CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 février 2021

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page-break-after:avoid; padding-left:1.99pt; font-family:Arial } .sADD4F530 { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8A9EE819 { margin-top:42pt; margin-bottom:0pt } .s78255940 { width:8.55pt; display:inline-block } .s6C05ED92 { width:217.46pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }   FOURTH SECTION CASE OF BUDINOVA AND CHAPRAZOV v. BULGARIA (Application no. 12567/13)   This version was rectified on 4 March 2021 under Rule 81 of the Rules of Court   JUDGMENT   Art 14 (+ Art 8) • Discrimination • Private life • Failure of domestic courts to discharge positive obligation to afford redress to Roma applicants for discriminatory statements made by leader of political party • Art 8 applicable as statements’ negative effect reached “certain level” or “threshold of severity”, considering characteristics of group, content of statements, and form and context • No fair balance between competing interests at stake with due regard to Court’s case-law   STRASBOURG 16 February 2021   FINAL   16/05/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Budinova and Chaprazov v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Tim Eicke, President ,   Armen Harutyunyan,   Georges Ravarani,   Gabriele Kucsko-Stadlmayer,   Jolien Schukking,   Ana Maria Guerra Martins, judges ,   Maiia Rousseva, ad hoc judge , and Ilse Freiwirth, Deputy Section Registrar , Having regard to: the application (no. 12567/13) 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 two   Bulgarian nationals, Ms Kremena Goshova Budinova and Mr Vasil Stoyanov Chaprazov (“the applicants”), on 7 February 2013; the decision to conduct the proceedings in this case simultaneously with those in Behar and Gutman v. Bulgaria (no. 29335/13); the decision to give the Bulgarian Government (“the Government”) notice of the complaints concerning the alleged failure of the Bulgarian authorities to afford redress to the applicants in respect of various public statements made by Mr Volen Siderov in relation to Roma in Bulgaria, and to declare the remainder of the application inadmissible; the observations submitted by the Government and the observations in reply submitted by the applicants; the written comments submitted by two non-governmental organisations, the Greek Helsinki Monitor and the European Roma Rights Centre, which had been granted leave to intervene in the case as third parties, Noting the withdrawal from the case of Mr Yonko Grozev, the judge elected in respect of Bulgaria, and the ensuing decision of the Vice-President of the Section to appoint Ms Maiia Rousseva to sit as an ad hoc judge, Having deliberated in private on 15 December 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case primarily concerns a complaint, under Articles 8 and 14 of the Convention, that by dismissing a claim brought by the applicants – Bulgarian nationals of Roma ethnic origin – under anti-discrimination legislation whereby they had sought a court order against a well-known journalist and politician compelling him to (a) apologise publicly for a number of public statements in which he had allegedly negatively stereotyped Roma in Bulgaria in a crude manner and (b) refrain from making such statements in the future, the Bulgarian courts had failed in their positive obligation to ensure respect for the applicants’ “private life”. THE FACTS 2.     The applicants were born in 1970 and 1945 respectively and live in Sofia. They were represented initially by Ms M. Ilieva, a lawyer practising in Sofia and at the material time working with the Bulgarian Helsinki Committee, and then by Ms A. Kachaunova, also a lawyer practising in Sofia and working with that Committee, and by Mr K. Kanev, the Committee’s chairman. [1] On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he was appointed to personally act as their representative (Rule 36 § 4 (a) in fine of the Rules of Court). 3.     The Government were represented by their Agent, Ms   I.   Stancheva ‑ Chinova of the Ministry of Justice. Background to the case 4 .     Ataka is a Bulgarian political party founded in April 2005. In parliamentary elections held on 25 June that year it received 8.14% of the votes cast and won twenty-one seats in Bulgaria’s two-hundred-and-forty-seat Parliament. In parliamentary elections held in 2009 it received 9.36% of the votes cast and again won twenty-one seats. In parliamentary elections held in 2013 it received 7.30% of the votes cast and won twenty-three seats. In parliamentary elections held in 2014 it received 4.52% of the votes cast and won eleven seats. It fought the March 2017 parliamentary elections as part of a three-party coalition, United Patriots, which gained 9.31% of the votes cast, and won eight of the coalition’s twenty-seven seats. In May 2017 United Patriots entered into a coalition with GERB, the political party then holding the biggest number of parliamentary seats, and formed a joint government with it; United Patriots received three ministerial positions, one of which was allocated to Ataka. At the elections for the European Parliament in May 2019 Ataka received 1.07% of the votes cast and did not win any seats. Ataka has its own television channel, which apparently regularly broadcasts a programme attacking ethnic minorities and foreigners (see paragraph 36 in fine below). 