Offensive public statements of a politician against Roma saying that they were criminals, thieves, rapists, torturers! Violation of respect for their privacy
JUDGMENT
Budinova and Chaprazov v. Bulgaria 16.02.2021 (app. no. 12567/13)
SUMMARY
Ethnic discrimination, Roma and the right to respect for privacy.
A politician in Bulgaria made public statements on a TV channel that were derogatory to Roma living in Bulgaria. The politician, among other things, stated that he intends to clean the country from the Roma criminals who steal, loot and rape uncontrollably. The applicants’ claim for compensation for the politician’s racial comments was rejected by an irrevocable decision by the domestic Courts.
The applicants brought an action before the ECtHR alleging breach of the right to privacy in conjunction with the prohibition of discrimination.
The Court reiterated the authorities’ obligation to strike a fair balance between the right to privacy and freedom of expression, as they enjoy the same protection under the ECHR.
The ECtHR referred to its settled case law because it has ruled that generalized statements against entire ethnic, religious or other groups are not entitled to any protection or are entitled to very limited protection under Article 10 of the Convention. This obligation does not change even when the declarant is a Member of Parliament.
It then held that the domestic courts had assessed the meaning of the politician’s statements and recognized the conflict between the two rights of privacy and freedom of expression, but did not properly weigh their relative importance in the circumstances as the statements were extreme and aimed at to provoke prejudice and hatred towards ethnic groups.
The ECtHR held that the rejection of the applicants’ action did not ensure the protection of their privacy and found a violation of Article 8 in conjunction with Article 14 of the ECHR.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
The applicants, Gabriela Aron Behar and Katrin Borisova Gutman, are Bulgarian nationals who were
born in 1972 and 1968 respectively and live in Plovdiv (Bulgaria). They are of Jewish ethnicity.
The case concerned the dismissal of an application for a court order that they had taken against a
journalist and politician, seeking an apology for anti-Semitic remarks and that he refrain from such
remarks in the future.
Relying in particular on Article 8 (right to respect for private and family life) and Article 14
(prohibition of discrimination) of the European Convention, the applicants complained of the
dismissal of their claim against the politician.
THE DECISION OF THE COURT…
It is settled that Article 8 of the Convention gives rise to positive obligations, and that these obligations may require the adoption of measures designed to secure “respect for … private life” even in the sphere of the relations of individuals between themselves. In discharging this duty, the national authorities must, however, also have regard to the rights of the author of the statements under Article 10 of the Convention. There is no need to repeat them in full here, except to emphasise that the key consideration is the relative weight that should be ascribed to these two rights – which are in principle entitled to equal respect – in the specific circumstances of each case, and that this turns on the comparative importance of the concrete aspects of the two rights that are at stake in the case in question, and the need to restrict each of them. The national authorities have a margin of appreciation in making this assessment, but their conclusion can be accepted by the Court only if they have carried out the balancing exercise in conformity with the criteria laid down in its case-law.
Since the statements in respect of which the applicants sought redress) prima facie discriminatory in intent with respect to Roma, in the present case that analysis must also be coloured by the duties stemming from Article 14 of the Convention – in particular the duty to combat racial discrimination, which includes discrimination on account of someone’s ethnic origin It is not for the Court to say whether the impugned statements amounted to “harassment” or “incitement to discrimination, persecution and racial segregation” within the meaning of section 5 of the 2003 Act and paragraph 1(1) of the 2003 Act’s additional provisions. It is for the national authorities – especially the courts – to interpret and apply domestic law. The Court’s task is limited to reviewing their decisions in the light of the requirements of the Convention.
In this case, it cannot be said that the Bulgarian courts assessed the tenor of Mr Siderov’s statements in an adequate manner. Although the courts acknowledged the vehemence of the statements, they downplayed their capacity to stigmatise Roma in Bulgaria as a group and arouse hatred and prejudice against them, and apparently saw them as no more than part of a legitimate debate on matters of public concern. That, however, ignored the point that while an expression of opinion might touch upon a matter of public concern – such as the relations between ethnic groups in a country – it can at the same time promote or justify hatred and intolerance towards some of those groups, and thus be entitled to no or very limited protection under Article 10 of the Convention. In view of the language used by Mr Siderov and the overall thrust of his message, his statements went beyond being a legitimate part of a public debate about ethnic relations and crime in Bulgaria, even if it can be recognised that they included an element of exaggeration calculated to attract attention. As already noted, they amounted to extreme negative stereotyping meant to vilify Roma in that country and stir up prejudice and hatred towards them .
The manner in which the Bulgarian courts assessed the tenor of Mr Siderov’s statements reflected on the way in which they balanced his right to freedom of expression against the applicants’ right to respect for their private life. Although they recognised the tension between those two rights, the courts cannot be said to have properly weighed their relative importance in the circumstances. The Court has consistently held that sweeping statements attacking or casting in a negative light entire ethnic, religious or other groups deserve no or very limited protection under Article 10 of the Convention, read in the light of Article 17 (see Seurot v. France (dec.), no. 57383/00, 18 May 2004; Soulas and Others v. France, no. 15948/03, §§ 40 and 43-44, 10 July 2008; and Le Pen v. France (dec.), no. 18788/09, 20 April 2010, which concerned generalised negative statements about non-European and in particular Muslim immigrants in France; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004-XI, which concerned statements linking all Muslims in the United Kingdom with the terrorist acts in the United States of America on 11 September 2001; W.P. and Others v. Poland (dec.), no. 42264/98, ECHR 2004-VII, and Pavel Ivanov, cited above, which concerned vehement anti-Semitic statements; Balsytė-Lideikienė, cited above, § 79, which concerned accusations that Jews and Poles in Lithuania had committed war crimes and genocide against the Lithuanian majority; and Féret v. Belgium, no. 15615/07, § 71, 16 July 2009, which concerned statements portraying non-European immigrant communities in Belgium as criminally minded). This is fully in line with the requirement, stemming from Article 14 of the Convention, to combat racial discrimination. The fact that the author of the statements is a politician or speaks in his or her capacity as a member of parliament does not alter that. By in effect ascribing considerable weight to Mr Siderov’s right to freedom of expression in relation to the statements impugned by the applicants, and by playing down the effect of those statements on the applicants as ethnic Roma living in Bulgaria (the country in which Mr Siderov had made the statements), the Bulgarian courts failed to carry out the requisite balancing exercise in line with the criteria laid down in the Court’s case-law.
By refusing to grant the applicants redress in respect of Mr Siderov’s discriminatory statements, the domestic authorities failed to comply with their positive obligation to respond adequately to discrimination on account of the applicants’ ethnic origin and to secure respect for the applicants’ “private life”. There has therefore been a breach of Article 8 of the Convention read in conjunction with Article 14.
ARTICLE 6 § 1 and 14 OF THE CONVENTION
The Court has – when dealing with the complaint under Articles 8 and 14 of the Convention – already analysed the reasons given by the Bulgarian courts for the dismissal of the applicants’ claim against Mr Siderov. Hence, the present complaint, which also concerns those reasons, does not require separate examination .
