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

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sE207830C { margin-top:54pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s88D564B { margin-top:0pt; margin-bottom:0pt; text-align:justify; border:0.75pt solid #000000; padding:1pt 4pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s2E1B62A9 { margin-top:0pt; margin-bottom:6pt; text-align:center } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4BAE41EE { font-family:Arial; font-size:11pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s223139AF { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.18pt; font-family:Arial; text-transform:uppercase } .sF43EBB0E { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:2.85pt; font-family:Arial; text-transform:uppercase } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s2A91C753 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s22C028B2 { font-family:Arial; font-style:italic; color:#1f497d } .s15BDF7F4 { font-family:Arial; color:#1f497d } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sF9B3189B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .s4B8D41EE { font-family:Arial; font-size:10pt } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sB706BD6C { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.18pt; font-family:Arial; text-transform:uppercase } .s4030DF6D { margin-left:10.75pt; margin-bottom:12pt; text-align:left; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .s71EEDCF9 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC79167A { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .s4602DC35 { margin-top:0pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s84CD1D0D { width:9.02pt; font:7pt 'Times New Roman'; display:inline-block } .s72C5114D { margin-top:14pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s2DAE615E { width:6.8pt; font:7pt 'Times New Roman'; display:inline-block } .sED360BAA { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; font-size:10pt } .s83A830FF { width:4.57pt; font:7pt 'Times New Roman'; display:inline-block } .sCB998B5F { margin-top:14pt; margin-left:68.6pt; margin-bottom:6pt; text-indent:-16.7pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s726BE6B4 { width:4.8pt; font:7pt 'Times New Roman'; display:inline-block } .sEA32F4F3 { width:4.95pt; font:7pt 'Times New Roman'; display:inline-block } .sCFA4557D { width:5.62pt; font:7pt 'Times New Roman'; display:inline-block } .sAA38361A { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s1026EC2D { margin-top:18pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sAD1DAC71 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .sD58C010 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; 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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   FOURTH SECTION CASE OF BEHAR AND GUTMAN v. BULGARIA (Application no. 29335/13)   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 Jewish applicants for antisemitic 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 Behar and Gutman 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. 29335/13) 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 Gabriela Aron Behar and Ms Katrin Borisova Gutman (“the applicants”), on 23 April 2013; the decision to conduct the proceedings in this case simultaneously with those in Budinova and Chaprazov v. Bulgaria (no. 12567/13); 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 Jewish people, 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 comments submitted by a non-governmental organisation, the Greek Helsinki Monitor, which had been granted leave to intervene in the case as a third party, 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 in the case, 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 Jewish 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 antisemitic statements that he had made 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 1972 and 1968 respectively and live in Plovdiv. They were represented initially by Ms M. Ilieva and then by Ms   A.   Kachaunova, both lawyers practising in Sofia and at the material time working with the Bulgarian Helsinki Committee. [1] 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 41 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 27 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 24 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 are of Jewish ethnic origin, concerned chiefly Mr Siderov’s statements in relation to Jews and the Holocaust. Statements by Mr Siderov at issue in the applicants’ case 10 .     In their claim, the applicants asserted that a number of passages in two books written by Mr Siderov had amounted to harassment and incitement to discrimination on the basis of Jewish ethnicity or religion. 