5 .     The party’s leader, Mr Volen Siderov, has been an Ataka member of parliament since 2005. Before that, he worked as a journalist: in the early 1990s he was editor-in-chief of the daily newspaper Demokratsia ; then, in the early 2000s, he was a columnist for the daily newspaper Monitor ; and later he served as the presenter of a daily television programme Ataka , aired by the television station SKAT. In September 2006 he stood as a candidate in that month’s presidential election. He came second in the first round of voting, receiving 21.5% of the votes cast, and in the run-off lost against the incumbent, Mr Georgi Parvanov, by 24.05% to 75.95%. In February 2011 Mr Siderov again announced his candidacy in the upcoming presidential election. In the first round of voting, which took place on 23 October 2011, he received 3.64% of the votes cast. Following the 2017 parliamentary elections (see paragraph 4 above), Mr Siderov became chairman of the United Patriots parliamentary grouping, but in July 2019 was removed from that position and was excluded from the parliamentary group along with two   other Ataka members of parliament. Ataka nevertheless kept the ministerial position that it had in the coalition government (see paragraph 4 above). 6.     The applicants described Ataka as a “xenophobic party” and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-minority propaganda, by way of his books, his articles in Monitor and then his television programme, which in effect he had made it his political platform. 7 .     Further information about Ataka’s activities and political positions can be found in Karaahmed v. Bulgaria (no. 30587/13, §§ 7-27, 24   February 2015). Proceedings under the Protection From Discrimination Act 2003 8 .     In January 2006 the applicants and sixteen other people, as well as sixty-six non-governmental organisations, brought proceedings against Mr   Siderov under section 5 of the Protection from Discrimination Act 2003 (“the 2003 Act” – see paragraph 22 below). They alleged that a number of public statements made by him had constituted harassment of, and an incitement to discrimination against, Roma, Turks, Jews, Catholics and sexual minorities. The applicants argued, inter alia , that each of them – as a member of a minority – had been personally affected by those statements; they also based their claim against Mr Siderov on Article 32 § 1 of the Constitution (see paragraph 19 below), noting that it afforded protection against infringements of one’s dignity. 9 .     The Sofia District Court split the case into eight separate cases on the basis of the specific type of discrimination alleged by each group of claimants. The case of the two applicants, both of whom were Roma working as journalists who often reported on Roma-related issues, concerned statements made by Mr Siderov in relation to Roma. Statements by Mr Siderov at issue in the applicants’ case 10 .     In their claim, the applicants asserted that a number of statements made by Mr Siderov in his television programme, interviews, speeches and a book had amounted to harassment and incitement to discrimination against people of Roma ethnic origin. The applicants sought court orders against Mr Siderov to stop making such statements and to restore the status quo ante by publicly apologising for his statements. 11 .     The applicants referred in particular to the following statements by Mr Siderov (arranged in the order in which they appeared in the particulars of claim – translation by the Registry): 1 June 2005 edition of the Ataka television programme (on the theme of “Gypsy terror”) “... Professor [S.K.] died, expired, passed away. The man [was] beaten to a pulp after a terrorist attack by a Gypsy gang on peaceful Bulgarians [having fun] in their own place. ... This scientist – Bulgarian, famous, man of authority enjoying a very good name in scientific circles – was killed like a dog by a gang of ferocious Gypsies. With premeditation, wilfully, sadistically ... This whole genocide [was] carried out against the Bulgarian community in the Zaharna Fabrika neighbourhood. A genocide committed by an ethnic group of Gypsies. There is in Bulgaria a racial, ethnic discrimination against Bulgarians by the Gypsy ethnic group. ...” 