FOURTH SECTION
CASE OF
CHOLAKOV v. BULGARIA
(Application no.
20147/06)
JUDGMENT
STRASBOURG
1 October 2013
This
judgment will become final in the circumstances set out in Article 44 § 2 of
the Convention. It may be subject to editorial revision.
In the case of Cholakov v. Bulgaria,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 10 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
20147/06) against the Republic of Bulgaria lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a national of Bulgaria and Sweden, Mr Stefan Dimitrov
Cholakov (“the applicant”), on 17 May 2006. The applicant was not legally
represented.
The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The applicant alleged that he had been sentenced
to ten days’ detention for statements uttered at a public place, in violation
of his right to freedom of expression.
On 1 June 2010 the application was declared
partly inadmissible and the complaint concerning the alleged breach of the
applicant’s right to freedom of expression was communicated to the Government.
It was also decided to rule on the admissibility and merits of this part of the
application at the same time (Article 29 § 1 of the Convention).
The Swedish Government, having been informed of
their right to intervene in the case (Article 36 § 1 of the Convention and Rule
44 § 1 of the Rules of Court), did not avail themselves of that opportunity.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1944. He appears to
live mainly in Växjö, Sweden, but also regularly spends time in Bulgaria, where
he is politically and socially active.
Local elections were organised in Bulgaria on 28
October and 4 November 2007. The applicant, who was supporting one of the
candidates for mayor of Vratsa, regularly campaigned in his support in the city’s
centre.
On 23 October 2007 he entered into a conflict
with police officers, for reasons which are unclear. The officers issued a
report for an administrative offence and a warning order enjoining the
applicant to refrain from “performing indecent and inappropriate actions
breaching the prevailing norms of morals and behaviour on the streets, squares
and other public areas, addressing indecent words to representatives of the
public authorities, and breaching public order and quietness”.
On 1 November 2007 the applicant was once again
campaigning in the central square of Vratsa. He had chained himself to a metal
column and was using a loudspeaker, saying that the officials currently in
power in Vratsa were corrupt and that he had informed the prosecution
authorities of their alleged crimes. In particular, he used the following
expressions: “All of them are criminals” (“Всички
са престъпници”),
“The prosecutor is a Mafioso” (“Прокурорът
е мафиот”), “The mayor is
a Mafioso” (“Кметът
е мафиот”), “Political
prostitutes” (“Политически
проститутки”)
and “A mass of political prostitutes” (“Политическа
проститутска
маса”).
The applicant was once again approached by
police officers who invited him to remove the chain and accompany them. After
he refused to do so, they cut the chain and drew up a report of an act of minor
hooliganism. They noted in the document that the applicant had been “disturbing
public order in the area, by uttering indecent words through a loudspeaker” and
had “provoked the indignation of citizens who live in the area or were passing
by”. The applicant signed the act, objecting in writing that he had not done anything
wrong.
The officers arrested the applicant and brought
him to the Vratsa District Court, where he was charged with an offence of minor
hooliganism under the 1963 Decree on Combating Minor Hooliganism (“the Decree”,
see paragraphs 18-20 below).
The Vratsa District Court held a hearing on the
same day. The applicant had a lawyer.
The court heard several witnesses called by the
police, including the officers who had arrested the applicant, who stated that
they had felt indignation upon hearing the applicant’s words and had heard
other people on the square say that these words had been inappropriate. The
court heard also two witnesses called by the applicant, who considered that he
had expressed a political message and that the people on the square had not
been reacting in a negative manner.
The applicant’s lawyer stated that the applicant
had been expressing his civic position, that he was a “rebel”, that he had not
breached the Decree and that he had a constitutional right to express his
opinion.
The Vratsa District Court delivered its judgment
after the hearing. On the basis of the witness statements it established that the
applicant had uttered the expressions described above and “other expressions
addressed at the head of the Vratsa police directorate, the prosecution
authorities and the police, as a whole”. These amounted to “indecent statements,
made in a public place in front of many people” and to “offensive attitude
towards public bodies” within the meaning of section 1 of the Decree.