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 passages in a book by Mr Siderov entitled The Power of Mammon ( Властта на Мамона ), which was published in Sofia in 2004 (translation by the Registry): “... until [the time of] Christ, Judaism was a permanent renouncement of God in favour of Mammon ...” (page 28) “[Judaism] ... is an elitist, xenophobic, racist and theomachist philosophy” (page 42) “The demagoguery of authors who gloss over the secular robbery of Christians by the Jews as a trifle is astounding. ... [E]verywhere on the European continent Jews got under the skin of rulers, pushed them towards wars and cataclysms, so that they would fall in an acute need of money ...” (page 58) “... The genocide against the Russian, Bulgarian and other Orthodox peoples was carried out under direct commands from Talmudic western circles, headed by the Rothschild family. This genocide comprised not only direct extermination through wars, ‘revolutions’ and terrorism (which has been a trademark of Judaism for centuries). This genocide was carried out also by way of the calculated and consistent looting of the money and resources of the Christian peoples ...” (page 135) “... The Talmudic worldview is: enslavement ...” (page 143) “... Elitism is the basis of the Judaic, Talmudic worldview. It comprises the notion that to rob the ‘other’ – the non-Jew – is a feat rather than a sin. That to ruin him is a good deed rather than a sin. ...” (page 147) “... Tsarism and the Orthodox religion were loathed by the Jewish banking oligarchy in London and New York, and it gave sufficient money to enable the liquidation of its main enemies – the Christian Church and the monarchy of a Byzantine type. To liquidate the State of the Spirit, so that the kingdom of Mammon could triumph. ...” (page 156) 12 .     The applicants also referred to the following passages in the second edition of another book by Mr Siderov entitled The Boomerang of Evil ( Бумерангът на злото ), published in Sofia in 2002 (translation by the Registry): “... ‘Shoot the louses on the spot!’ was Ulyanov’s order to the war commissar Leo Bronstein-Trotsky. And the Russian Jew-mason, a member of the Grand Orient lodge, carried out the order with sadistic contentment. ...” (page 72) “... Who is that? Who will rejoice in the deaths of millions of Christians? While using as an instrument supposed other ‘Christians’ – pawns from the same countries in which the action is taking place? Those who reckon ( смятат ) that they have been chosen to rule the world. Who a long time ago renounced God and [now] bow to his enemy. Who have created the most perfectly chauvinistic and racist doctrine in the world – Judaism. Those are the sons of ‘Israel’ – the one who wrestles with God, in the Bulgarian translation. ...” (page 75) “... The [number of the] victims of the Jewish-Bolshevik terror are reckoned to [amount to] more than 100 million over the whole period of Soviet rule. ...” (page 93) “... Why is it that today no one speaks of the genocide carried out by a Jewish establishment over sixty-six million Russians over the seventy years of communism? ... In 1918 the Soviet Government consisted of twenty-two people, eighteen of whom were Jews, one a Georgian, one an Armenian, and two Russian. The decision to decimate the Russian people was taken by non-Russians. ...” (page 113) “... Enslaving other peoples has for centuries been the supreme goal of the Jewish world elite. ...” (page 156) “... The lies about the ‘gas chambers’ that exterminated millions of Jews are also supported by the data of British intelligence. ...” (page 169) “... By using the legend of the ‘Holocaust’ the Jews reaped enormous advantages from the world. ... The ‘Holocaust’ lie is also very lucrative. According to Der Spiegel (issue 18 of 1992), since 1952 the Federal Republic of Germany has paid out to Jewish Zionist organisations a total of 85.4 billion German marks! ...” (page 170) “... The most powerful brainwashing instrument – television – is a monopoly of three men – the Jews Isner, Levin and Rotstein. CNN long ago ceased to be owned by Ted Turner; it is owned by Levin. ...” (page 205) 13 .     The applicants furthermore referred to the following passage from the first edition of the same book, also published in 2002 in Sofia (translation by the Registry): “... It is then that there emerged the germ of the great hoax called the ‘Holocaust’ – the version [of history according to which] 6,000,000 Jews were gassed and burned in the ovens of Hitler’s concentration camps. ...” (page 169) 14 .     Lastly, the applicants referred to the following passages from two public speeches made by Mr Siderov (translation by the Registry): Speech at a pre-election rally of Ataka in Burgas on 22 June 2005 “... No to the Gypsification of Bulgaria. No to the Turkification of Bulgaria. ... At long last Bulgarians will have their own representation in Parliament. It will not only be full of pederasts, Gypsies, Turks, aliens, Jews and all manner of others, but will consist only and exclusively of Bulgarians! Who will defend the honour, dignity and interests of the Bulgarian. ... ... We shall say that Bulgaria will not permit itself ... to become a Turkish province. It will not permit itself to become a Gypsy State. It will not permit itself to become a Jewish colony. Or any other [kind of] colony. ...” Speech at the first session of the newly elected Parliament on 11 July 2005 “... This is what I had to say: Bulgaria above all – Bulgaria for Bulgarians!” Course of the proceedings in the applicants’ case At first instance 15 .     