In its judgment in the case of Handzhiyski v Bulgaria ([2021]  ECHR 283) the Fourth Section of the Court held, by a six-one majority, that convicting and fining a local politician who had placed a Santa Claus hat on a statute of a former Communist and put a red sack at its feet as part of a political and satirical protest was an unjustified interference with his right to freedom of expression under Article 10.

The case arose after widespread demonstrations which took place across Bulgaria during much of 2013 against the government of Plamen Oresharski, which was supported in Parliament by the Coalition for Bulgaria, the main member of which was the Bulgarian Socialist Party. The coalition at the time was supported by a total of 121 of the 240 members of the Parliament.

The government stepped down in July 2014.

But in the early hours of December 25, 2013, unknown protestors in the town of Blagoevgrad had gone to the square in the town centre and daubed red and white paint over a statue of Dimitar Blagoev, making it resemble Father Christmas.

Mr Blagoev founded of the Bulgarian Social-Democratic Party, which later became the Bulgarian Communist Party and, after the fall of the Communist regime, re-named itself the Bulgarian Socialist Party.

The protestors also spray-painted ‘Father Frost’ – a name which has become associated with the impossibility of celebrating Christmas under the Communists – on the plinth.

Later that same day, as journalists and bystanders watched, the applicant, Kaloyan Handzhiyski, the then chairman of the local chapter of the party Democrats for a Strong Bulgaria (DSB), arrived, and placed a red Santa Claus cap on the head of the already painted statute and, at its feet, leave a red sack bearing a white band marked ‘Resignation’.

Shortly afterwards municipal workers removed the hat and sack and started work on cleaning the statue.

Mr Handzhiyski, who was unemployed, was arrested that afternoon, then charged with minor hooliganism in relation to the placing of the hat and sack. Four days later, in the local district court he was convicted and fined the equivalent of 51 euros (about £43).

He appealed, arguing that he was exercising his constitutional right to protest against the government, but the regional court upheld the original decision.

The Fourth Section of the Strasbourg court said (§ 36) that Mr Handzhiyski’s case under Article 10 of gave rise to issues of general importance: whether political protest carried out in the manner he chose – by profaning a public monument without damaging it – could amount to a legitimate exercise of the right to freedom of expression, and under what conditions sanctions imposed in response to such acts could be considered “necessary in a democratic society”.

In addition, the case already appeared to have received wide media coverage and to have given rise to public debate in Bulgaria.

Seen in its proper context, the Fourth Section said, Mr Handzhiyski’s conduct could be seen 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 … 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.’

The salient point in the case was whether the interference with Mr Handzhiyski’s right to freedom of expression was ‘necessary in a democratic society’ (§ 48).

The sanction imposed on Mr Handzhiyski was the mildest possible under the legal provision he was found to have breached – but the question was whether sanctioning his act was justified at all.

Expression on matters of public interest was in principle entitled to heightened protection, and there was little scope under Article 10 § 2 for restrictions on it. The protection of Article 10 also extended not only to the substance of the ideas and information expressed but also to the form in which they were conveyed.

The Fourth Section majority decision went on (§ 51):

‘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.’

Thus, any interference with the use of this form of expression had to be examined with particular care.

Public monuments were frequently physically unique and formed part of a society’s cultural heritage, and measures, including proportionate sanctions, designed to dissuade acts which could destroy or damage them might therefore be regarded as ‘necessary in a democratic society’, however legitimate the motives which might have inspired such acts.

But Mr Handzhiyski had not engaged in any form of violence and did not physically impair Mr Blagoev’s monument – he merely placed a cap on its head and a sack at its feet, and municipal workers had removed them shortly afterwards.

In addition, it was never suggested that he had somehow coordinated his actions with the unidentified people who had earlier painted the statue.

The judgment went on (§ 55-56):

‘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… 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 deepseated social values. This is further confirmed by the fact that it appears that the reactions to it were mixed.’

The court added (§ 58) that, while it could be accepted that Mr Handzhiyski’s symbolic gesture was hurtful to some of the people who witnessed it directly or learned about it from the media, freedom of expression applied not only to ‘information’ or ‘ideas’ which were favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offended, shocked or disturbed the State or any sector of the population.

It followed that the interference with Mr Handzhiyski’s right to freedom of expression – the finding that he was guilty of minor hooliganism and the resultant fine – were not ‘necessary in a democratic society’, notwithstanding the margin of appreciation which national authorities enjoyed in that domain, and that there was a breach of Article 10.

The court ordered Bulgaria to pay Mr Handzhiyski 54.66 euros (£47) in respect of pecuniary damage, 2,000 euros (£1,709) in respect of non-pecuniary damage and 2,762.76 euros (£2,362) in respect of costs and expenses.