4 June 2005 edition of the Ataka television programme (on the theme of “Gypsy terror”) “... A gang of Gypsies, eighty strong, carried out a terrorist attack against several Bulgarians who were attending the high school graduation dance of a man from the neighbourhood. People were thrashed in the course of this attack; one of them died. A fifty-three-year-old university professor of history, [S.K.], died after an awful, sadistic beating. It turns out that the problem is not confined to Zaharna Fabrika. This is a problem for the whole of Bulgaria. I have received information about similar happenings from all corners of the country. Some of the stories are harrowing, and people say that they live in such fear that they dare not even complain to the police because they would not do anything in response. I received information from the village of Mechka, near Pleven. I have spoken [before] about this village – there, in 2000, [P.T.] was killed in his own yard. Until this day this man’s killers have not been caught, have not been convicted. They are from among the Gypsies, from the village’s Gypsy neighbourhood. After this case, it turned out that it was not only this murder that had not been investigated – there had been seven more [such cases], villagers told me. Today they live in a fear that can only be compared with the fear of people living under foreign occupation – trembling each day for their life, for their property. ...” 7 June 2005 edition of the Ataka television programme (on the theme of “Gypsy terror”)   “... And Gypsy terror over Bulgarians is growing literally by the week. ... This shows that the authorities refuse to deal with the Gypsy terror. This is a tremendous problem for Bulgaria. And I am telling you that if the authorities keep on refusing to address the issue, in two-three years, or five, Gypsy terror will become Bulgaria’s foremost problem. But it will then be too late, for Bulgarians will have self-organised and responded to violence with violence. ... Think very hard; if Euroroma [a political party] enter Parliament, what greater [level of] protection will the terrorists from the Gypsy ghettoes ever gain? Because the thing they carry out – it is organised terror against Bulgarians. This terror must be brought to a halt. This terror must be resisted. And I promise you that work is being done in that respect. Hard work is being carried out by Bulgarians who can no longer bear the terrorising of their compatriots and will do all they can for this to cease. ... [2] ” 8 June 2005 edition of the Ataka television programme (on the theme of “Gypsy terror”) “... There is no town, no settlement in Bulgaria that has not borne the brunt of Gypsy terror. ... I want to tell you also that the question of Gypsy terror can only be resolved by tackling ... tackling this population in general – putting it where it belongs. They should work, learn to respect the laws, learn to meet their obligations, [learn] to pay their taxes and dues. ...” 14 June 2005 edition of the Ataka television programme (on the theme “The Gypsy killers of Professor [K.] are free”) “... The Gypsy terror in Bulgaria continues. The Gypsy terror in Bulgaria has never stopped. What is more, this has now begun to be acknowledged by international studies that show that the bulk of the crime in the country – upwards of 30% – is being carried out by Gypsies. At the same time, this ethnic group accounts for a mere 5% of the general population. So we Bulgarians have been subjected to total Gypsy terror. Every day, every hour, in all corners of Bulgaria. ... An esteemed Bulgarian scientist was killed in a sadistic, barbaric manner by a gang of Gypsies. ... [3] ” 4 May 2005 edition of the Ataka television programme (on the theme “The racial discrimination against Bulgarians in Bulgaria”) “... At the same time, whole Gypsy neighbourhoods are not only not paying for their electricity but also beat up fee collectors, attack the police vehicles that try to re ‑ establish order, ... smash everything around them, loot shops, rob people ... and nothing is being done to them. When you ask the high command of the police or the State in general why they have not taken any measures, they say – in order not to provoke an ethnic conflict. So a group of people in Bulgaria – non-Bulgarians – is being placed in a privileged position. ... This is called democracy, this is called integration, this is called wonderful names, which however conceal a single thing – discrimination and genocide against the Bulgarians in Bulgaria. ...” 6 May 2005 edition of the Ataka television programme “... This huge wave of external and internal factors, which wish, which categorically wish and work to de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation . [4] Work for its Gypsification, for its Turkification. Work for everything but the possibility for the Bulgarian people to consist of Bulgarians. I would like to tell you that according to official statistical data more than half of the children born in Bulgaria are either little Turks or little Gypsies. This is because nowadays, with plenty of outside money, anti-Bulgarian factors, aided by national traitors from within, have long since been working to divide the Bulgarian people. Work is being done to make Gypsies feel like a separate nationality, to pretend that they are apart and to seek collective rights. Work is being done for all sorts of other ... to create all sorts of other invented nationalities in Bulgaria. The results are at hand – already more than half of all newborns in Bulgaria are not Bulgarian. This means that the de-Bulgarisation process is moving towards its high point – the end of the Bulgarian nation. ...” 