DISSENTING OPINION OF JUDGE ZÃœND

1. I respectfully disagree with the view that Article 10 has not been violated in the instant case.

2. According to Rule 5 § 1 (2) of the Bulgarian Parliament’s Rules, 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 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).

3. The Assembly based its decision on the removal of the applicant from the post of Deputy Speaker on three incidents. Firstly, on the vigorous speech delivered in his personal capacity as a member of the Assembly on the proposed treaty with the then former Yugoslav Republic of Macedonia (see paragraphs 6-8 of the judgment); secondly, on the statement made on behalf of his group concerning the proposal of another group to hold a minute’s silence to commemorate “the victims of the communist regime” (see paragraph 12 of the judgment), and his behaviour after the Speaker invited the members to observe the minute of silence (see paragraph 13 of the judgment); and thirdly, on the declaration issued by the Bulgarian Socialist Party on 13 February 2018, attributed to the applicant, according to which the “People’s Court” had been required by the Allied Powers in the Second World War and had been a “necessary and inevitable wartime justice”, a declaration immediately withdrawn by the Party as being merely a draft not approved by the Bureau and not reflecting the position of the Party (see paragraph 14 of the judgment).

4. From the outset, I would like to emphasise that this Court famously held in Handyside v. the United Kingdom (7 December 1976, § 49, Series A no. 24) that freedom of expression constitutes “one of the essential foundations of [a democratic] society” and “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” To give effect to this understanding of freedom of expression in the context of political speech or debate on questions of public interest, the Court made clear in Perinçek v. Switzerland ([GC], no. 27510/08, §§ 204, 206 and 280, ECHR 2015 (extracts)) that no restrictions or penalties should be imposed on speech unless it could be regarded as a direct or indirect call to violence or as a justification of violence, hatred or intolerance. Thus, in a recent judgment ( Erkizia Almandoz v. Spain , no. 5869/17, 22 June 2021) the Court found a violation of Article 10 because of the penalty imposed by the Spanish courts on the applicant, who had given a speech ending with the exclamation “Long live Argala!” at an event paying tribute to a senior member of the Basque terrorist organisation ETA which was regarded by the Spanish authorities as a glorification of terrorist activities. As Judge Lemmens rightly clarified, the term “ justification of violence, hatred or intolerance” (emphasis added) must be understood in the context of speech directed against particular population groups and cannot be understood as a separate category distinguishable from calls to violence or hate speech.

5. Against the background of this case-law, the first and third incidents held against the applicant fall outside the scope of legitimate and proportionate restrictions on his freedom of expression. He expressed in these two statements his view on the draft of a treaty and – assuming that he was the author of the declaration in question – on the role of the “People’s Court” at the end of World War II. These are not instances of speech calling for violence or inciting hatred. They simply reflect the applicant’s thoughts on these matters. The same is true of the speech given by the applicant when a minute’s silence was proposed in Parliament and he was given the floor by the Speaker. On the other hand, what he may legitimately be criticised for is the fact that he took the floor again, without permission, when the minute’s silence was already under way.

6. Bearing this in mind, there remains just one incident for which the applicant may be criticised. As already mentioned, a Deputy Speaker may be removed from his or her post in the event of systematic abuse of power or systematic failure to carry out his or her duties. A one-off misdemeanour cannot be equated to systematic failure without arbitrarily interpreting the law. To do so is incompatible not only with the ordinary meaning of the term, but also with the purpose of the law. A Deputy Speaker may be removed when he or she is to be considered unable or unwilling to fulfil the duties of that office. This cannot be based on a single incident. The majority themselves consider such an interpretation as “perhaps unorthodox” (see paragraph 99 of the judgment). In his concurring opinion Judge Serghides, while not hiding his concerns, tries to overcome them by explaining that the applicant’s misconduct, even it was a single incident, may have resulted from a fixed plan and may therefore be considered systematic. I cannot but disagree. I reiterate that speech as such, if it is not related to calls to violence, hatred or intolerance, cannot justify restrictions. A single misdemeanour remains a single one, even if it is accompanied by speech of which the majority do not approve or which they may even find shocking.

7. These are the reasons why, in my humble view, the Bulgarian Parliament and the Constitutional Court were in violation of Article 10 in respectively removing and upholding the removal of the applicant as Deputy Speaker.

