Fines and conviction for hooliganism due to spray painting of a monument as a political protest! Violation of freedom of expression!
JUDGMENT
Genov and Sarbinska v. Bulgaria 30.11.2021 (app. no. 52358/15)
SUMMARY
Political protest by painting a monument with spray. Criminal conviction with a fine. Freedom of expression.
The plaintiffs spray-painted a monument to the October Revolution as a sign of protest against the Government. Each of them was fined 767 euros. Their act was characterized as hooliganism. They brought an action for violation of the freedom of expression.
According to the established case law of the ECtHR, the imposition of a fine is an interference with freedom of expression. It could be considered necessary in a democratic society if a public monument is unique, part of the cultural heritage and has been completely destroyed.
In the present case, the ECtHR observed that the damage caused to the monument was immediately repaired and its appearance was not altered at all. It found that the applicants’ action was motivated by their need to express their dissatisfaction with the ruling party and not to express contempt for deep-rooted social values. Considering that their act was not particularly offensive, nor did it leave permanent damage to the monument and was mainly an act of protest for the ruling party, the ECtHR ruled that their condemnation was not necessary in a democratic society and constituted an interference with freedom of expression.
The Court awarded the first applicant EUR 998.33 in damages and EUR 4,000 each in respect of non-pecuniary damage and costs.
PROVISION
Article 10
PRINCIPAL FACTS
The applicants, Asen Georgiev Genov and Tsvetelina Ognyanova Sarbinska, are Bulgarian nationals
who were born in 1969 and 1973 respectively and live in Sofia.
The case concerns the applicants’ spray-painting on the anniversary of the October Revolution of a
partisans’ monument in protest against the then Government, which was led by the Bulgarian
Socialist Party (the former Communist Party). They were convicted of hooliganism and fined.
Relying on Article 10 (freedom of expression) of the European Convention, the applicants complain
of their conviction.
THE DECISION OF THE COURT…
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.
