CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 février 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .sF9195E13 { margin-top:24pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 4 March 2024 THIRD SECTION Application no. 51011/20 Hristo Petrov NIKOLOV against Bulgaria lodged on 11 November 2020 communicated on 12 February 2024   SUBJECT MATTER OF THE CASE 1.     The applicant is a Bulgarian national of Roma ethnic origin. 2.     On 17 April 2019 the (then) Deputy Chief Prosecutor (and head of the Specialised Prosecutor’s Office), Mr I.G., gave a television interview in relation to criminal proceedings against, inter alios , a mayor and her deputy. When commenting on the fact that one of the accused had retracted a statement given earlier in the proceedings, Mr I.G. said: “All criminal defendants do so, Gypsies also do so, [them] including ... This is widespread.” 3.     About a week later, on 25 April 2019, the applicant, acting in his capacity as “a Bulgarian national of Roma ethnic origin”, complained about that statement to the Commission for Protection Against Discrimination. He submitted that it had negatively stereotyped Roma people and had amounted to harassment and incitement to discrimination against them, and asked the Commission to open proceedings against the Deputy Chief Prosecutor. 4.     The Commission did so, but having examined the complaint, in June 2019 dismissed it. It found that the statement, taken as a whole and read in its proper context, had not amounted to harassment or incitement to discrimination against Roma, but was to be seen as the expression of opinion about the typical conduct of defendants in criminal proceedings (see реш.   №   401 от 25.06.2019 г. по преп. № 113/2019 г., КЗД ). 5.     The applicant sought judicial review of that decision. In October 2019 the Sofia Region Administrative Court dismissed his claim. It held that the use of the word “Gypsies” could not be seen as discriminatory in itself, and went on to note the absence of evidence that the statement had been directed against the applicant personally, or that it had been meant to create, or had resulted in the creation of, an intimidating, hostile, degrading, humiliating or offensive environment for him (see реш. № 1195 от 11.10.2019 г. по адм.   д. № 976/2019 г., АдмС-София-област ). 6.     The applicant appealed on points of law. On 14 May 2020 the Supreme Administrative Court upheld the lower court’s judgment. It fully agreed with the reasons given by that court, but added that under Article 132 of the Bulgarian Constitution judges, public prosecutors and investigators enjoyed functional immunity from liability in respect of their work, and under that by section 214 of the Judiciary Act 2007 they could not be respondents in their personal capacity to administrative proceedings relating to their work unless provided for by statute – which was not the case with the Protection from Discrimination Act 2003. It had therefore not been open to the Commission to even open the proceedings and examine the complaint (see реш. № 5610 от 14.05.2020 г. по адм. д. № 14676/2019 г., ВАС, V о. ). 7.     The applicant complains under Articles 8, 13 and 14 of the Convention of the statement of the Deputy Chief Prosecutor and of the dismissal of his complaint under the Protection from Discrimination Act 2003 against the Deputy Chief Prosecutor in respect of that statement.   QUESTIONS TO THE PARTIES 1.     Are Articles 8 and 14 of the Convention applicable? In particular, did the statement of the Deputy Chief Prosecutor at issue in the case affect the applicant’s “private life” (see Budinova and Chaprazov v. Bulgaria , no.   12567/13, §§ 63 and 69, 16 February 2021, with further references)? 2.     If Articles 8 and 14 of the Convention are applicable, did that statement amount to interference with the applicant’s rights under those provisions (see, mutatis mutandis ,   Tonchev and Others v. Bulgaria , no. 56862/15, §§ 52-55, 13   December 2022)? 3.     If so, was that interference “in accordance with the law”, did it pursue a legitimate aim, and was it “necessary in a democratic society” for the attainment of that aim (see, mutatis mutandis , Tonchev and Others , cited above, §§ 56-65)? 4.     If Articles 8 and 14 of the Convention are applicable, was the dismissal of the applicant’s complaint against the Deputy Chief Prosecutor with respect to that statement in breach of the positive obligations flowing from those provisions (see, mutatis mutandis , Budinova and Chaprazov , cited above, §§   87-95) or deprive him of an effective remedy in respect of the statement, in breach of Article 13 of the Convention? In particular, was it justified for the Supreme Administrative Court to hold that it had been impermissible to conduct proceedings against Deputy Chief Prosecutor under the Protection from Discrimination Act 2003 owing to his functional immunity (see, mutatis mutandis , Esposito v. Italy (dec.), no. 34971/02, 5 April 2007)?