FOURTH SECTION
CASE OF HANDZHIYSKI v. BULGARIA
(Application no. 10783/14)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Unjustified conviction and fine for placing Santa Claus accessories on communist leader’s statue as a symbolic gesture, in the context of nation-wide political protests • Nuanced consideration required of necessity of penalising acts which do not destroy or physically impair monuments, taking into account the nature and intention of the act, the message conveyed, and the social significance of the monument
 
STRASBOURG
6 April 2021
 
FINAL
 
06/07/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Handzhiyski v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Tim Eicke, President,
 Yonko Grozev,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Armen Harutyunyan,
 Gabriele Kucsko-Stadlmayer,
 Ana Maria Guerra Martins, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 10783/14) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Kaloyan Tomov Handzhiyski (“the applicant”), on 28 January 2014;
the decision to give the Bulgarian Government (“the Government”) notice of the complaint concerning an alleged breach of Article 10 of the Convention and to declare the remainder of the application inadmissible; and
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case chiefly concerns the question whether the conviction of the applicant, a local politician, of minor hooliganism in relation to his placing a Santa Claus cap and a red bag on the monument of an early twentieth century political figure on Christmas Day amounted to a violation of Article 10 of the Convention. THE FACTS
2. The applicant was born in 1971 and lives in Blagoevgrad. He was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 3. The Government were represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice. Background to the case
4. 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 – see paragraph 8 below), which had eighty-four members of Parliament, the Movement for Rights and Freedoms, which had thirty-six 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 one hundred twenty-one out of the total of two hundred and forty members of Parliament. 5. On 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. In an opinion poll carried out in late November and early December 2013, forty-three per cent of the respondents supported those anti-government protests, and forty per cent were of the view that they should continue; twenty-two percent declared that they would themselves participate in them. In another opinion poll carried out during the same period by another agency, forty-one per cent of the respondents said that the best political solution for the country would be for that government to resign and for new parliamentary elections to take place. Several months later, on 23 July 2014, Mr Oresharski’s government stepped down. 6. At that time, the applicant was chairman of the Blagoevgrad chapter of the political party Democrats for a Strong Bulgaria (Демократи за силна България – “DSB”), which was then not represented in Parliament and which supported the anti-government protests. Events of 25 December 2013
7. 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”.[1]
8. Mr Blagoev (1856-1924) was the founder in 1891 of the Bulgarian Social-Democratic Party. In 1919, that party took the name Bulgarian Communist Party, which it kept until April 1990, when, in the wake of the fall of the communist regime in Bulgaria in late 1989, in which it was the dominating political force, it renamed itself Bulgarian Socialist Party. It continues to operate under this name. In 1950 the town of Blagoevgrad was named after Mr Blagoev, and in 1971 his statue was placed in its central square. In 1991, shortly after the fall of the communist regime, the municipal council proposed to the President of Bulgaria to give the town one of its old names – Gorna Dzhumaya or Skaptopara (Σκαπτοπάρα) – but the President did not act on the proposal, apparently owing to objections by some of the town’s inhabitants. In June 2014 there was another unsuccessful initiative to give the town another name. 9. In December 1991 Blageovgrad’s municipal council resolved to remove Mr Blagoev’s statue from the town centre. From the evidence adduced at the applicant’s subsequent trial (see paragraph 14 below), it appears that that resolution was put into effect. However, in May 1996 that decision was repealed by the new municipal council, and, again according to the evidence adduced at the applicant’s trial (see paragraph 14 below), the statue was then put back in its place. 10. Shortly before 10 a.m. on 25 December 2013 the applicant went to the already 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. 11. 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. Proceedings against the applicant
12. 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 (see paragraph 23 below), and searched. 13. The next day, 26 December 2013, the applicant was charged with minor hooliganism contrary to Article 1 § 2 of the 1963 Decree on Combatting Minor Hooliganism (“the 1963 Decree” – see paragraphs 22-23 below) in relation to his having placed the cap and the sack on Mr Blagoev’s statue. He was then released from detention. 14. 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. 15. 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 (see paragraphs 22-23 below), and fined him 100 Bulgarian levs (BGN) (equivalent to 51 euros (EUR)). 16. The court held, inter alia, that the 1963 Decree did not contravene Article 39 of the 1991 Constitution (see paragraph 21 below), because the right to freedom of expression enshrined in that provision was subject to exceptions. It was immaterial whether Mr Blagoev was a controversial historical figure, as asserted 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; that was also a requirement of the cultural-heritage conventions to which Bulgaria had adhered. Cultured people valued historical monuments and treated them with respect. If supporters of the Bulgarian Socialist Party were to paint the statue of a recently deceased anti-communist politician from the 1990s in Sofia as Superman, that would likewise amount to hooliganism. Such acts were unbecoming of the activists of a responsible political party, and had to be sanctioned in a State governed by 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 fall of the communist regime. Contrary to the applicant’s assertions, his act had not been met with universal appreciation, as could be seen from a perusal of the numerous comments about it on the Internet, which ranged from approving to extremely disapproving ones. The “thin red line” between a proper political Christmas joke and hooliganism had been crossed. 17. 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. 18. 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. 19. 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 whether 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 it 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 1963 Decree. 20. The applicant paid the fine on 20 January 2014. RELEVANT LEGAL FRAMEWORK
21. 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.”