On 10 February 2009 the Sofia District Court dismissed the applicants’ claim. It held that it had not been demonstrated that by making the impugned statements (whose authorship he did not contest), Mr Siderov had sought to impinge on their dignity or honour or to create an intimidating, hostile or offensive environment. Nor had it been shown that he had wilfully encouraged, given instructions or coaxed anyone to carry out discrimination, since it had not been proved that his statements had been capable of influencing negatively the people before whom he had spoken. It was true that in his speech before the newly elected Parliament he had uttered the words “Bulgaria above all – Bulgaria for Bulgarians!” But the applicants were also Bulgarian citizens, irrespective of their ethnic identity. It had not been categorically proved that Mr Siderov had not just been exercising his freedom to express his opinion, in writing and orally, rather than inciting discrimination. Nor had it been shown that his statements had caused any of their recipients to treat the applicants less favourably than others owing to their ethnicity. The constituent elements of harassment or incitement to discrimination were therefore not in place (see реш.   от   10.02.2009 г. по гр. д. № 2855/2006 г., СРС). The applicants’ appeal 16 .     The applicants and the other claimant in the case lodged an appeal with the Sofia City Court, arguing that the first-instance court’s findings did not reflect reality and were arbitrary. The court had in effect turned a blind eye to the intent behind Mr Siderov’s extreme antisemitic statements. That was all the more glaring given the fact that he was a politician notorious for his anti-minority agitation. The finding that his statements could not sway public opinion was likewise inadequate. If the leader of a political party who had come second in the presidential election could not do so, through his books, public speeches and speeches in Parliament, then no one ever could. The court had also erred by holding that harassment required both intent and result; in fact, it was necessary for only one to apply. Nor was it true that “incitement” presupposed specific results. It could not be accepted that Mr Siderov had legitimately exercised his right to freedom of expression. Under European Union law and the Strasbourg Court’s case-law, racist and antisemitic speech and Holocaust denial were not protected forms of expression. 17 .     On 20 December 2010 the Sofia City Court upheld the lower court’s judgment. It held that in assessing whether the impugned statements had been in breach of the 2003 Act it had to bear in mind that each of the parties was relying on fundamental rights guaranteed by the Constitution and international agreements – namely, on the one hand, the right to honour and dignity, and, on the other, the right to express an opinion. The court reviewed in some detail the case-law of the Constitutional Court regarding the balance to be observed between those rights, and noted that the Strasbourg Court’s case-law under Article 10 of the Convention differentiated between the defence of unpopular and offensive ideas and calls to hatred or violence. 18 .     The court went on to say that there was no evidence that Mr Siderov had sought to infringe the applicants’ honour or dignity owing to their ethnic identity. Rather, his statements had expressed his beliefs about topics that were in his view of social importance, and had not been intended to stir up hatred, violence or tension. It was true that his statements had contained negative assessments that could shock or offend. But that was not sufficient to limit his freedom of expression by deeming his statements to be unlawful and to constitute an incitement to harassment or discrimination. 19 .     The court furthermore held that only statements directed against a well ‑ defined group of people or a specific person could be regarded as expression to the detriment of the rights of others. That was not the case with the impugned statements. They had not targeted anyone in particular – still less the applicants. Rather, they had been directed at the public at large (and had been made in such a way as to reach its attention), and had presented Mr Siderov’s views on political, historical, religious and ethnic issues. It had not been proved that he had meant to infringe the applicants’ dignity or honour or to create an intimidating, hostile or offensive environment. Nor had it been shown that he had wilfully encouraged, given instructions to or coaxed anyone to carry out discrimination. That also applied to the statements contained in his books. There was no evidence that any of his public speeches – in particular that at the rally in Burgas – had caused those listening to those speeches to treat the applicants less favourably owing to their ethnicity. As for his statement in Parliament, it could not have affected the applicants, as they were also Bulgarian citizens, irrespective of their ethnic identity. It could not be seen as a call for unequal treatment, since all ethnic groups in Bulgaria were Bulgarian nationals. 20 .     The Sofia City Court thus agreed with the first-instance court that the constituent elements of harassment or incitement to discrimination were not present (see реш. № 2935 от 20.12.2010 г. по гр. д. № 80/2010 г., СГС). The applicants’ appeal to the Supreme Court of Cassation 21 .     The applicants and the other claimant in the case appealed on points of law. Among other arguments, they again pointed out that according to the Strasbourg Court’s case-law, hate speech and Holocaust denial were not protected forms of expression, and that in his capacity as a politician Mr   Siderov could really influence public opinion. 22 .     