Communicated on 6 November 2019

FIFTH SECTION

Application no. 10783/14 Kaloyan Tomov HANDZHIYSKI against Bulgaria lodged on 28 January 2014

STATEMENT OF FACTS

1 . The applicant, Mr Kaloyan Tomov Handzhiyski , is a Bulgarian national who was born in 1971 and lives in Blagoevgrad. He is 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 applicant, may be summarised as follows.

3 . Following parliamentary elections on 12 May 2013, on 29 May 2013 a new government was formed, led by Mr Plamen Oresharski and supported in Parliament by the Coalition for Bulgaria (whose main member was the Bulgarian Socialist Party), which had 84 members of Parliament, the Movement for Rights and Freedoms, which had 36 members of Parliament, and the chairman of another political party, Ataka , Mr Volen Siderov , who was also a member of Parliament. Together, these provided a majority of 121 out of the total of 240 members of Parliament.

4 . 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 wealthy businessman and media-owner, as chairman of the State Agency for National Security. The daily demonstrations continued until about mid-January 2014. Several months later, on 23 July 2014, Mr Oresharski ’ s government resigned.

5 . At that time, the applicant was chairman of the Blagoevgrad chapter of the political party Democrats for Strong Bulgaria ( Демократи за силна България – DSB), which was then not represented in Parliament and supported the anti-government demonstrations.

6 . In the early hours of 25 December 2013, Christmas day, the statue of Mr Dimitar Blagoev in the central square of Blagoevgrad was painted by unknown persons in red and white so as to resemble Santa Claus, and the base of the statue was inscribed with the words “Father Frost” [1] .

7 . Mr Blagoev (1856-1924) was the founder in 1891 of the Bulgarian Social-Democratic Party, which in 1919 took the name Bulgarian Communist Party, which it kept until April 1990, when, in the wake of the fall of the communist regime in late 1989, it renamed itself Bulgarian Socialist Party. In 1950 the town of Blagoevgrad was named after him.

8 . Shortly before 10 a.m. the applicant went to the statue, which had been surrounded by a number of people and journalists drawn there by media reports that it had been painted over, and placed a red Santa Claus cap on its head and a red sack at its feet. The sack had a white band bearing the word “resignation” attached to it. The applicant says that he was inspired to do that when seeing the media reports that the statue had been painted over.

9 . Some of the journalists who were present took photographs of the statue with the cap and the sack and later published them. Shortly after that municipal workers came, took down the cap and the sack, and began removing the paint from the statue.

10 . At about 2 p.m. the same day, 25 December 2013, the applicant was arrested in his home and taken to a police station, where he was placed in police detention for twenty-four hours, on suspicion of having committed hooliganism contrary to Article 325 § 1 of the Criminal Code, and searched.

11 . The next day, 26 December 2013, he was charged with minor hooliganism contrary to Article 1 § 2 of the Decree on Combatting Minor Hooliganism (see paragraphs 19-20 below) in relation to his having placed the cap and the sack on Mr Blagoev ’ s statue.

12 . In the course of his trial, the applicant stated that his act had been meant to express his protest against the government, which was his constitutional right, that it had been met with universal approval, and that he had in effect made a good political joke. For their part, his counsel argued that he had exercised his right under Article 39 of the Constitution of 1991 (see paragraph 18 below) to express his views.

13 . On 30 December 2013 the Blagoevgrad District Court found the applicant guilty of minor hooliganism contrary to Article 1 § 2 of the Decree on Combatting Minor Hooliganism (see paragraphs 19-20 below), and fined him 100 Bulgarian levs (BGN) (equivalent to 51 euros (EUR)).

14 . The court held, inter alia , that the Decree did not contravene Article 39 of the Constitution of 1991 (see paragraph 18 below) , because the right enshrined in that provision was subject to exceptions. It was immaterial whether Mr Blagoev was a controversial figure as argued by the applicant; even if he was one, that did not entitle people to mock his statue, which had stood in the centre of Blagoevgrad for a long time and had to be respected and preserved. Cultured people valued historical monuments and treated them with respect. If supporters of the Bulgarian Socialist Party were to paint the statue of a famous anti-communist personality from the 1990s in Sofia as Superman, that would equally amount to an act of hooliganism. Such acts were unbecoming of the activists of any responsible political party, and had to be sanctioned in any State having the rule of law. Mr Blagoev was one of Blagoevgrad ’ s symbols, as attested by the town ’ s very name, which had not been changed after the demise of the communist regime. Contrary to the applicant ’ s assertions, his act had not been met with universal approval, as attested by a simple perusal of the comments about it online, which ranged from approving to extremely disapproving ones. The “thin red line” between a proper political Christmas joke and an act of hooliganism had been crossed.