[1] . The Bulgarian Social-Democratic Party was founded in 1891. In 1903 it split into two factions: “wide” and “narrow” socialists. In 1919 the “narrow socialist” faction took the name Bulgarian Communist Party (narrow socialists) and aligned itself with the Bolsheviks in Russia. In 1924 it was judicially dissolved under a newly enacted statute prohibiting “any ... organisations or groups which, to attain their goals, preach or use ... criminal offences, armed actions, violence or terrorist acts, or set up clandestine branches”. In 1938 it merged with the Bulgarian Workers’ Party (communists). The first time it came to power was as a member of the Fatherland Front Government formed after the coup d’état on 9 September 1944 (see footnote 13). In 1948, when it was already the dominating political party in Bulgaria, it took the name Bulgarian Communist Party. It kept that name until April 1990, when, in the wake of the fall of the communist regime in late 1989, it renamed itself the Bulgarian Socialist Party. It continues to operate under that name.

[2] . In January 2011 the Bulgarian Government proclaimed 1 February as the “Day of gratitude and respect towards the victims of the communist regime”. The date was chosen because “the People’s Court” had handed down its first judgments on 1 February 1945 (see footnote 3, and paragraph 62 below).

[3] . “The People’s Court” ( Народният съд ) was a criminal tribunal set up by government decree in late 1944, following the coup d’état in Bulgaria on 9 September 1944 and the accession to power of the Fatherland Front Government (see footnote 13), in which the Bulgarian Communist Party (at that time calling itself the Bulgarian Workers’ Party (communists) – see footnote 1) held the Ministries of Internal Affairs and Justice. For details, see paragraphs 54-62 below.

[4] . “The Revival Process” ( Възродителният процес ) was the name of the policy of the communist regime in Bulgaria to assimilate the country’s Turkish and other Muslim minorities. It chiefly consisted of a name-changing campaign in 1984-85, during which Turks living in Bulgaria were forced to change their names to Bulgarian ones, and of the forced emigration in mid-1989 of more than 360,000 Bulgarian Turks to Turkey (see Abiloğlu and 96 Others v. Bulgaria , no. 39553/98, Commission decision of 20 May 1998, unreported).

[5] . “The Great Patriotic War” (Russian: Великая Отечественная война ; Bulgarian: Велика отечествена война ) is a term used mostly in the Russian Federation and some other former republics of the Soviet Union to describe the conflict fought from 22 June 1941 to 9 May 1945 along many parts of the Eastern Front of the Second World War, mainly between the Soviet Union and Nazi Germany.

[6] . “State Safety” ( Обществената безопасност ) was a police branch in Bulgaria which was used in 1923-25 to supress pro-communist activists.

[7] . Geo Milev (1895-1925) was a Bulgarian poet, journalist and translator who was arrested and killed during the wave of repressions following the April 1925 terrorist bombing of the St Nedelya Church in Sofia by the military branch of the Bulgarian Communist Party.

[8] . Joseph Herbst (1875-1925) was a Bulgarian journalist, writer and political activist who was arrested and disappeared in the course of the same wave of repressions.

[9] . See footnote 3.

[10] . See footnote 4.

[11] . See footnote 3.

[12] . 2 June has since 1901 been the day of commemoration of the people who have died for the freedom of Bulgaria. The date was chosen because the Bulgarian poet and revolutionary Hristo Botev (1848-76) was shot and killed on that day in 1876, in the wake of an uprising of the Bulgarians in the Ottoman Empire. In the period 1953-88, during the communist regime, it was called “Day of Botev and of those who died in the fight against the Turkish yoke, capitalism and fascism, and in the Patriotic War [see footnote 5]”. Since 1993 the official name has been “Day of Botev and of those who have died for the freedom of Bulgaria”.

[13] . The Fatherland Front was a political organisation formed in 1942. The Bulgarian Workers’ Party (communists) (see footnote 1) was one of its main founders. The Fatherland Front carried out the coup d’état on 9 September 1944 (see footnote 3) and then formed a government which remained in office until 1946.

[14] . For the Katyn commission, see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 20, ECHR 2013.

[15] . On 5 September 1944 the Soviet Union declared war on Bulgaria (which, although it had become an ally of Nazi Germany in 1941 and had declared war on the United Kingdom and the United States of America in December 1941, had not declared war on the Soviet Union and had kept its diplomatic relations with it), and on 8 September 1944 the Soviet army entered Bulgaria without facing resistance. That army occupied the country until 1947.

[16] . See footnote 14.