25 May 2005 edition of the Ataka television programme (on the theme “Gypsy terror”) “... Today I would like to speak about a topic on which the so-called official media keep silent, and on which politicians keep silent too. This topic is Gypsy terror – the Gypsy terror carried out towards Bulgarians in Bulgaria. This is a very serious topic; this is a drastic topic. But most media, as I said, keep silent about this topic. ... Awful violence has taken place in the Zaharna Fabrika neighbourhood towards Bulgarians, and more than eighty Gypsies took part in it. They wrecked an establishment [selling food and drink], beat up a police officer, beat up the establishment’s owner, beat up the people who were there, and yet I do not know of any of them having been arrested. Here – see this material from the front page of Noshten Trud , the only newspaper that does not shirk from writing about the Gypsy topic – the topic of Gypsy terror towards Bulgarians. ... In this case, notably, police officers were hurt as well. Though they tried to shoot plastic bullets into the air, they were attacked and some were struck and beaten up by the Gypsies. This is not the first such case. You will recall that a village police officer in a village near Burgas was beaten up – attacked by a gang of Gypsies. Forest rangers were attacked in Botevgrad and the vicinity. Forest workers were attacked near Samokov. Terror is constantly being generated across Bulgaria. By a population that calls itself ‘a minority’. Except that in many towns and villages in Bulgaria it is no longer a minority but the majority. There are today hundreds of villages in Bulgaria in which the prevailing population is Gypsy. Not only does it not integrate – something that parrots getting food from foreign foundations talk about; it also terrorises the Bulgarian population there. This terror continues under the benevolent gaze of the ruling clique, which not only does nothing but also stops the law-enforcement authorities from intervening. Usually, when something like this happens, as in the case of this terror over Bulgarian citizens in Zaharna Fabrika, then orders come from somewhere high-up for the police not to intervene, for investigators to keep mum, for prosecutors not to sweat too much, and for the judicial system to, you know, close its eyes and not put the ruffians, the rapists, the killers – very often of Gypsy origin – in prison. ... The Bulgarian State nowadays tolerates Gypsy terror against Bulgarians. ...” 30 May 2005 edition of the Ataka television programme (on the theme “Gypsy terror”) “... Today I continue with the topic of Gypsy terror. ... These are between 1,500 and   2,000 Gypsies – no-one can say how many exactly – who have come from all over the country, have settled there, without registering their address. All of them are deemed to inhabit the same address ... and live there illegally. They do not pay taxes, do not pay fees, do not pay for electricity, do not pay for water supply. They pay for nothing. But what do they do – they beat up Bulgarians, rob them, ill-treat them, rape women, kill; there have been several murders already. I categorically promise you, dear Bulgarians, that I will investigate these cases, because this is not simply terror – ‘Gypsy terror’, as I have entitled my programme – this is genocide. This is to commit genocide against the Bulgarian ethnic group in Bulgaria. This genocide is being manipulated and stimulated from abroad. I have information that these Gypsy raids are being paid for – paid for so that they be organised and stir up unrest. Someone wishes this place to become like Kosovo. ...” 22 March 2005 edition of the Ataka television programme (on the theme “Gypsy terror”) “... And this is just one episode from the long series of instances of Gypsy violence, which is now an everyday occurrence in the capital. As you can see, we are talking about an inner-city school in the capital, in [the district of] Ovcha Kupel. And what about localities in the countryside – smaller settlements, villages – which are being constantly subjected to Gypsy violence? ... There are whole regions, dear Bulgarians, where settlements have in the last few years turned from Bulgarian – predominantly Bulgarian – to predominantly Gypsy. Someone would say that this is already a demographic issue. For my part, I say that this is a question of genocide against the Bulgarians, since Gypsy criminality is deliberately not being prosecuted. ... I must say that during the last few years – the last perhaps seven or eight years – about 102 towns and villages in Bulgaria have turned from predominantly Bulgarian to predominantly Gypsy. This means a conquest of Bulgaria – a ‘Gypsification’ that will lead to ... I personally dare not paint the picture that might result, because the impudence of those groups, ethnic groups, is growing like an avalanche. ...” 