Therefore, the applicant was found guilty of minor hooliganism. Considering as
an aggravating circumstance the fact that the expressions above had been
uttered “deliberately, publicly, with a loudspeaker, in breach of public order
in the centre of Vratsa, despite an earlier warning not to demonstrate in such
a manner”, the Vratsa District Court sentenced the applicant to ten days’ detention.
The judgment was final and enforced immediately.
The applicant remained detained in the police station in Vratsa until 11
November 2007.
II. RELEVANT DOMESTIC LAW
Article 39 of the 1991 Constitution of Bulgaria
reads:
“1. Everyone is entitled to express an opinion or to
publicise it through words, whether written or oral, sounds or images, or in
any other way.
2. This right shall not be exercised to the
detriment of the rights and reputation of others, or for incitement to forcible
change of the constitutionally established order, perpetration of a crime or
enmity or violence against anyone.”
Decree No. 904 of 28 December 1963 on Combating
Minor Hooliganism (“the Decree”) was passed by the then existing Presidium of
the National Assembly under a simplified legislative procedure, as possible
under Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It
was published in the State Gazette on 31 December 1963, as required under
section 37(1) of the Normative Acts Act 1973, as worded at that time. The
Supreme Administrative Court has on a number of occasions said that the Decree
has the same force as an Act of Parliament (see опр.
№ 9959 от
7 ноември 2003 г.
по адм. д. № 9327/2003 г.,
ВАС, I о.; опр. № 10286
от 10 декември 2004
г. по адм. д. № 9761/2004
г., ВАС,
петчленен с-в;
опр. № 14673 от 3
декември 2009 г.
по адм. д. № 15200/2009 г.,
ВАС, I о.; and опр.
№ 12764 от 1
ноември 2010 г. по
адм. д. № 13284/2010 г.,
ВАС, I о.).
Section 1(2) of the Decree defines minor
offences of hooliganism as, inter alia, “indecent statements, made in a
public place in front of many people”, or “[showing an] offensive attitude
towards citizens, public bodies or the society”, which breach public order and
quietness. Such acts, if perpetrated by persons older than sixteen, carry a
penalty of up to fifteen days’ detention in the premises of the Ministry of
Internal Affairs or a fine.
The Decree provides for an expedited procedure
for judging minor offences of hooliganism, which has been described in more
detail in the Court’s judgment in the case of Borisova v. Bulgaria (no.
56891/00, §§ 21-26, 21 December 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicant complained that his conviction of
1 November 2007 for an act of minor hooliganism had breached his right to
freedom of expression. He did not rely on a particular provision of the
Convention. The Court is of the view that the complaint falls to be examined
under Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of frontiers. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
The Government considered that there had been no
violation of Article 10, because the applicant’s conviction and detention had
been provided for by law and had been necessary. They argued that the applicant
had failed to comply with the warning order of 23 October 2007 (see paragraph 8
above) and to request an authorisation for his demonstration on 1 November
2007. They considered also that his statements had exceeded what was acceptable
in terms of moral behaviour and that the measures against him had not been
taken in response to his negative attitude towards the authorities, but as a
result of the “indecent and uncensored language” he had used in the central
part of the city and in the presence of adults and children. They stressed that
freedom of expression was not absolute and carried with it “duties” and
“responsibilities”. Without providing details, the Government pointed out that
the applicant had already used similar “indecent” language in statements “in
the media and the internet”. They considered that the Vratsa District Court’s
judgment of 1 November 2007 had been correct and pointed out that the
applicant had only been punished for an act of minor hooliganism, as provided
for by the Decree, and not for aggravated hooliganism under the Criminal Code.
The applicant disputed the Government’s
arguments and considered that the proceedings against him had been “political”.