On 15 November 2012 the Supreme Court of Cassation declined to accept the appeal for examination. It noted that the concepts of harassment and incitement to discrimination had been comprehensively defined in the 2003 Act. The meaning of the relevant provisions was clear, and the applicants had not referred to any inconsistent case-law regarding the matter. Its own case-law under sections 4 and 5 of the Act was settled and did not need to be reappraised in the light of any fresh developments (see опр. № 1215 от 15.11.2012 г. по гр. д. № 533/2012 г., ВКС, IV г. о.). RELEVANT LEGAL FRAMEWORK Bulgarian law Constitutional provisions 23 .     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.” 24 .     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.” 25 .     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 26 .     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. 27 .     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. 28 .     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. 29 .     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 30 .     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). 31 .     In a July 2009 judgment, upheld on appeal in February 2010, the same court held that a television programme portraying Roma as being prone to anti-social behaviour could lead to negative stereotypes and thus fell under the prohibition provided by section 5 of the 2003 Act (see paragraph 27 above), given that it could not be justified on freedom ‑ of ‑ expression grounds. That was so in view of, in particular, the special duties and responsibilities of journalists and the widely held prejudice against Roma (see реш. № 9983 от 23.07.2009 г. по адм.   д.   №   2059/2009 г., ВАС, VII о., upheld by реш. № 1476 от   04.02.2010 г. по адм. д. № 14286/2009 г., ВАС, петчл. с-в). 32 .     In a March 2016 judgment the same court held that by using a derogatory term for Roma in the name that he had given to a computer file, an IT expert employed by the presidential administration had committed “harassment” within the meaning of paragraph 1(1) of the 2003 Act’s additional provisions (see реш. № 2445 от 02.03.2016 г. по адм.   д.   №   1248/2015 г., ВАС, V о.). 33 .     In contrast, in a final judgment of January 2019 the same court held that a statement by a Deputy Prime Minister to Parliament – in which he had referred to offences committed by Roma in strongly negative terms and had stated that some Roma had turned into “impudent, arrogant and beast ‑ like humanoids” – had amounted to a legitimate exercise of his right to freedom of expression, and that it had not amounted to “harassment” within the meaning of paragraph 1(1) of the 2003 Act’s additional provisions (see paragraph 28 above) with respect to the individual Rom who had lodged a complaint about it, since he had not been named and since there was no evidence that he had been personally affected by it (see реш.   № 636 от 15.01.2019 г. по адм. д. № 7229/2018 г., ВАС, V о.). 34.     A similar approach was taken in a subsequent final judgment delivered by the same court in respect of statements relating to Roma made by a mayor (see реш. № 14026 от 21.10.2019 г. по адм.   д.   №   12163/2018 г., ВАС, V о.). (ii)      Case-law of the Supreme Court of Cassation 35.     In a final judgment dated June 2019 (see реш. № 2 от 19.06.2019 г. по гр.   д. № 3203/2018 г., ВКС, III г. о.) – the first that it appears to have given in proceedings conducted under section 71 of the 2003 Act (see paragraph 38 below) – the Supreme Court of Cassation held (in relation to the above-mentioned statement by the Deputy Prime Minister – see paragraph 33 above) that, for there to be “harassment” within the meaning of paragraph 1(1) of the 2003 Act’s additional provisions (see paragraph 28 above), there must be both “unwanted conduct” (for instance in the form of a public statement) and specific negative consequences of that conduct in the personal sphere of the people complaining of it (such as a refusal to employ them or lease accommodation to them, or the uttering of specific threats against them). On that basis, the court dismissed the claim, finding no evidence that the Deputy Prime Minister’s statement had targeted the claimants or had somehow specifically affected them. Proceedings before the Commission for Protection from Discrimination and follow-up claims for damages 36 .     The authority chiefly responsible for ensuring compliance with the 2003 Act is the Commission for Protection from Discrimination (“the CPD”) (section 40). It can act of its own motion, or pursuant to complaints by the aggrieved parties or to reports by concerned persons or authorities (section 50). If the CPD finds that there has been a breach of the 2003 Act, it can order that that breach be averted or stopped, or that the status quo ante be restored (section 47(2)). It can also impose sanctions (such as fines), order coercive measures, or give directions that must be complied with (section 47(3) and (4)). The CPD’s decisions are amenable to judicial review (section 68(1) and section 84(2)). 37 .     People who have obtained a favourable decision delivered by the CPD and who wish to obtain compensation for damage suffered as a result of the breach established by it can lodge a claim for compensation for damage against the persons or authorities that have caused that damage (section   74(1)). Proceedings before the civil courts 38 .     