Kandzhov v Bulgaria

CASE OF KANDZHOV v. BULGARIA
European Court of Human Rights
Application no. 68294/01
Final Judgment: 06/02/2009
INTRODUCTION
Mr Aleksandar Bogdanov Kandzhov filed an action before the European Court of Human Rights, alleging that the Bulgarian Government acted in violation of article 10 of the ECHR. The Defendant State arrested and detained Mr Kandzhov for displaying a banner aiming at insulting the Minister of Justice and gathering signatures calling for the Minister's resignation.
THE FACTS
In July 2000, the applicant formed a committee together with other political supporters committed to ask for Minister of Justice Teodosiy Simeonov's resignation. In the same circumstances, the applicant qualified the Minister at issue as "the top idiot of the Bulgarian Government". The expression had been first used by the newspaper "Monitor". The latter, together with other newspapers highly criticised the position taken by the Minister at issue with respect to the case of five Bulgarian citizens facing death sentence in Libya. The press generally regarded Mr Simeonov's words likely to compromise the relationships between the two countries.
Soon after the setting up of the committee, the plaintiff notified the mayor of Pleven that its representatives would be gathering signatures calling for the Minister to step down.
The deputy mayor denied the permission; but the police officer in charge with apprising the applicant could not find him at his address.
On the scheduled day, the 10th July, the applicant was informed of the decision while on his way to one of the signature-gathering stand. Nevertheless, Kandzhov decided to carry out his project. Later on the same day, a police officer warned the applicant in writing that he should remove the stands. Since he refused to comply with the order; he was eventually arrested.
The arrest's order was based on the 1997 Ministry of Internal Affairs Act and on the Bulgarian Criminal Code. However, the specific acts at the basis of the order were not disclosed.
The same day, a criminal investigation was set up against the applicant on the charge of publically insulting the Minister of Justice in his official capacity.
The applicant was then questioned and he pledged not guilty. He afterwards spent 72 hours in detention, pending the decision of the Pleven District Court on whether he should be kept in pre-trial detention or not.
When the proceedings were instituted against the applicant, charges of insulting and hooliganism were moved against him.
The Pleven District Court even if released Kandzhov on bail; it eventually found him guilty of aggravated hooliganism. As a result, he was sentenced to four months' imprisonment.
One year later, the Pleven Regional Court quashed the lower court's judgment and acquitted him.
Even the Supreme Cassation Court afterwards upheld the Regional Court's decision.

THE LAW
The Court firstly pointed out that the applicant was arrested while he was exercising his right of freedom of expression. Thus, the action undertaken by the Bulgarian Government amounted to an interference with it.
As to the applicant's arrest, that was unlawful. He was not brought promptly before a court, and the latter ordered his detention on the basis of no material reasons.
Therefore, the interference could not be deemed to be "prescribed by law", within the meaning of article 10(2) of the ECHR.
Moreover, although the aims of protecting the rights of others and of preventing disorders were "legitimate"; the action was disproportionate in the view of the Court. The latter, considered of the outmost importance taking into account the context within which the words at issue were used by Kandzhov. It considered that on the one hand the political debate was critical, but on the other hand it was not violent.
Instead, the authorities' reaction was vigorously meant to silence the applicant, and it had a chilling effect on the future exercise of his right to freedom of expression.
In conclusion, the Court recalled that the Government is in a dominant position in respect of its citizens. Thus, resorting to criminal proceedings and custodial measures should represent the last resort. This is particularly true, when other softer means are available.
Therefore, the Court found the Defendant State in breach of article 10 of the ECHR.

URL Link: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=CASE%20%7C%20OF%20%7C%20KANDZHOV%20%7C%20v.%20%7C%20BULGARIA&sessionid=66638418&skin=hudoc-en

Author Organisation: Euroean Court of Human Rights