered with special care.
The justification for limiting the ways in which individuals and legal entities can express themselves should be even stronger if this "expression" consists entirely or partially of actions, as in the present case. However, the applicant was not prevented from approaching the monument and hanging a cap and bag on it, he was punished for this later. If interference with the right to freedom of expression takes the form of "punishment", it inevitably requires a thorough assessment of the behavior in question.
Public monuments are often unique structures and form part of the cultural heritage of society. Therefore, measures, including proportional sanctions aimed at preventing actions that may destroy or damage the appearance of monuments, can be considered as "necessary in a democratic society", no matter how legitimate the motives of these measures may be. In a democratic society guided by the rule of law, disputes about the fate of a public monument can be resolved by appropriate legal means, and not by covert or violent measures. However, the applicant did not resort to any violence and did not physically damage the monument in any way. In the present case, it was not assumed that the applicant coordinated his actions in any way with the people who had previously painted the monument. Consequently, the question of whether intervention could have been "necessary in a democratic society" was more complex. In such situations, the exact nature of the actions, the intention behind the action, and the message that they are trying to convey through the action become important. For example, actions intended to criticize the Government or its policies or designed to draw attention to the suffering of a socially vulnerable group cannot be compared with actions aimed at insulting the memory of victims of mass crimes. Also important factors are the social significance of the monument in question, the values or ideas it symbolizes, and the degree of reverence for it in society.
In the present case, the purpose of the applicant's actions was to protest against the Government and the political party that supported him as part of a nationwide long-term protest against the Government, and not to condemn the historical role of Dmitry Blagoev or to express disrespect for him. The applicant simply used the monument to Dmitry Blagoev as a symbol of the political party he wanted to criticize, and thus it can hardly be said that the applicant's actions were aimed at demonstrating disregard for deeply rooted social values. This was also confirmed by the fact that the reaction to the monument was mixed. The statue was erected during the period of the communist regime of Bulgaria and, apparently, was seen as associated with the values and ideas of this regime. It can hardly be compared, for example, with monuments to soldiers who gave their lives for their country (see for comparison the case "Sinkova v. Ukraine" (See: The ruling of the European Court in the case "Sinkova v. Ukraine" (Sinkova v. Ukraine) of February 27, 2018, complaint N 39496/11.)).
While it can be accepted that the applicant's symbolic gesture may have offended the feelings of witnesses to the event or those who learned about it from the media, freedom of expression was also applicable to "information" or "ideas" that offend, shock or cause concern to the authorities or any part of society.
Consequently, the intervention - finding the applicant guilty of petty hooliganism and collecting a fine from him - was not "necessary in a democratic society", despite the discretion granted to the Bulgarian authorities in this regard.
RESOLUTION
The case involved a violation of the requirements of article 10 of the Convention (adopted by six votes in favor with one against).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 2,000 euros in compensation for non-pecuniary damage and 54.66 euros in compensation for material damage.