22. Decree no. 904 of 28 December 1963 on Combating Minor Hooliganism (“the 1963 Decree”) was passed by the then Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the 1947 Constitution, 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 07.11.2003 г. по адм. д. № 9327/2003 г., ВАС, I о.; опр. № 10286 от 10.12.2004 г. по адм. д. № 9761/2004 г., ВАС, петчл. с-в; опр. № 14673 от 03.12.2009 г. по адм. д. № 15200/2009 г., ВАС, I о.; and опр. № 12764 от 01.11.2010 г. по адм. д. № 13284/2010 г., ВАС, I о.). 23. Article 1 § 2 of the 1963 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 society”, which breach public order and quietness but which, owing to their lower degree of seriousness, do not amount to the criminal offence of hooliganism laid down in Article 325 § 1 of the 1968 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). 24. Cases under the 1963 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). 25. A conviction under the 1963 Decree is not regarded as criminal or entered in the criminal records of the people concerned (Article 7 § 4). THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
26. The applicant complained that the interference with his right to freedom of expression had not been necessary in a democratic society. He relied on Article 10 of the Convention, which provides, in so far as relevant:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
AdmissibilityExhaustion of domestic remedies

(a)   The parties’ submissions
27. The Government noted that the applicant had not sought judicial review of his police detention and had not sought damages in relation to it. There was ample case-law of the Bulgarian courts in such cases, including in cases touching upon freedom of expression. In view of that omission, the applicant’s police detention was not to be taken into account when assessing the proportionality of the interference with his right to freedom of expression. 28. The applicant replied that any claim for judicial review of his police detention would have been heard long after the latter had ended, and could not thus have served to ensure his release. Such a claim was accordingly not an effective remedy. Moreover, the matters to be examined in such proceedings would have been nearly identical to those considered in the proceedings in which he had been found guilty of minor hooliganism. There was hence no reason to believe that the courts would have approached them any differently and found in his favour. (b)   The Court’s assessment
29. The Court notes that the complaint under Article 10 of the Convention, as formulated in the relevant part of the application, concerned solely the judgments finding the applicant guilty of minor hooliganism; it did not relate to his earlier police detention. It is true that the part of the application which set out the facts of the case contained a reference to that detention. But when articulating his complaint under Article 10, the applicant laid emphasis on the reasons given by the courts for finding him guilty of minor hooliganism and said:
“When finding the applicant guilty of minor hooliganism, the national courts did not take into account the specific social and political context in which he had carried out acts of ‘hooliganism’, or the harmless artistic means of expression used by [him]. The unjustified police arrest of the applicant supports that conclusion.”
