EHRM, 06-04-2021, nr. 10783/14

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.

The Court considers that, seen in its proper context, the conduct which led to the applicant's conviction of minor hooliganism can be regarded as ‘expression’ within the meaning of Article 10 § 1 of the Convention. The applicant was a local opposition politician who combined a symbolic act intended to mock publicly the monument of the founder of the political party which was providing the main parliamentary support for the government in power with a call for that government to resign. Also, he acted in the course of a prolonged nation-wide protest against that government (see paragraphs 4–11 above). It is hence clear that with his act he sought to engage in political protest, and ‘impart’ his ‘ideas’ about the government and the political party which supported it (see, mutatis mutandis, Murat Vural v. Turkey, no. 9540/07, §§ 7–10 and 54–56, 21 October 2014; Shvydka v. Ukraine, no. 17888/12, §§ 37–38, 30 October 2014; Sinkova v. Ukraine, no. 39496/11, §§ 7–8 and 100, 27 February 2018; Mătăsaru v. the Republic of Moldova, nos. 69714/16 and 71685/16, §§ 7–8 and 31, 15 January 2019; and Ibrahimov and Mammadov v. Azerbaijan, nos. 63571/16 and 5 others, §§ 166-67, 13 February 2020).

It is furthermore not in doubt that the applicant's conviction of minor hooliganism in relation to that act and the resultant fine amounted to interference with his right to freedom of expression (see Cholakov v. Bulgaria, no. 20147/06, § 25, 1 October 2013). Nor is it in doubt that this interference was ‘prescribed by law’ (ibid., § 26). In particular, it can be accepted that the legal basis for it — Article 1 § 2 of the 1963 Decree (see paragraphs 15–16, 19 and 22–23 above) — was sufficiently foreseeable. It is true that this provision defines ‘minor hooliganism’ in broad terms, but in this case the applicant resorted to a provocative gesture likely to disturb or insult some of the people who witnessed it directly or learned about it from the media. It can thus be accepted that his act could reasonably be characterised by the Bulgarian courts as ‘minor hooliganism’ within the meaning of the 1963 Decree (see, mutatis mutandis, Shvydka, cited above, § 39).

In the light of the same considerations, it can also be accepted that the interference pursued the legitimate aim of protecting the ‘rights of others’ (ibid., § 40). There is, however, no indication that it was meant to protect ‘public safety’. As noted by the national courts, the applicant's act was entirely peaceful (see paragraph 17 above). Nor is there any indication that it was likely to cause public disturbances, or that when sanctioning the applicant the authorities had that in mind (see, mutatis mutandis, Perinçek v. Switzerland [GC], no. 27510/08, §§ 152-53, ECHR 2015 (extracts), and contrast Maguire v. the United Kingdom (dec.), no. 58060/13, § 47 in fine, 3 March 2015).

The salient issue is whether the interference was ‘necessary in a democratic society’. The general principles governing this point have recently been set out in Perinçek (cited above, §§ 196-97).

The sanction imposed on the applicant was the mildest possible under the legal provision that he was found to have breached (see paragraphs 17 and 23 above). It was indeed quite lenient, consisting solely of an administrative fine of BGN 100 (equivalent to EUR 51), which the applicant was able to pay almost immediately and apparently without any difficulty (see paragraphs 15 and 20 above). It was, moreover, not entered in the applicant's criminal record (see paragraph 25 above). If his conviction is considered justified, that sanction cannot hence be seen as disproportionate in itself (contrast Murat Vural, §§ 66–68; Shvydka, § 41; and Mătăsaru, §§ 35–36, all cited above). The salient question thus becomes, more specifically, whether it was at all justified to sanction the applicant's act. Indeed, the adjective ‘necessary’ in Article 10 § 2 implies the existence of a pressing social need, and does not have the flexibility of such expressions as ‘useful’, ‘reasonable’ or ‘desirable’ (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24; The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 59, Series A no. 30; and Barthold v. Germany, 25 March 1985, § 55, Series A no. 90).

As noted in paragraph 45 above, through that act the applicant, a local opposition politician, sought to protest against the government in power and the political party which provided main parliamentary support for it, in the course of a prolonged nation-wide protest against that government. Expression on matters of public interest is in principle entitled to heightened protection, and there is little scope under Article 10 § 2 for restrictions on it (see, among other authorities, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 102, ECHR 2013 (extracts); Perinçek, cited above, § 230; and Mariya Alekhina and Others v. Russia, no. 38004/12, § 212, 17 July 2018). Moreover, the protection of Article 10 extends not only to the substance of the ideas and information expressed but also to the form in which they are conveyed (see, among other authorities, Oberschlick v. Austria (no. 1), 23 May 1991, § 57 in fine, Series A no. 204; Animal Defenders International, cited above, § 100 in fine; and Murat Vural, cited above, §§ 44–53, with further references).