23 June 2004 edition of the Ataka television programme “... We see how in the Borisova Gradina park the busts of a number of Bulgarian national writers and revolutionaries have gone missing, stolen by Gypsy gangs and melted for recycling. ...” Interview with Mr Siderov aired by SKAT television in June 2005 “... I shall not detain people here with details of the dozens of instances of marauding, of crime left simply without any repercussions – just because it would cause ethnic unrest, as the people in power are now saying. ... They refuse to take a stance, and thus encourage whole groups of people, who simply know that they will not be sanctioned, and who do as they please. There are dozens of examples ... Villages, towns are simply squirming under a living terror. And this terror is becoming greater each day, and I believe that this should all be brought to a halt. There is a way to bring it to a halt. These ways ... so, at first they seem violent, administrative, but they are being applied in developed countries. And I shall again point to America, so very beloved by all democrats and liberal-mongering politicians. Where anyone who commits an offence or attacks you in your home – on your property, which is inviolable and sacred by constitution – you can literally shoot him, [while] protecting your home, and not be held liable. I am categorically in favour of that. I want the Bulgarian to be protected in his own home. To be able to protect his family, his property, and not wonder whether, if he defends himself, he will tomorrow become a target for the judicial system, be branded as a violent offender, as has happened in some cases ... Gypsification is an enormous problem. It is not such an easy problem. Because I know of no country in Europe that has managed to integrate its Gypsy population, fully and completely. There is no such country. The problem is that in Bulgaria – unlike in Germany or France – this population is a serious percentage. There, even if there are Gypsies, they are a lot fewer in terms of percentage and do not create such a problem. If no measures are taken – at State level – as part of a programme, then this problem (I am categorically certain [and] I assure all viewers, all Bulgarians of this) ... will become paramount for Bulgaria in only five to six years. Because this population   – let’s say it honestly, directly – understands sanctions. As does, by the way, a serious part of the population of the Earth when they are subjected to sanctions. And we cannot be confident that self-education [and] moral scruples will prevail and that one fine day we will see ourselves surrounded by a Gypsy ethnic group that will be at such a level of morality as to by itself heed all laws and moral precepts. ...” Speech by Mr Siderov at a pre-election rally of Ataka in Burgas on 22 June 2005 “... All Gypsy gangs, marauders, who torture, ill-treat, rape and loot in all towns of Bulgaria will be put in their place. ... Now is the time when we must begin to stop this process of the Gypsification of Bulgaria. ...” Speech by Mr Siderov at the first session of the newly elected parliament on 11 July 2005 “... Because a gigantic genocide of the Bulgarian nation was carried out during this eight-year period. At the insistence of foreign factors ( фактори ) hostile to Bulgaria, it is envisaged to leave [just] three-and-a-half to four million of our people [remaining in Bulgaria. This is the plan of the Bulgarophobes, and this plan is being carried out before our very eyes. If someone asks how, I will explain: by stripping Bulgarians of the right to be masters in their own State; by leaving them to die of misery and lack of medicine and medical treatment; by subjecting them to terror by Gypsy gangs, who every day attack, loot, rape and ill-treat the Bulgarian nation. And then, deliberately, no one seeks to uncover the crimes committed by them, because the foreign directive is precisely that – not to investigate offences committed by these minority groups. The goal is for Bulgarians to live in fear, to lose faith, to be crushed, submissive. ...” Interview with Mr Siderov aired by Darik Radio in July 2005 “ Host : Now, the other topic – Roma. How to resolve the problem of illegal logging and the Roma? Mr Siderov : ... I know that in this region this is an everyday occurrence, this happens all the time: Gypsies with carts, with saws, with equipment – quite decent, by the way – are constantly cutting down [trees] ... there is illegal logging going on. ... This is well-known – everyone knows this. Just ask around the region – they will tell you. And in the fact that what happened here was a clash between Gypsy poachers who break the law (this should be said clearly, no one has done it until today) and law-enforcement authorities or forest rangers (I am not sure which – this will surely be elucidated in the future investigation). This is simply the consequence of something that is happening; measures against this illegal logging should have been taken long ago – put the perpetrators in prison and ensure that they do not think again of cutting down Bulgarian forests, because the damage is dreadful. This damage will not be made good for decades. This is simply an invasion of termites that is destroying Bulgaria. Host : This is one side of the coin, Mr Siderov; but would you say that, should it be established