30. The Court has had occasion to note that police or pre-trial detention and concomitant hooliganism proceedings constitute distinct interferences with the right to freedom of expression (see Kandzhov v. Bulgaria, no. 68294/01, § 70, 6 November 2008, and Stefanov v. Bulgaria (dec.), no. 51127/18, §§ 74-75, 8 September 2020). It does not find that the last phase of the above quotation from the application form can be construed to mean that the applicant was also complaining of his police detention. 31. The scope of the case referred to the Court in the exercise of the right of individual application is determined by the applicant’s complaint, and the Court cannot base its decision on facts not covered by the complaint (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). It follows that in the present case the Court has no jurisdiction to deal with the applicant’s police detention, and accordingly to examine the Government’s non-exhaustion objection in relation to it. 32. In any event, even assuming that the applicant’s complaint can be read to encompass also his police detention, that part of it is indeed inadmissible for non-exhaustion of domestic remedies. As noted by the Government, the applicant did not seek judicial review of that detention and damages in relation to it, as possible under Bulgarian law (see Stefanov, cited above, § 77). It cannot be presumed that in such proceedings the Bulgarian courts would have refused to entertain arguments based on freedom of expression, or that a claim founded on such arguments would have been destined to fail (ibid.). It is true that in the minor hooliganism proceedings against the applicant the Blagoevgrad District Court and the Blagoevgrad Regional Court came to the view that it was proper to find him guilty and fine him even though he had sought to exercise his right to freedom of expression (see paragraphs 15-17 and 19 above). But that does not necessarily imply that the Blagoevgrad Administrative Court and the Supreme Administrative Court – the courts competent at the time to deal at first instance and on appeal with legal challenges against police detention – would have seen the matter in the same light and decided that it had been lawful and justified to detain the applicant. He did not therefore exhaust domestic remedies with respect to his grievance – assuming he raised one – that his police detention was in breach of his right to freedom of expression under Article 10 of the Convention. No significant disadvantage
(a)   The parties’ submissions
33. The Government submitted that the applicant had not suffered a significant disadvantage. He had merely been given a fine which had amounted to the equivalent of EUR 51, which was not criminal under Bulgarian law, and which had not been entered into the applicant’s criminal record. Nor had it tarnished his reputation, as attested by the fact that in 2015 and 2019 he had obtained enough votes to be elected as a municipal councillor in Blagoevgrad. His case had been duly considered at two levels of jurisdiction. Respect for human rights did not require his application to be examined on the merits, as the kind of issues raised by it had already been elucidated in judgments against Bulgaria. 34. The applicant replied that the point had to be assessed based on the cumulative effect of his police detention and of his subsequent fine, which had been disproportionate in view of the minor seriousness of his act. It also had to be borne in mind that he was the local leader of an opposition political party, and that his arrest and the minor hooliganism proceedings against him had received broad media coverage and had brought him into disrepute. The fact that the issues thrown up by his case had already given rise to findings of violation against Bulgaria suggested a systemic problem and was an even stronger reason why his application had to be examined on the merits. (b)   The Court’s assessment
35. The Court first reiterates that the applicant’s police detention cannot be taken into account in determining whether he suffered a “significant disadvantage” within the meaning of Article 35 § 3 (b) of the Convention (see paragraphs 29 to 32 above). 36. As for the minor hooliganism proceedings against him, it is true that the fine imposed in them was not criminal in nature, that its amount was quite modest, and that there is no indication that these matters led to any serious adverse consequences for the applicant (see paragraphs 15 and 25 above, and compare with Sylka v. Poland (dec.), no. 19219/07, §§ 31-34, 3 June 2014; Mura v. Poland (dec.), no. 42442/08, §§ 23, 26 and 27, 2 June 2016; and Savelyev v. Russia (dec.), no. 42982/08, §§ 28-30, 21 May 2019). However, in the present case the practical and in particular the pecuniary effects on the applicant cannot be the sole criterion for assessing whether he has suffered a “significant disadvantage”. He was found guilty of and fined for an act which had in his view amounted to a proper exercise of his right to freedom of expression on a matter of public interest. The case thus validly concerns a point of principle for him (see, mutatis mutandis, Konstantin Stefanov v. Bulgaria, no. 35399/05, § 46, 27 October 2015, and Margulev v. Russia, no. 15449/09, § 42, 8 October 2019). Indeed, his complaint under Article 10 of the Convention gives rise to issues of general importance: whether political protest carried out in the manner chosen by the applicant – by profaning a public monument without damaging it – can amount to a legitimate exercise of the right to freedom of expression (contrast Sylka, § 35; Mura, § 28; and Savelyev, § 31, all cited above) and under what conditions can sanctions imposed in response to such acts be considered “necessary in a democratic society” (see, mutatis mutandis, Berladir and Others v. Russia, no. 34202/06, § 34, 10 July 2012; Yılmaz Yıldız and Others v. Turkey, no. 4524/06, § 28, 14 October 2014; and Yordanovi v. Bulgaria, no. 11157/11, § 51, 3 September 2020). Moreover, the applicant’s case appears to have received wide media coverage and to have given rise to public debate in Bulgaria (see, mutatis mutandis, Eon v. France, no. 26118/10, § 34 in fine, 14 March 2013). 