Published on 22 May 2023

THIRD SECTION

Application no. 58066/18 Mustafa Asan IZBISHTALI against Bulgaria lodged on 30 November 2018 communicated on 3 May 2023

SUBJECT MATTER OF THE CASE

The applicant, a Bulgarian national of Turkish ethnic origin, belongs to the Muslim and Turkish community in Sofia. Since October 2011 he has been regional mufti for Sofia and a representative of the regional mufti’s office there.

In 2012 a building of the Association of Palestinians in Bulgaria in the Luylin neighbourhood of Sofia was converted into a Muslim place of worship (masjid). In March 2016 several rallies were held in protest against the masjid. Between 18 March and 3 April 2016 several posts and comments, some of which contained virulent anti-Muslim and anti-Turkish remarks, and some said to have targeted the applicant personally, appeared in a Facebook group called “Luylin”.

In June 2016 the applicant complained to the Sofia district prosecutor’s office about those Facebook posts and comments. In his view, they had amounted to offences under Articles 144 §§ 2 and 3, 164 § 1 and 320 of the Criminal Code (respectively, threats against a religious official, death threats, hate speech, and overt incitation towards an offence). He alleged that all of those posts and comments had amounted to hate speech, that two comments had constituted violent threats against him in his capacity as a regional mufti, and that six comments which had called for pig corpses to be thrown into Muslim places of worship had amounted to inciting towards the offence of desecrating a place of worship.

In November 2016 the Sofia district prosecutor’s office refused to open criminal proceedings pursuant to the complaint. It noted, in particular, that none of the posts or comments had contained concrete threats against the applicant himself.

On an unknown later date the Supreme Cassation Prosecutor’s Office, apparently acting on its own initiative, instructed the Sofia City prosecutor’s office to review that decision. In July 2017 the Sofia City prosecutor’s office upheld the refusal to open criminal proceedings. It reiterated that none of the posts or comments had contained concrete threats against the applicant. To the extent to which some of them contained hints of such threats, an attempt had been made to identify the Facebook users who had made them. For the most part, however, it had been impossible to identify with certainty those users based on their Facebook profile data. One person had been identified, had given written explanations, and had been warned not to commit offences. To the extent that some of the posts and comments had criticised the number of mosques in Sofia and the way in which Islam was being preached by the regional mufti office, they could not be seen as hate speech within the meaning of Article 164 § 1 of the Criminal Code. Nor could it be said that there had been concrete and credible death threats within the meaning of Article 144 § 1 of the Code.

The applicant appealed to the Sofia appellate prosecutor’s office, arguing that the Sofia City prosecutor’s office had grossly misread the impugned statements, in particular the two which had targeted him personally, as well as his complaint, and had failed to take proper steps to identify the Facebook users who had made the statements. He cited, inter alia , Articles 8 and 14 of the Convention. In January 2018 the Sofia appellate prosecutor’s office also upheld the refusal to open criminal proceedings.

The applicant appealed further, reiterating and expanding upon his arguments. On 30 May 2018 the Supreme Cassation Prosecutor’s Office in turn also upheld the refusal.

The applicant complains under Articles 8, 9 and 14 of the Convention that the prosecuting authorities did not investigate effectively the Facebook posts and comments of which he complained, and in particular the threats made against him in some of those on account of his religious activities. In the alternative, he raises the same complaint under Article 13 of the Convention read in conjunction with Articles 8 and 9.

QUESTIONS TO THE PARTIES

1. Did the Bulgarian authorities have an obligation under Articles 8 and/or 9 of the Convention, taken in isolation and/or in conjunction with Articles 13 and 14 of the Convention, to take criminal-law measures with respect to all or some of the Facebook posts and comments of which the applicant complained (compare with Panayotova and Others v. Bulgaria (dec.) [Committee], no. 12509/13, §§ 53-65, 7 May 2019; Beizaras and Levickas v. Lithuania , no. 41288/15, § 117, 14 January 2020; and Oganezova v. Armenia , nos. 71367/12 and 72961/12, §§ 117-22, 17 May 2022, as well as, mutatis mutandis , with Karaahmed v. Bulgaria , no. 30587/13, § 110, 24 February 2015)?

2. If so, did they adequately comply with that obligation?