that the gendarmerie or the forest rangers or the police have beaten up Gypsies – would you say that they should also be punished? Mr Siderov : If it is established that Gypsies have beaten up – because I know of a case in which today or yesterday – not sure, let me avoid an error – but a very recent case in which Burgas Gypsies attacked some [water-charge] collectors and beat them up – collectors who were on their way to cut off the water mains of [someone] who had not paid water charges for three years. Host : They should obviously be punished. And should those who beat up Gypsies likewise be punished? Mr Siderov : Those who lay their hands on a law-enforcement officer should be punished with the full severity of the law. I am simply categorically in favour of that. In the case of [these gendarmes], I fully excuse the actions of the gendarmerie there, because in this case specifically we have a crime, we have illegal logging, we have an offence that has gone on for years. It was, you know, high time for the gendarmerie to intervene. I am for that. Host : ... And yet, should Gypsies be beaten up in ... when they are being arrested? Mr Siderov : This is not a correct question, because what is ‘should they be’ supposed to mean? Offences should be prevented ... Host : Do you approve of violence against Gypsies? Mr Siderov : If offenders put up resistance, they should be neutralised, including by force. This is the law. So there must have been some resistance, because there is more than one case in which Gypsies have attacked police officers, have attacked law ‑ enforcement officers; there were police officers, patrols, and so on, who were beaten up. This is inadmissible; in every civilised country such people are simply neutralised on the spot, at that very second, by all possible means. And this is absolutely lawful, within the bounds of the law. Host : And do you approve? Because there have been such cases against Bulgaria in Strasbourg [regarding] the thrashing of Gypsies in investigation facilities. When they have already been caught, do not put up resistance – they are being tied up and beaten. Mr Siderov : And I would ask you: do you approve of an attack on a law ‑ enforcement officer by a poacher, a law-breaker, a criminal? Host : If we are to maintain a humorous vein – you are determined to preserve your image. Mr Siderov : ... I am against Strasbourg’s decision. If someone approves of a police officer being attacked, I, according to ... my personal opinion is that he should have permission and the right to shoot to kill in such cases, because this is how law ‑ enforcement authorities operate. This is how it is in America, this how it is, you know, in developed countries – the police are inviolable; they cannot be attacked, especially by someone who is committing an offence. This is the same as ... he should become a target for the police officer, for the law-enforcement officer who is doing his duty, and be neutralised, including by using firearms. ...” Passages from Mr Siderov’s book Bulgarophobia , published in Sofia in 2003 “... They steal to get out of poverty, say the waged ( платените ) human rights defenders; they have no jobs. They skip over the tiny fact that Gypsy families keep their children out of school en masse and they remain illiterate. What kind of work can they get later? If you offer them agricultural work, they balk. They prefer to steal the fruit. To steal wiring and scavenge all things made of metal. According to villagers, it is chiefly Gypsies who now burn the forests, so that they can smuggle wood after that. ...” (page 288) “... According to the statistics, unemployment benefits in Bulgaria are distributed as follows: 65.2% of the money goes to Roma [and] 14.6% for Bulgarians. Again, the few active Bulgarians of working age who remain in Bulgaria support a gigantic percentage of Gypsies who for their part only take benefits, do not pay for anything, and are on top of all that the main thieves of electric wiring, which has caused the State losses of hundreds of millions and is everywhere [else] treated as terrorism (but we are broad-minded). If this is untrue, let the police and the investigators who deal with electric-wiring theft rebut me. ...” (page 315) “... Throughout all those years, when Gypsy bandits stole, cut away tonnes of electric wiring (which in civilised countries is a terrorist act) and left whole regions without electricity, causing millions of levs in damages, non-Gypsies were hanging themselves from the ceiling out of despair ...” (page 332) “... The brazenness of this demonstrable Gypsy banditry comes from statements such as that of [T.T.], the leader of the Roma Association, to the newspaper Trud on 14 August 2001: ‘Bulgaria will become Kosovo’. The prophecy (or threat) of the Roma leader is evidently turning into reality. In the absence of State authority in Bulgaria, the next stage is terrorist acts and murders of non-Gypsies. ‘What are we to do?’ asks the police chief in Plovdiv hopelessly. Our advice is, first tender your resignation. And until then let someone who knows how to deal with terrorists and street vandals take over your post. ...” (page 333) Course of the proceedings in the applicants’ case At first instance 12 .     