He contested the quality of the Decree as a “law” within the meaning of the
Convention and argued that his statements on 1 November 2007 had not been
indecent or scandalous. He considered that he had been arrested to prevent him from
criticising the authorities in Vratsa and campaigning in support of one of the
candidates at the upcoming local elections.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Court notes that the parties seem to agree
that the conviction of the applicant for minor hooliganism and his ensuing ten
days’ detention amounted to interference with his right to freedom of
expression under Article 10 of the Convention. The interference was prescribed
by domestic law, namely the Decree.
However, the applicant challenged the quality of
the Decree as “law” within the meaning of Article 10 § 2 of the Convention. The
Court recalls that it has already examined the Decree’s status in the domestic
legal system in its recent case of Zhelyazkov v. Bulgaria (no. 11332/04, § 31, 9 October 2012), where it found that the
fact that the Decree had not been adopted by the Parliament did not deprive it
of its quality of “law” for the purposes of the Convention. The Court noted in
particular that under Bulgarian law decrees adopted by the Presidium of the
National Assembly under Articles 35 § 5 and 36 of the 1947 Constitution
were valid sources of law and had the same force as Acts of Parliament, a
conclusion which has been confirmed many times by the Supreme Administrative
Court (see paragraph 19 above). The Court sees no reason to reach a
different conclusion in the case at hand. It notes, moreover, that the term
“law” in Article 10 § 2 of the Convention must be understood in its substantive
sense, not its formal one (see Leyla Şahin v. Turkey [GC], no.
44774/98, § 88, ECHR 2005-XI; Sanoma
Uitgevers B.V. v. the Netherlands
[GC], no. 38224/03, § 83, 14 September 2010; and Pasko v. Russia,
no. 69519/01, § 73, 22 October 2009). Accordingly, the Court concludes
that the interference with the applicant’s right to freedom of expression in
the case was “prescribed by law” within the meaning of Article 10 § 2 of the
Convention.
The Court is, in the next place, prepared to
accept that the interference with the applicant’s rights pursued the legitimate
aims of preserving public order and the reputation and rights of others and of
maintaining the authority of the judiciary.
The central issue which falls to be determined
is thus whether the interference was “necessary in a democratic society”, that
is to say whether such interference corresponded to a pressing social need,
whether it was proportionate to the legitimate aim pursued, and whether the
reasons given by the national authorities were relevant and sufficient (see,
among others, Diena and Ozoliņš v. Latvia, no. 16657/03, § 76, 12
July 2007). The Court further recalls that, subject to paragraph 2 of Article
10 of the Convention, freedom of expression is applicable not only to
“information” and “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb (see, for example, Mouvement raëlien suisse v. Switzerland
[GC], no. 16354/06, § 48, ECHR 2012 (extracts)).
As to the limits of acceptable criticism, they
are wider with regard to public officials than in relation to a private
individual. A public official is certainly entitled to have his reputation
protected, but the requirements of that protection have to be weighed against
the interests of open discussion of political and social issues, since
exceptions to freedom of expression must be interpreted narrowly (see, among
other authorities, Oberschlick v. Austria (no. 2), 1 July
1997, § 29, Reports of Judgments and Decisions 1997-IV).
In the present case the applicant was sentenced
to ten days’ detention for having uttered in a public place the slogans “All of
them are criminals”, “The prosecutor is a Mafioso”, “The mayor is a Mafioso”,
“Political prostitutes” and “A mass of political prostitutes”, and also “other
expressions” addressed at the prosecution authorities and the police in Vratsa.
In the view of the Vratsa District Court these represented “indecent
statements” amounting to “offensive attitude towards public bodies” (see
paragraph 15 above).
