DISSENTING OPINION OF JUDGE VEHABOVIĆ

I regret that I am unable to subscribe to the view of the majority that there has been a violation of Article 10 in this case.

This case has many similarities with the case of Sinkova v. Ukraine (no. 39496/11, 27 February 2018), but the outcome is completely different. A comparison of the facts in Handzhiyski and Sinkova is very important in order to compare the legal arguments used in these cases, which lead the majority to different conclusions.

I

Sinkova v. Ukraine

At the time of the events the applicant belonged to an artistic group called the St Luke Brotherhood, which was known for its provocative public performances.

On 16 December 2010 the applicant, together with three other members of the group, carried out what she described as an “act of performance”. They went to the Eternal Glory Memorial to those who perished in the Second World War. The applicant took a frying pan prepared in advance, broke some eggs into it and fried them over the Eternal Flame at the Tomb of the Unknown Soldier. Two of her friends joined her and fried sausages on skewers over the flame. Another member of the group filmed the event. On the same day the applicant posted the video on the Internet on behalf of the St Luke Brotherhood. It was accompanied by the following statement:

“Precious natural gas has been being burned, pointlessly, at the Glory Memorial in Kyiv for fifty-three years now. This pleasure costs taxpayers about 300,000 hryvnias per month. And this is only one ‘eternal flame’ pagan temple, whereas there are hundreds or even thousands of them throughout Ukraine. On 16 December the St Luke Brotherhood reacted to this by an act of protest in the Glory Park in the capital. It showed that people should use the ‘eternal flame’.

We suggest to the outraged representatives of the Communist Party of Ukraine to follow the example of ancient Roman vestal virgins and to carry out around-the-clock duty at the ‘eternal flames’, keeping the fire lit manually by wood. There is no doubt that communists will have no problems with fulfilling this task, because they already have experience of taking care of the Lenin monument in Kyiv and their financing is much better than that which the vestal virgins had.”

On 29 March 2011 at 9 p.m. the applicant was arrested. After three months in prison she was released.

On 4 October 2012 the Pecherskyy District Court found the applicant guilty of desecrating the Tomb of the Unknown Soldier, acting as part of a group of persons following a prior conspiracy, classified as a criminal offence according to Ukrainian law. As a result, she was sentenced to three years’ imprisonment, suspended for two years.

The applicant alleged a violation of Articles 5 and 10 of the Convention.

Handzhiyski v. Bulgaria

The applicant was chairman of the Blagoevgrad chapter of the political party Democrats for a Strong Bulgaria, which was not represented in Parliament at the relevant time and which supported the anti-government protests.

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 plinth of the statue was daubed, using white spray-paint, with the words “Father Frost”.

Shortly before 10 a.m. on 25 December 2013 the applicant went to the painted 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 said that he had been inspired to do that when seeing the media reports that the statue had been painted over.

At about 2 p.m. on the same day, 25 December 2013, the applicant was arrested at 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 was searched.

The next day, 26 December 2013, the applicant was charged with minor hooliganism contrary to Article 1 § 2 of the 1963 Decree on Combating Minor Hooliganism, for having placed the cap and the sack on Mr Blagoev’s statue. He was then released from detention.

In the course of his trial, which took place four days later on 30 December 2013, the applicant stated that his act had been intended to express his protest against the government, which was his constitutional right, that that act 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 constitutional right to express his views.

The same day, 30 December 2013, the Blagoevgrad District Court found the applicant guilty of minor hooliganism contrary to Article 1 § 2 of the 1963 Decree and fined him 100 Bulgarian levs (equivalent to 51 euros (EUR)).

The applicant relied only on Article 10 of the Convention.

II

It is easy to note that both cases relate to very similar situations, one that can be characterised as an “artistic performance pointing out social, economic and political issues” and the other one constituting purely “political protest”. Both applicants spent some time in prison – three months in the case of Ms Sinkova and 24 hours in the case of Mr Handzhiyski. It is worth noting that in the present case the applicant did not rely on Article 5 of the Convention. In Sinkova , the applicant was sentenced to three years’ imprisonment, suspended for two years. In the present case the applicant was sentenced to pay a fine of EUR 51.

