Communicated on 21 August 2020 Published on 7 September 2020

FOURTH SECTION

Application no. 52358/15 Asen Georgiev GENOV and Tsvetelina Ognyanova SARBINSKA against Bulgaria lodged on 8 October 2015

STATEMENT OF FACTS

1 . The applicants, Mr Asen Georgiev Genov and Ms Tsvetelina Ognyanova Sarbinska, are Bulgarian nationals who were born in 1969 and 1973 respectively and live in Sofia. They are represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

2 . The facts of the case, as submitted by the applicants and as appearing from the documents submitted by them, may be summarised as follows.

3 . In April 1990 the Bulgarian Communist Party, which had ruled the country between 1946 and 1989, renamed itself Bulgarian Socialist Party.

4 . Following parliamentary elections on 12 May 2013, on 29 May 2013 a new government was formed, led by Mr Plamen Oresharski and chiefly supported in Parliament by “Coalition for Bulgaria”, a coalition whose main member was the Bulgarian Socialist Party.

5 . In the evening of 14 June 2013 a wave of demonstrations against that government erupted in various cities and towns throughout the country. At first, the demonstrators ’ main grievance was the appointment on the same date of Mr Delyan Peevski, a politician who later established himself as a wealthy businessman and media-owner, as chairman of the State Agency for National Security. The demonstrations continued daily until about mid-January 2014. Several months later, on 23 July 2014, Mr Oresharski ’ s government resigned.

6 . Both applicants took part in those demonstrations and were active members of the informal organisation “Protest Network”, which was coordinating the protests. The first applicant, a blogger, was also frequently posting public comments about the situation in Bulgaria on his Facebook page, and was for this reason quite well known in Bulgarian society.

7 . At about 4 a.m. on 7 November 2013 – anniversary of the 1917 Bolshevik Revolution – the two applicants and four other people were near the central office of the Bulgarian Socialis t Party in Sofia. At about 4.40 a.m. they were spotted by three police officers and tried quickly to move away. The officers saw that a monument standing in front of the building, which had been put there in the 1970s and consists of several figures representing “partisans” (resistance fighters active on the territory of Bulgaria in 1941-44 and affiliated with the Bulgarian Communist Party), had been freshly spray-painted in rose and magenta (the heads in rose and the bodies in magenta), and had the phrase “WHO? BCP–SHAME! WHO!” written in rose spray-paint on its base.

8 . Two of the officers followed the applicants and the four other people who were with them, and intercepted the group two blocks away from the monument. The officers saw that the second applicant wore latex gloves and held two spray-cans. They also noticed that in his bag the first applicant had four spray-cans, two pairs of latex gloves and a protective face-mask. The applicants handed those items to the officers. In reply to a question what they were doing there, they said that they had gone out for a walk and a coffee.

9 . The officers took the applicants and the four others to a police station. The applicants agreed to have their hands and clothes swabbed for samples; the four others refused. The applicants remained in custody for about twenty hours.

10 . It was later established that the applicants ’ clothes and shoes, as well as the face-mask found in the first applicant ’ s possession, bore traces of the same spray-paints as the ones used to paint and write on the monument.

11 . In February 2014 the applicants were charged with hooliganism, contrary to Article 325 § 1 of the Criminal Code (see paragraph 20 below). It was alleged that they had spray-painted the monument.

12 . In June 2014 the prosecuting authorities brought the applicants to trial. They maintained the charges, but proposed to the Sofia District Court to waive the applicants ’ criminal liability and replace it with administrative penalties, in application of Article 78a § 1 of the Criminal Code (see paragraph 21 below).

13 . On 31 October 2014 the Sofia District Court acquitted the applicants. It found that the available evidence did not categorically show that it had been them rather than the four other people also present at the scene who had spray-painted the monument. The court went on to hold that even if it had been established that this had been done by the applicants, their act had not constituted hooliganism. In the light of the applicants ’ explanations, this act was rather to be seen as a non-verbal expression of political views. The applicants ’ right to freedom of expression, protected under Article 10 of the Convention and Article 39 of the Constitution (see paragraph 19 below), had thus been engaged. Political expression enjoyed heightened protection, and this included the form in which it had been made. It was not for the criminal courts to assess the views advocated by the applicants or the monument ’ s artistic or historical value. What mattered was whether the interference with the applicants ’ right to freedom of expression pursued a legitimate aim and was proportionate for its attainment. This required a balancing exercise. In view of the context in which the applicants had spray-painted the monument (widespread anti-government protests and an intense debate about the legacy of the communist regime, in particular the public monuments remaining from it), and the reasons for which they had done so (to express their disapproval of the political party ruling during that regime), their act could not be qualified as hooliganism. To hold otherwise would be tantamount to using penal repression for political ends.