Although it was not meant as a form of artistic expression, the applicant's act could also be seen having elements of satirical expression. The Court has had occasion to note that satire, by its inherent features of exaggeration and distortion of reality, aims to provoke and agitate. Accordingly, any interference with the use of this form of expression must be examined with particular care (see, among other authorities, Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 33, 25 January 2007; Alves da Silva v. Portugal, no. 41665/07, § 27, 20 October 2009; and Eon, cited above, § 60), even though its use does not definitively rule out the possibility of restriction under Article 10 § 2 (see Leroy v. France, no. 36109/03, §§ 39 and 44, 2 October 2008, and Instytut Ekonomichnykh Reform, TOV v. Ukraine, no. 61561/08, § 46, 2 June 2016), or even of finding a complaint being inadmissible by reference to Article 17, in cases in which the satire is directed against the Convention's underlying values (see M'Bala M'Bala v. France (dec.), no. 25239/13, §§ 31–33 and 39–42, ECHR 2015 (extracts)).

It is true that Article 10 of the Convention does not bestow freedom of forum for the exercise of the right to freedom of expression (see Appleby and Others v. the United Kingdom, no. 44306/98, § 47, ECHR 2003-VI; Taranenko v. Russia, no. 19554/05, § 78, 15 May 2014; and Mariya Alekhina and Others, cited above, § 213). It is also true that in some cases the authorities may, consistently with that provision, limit the channels through which people and organisations can express themselves (see Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, §§ 57–77, ECHR 2012 (extracts), in relation to a refusal to allow a poster campaign on public spaces), even on matters of public interest (see Animal Defenders International, cited above, §§ 99–125, in relation to a general ban on paid political advertising on television). Indeed, the justification for such limitations can be even stronger when the ‘expression’ at issue consists, wholly or in part, in conduct, as it did in the case at hand. In this case, however, the applicant was not prevented from approaching Mr Blagoev's monument and placing the cap and the sack on it; he was later sanctioned for having done so. When an interference with the right to freedom of expression takes the form of a ‘penalty’, it inevitably calls for a detailed assessment of the specific conduct sought to be punished. It cannot normally be justified solely because the expression at issue was caught by a legal rule formulated in general terms (see, mutatis mutandis, Perinçek, cited above, § 275).

Public monuments are frequently physically unique and form part of a society's cultural heritage. Measures, including proportionate sanctions, designed to dissuade acts which can destroy them or damage their physical appearance may therefore be regarded as ‘necessary in a democratic society’, however legitimate the motives which may have inspired such acts. In a democratic society governed by the rule of law, debates about the fate of a public monument must be resolved through the appropriate legal channels rather than by covert or violent means.

The Court observes, however, that the applicant did not engage in any form of violence and did not physically impair Mr Blagoev's monument in any way. He merely placed a cap on its head and a sack at its feet; those were removed by municipal workers a short while later (see paragraphs 10 and 11 above). It was not suggested, either at domestic level or in the proceedings before the Court, that the applicant had somehow coordinated his actions with the unidentified people who had earlier painted Mr Blagoev's statue in red and white and had painted the words ‘Father Frost’ on its plinth (see paragraph 7 above).

When it comes to such acts — which, though capable of profaning a monument, do not damage it — the question whether it can be ‘necessary in a democratic society’ to impose sanctions in relation to them becomes more nuanced. In such situations, the precise nature of the act, the intention behind it, and the message sought to be conveyed by it cannot be matters of indifference. For instance, acts intended to criticise the government or its policies, or to call attention to the suffering of a disadvantaged group cannot be equated to acts calculated to offend the memory of the victims of a mass atrocity. The social significance of the monument in question, the values or ideas which it symbolises, and the degree of veneration that it enjoys in the respective community will also be important considerations.

In the present case, the context clearly suggests that the intention behind the applicant's act was to protest against the government of the day and the political party which supported it, in the context of a prolonged nation-wide protest against that government, rather than to condemn Mr Blagoev's historical role or to express contempt towards him (see paragraphs 4–11 above). The applicant simply used Mr Blagoev's monument as a symbol of the political party that he wished to criticise. It can thus hardly be said that his act was meant to show disdain for deep-seated social values. This is further confirmed by the fact that it appears that the reactions to it were mixed (see paragraph 16 in fine above).

It should also be noted in this connection that Mr Blagoev's statue was put up during the communist regime in Bulgaria, and appears to have been seen as sufficiently connected to the values and ideas for which that regime stood to have been removed from its place, albeit for a few years only, shortly after the regime came to an end (see paragraphs 8 and 9 above). This can hardly be compared with, for instance, memorials to soldiers who have given their lives for the defence of their country (contrast Sinkova, cited above, § 110).