When hearing the case on 21 November 2006, the Sofia District Court listened to audio-recordings of Mr Siderov’s statements presented by the applicants. The minutes of the hearing, drawn up by the court’s clerk, did not include certain passages of dialogue (see footnotes 2, 3 and 4 above). On 8 December 2006 the applicants asked the court to rectify the minutes so that those passages were included in them. On 16 April 2007 the court heard its clerk in the presence of counsel for the applicants. The clerk stated that she had noted down everything that she had been asked to, and that she had no clear recollection of hearing the passages of dialogue whose inclusion was being requested. In view of those explanations, and noting that the request for correction of the minutes had been made belatedly, the court refused to make the requested changes to the minutes. 13 .     On 15 October 2008 the Sofia District Court dismissed the applicants’ claim. It began by noting that the case turned on whether Mr   Siderov’s statements had constituted a proper exercise of his right to express an opinion, as guaranteed by Article 39 § 1 of the Constitution (see paragraph 20 below), or whether they had amounted to an exercise of that right with a view to fomenting ethnic strife. The court went on to say that the assertion that the impugned statements had constituted harassment or incitement to discrimination were not supported by the facts. The statements, though revealing a negative attitude towards Roma as a group, had not been aimed at placing them at a disadvantage vis-à-vis other ethnic groups, but rather the opposite, as they had contained appeals that Roma be treated on an equal footing with other Bulgarian citizens. It was true that the statements, which had touched upon the integration of Roma, had been phrased in a manner that had not struck the correct tone and had not reflected the need for tolerance when discussing issues of public importance. But that was not in itself indicative of incitement to discrimination, since that turned on a statement’s content rather than its form or wording. Mr Siderov had, whether justifiably or not, sought to focus the public’s attention on “the fact that certain ethnic minority groups commit[ted] offences against the person, which went unpunished, and [did] not fulfil their obligations, as was expected of all Bulgarian citizens – namely not to disrupt public order and to pay their dues to the State and the various utility companies”. Calls for the investigation and punishment of offences committed by members of one or other ethnic group, and for them to abide by the laws, did not amount to discrimination, but were rather directed towards the equal treatment of the members of the various ethnic groups. To accept that ethnicity might be grounds to treat an individual or a group differently and to exonerate them from criminal or civil liability would be tantamount to legitimising discrimination against people with a different ethnic self-consciousness, which was proscribed by the Constitution and the 2003 Act. Mr Siderov’s public manifestation of his negative views about the conduct of the Roma community did not in itself amount to discrimination, since his statements had not been aimed at placing that community in a less favourable position; rather, he had called for – as was indeed required by law – equal treatment for all (see реш.   от   15.10.2008 г. по гр. д. № 2858/2006 г., СРС). The applicants’ appeal 14 .     The applicants and the four other claimants in the case lodged an appeal with the Sofia City Court, arguing that the first-instance court’s findings had been formalistic and contrary to common sense. They argued that when a politician publicly spoke about an ethnic group in such crude terms, he in effect instilled fear and hatred towards it. It was not necessary for him directly to call for violence or discrimination against it. By holding otherwise, the court had erred in the application of the 2003 Act. Moreover, by referring to Mr Siderov’s assertions as “fact”, it had itself displayed racial bias. 15 .     On 21 June 2010 the Sofia City Court upheld the lower court’s judgment. It held that the available evidence did not permit it to conclude that the impugned statements, as detailed in the statement of claim, had subjected the applicants to treatment different to that accorded to the rest of the population, or had constituted harassment or incitement to discrimination. In his newspaper articles, the public statements made by him over a considerable period of time (including his interview for Darik Radio), and his speech in Parliament in 2005, Mr Siderov had not directly or wilfully encouraged discrimination against those of Roma ethnicity. In particular, his remark in his book, Bulgarophobia , that the inhabitants of a Roma neighbourhood in the town of Plovdiv owed six million Bulgarian levs to the electricity company and that no steps were being taken to collect that debt could not be categorised as harassment (see реш. № 2935 от   21.06.2010 г. по в. гр. д. № 2703/2010 г., СГС). The applicants’ appeal to the Supreme Court of Cassation 16 .     