CONCURRING OPINION OF JUDGE SERGHIDES

1. The applicant complained that his removal from his post as Deputy Speaker of the Bulgarian Parliament (National Assembly) on account of public statements that he had made had violated Article 10 of the Convention.

2. I voted in favour of both points 1 and 2 of the operative provisions of the judgment and the only reason I have decided to write this concurring opinion is because I wish to elaborate on the requirement of Article 10 § 2 of the Convention, namely, that an interference with the right to freedom of expression has to be “prescribed by law”, as applied to the facts of the present case.

3. Rule 5 § 1 (2) of the Assembly’s Rules provides that Deputy Speakers may be removed from their post before the end of their term of office if, inter alia , one-third of the Assembly’s members propose their removal owing to (a) a “systematic abuse of their powers”, or (b) a “systematic failure to carry out the duties [falling] within the ambit of their competence” (see paragraph 48 (b) of the judgment). The Constitutional Court dismissed the request to declare the applicant’s removal from his post unconstitutional by seven votes to five based on Rule 5 § 1 (2) above (see paragraphs 27-30 of the judgment).

4. My only concern lay in the question whether the majority in the Constitutional Court had interpreted and applied Rule 5 § 1 (2), and in particular the words “systematic abuse of their powers”, so arbitrarily and unreasonably as to mean, in effect, “any abuse of [his] powers”, without actually taking into account the adjective “systematic”, which refers to and qualifies or characterises that “abuse”. If that were the case, then such an interpretation of the law would amount to a broad limitation to the applicant’s freedom of expression and would therefore contravene the principle of effectiveness – one of the most fundamental principles of the Convention – which requires that “limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights” (see, inter alia , Demir and Baykara v. Turkey [GC], no. 34503/97, § 146, ECHR 2008, and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway , no. 45487/17, § 96, 10 June 2021). Consequently, a broad limitation to freedom of expression, if that were the case, would ultimately lead to the violation of the applicant’s freedom of expression under Article 10. However, as I will explain below, that was not the case here, as the measure did not constitute a broad limitation to the applicant’s freedom of expression.

5. My concern also stemmed from this comment in paragraph 99 of the judgment: “The construction which the majority of that court put on the word ‘systematic’ in the Rule, though perhaps unorthodox , cannot be seen as straining the meaning of that term ...” (emphasis added). I am aware of the rule of statutory interpretation that unless a contrary intention appears, the same terms in a same statute are presumed to have the same meaning (see F. A. R. Bennion, Bennion on Statutory Interpretation – A Code , 5th edition (LexisNexis, 2008), section 355, at p. 1160). The adjective “systematic” is used in Rule 5 § 1 (2) twice, once regarding the abuse of powers we are discussing here, and the other time in the context of a “systematic failure to carry out the duties [falling] within the ambit of their competence”, where it is obvious that the adjective rather or mainly has a repetitive or quantitative sense.

6. According to the Oxford Dictionary of English (3rd edition, Angus Stevenson (ed.), OUP, current online version 2015), “systematic” as an adjective, means “done or acting according to a fixed plan or system; methodical”. In my view, following its literal meaning, the adjective “systematic” does not necessarily require repetitive conduct, so long as the existence of a fixed plan can be proved by the details of a single instance of conduct (which may have several aspects). Therefore, regarding the abuse of powers, I believe that the adjective “systematic” has a more substantial meaning than the same adjective as used when referring to the failure to carry out duties, where it is more quantitative in character.

7. The majority in the Constitutional Court, in explaining in their judgment that the applicant had committed an abuse of powers, provided two grounds: firstly, that the systematic nature of the applicant’s conduct “did not have a simply quantitative dimension” – and it is to be remembered here that the judgment was based on two statements and not only one statement made by the applicant –, and, secondly, that the applicant’s conduct had run counter to the value choice expressed in section 2(1)(3) of the 2000 Act Declaring the Communist Regime in Bulgaria Criminal, providing that the management and chief activists of that party had been responsible for “the unprecedented reprisals against ... all innocent [people] convicted by the so-called ‘People’s Court’” (see paragraphs 29-30 and 71 of the judgment).

8. My difficulty here is that, in respect of this second ground, the Constitutional Court indicated that the applicant’s conduct had amounted to an abuse of his powers, but did not at the same time explain how this conduct had been “systematic”, in the sense of being in accordance with a fixed plan. Nevertheless, the judgment of the Constitutional Court applying Rule 5 § 1 (2) to the applicant’s case cannot be considered arbitrary or unreasonable, because in the circumstances it is apparent from his conduct, especially from the second of his statements, that he was indeed abusing his powers with a fixed plan and in a methodical manner (to refer again to the dictionary definition above). The Constitutional Court was no doubt aware of this aspect, even if it did not mention it expressly in that context. Thus while the present judgment regards the construction of “systematic” as “perhaps unorthodox”, the application of the law was not at all arbitrary. That the applicant’s conduct had a fixed plan and that he acted methodically in abusing his powers is clear from what is stated in paragraphs 112-114 of the present judgment, referring to and analysing the applicant’s second statement, which provides all the facts and elements necessary for establishing that he had acted in such a “systematic” manner. Those facts or elements are, inter alia ¸ the following: (a) the applicant made the statement on 1 February, which in Bulgaria has, since 2011, been a day dedicated to the commemoration of all victims of the communist regime; (b) he spoke without having been given the floor and at the precise moment when Parliament was rising to commemorate the victims of the communist regime with a minute’s silence; (c) he ridiculed the member of parliament who had proposed the minute’s silence and his assessment of the “People’s Court”; (d) his statement was preceded by a speech in which he glorified the political violence in which the Bulgarian Communist Party had engaged in the past.

9. All these facts or elements contained in the applicant’s second statement, which suffice to establish or prove a fixed plan and method on the part of the applicant in abusing his powers, should be looked at and examined together – along with the content and the abusive character of that statement – as well as, of course, the content of the applicant’s third statement and the circumstances in which it was made, which also show the existence of a fixed plan and an intention to abuse his powers. It is not the role of the Court to dispute the finding of the majority in the Constitutional Court that the third statement could indeed be attributed to the applicant.

10. Thus my original concern as to whether the measure, as interpreted by the Constitutional Court, might amount to a broad limitation of freedom of expression can be overcome by the manner in which that court ultimately applied the law in the circumstances of the case. In that light, I would hold, as does the judgment in paragraph 101, that the applicant’s removal from his post was “prescribed by law”.