Those complaining of discrimination can, alternatively, lodge a claim in a civil court seeking (a) a judicial declaration that there has been a breach of the 2003 Act, (b) an injunction against the party engaging in such discrimination requiring him or her to cease committing the breach, to restore the status quo ante and to refrain from committing any such breach in the future, and (c) damages (section 71(1)(1) to (1)(3)). Such a claim can be lodged on behalf of the aggrieved party by a non-governmental organisation (section 71(2)). If the alleged discrimination has affected many people, the non-governmental organisation may even lodge the claim in its own name, in which case those directly affected can join the proceedings as third parties (section 71(3)). The possibility of choosing between bringing proceedings in the CPD and proceedings in the civil courts 39 .     In an interpretative decision given in January 2019 (тълк. пост. № 1 от 16.01.2019 г. по тълк. д. № 1/2016 г., ВКС, ОСГК, и ВАС, ОСС на   I   и   II к.), a joint formation of the plenary of the Supreme Court of Cassation’s civil divisions and of all the judges of the Supreme Administrative Court noted, inter alia , that the two possible avenues of redress under the 2003 Act – lodging a claim under section 71 with the civil courts and lodging a claim with the CPD – were alternatives between which the people concerned were entitled freely to choose. COUNCIL OF EUROPE MATERIALS 40 .     In its Recommendation No. R (97) 20 to member States on “hate speech”, which it adopted in 1997, the Committee of Ministers of the Council of Europe recommended that the member States “take appropriate steps to combat hate speech on the basis of the principles [herein] laid down”. Those principles, set out in an appendix to the recommendation, read, in so far as relevant: Scope “The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media. For the purposes of the application of these principles, the term ‘hate speech’ shall be understood as covering all forms of expression that spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” Principle 2 “The governments of the member [S]tates should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others. To this end, governments of member [S]tates should examine ways and means to: ... –     enhance the possibilities of combating hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction; ...” Principle 3 “The governments of the member [S]tates should ensure that in the legal framework referred to in Principle 2, interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of, or interference with, freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.” Principle 4 “National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.” 41 .     In its fourth report on Bulgaria (CRI(2009)2), published in September 2009 and covering the period between 2004 and the middle of 2008, the European Commission against Racism and Intolerance (ECRI) stated: “90.     ECRI is concerned to note that an extreme right-wing party has been launching virulent verbal attacks on, among others, Turks as an ethnic and religious group, and that it has helped to create a climate of intolerance towards them. For instance, the party often presents Turks as a threat to the country. ECRI notes with approval that in March 2008 the party’s leader was convicted by the Sofia Court on the grounds that he had created a hostile and threatening environment for Turks. The court ordered this party to refrain from making remarks of this kind. According to certain polls, the party’s popularity is waning. ... 108.     As stated elsewhere in this report, there have been instances of racist and xenophobic political speeches and comments, pronounced mainly by members of an extreme right-wing party and its leader. The latter has twice been sentenced for racist remarks in response to complaints by members of civil society. Six further complaints are currently before the courts. As stated above, a strong message from the authorities would be necessary to counter the harmful impact of this party and of any other political personality who indulges in the same kind of rhetoric, by ensuring that the prosecuting authorities make sure that the legislation on incitement to hatred is enforced. The political party’s television channel regularly broadcasts a programme attacking ethnic minorities and foreigners. To date, however, no action has been taken against this channel, even though representatives of ethnic minorities have lodged complaints against it. ... 118.     As concerns the situation of the Jewish community, ECRI notes that it considers itself to be well integrated into Bulgarian society. ... 119.     However, ECRI is concerned to note that the extreme right-wing party mentioned elsewhere in this report is disseminating on its private television channel antisemitic messages and that, although this has been reported to the Electronic Media Council, no action seems to have been taken against the party. ... In addition, ECRI notes with concern reports that the legislation is not applied to people who publish antisemitic books.” 42 .     In its fifth report on Bulgaria (CRI(2014)36), published in September 2014 and covering the period between the middle of 2008 and March 2014, ECRI stated: “31.     ... ECRI notes that racist and intolerant hate speech in political discourse continues to be a serious problem in Bulgaria and the situation is worsening. The main targets of racist hate speech are Roma, Muslims, Jews, Turks, and Macedonians. The last election campaign was marked by strong anti-Gypsyism. ... Much of the problem centres on one nationalist political party, Ataka, which is represented in Parliament. Its leader is well-known for his out-spoken racist views. He has rallied against the ‘gypsification’ of Bulgaria, systematically linking Roma with criminals; he has called for a ban on the construction of mosques to halt the spread of Islam and he has published two antisemitic books.” THE LAW ALLEGED VIOLATION OF ARTICLEs 8 and 14 OF THE CONVENTION 43.     The applicants complained under Articles 8 and 14 of the Convention that the courts had dismissed their claim against Mr Siderov. The relevant parts of Articles 8 and 14 provide: Article 8 (right to respect for private and family life) “1.     Everyone has the right to respect for his private ... life ...” Article 14 (prohibition of discrimination) “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Admissibility Victim status (a)    The parties’ submissions 44.     The Government submitted that the applicants could not claim to be victims of a breach of their rights under Articles 8 or 14 of the Convention, and that their complaint in effect amounted to an actio popularis . They had not been directly affected by any of Mr Siderov’s statements, and had, moreover, not sought any damages in relation to them. 45.     The applicants submitted that even though their claim lodged during the domestic proceedings had been based solely on the fact of their belonging to an ethnic minority, the courts had accepted it for examination. Another argument in that respect lay in the rules on the distribution of the burden of proof in discrimination cases. The applicants also pointed out that they had adduced evidence during the domestic proceedings regarding the feelings that Mr   Siderov’s statements had engendered in them, and regarding their Jewish ancestry. They also described the hardships which their parents had had to endure in Bulgaria during the Second World War as a result of various anti-Jewish measures taken by the authorities, and stated that their parents’ account of how antisemitic rhetoric in the 1930s had led to such measures had rendered them particularly sensitive to such rhetoric. Antisemitism was still quite widespread in Bulgaria, and the display of Nazi symbols and other forms of public approval for Hitler’s regime went unpunished. (b)    The Court’s assessment 46 .     The applicants’ complaint does not concern Mr Siderov’s statements as such. Indeed, there is no basis on which to find that those statements are attributable to the Bulgarian State, and any complaints concerning the statements themselves would therefore be incompatible ratione personae with the provisions of the Convention (see, mutatis mutandis , Aksu v.   Turkey [GC], nos. 4149/04 and 41029/04, §§ 60-61, ECHR 2012). The complaint concerns solely the Bulgarian courts’ refusal to afford redress to the applicants in respect of those statements, which in the applicants’ view was contrary to Bulgaria’s positive obligations under Articles 8 and 14 of the Convention. It is not in doubt that the applicants were personally and directly affected by the judicial decisions dismissing their claim against Mr   Siderov. Whether his statements and the courts’ reaction to them engaged the applicants’ rights under Articles 8 and 14 is a question which goes to the compatibility of the applicants’ complaint with the provisions of the Convention ratione materiae rather than with their status as alleged victims in that respect. 47 .     In this connection, the position in the present case differs from that in L.Z. v. Slovakia ((dec.), no. 27753/06, § 69, 27 September 2011), which concerned a measure attributable to the respondent State – the renaming of a street – and where the question whether that measure had affected the applicant’s rights under Article 8 and the question whether he could claim to be a victim in that respect were inextricably linked. The position also differs from that in Aksu (cited above), where the complaint, as originally formulated, likewise concerned statements alleged to be partly attributable to the respondent State’s authorities (ibid., §§ 60 and 81). The complaint at hand concerns solely the positive obligations allegedly incumbent on the Bulgarian authorities. 48.     The Government’s objection must therefore be dismissed. Applicability of Articles 8 and 14 of the Convention (a)    The parties’ and third party’s submissions (i)       The Government 49.     The Government submitted that the applicants’ claim against Mr   Siderov had been general rather than based on assertions that his statements had specifically affected their private sphere or had had any specific pernicious effects on them personally. It was telling in that regard that the applicants had not sought damages from Mr Siderov, as they had been entitled to by law. According to the Court’s case-law, the extent to which general statements about a group affected its individual members had to be assessed in the light of the particular circumstances. In the instant case, the historical, social and political situation in Bulgaria, together with the applicants’ personal situation, all led to the conclusion that their rights under Article 8 of the Convention had not been engaged. There was no clear tendency in Bulgaria for hate speech to go unsanctioned, but the appr