The applicants and the four other claimants in the case appealed on points of law. They argued that the Sofia City Court had failed to give cogent reasons for its judgment or to properly analyse Mr Siderov’s statements in the light of the definitions of harassment and incitement to discrimination given by the 2003 Act. They again emphasised that Mr   Siderov was a well-known politician who had actively sought to vilify a whole ethnic group. 17 .     On 8 August 2012 the Supreme Court of Cassation declined to accept the appeal for examination. It held that there was no indication that there was inconsistent case-law regarding the points at issue in the case, or that it threw up special issues relating to the correct application of the law or its development (see опр. № 972 от 08.08.2012 г. по гр. д. № 1672/2011 г., ВКС, IV г. о.). RELEVANT LEGAL FRAMEWORK BULGARIAN LAW Constitutional provisions 18 .     Article 6 § 2 of the 1991 Constitution provides for equality before the law in the following terms: “All citizens shall be equal before the law. There shall be no restrictions of rights or privileges on grounds of race, nationality, ethnic identity, sex, origin, religion, education, opinions, political affiliations, or personal, social or property status.” 19 .     Article 32 § 1 of the Constitution enshrines the right to protection of one’s private life and dignity in the following terms: “Citizens’ private life shall be inviolable. All shall be entitled to protection against unlawful interferences with their private ... life and against infringements of their honour, dignity or good name.” 20 .     Article 39 § 1 of the Constitution provides that everyone is entitled to express an opinion and publicise it through words (whether written or oral), sounds or images, or in any other way. Under Article 39 § 2, that right must not be “exercised to the detriment of the rights and reputation of others, or for incitement to ... enmity or violence against anyone”. The Protection from Discrimination Act 2003 Prohibition of discrimination and harassment (a)    Statutory provisions 21 .     The Protection from Discrimination Act was enacted in 2003 and came into force on 1 January 2004. Section 4(1) prohibits any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status or property status, or on any other grounds laid down in statute or an international treaty to which Bulgaria is party. 22 .     Under section 5, harassment based on any of the grounds listed in section   4(1) – as well as sexual harassment, or incitement to discrimination, persecution and racial segregation – is deemed to constitute discrimination. 23 .     Paragraph 1(1) of the 2003 Act’s additional provisions defines “harassment” as any unwanted conduct motivated by the grounds listed in section   4(1) – whether expressed through physical gestures, words or otherwise – that either is meant to infringe or results in the infringement of the dignity of the people concerned and the creation of an intimidating, hostile, degrading, humiliating or offensive environment. Paragraph 1(5) defines “incitement to discrimination” as direct and wilful encouragement, instructions or pressure to practise (or coaxing into practising) discrimination. 24 .     The Supreme Administrative Court has stated that direct discrimination and harassment are related but nevertheless distinct concepts; as regards the concept of harassment, any difference in treatment is irrelevant – rather, harassment is characterised by its special aim or result, as set out in paragraph 1(1) (see реш. № 8105 от 08.06.2011 г. по адм. д. № 8708/2010 г., ВАС, VII о., upheld by реш. № 156 от 05.01.2012 г. по адм. д. № 13389/2011 г., ВАС, петчл. с-в). (b)    Case-law relating to public statements about Roma as a group (i)       Case-law of the Supreme Administrative Court 25 .     In a March 2009 judgment, upheld on appeal in December 2009, the Supreme Administrative Court found that statements by a mayor in a radio interview that “even cows in [his municipality] would cause less obstruction than a Gypsy neighbourhood” and that “such a Roma neighbourhood would be ten times more dangerous than a rubbish dump [located] in the proximity of living quarters” had amounted to harassment within the meaning of the 2003 Act, as they had infringed the dignity of a large number of people and had created an insulting environment based on ethnicity. The fact that the mayor had expressed his opinion in relation to a public-policy issue could not justify his comparing a minority ethnic group to “cows” and a “rubbish dump”. Nor was it a defence that the mayor had not meant to offend the people concerned; it was enough that his words, which had been widely publicised in the Roma community, had led to that result (see реш. № 3019 от 06.03.2009 г. по адм. д. № 9485/2008 г., ВАС, VII о., upheld by реш.   № 14472 от 01.12.2009 г. по адм. д. № 11158/2009 г., ВАС, петчл.   с-в). 26 .     In a July 2009 judgment,