Notwithstanding all the similarities, the majority reached a different conclusion in the present case. It seems that this conclusion is based on the considerations set forth in paragraphs 57-59 of the judgment, where it is stated that the statue of Mr Blagoev “was put up during the communist regime in Bulgaria” (similarly to the eternal flame monument in Sinkova ) “and appears to have been seen as sufficiently connected to the values and ideas for which that regime stood”. It appears that the majority are of the opinion that anything that was put up during the communist regime and that can be identified with that regime is by default wrong and that it is acceptable to subject it to mockery. It should be noted that Mr Blagoev lived and died a long time (twenty years) before that regime came into power in Bulgaria. [2] It could well be that in the context of Bulgaria’s political life this public figure is considered a part, or even a “founding father”, of the communist regime in Bulgaria. However, I am of the opinion that it would be difficult to objectively conclude that twenty years after his death, Mr Blagoev had anything to do with what that regime did – good or bad – during the communist era.

I have difficulty sharing that position, and without wishing to open a discussion on the values attached to statues and monuments in general, I feel bound to say that while we are not able to change history, we can properly evaluate it. We have witnessed many occasions on which historic monuments in Afghanistan, Iraq, Syria, and so on, have been desecrated or completely destroyed for various reasons, but the motives were always a difference of opinion about the values these monuments represent. That behaviour is not acceptable. On the other hand, there are still monuments that glorify events, battles or persons promoting uncivilised actions or aims like slavery, or rulers who committed terrible atrocities during the colonial age, and so forth, but what makes a significant difference is the historical context of these events or personalities. What is acceptable to one person might be unacceptable to another, but one thing is certain – no one can change history and those events and personalities should be evaluated in their particular historical context.

In the context of this case, it was the duty of the authorities to protect those monuments that are in place today in so far as they are still there. It is up to them too to decide whether these monuments should still be left standing in public places, but in the meantime there is a necessity to act according to the law. In protecting them the authorities should also properly evaluate acts by individuals that publicly mock statues and monuments and what they represent, in the light of the “necessity in a democratic society”. In the instant case they did so by sentencing the applicant to a fine of 51 euros, which is insignificant compared with the sentence imposed on Ms Sinkova, who spent three months in pre-trial detention as well as being sentenced to three years’ imprisonment, suspended for two years.

This different approach to the process of evaluating the facts in these two cases points once again to an inconsistent approach by the Court in dealing with similar cases, which will not enhance its public image.

III

In Sinkova the Court noted in §§ 107 and 108 that the applicant had carried out what she considered to be an artistic performance aimed at protesting against the wasteful use of natural gas by the State while the latter turned a blind eye to the poor living standards of veterans. However, the applicant was criminally prosecuted and convicted only on account of frying eggs over the Eternal Flame, which the domestic courts considered to amount to desecration of the Tomb of the Unknown Soldier, an offence under the Ukrainian Criminal Code. The charge against her concerned neither the subsequent distribution by her of the relevant video nor the content of the rather sarcastic and provocative text accompanying that video. In other words, the applicant was not convicted for expressing the views that she did or even for expressing them in strong language. Her conviction was a narrow one in respect of particular conduct in a particular place (compare Maguire v. the United Kingdom (dec.), no. 58060/13, 3 March 2015). Moreover, it was based on a general prohibition of contempt for the Tomb of the Unknown Soldier forming part of ordinary criminal law.

By contrast, in the instant case, in paragraph 54 the majority turned its attention to the fact that the applicant had not engaged in any form of violence and had not physically impaired the monument in any way (the same was true of Ms Sinkova, who had merely fried eggs on the eternal flame). On that basis the majority concluded that this act of non-violent protest was “covered” by the principle of “necessity in a democratic society” and as such was justified. The message sent out is a dangerous one – whenever any desecration of monuments take place it will be justified as long as it is the result of non-violent protest that caused no damage to the statue or monument itself. This approval might easily undermine the principle of the rule of law and could be understood as an invitation to similar non-violent acts against any statue, monument or sacred places, acts that may well injure the feelings of those who support their existence. This is a potentially dangerous approval that is not consistent with the existing case-law of this Court.

[1] “Father Frost” ( Дядо Мраз ) is a fictional character similar to Santa Claus. Its tradition is mostly spread in East Slavic 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.

[2] Mr Blagoev was a Bulgarian political leader and philosopher and the founder of the Bulgarian left-wing political movement and of the first social democratic party, the likes of which exist all over Europe today.