It can be accepted that the applicant's symbolic gesture was hurtful to some of the people who witnessed it directly or learned about it from the media. However, freedom of expression 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 (see, among many other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Müller and Others, cited above, § 33; Perinçek, cited above, § 196 (i); and Stern Taulats and Roura Capellera v. Spain, nos. 51168/15 and 51186/15, §§ 30 and 39, 13 March 2018).

It follows that the interference with the applicant's right to freedom of expression — the finding that he was guilty of minor hooliganism and the resultant fine — was not ‘necessary in a democratic society’, notwithstanding the margin of appreciation enjoyed by the national authorities in that domain. There has therefore been a breach of Article 10 of the Convention.

The applicant sought reimbursement of:

The applicant requested that any award under this head be made directly payable to his lawyers' firm, Ekimdzhiev and Partners.

In support of his claim, the applicant submitted a fee agreement with his lawyers' firm, a time-sheet and costs report by that firm (which the applicant accepted), a postal receipt, and a contract between his lawyers' firm and a translator.

The Government submitted, with respect to item (a) of the claim, that both the hours claimed and the hourly rate were excessive, in particular in view of the relative simplicity of the issues raised by the case. For their part, items (b) and (c) were operating costs incurred by the firm of the applicant's lawyers, already covered by the fees which they had charged the applicant. The Government made the same point with respect to item (d), and pointed out that the contact for translation services spoke of nineteen pages, whereas the applicant's observations only ran to fourteen pages, and that no invoice had been presented for those services.

According to the Court's case-law, applicants are entitled to the reimbursement of their costs and expenses, but only to the extent that these were actually and necessarily incurred and are reasonable as to quantum.

In the present case, the only point in dispute in relation to the lawyers' fees whose reimbursement is sought by the applicant (item (a) of his claim) is whether they were reasonable as to quantum. The hourly rate charged by those lawyers, EUR 120, is much higher than those accepted in recent cases against Bulgaria of similar complexity (see Karaahmed v. Bulgaria, no. 30587/13, §§ 117 and 119, 24 February 2015; Guseva v. Bulgaria, no. 6987/07, §§ 74 and 76, 17 February 2015; and Yordanovi, cited above, §§ 89 and 91). It cannot therefore be seen as reasonable. By contrast, in the light of the degree of complexity of the issues raised by the case and the content of the submissions made on behalf of the applicant, the number of hours claimed appears reasonable. In view of these considerations, the Court awards the applicant EUR 2,640, plus any tax that may be chargeable to him, under this head. As requested by him, this sum should be paid directly into the bank account of the law firm of his representatives, Ekimdzhiev and Partners (see, for instance, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 in fine, ECHR 2016 (extracts)).

For their part, the administrative costs (in this case, postage and office supplies — items (b) and (c) of the applicant's claim) incurred by the applicant's representatives in connection with the proceedings before the Court are in principle recoverable under Article 41 of the Convention (see, among other authorities, The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 40, Series A no. 38; Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 25, Series A no. 59; Özgür Gündem v. Turkey, no. 23144/93, §§ 85–87, ECHR 2000-III; İpek v. Turkey, no. 25760/94, § 242 in fine, ECHR 2004-II (extracts); and Antonov v. Bulgaria, no. 58364/10, §§ 72 and 76, 28 May 2020). Indeed, under the terms of the fee agreement between the applicant and his lawyers' firm, he is liable not only to pay fees for his lawyers' work on the case, but also to cover all administrative costs incurred by their firm in connection with it. That said, there are no documents supporting the claim in respect of office supplies. In those circumstances, the Court makes an award solely with respect to postage, which according to the documents submitted by the applicant came to BGN 12.10, which equals EUR 6.19. To this should be added any tax that may be chargeable to the applicant. As requested by him, this sum is likewise to be paid directly into the bank account of the law firm of his representatives.

Translation costs are also in principle recoverable under Article 41 (see, for instance, The Sunday Times (no. 1) (Article 50), cited above, § 40; Olsson v. Sweden (no. 2), 27 November 1992, § 114, Series A no. 250; Blokhin v. Russia [GC], no. 47152/06, § 229 in fine, 23 March 2016; and Marinova and Others v. Bulgaria, nos. 33502/07 and 3 others, § 133, 12 July 2016). In the present case, the contract between the firm of the applicant's lawyers and the translator specifically stated that the translation concerned the observations and claims made on behalf of the applicant. It also stipulated that the translator's fee was to be calculated on the basis of the amount of standard pages (rather than the actual number of pages) of which those documents consisted, and stated that the fee had been paid via bank transfer. There is hence no reason to doubt that the translation costs were actually and necessarily incurred by the applicant's lawyers. They also appear reasonable as to quantum. The sum expended for translation — EUR 116.57 — is therefore to be awarded in full. To this should be added any tax that may be chargeable to the applicant. As requested by him, this sum is likewise to be paid to into the bank account of the law firm of his representatives.

The total award in respect of costs and expenses is thus EUR 2,762.76.