Asenov v Bulgaria and Budinova and Isaev v Bulgaria (third-party intervention, pending)
05 December 2023
Facts
These two cases are being considered by the European Court in simultaneous proceedings. Although the cases followed a different legal path at the domestic level, in substance these two applications are similar. Both concern racist statements against Roma made in the Bulgarian Parliament in December 2014 and March 2015 by a member of the Parliament and a leader of the political party National Front for the Salvation of Bulgaria, who later served as the Deputy Prime Minister. The applicants, all Bulgarian nationals of Roma ethnicity, complained that the politician’s statements spread vicious stereotypes about Roma and criminality with the intention to stir up fear and hatred against Roma and, as a result, had amounted to harassment and incitement to discrimination towards the applicants as members of Roma minority. In Mr. Asenov’s case, finding of discriminatory harassment by the Bulgarian Commission for Protection from Discrimination (the Commission) had been quashed by Supreme Administrative Court ruling stating that the Commission had engaged in “aggressive moralising” and that “the tension between the antidiscrimination legislation and the civil liberties could not be resolved to the detriment of the latter” as it would turn the antidiscrimination protection into a tool for censorship. Ms Budinova and Mr Isaev, both freelance journalists, brought a discrimination claim against the same politician before civil court alleging that his statements made in the Parliament amounted to harassment and incitement to discrimination. While the first instance court had partially ruled in favour of the applicants, the second instance court and ultimately the Supreme Court of Cassation dismissed the applicants’ discrimination claim arguing that (1) the statements had not been made against all Roma, but certain part of the Roma community and, more importantly, (2) there was no evidence that those statements had affected the applicants personally. The applicants complained to the European Court in July and November 2019 under Article 14 of the Convention read in conjunction with Article 8 of the Convention.
The ERRC’s Third-Party Intervention
The ERRC was not involved in the case before it reached the European Court. When the case was made public, we asked the European Court to allow us to submit written comments as a “third-party intervener” to help the Court with its ruling. The European Court accepted our request and on 27 November 2023 we submitted our third-party intervention.
We reminded the Court that the time has come for the Court to use the word “antigypsyism” in its case law. Council of Europe and EU bodies regularly use the word, which was a much more effective way of describing the experience of Roma than saying, as the European Court usually does, that “as a result of their turbulent history and constant uprooting, the Roma have become a specific type of disadvantaged and vulnerable minority”. We asked the Court to imagine what it is like to be a Romani person in Europe today. We argued that antigypsyism remained prevalent in Bulgaria and noted how public figures in the country continued to target Roma with revolting comments which had serious consequences – violent attacks on Romani communities forcing Roma to flee their homes, promoting forced evictions of Roma from informal housing in which many are reduced to living, advocating for genocide-adjacent measures such as “limiting births” of Romani mothers. We argued that the European Convention on Human Rights requires domestic courts to protect Roma against stereotypes powerful public figures use to promote antigypsyism. Citing the Rabat Plan of Action, a UN text reflecting international consensus on how to balance freedom of speech and the rights of people targeted by hate speech, we noted that barriers to access to justice made it unusual for Roma to be able to challenge hate speech in court. Finally, we argued that historical and ongoing antigypsyism in Europe had two consequences for the Court’s consideration of such cases: (1) when challenging hate speech spreading antigypsyism, however generalised, individual Romani people must be considered “victims” for the purposes of being able to bring cases to the European Court (i.e. they must have standing to bring such cases); (2) there is a positive obligation for national courts, when dealing with civil or administrative cases Roma bring challenging hate speech, to identify and name stereotypes common to antigypsyism and to protect Romani people by applying proportionate sanctions to public figures who promote antigypsyism by spreading such stereotypes.
The Court’s summary of the facts the Asenov case can be found here; in the Budinova and Isaev case it can be found here.
The ERRC’s third-party intervention can be found here.