37. It cannot therefore be accepted that the applicant has not suffered a “significant disadvantage” within the meaning of Article 35 § 3 (b) of the Convention. 38. The same considerations amount to grounds to find that “respect for human rights as defined in the Convention” in any event requires an examination of the complaint on the merits (see, mutatis mutandis, Gafiuc v. Romania, no. 59174/13, § 40, 13 October 2020). 39. The Government’s objection must therefore be rejected. Other grounds for inadmissibility
40. It was already found that the complaint – so far as it concerns the applicant’s conviction of minor hooliganism – is not inadmissible on account of a failure to exhaust domestic remedies, or because the applicant has not suffered a significant disadvantage. Nor is that complaint manifestly ill-founded or inadmissible on any of the other grounds set out in Article 34 and Article 35 §§ 1 to 3 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
41. The applicant pointed out that the protection of public order was not among the legitimate aims enumerated in Article 10 § 2 of the Convention. The nearest notion to which that provision referred was “the prevention of disorder or crime”, but there was a perceptible difference between the two. His harmless prank had not been capable of causing “disorder of crime” even if it had upset some people. Nor was it clear how precisely it had affected the “rights of others”. 42. For the applicant, his case showed that Bulgarian law did not properly distinguish between legitimate political protest and wanton acts of vandalism and hooliganism. It was puzzling to him that thirty years after the fall of the communist regime the authorities still conflated those notions, and perceived political protest as hooliganism without inquiring into its goals or symbolism. They had disregarded the applicant’s motives and had seen his innocuous gesture as vandalism even though it had not damaged the monument in any way. It had to be emphasised in that connection that his act had been a form of protest against a government which had lost its legitimacy and which had shortly after that resigned. Indeed, the courts had acknowledged that fact, and had noted that the applicant was a local politician. It could hardly be said that the proceedings against him had somehow increased his popularity. Only the first-instance court had tried to carry out some sort of balancing exercise, whereas the appellate court had brushed aside the arguments based on his right to freedom of expression. (b)   The Government
43. The Government conceded that the applicant’s act had constituted “expression”, and that the minor hooliganism proceedings against him had interfered with the exercise of his right to freedom of expression. They were, however, of the view that that interference had met the requirements of Article 10 § 2 of the Convention. The legal basis for the interference – the 1963 Decree – was sufficiently accessible and precise, and the case-law of the Bulgarian courts under it was abundant and settled. The interference had sought to protect public safety and the rights of others; that was evident from the terms of Article 1 § 2 of the 1963 Decree, under which the applicant had been sanctioned, and from the reasons given by the Bulgarian courts in his case. 44. The interference had also been necessary and proportionate. The applicant’s sanction had been administrative rather than criminal, and a very mild one – the minimum possible fine under the 1963 Decree, which had equalled less than a third of the minimum monthly salary in Bulgaria at the time. The applicant had been found guilty for desecrating a monument rather than for offending Mr Blagoev’s memory or for voicing his political views. It was true that political expression enjoyed heightened protection, but it could be interfered with if the means used for it disturbed public order or the everyday functioning of society. It was clear that the applicant had prepared his act in advance, and that he had sought to attract media attention to it. Apart from its artistic and historical value, Mr Blagoev’s monument was also a symbol of the eponymous town. Vandalism against monuments was amenable to sanctions in all Contracting States. The link between the monument and the government in power was neither evident nor perceived by the public as direct. At the time the applicant had not been a well-known politician. Indeed, it had been that very act and the subsequent proceedings against him that had made him popular and had propelled him into being elected as a municipal councillor. When finding him guilty, the courts had carefully weighed up all circumstances, with due regard for his right to freedom of expression, and had spelled out in detail the justification for interfering with that right. There was no evidence that the fine given to the applicant had caused him any hardship.

Outcome for Article 10: violation