15 . In fixing the quantum of the penalty, the court took into account the preponderance of mitigating circumstances: the absence of any aggression or violence on the part of the applicant, his clean criminal record and good character, and his being unemployed. All those factors militated towards giving him the lowest possible fine.

16 . The applicant appealed. At the appeal hearing he argued, inter alia , that his act had been a way of exercising his constitutional right to protest against the government.

17 . In a final judgment of 7 January 2014 the Blagoevgrad Regional Court upheld the lower court ’ s judgment. It held, inter alia , that the applicant ’ s act had properly been characterised as minor hooliganism, as it had been indecent and had breached public order. It was not in doubt that the applicant had sought to express a political position, in particular since he was the regional leader of a political party. This had not, however, entitled him to protest by breaching the law, especially since Mr Blagoev ’ s statue had shortly before that been vandalised by an unknown person by being painted over, and the applicant had in effect completed that act by placing a cap and a sack on it, thus expressing his mocking attitude towards it. It was not necessary to establish that specific bystanders had felt aggrieved by the applicant ’ s act, which had been carried out in front of a multitude of people. The applicant ’ s arguments that his act had not amounted to an offence because he had been an exercise of his right to protest could not be accepted, because fundamental rights could not be exercised by committing acts contrary to the Decree on Combatting Minor Hooliganism.

Relevant legal framework

18 . Article 39 of the Constitution of 1991 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.”

19 . Decree no. 904 of 28 December 1963 on Combating Minor Hooliganism was passed by the then existing Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the Bulgarian Constitution of 1947, then in force. The Supreme Administrative Court has consistently held that the Decree has the same force as an Act of Parliament (see опр . № 9959 от 7 ноември 2003 г. по адм . д. № 9327/2003 г., ВАС, I о.; опр . № 10286 от 10 декември 2004 г. по адм . д. № 9761/2004 г., ВАС, петчленен с-в; опр . № 14673 от 3 декември 2009 г. по адм . д. № 15200/2009 г., ВАС, I о.; and опр . № 12764 от 1 ноември 2010 г. по адм . д. № 13284/2010 г., ВАС, I о.).

20 . Article 1 § 2 of the Decree defines minor hooliganism as, inter alia , “indecent statements, made in a public place in front of many people”, or “[showing an] offensive attitude towards citizens, public authorities or the society”, which breach public order and quietness, but owing to their lower degree of seriousness do not amount to the criminal offence of hooliganism set out in Article 325 § 1 of the Criminal Code. Such acts, if committed by people older than sixteen, are punishable with up to fifteen days ’ detention, or by a fine ranging from BGN 100 to BGN 500 (equivalent to EUR 51 to EUR 256) (Article 1 § 1).

21 . Cases under the Decree fall under the jurisdiction of the district courts (Article 3 § 1 (a) and Article 4). By Article 7 § 2, a district court ’ s decision to impose a penalty is amenable to appeal on points of law before a regional court, on the same grounds as those set out in the Code of Criminal Procedure: a breach of the substantive law, a material breach of the rules of procedure, or manifest disproportionality of the sentence. The regional court ’ s judgment is final (Article 7 § 3 in fine ).

22 . A conviction under the Decree is not regarded as a criminal conviction and is not entered in the criminal records of the people concerned (Article 7 § 4).

COMPLAINT

23 . The applicant complains under Article 10 of the Convention that the judgment finding him guilty of minor hooliganism and the resultant fine were not necessary in a democratic society.

QUESTION S TO THE PARTIES

Has there been a breach of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the judgment finding him guilty of minor hooliganism and fining him 100 Bulgarian levs in relation to his act on 25 December 2013 “necessary in a democratic society”?

[1] . “Father Frost” ( Дядо Мраз ) is a fictional character similar to Santa Claus . Its tradition is mostly spread in East Slav ic countries . Although at the beginning of the Soviet era the character was banned , it later became an important part of Soviet culture. In Bulgaria, it has since the fall of the communist regime been associated with, inter alia , the impossibility of publicly celebrating Christmas during the regime.