14 . The prosecuting authorities appealed. However, when the Sofia City Court heard the appeal, the prosecutor appearing on behalf of the prosecution did not support it, and instead argued that the lower court had been correct to acquit the applicants.

15 . In a final judgment of 31 July 2015 the Sofia City Court quashed the lower court ’ s judgment and found the applicants guilty of hooliganism, contrary to Article 325 § 1 of the Criminal Code (see paragraph 20 below). It waived their criminal liability and replaced it with administrative fines of 1,500 Bulgarian levs (BGN) (equivalent to 767 euros (EUR)) each.

16 . For the court, the available evidence, though circumstantial, was sufficient to find that it had been the applicants who had spray-pained the monument. In particular, the investigation had found traces of paint on them, and it had been established that they had worn latex gloves and a protective face-mask, all of which suggested that they had taken part in the spray-painting itself. The court went on to hold that this act had constituted hooliganism. Hooliganism could take various forms, and one of them was spray-painting public monuments. It could not be accepted that the applicants had acted with the goal of publicly expressing their views, since they had carried out their act at night, and had then attempted to flee, deceive the police officers who had intercepted them, and more generally conceal their participation in the events. All of this denoted an intent to scandalise society and demonstrate contempt towards it rather than to express one ’ s views on a matter of public importance. The questions what the monument stood for and how some sectors of the population felt about it were irrelevant. The interference with the applicants ’ right to freedom of expression was not in breach of Article 10 of the Convention or Article 39 of the Constitution (see paragraph 19 below) , both of which permitted such interferences. One had to express oneself in an overt way to enjoy protection under those provisions, and not by means of criminal acts. People were of course entitled to engage in political protest, but not when this took the form of a criminal offence.

17 . Noting, in particular, that neither applicant had a previous conviction or waiver of criminal liability, and that their act had not given rise to any pecuniary damage, the court held that it must waive their c riminal liability under Article 78a § 1 of the Criminal Code (see paragraph 21 below), and gave them administrative fines instead. Finding that neither the applicants ’ act nor they themselves presented a high degree of dangerousness, the court decided to fix those fines towards the minimum: BGN 1,500 each.

18 . One of the three judges who heard the appeal dissented. According to her, the available evidence did not permit a categorical conclusion that it had been the applicants who had spray-painted the monument. Six people altogether had been present at the scene, and the only reason why charges had been brought only against the applicants was that they had allowed the police to swab their clothes and hands, whereas the other four had refused. Moreover, it could not be accepted that by spray-painting the phrase “WHO? BCP–SHAME! WHO!” on the base of the monument the applicants had showed overt disrespect for society and thus engaged in hooliganism. They had merely expressed their views about the monument and about a past political regime perceived by the bulk of the population in a negative way. Holding otherwise ran counter to Article 10 of the Convention.

Relevant legal framework

19 . Article 39 of the 1991 Constitution provides:

“1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.

2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.”

20 . Article 325 § 1 of the Criminal Code makes it an offence (hooliganism) to carry out indecent actions which grossly violate public order and show overt disrespect for society. The penalty on conviction is up to two years ’ imprisonment or probation, coupled with a public reprimand.

21 . By Article 78a § 1 of the same Code, the courts must replace a convicted person ’ s criminal liability with an administrative penalty – a fine ranging from BGN 1,000 to 5,000 – if (a) the offence of which he or she has been convicted is punishable by up to three years ’ imprisonment or a lesser penalty, in respect of a wilful offence, (b) he or she has not been previously convicted of a publicly prosecutable offence or had his or her criminal liability replaced by an administrative penalty, and (c) the pecuniary damage caused by the offence has been made good.

COMPLAINT

22 . The applicants allege that the judgment finding them guilty of hooliganism for spray-painting the monument and the ensuing fines were an interference with their right to freedom of expression which was not necessary in a democratic society. They rely on Article 10 of the Convention.

QUESTIONS TO THE PARTIES

Has there been a breach of the applicants ’ right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the judgment of the Sofia City Court finding them guilty of hooliganism and fining them 1,500 Bulgarian levs each in relation to their act on 7 November 2013 “necessary in a democratic society”?

Please note that page 7 of the reasons for the judgment of the Sofia District Court ( реш. от 31.10.2014 г. по н. а. х. д. № 11698/2011 г., СРС, 101 с-в ) is missing from the documents submitted in support of the application. The parties are therefore requested to submit a complete copy of that judgment.