The Court notes that the applicant’s statements
were part of what appears to have been an attempt by him to contribute to a public
debate on the way the city of Vratsa was governed, in the wake of the local
elections (see paragraph 9 above). Such statements relating to issues of public
concern and therefore amounting to “political expression” require, in
principle, a high degree of protection under Article 10 (see Steel and
Morris v. the United Kingdom, no. 68416/01, § 88, ECHR 2005-II). The
authorities were thus under an obligation to adduce particularly relevant and
sufficient reasons to show that the interference with the applicant’s rights
was proportionate to the legitimate aims pursued.
The Court is not convinced that such reasons
were shown to exist in this case. In its judgment convicting the applicant,
after concluding that he had uttered “indecent statements, made in a public
place in front of many people” and had demonstrated “offensive attitude towards
public bodies”, as indicated by section 1 of the Decree, the Vratsa District
Court concluded automatically that the applicant had been guilty of an offence
of minor hooliganism (see paragraph 15 above). It failed to weigh the alleged
gravity of his conduct against his right to freedom of expression and to
provide specific reasons showing the necessity of imposing a penalty on the
applicant. No attempt was made to account for the fact that the impugned
statements were in the main aimed at contributing to a debate of public
interest and that the applicant’s criticism was addressed at public bodies and
officials, in respect of which, as mentioned above, the limits of acceptable
criticism should be wider than in respect of private citizens. The Court has on
a number of occasions said that in determining whether an interference with the
right to freedom of expression was justified, it has to satisfy itself, inter
alia, that the national authorities applied standards which were in
conformity with the principles embodied in Article 10 (see, among other
authorities, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298;
Uj v. Hungary, no. 23954/10, §§ 19 and 24-25, 19 July 2011; Fratanoló v. Hungary,
no. 29459/10, §§ 22 and 27, 3 November 2011; and John Anthony Mizzi v. Malta,
no. 17320/10, §§ 32 in fine and 40, 22 November 2011); it does not
consider that this was the case here.
In their submissions to the Court the Government
pointed out that the applicant had failed to abide by the warning order of 23 October
2007. In addition, they noted that he had failed to seek an authorisation for
his demonstration of 1 November 2007 and mentioned statements made by the
applicant “in the media and the internet” (see paragraphs 8 and 22 above).
However, the Court does not consider that these circumstances, insofar as substantiated,
amount to relevant and sufficient reasons showing that the interference with
the applicant’s rights was justified and necessary. Moreover, only the first of
the circumstances above, namely the existence of the warning order of 23 October
2007, was referred to, as an aggravating factor, in the Vratsa District Court’s
judgment of 1 November 2007 (see paragraph 15 above).
The Court notes that, despite being, to some
extent, provocative, the applicant’s impugned statements were not particularly
scandalous, shocking or calumnious (see, mutatis mutandis, Erla
Hlynsdόttir v. Iceland, no. 43380/10, § 62, 10 July 2012). The
applicant’s behaviour when uttering the statements, in particular his having
chained himself and his using a loudspeaker, does not appear disturbing or
shocking either, and it was clear that he was taking a “political” stance. In any
event, even though according to some of the witnesses passers-by reacted with
indignation and comments that this was not appropriate (see paragraph 13
above), the Court noted already (see paragraph 28 above) that Article 10 of the
Convention protects not only statements that are favourably received or
regarded as inoffensive or as a matter of indifference, but also those that
offend, shock or disturb.
Despite the above, the applicant was convicted
for an act of minor hooliganism and a penalty was imposed which was disproportionate
in the circumstances, namely ten day’s detention. As already noted, this was
done without a sufficient justification or a meaningful analysis of the
different interests at stake.
The foregoing is sufficient to enable the Court
to conclude that the interference with the applicant’s right to freedom of
expression was not proportionate to the legitimate aims pursued and thus not
“necessary in a democratic society”, as required by Article 10 of the
Convention.
There has accordingly been a violation of that
provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
The applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call to award him
any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the
application admissible;
2. Holds that there
has been a violation of Article 10 of the Convention.
Done in English, and notified in writing on 1 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Ineta
Ziemele
Registrar President
