By Lourdes Peroni
Karaahmed v. Bulgaria, a case recently decided at Strasbourg, concerned incidents arising from a demonstration by followers of “Ataka,” a political party known for its views against Islam and its adherents. The place of the demonstration: in front of the Banya Bashi Mosque in Sofia. The time: during Friday prayers. The manner: carrying flags featuring slogans such as “Let’s get Bulgaria back;” shouting insults at the worshippers such as “Turkish stooges”, “filthy terrorists,” “scum” and “Your feet stink! That is why you wash them!;” pelting them with eggs and stones; cutting a Turkish fez with a pocket knife while saying “Can you hear me? We shall now show you what will happen to each one of you!” and setting fire to prayer rugs.
The Court declared the Article 3 complaint, either alone or in conjunction with Article 14, inadmissible but found a violation of Article 9. In this post, I offer some preliminary thoughts on the inability of the Article 9 analysis to make visible what the events were really about at their heart.
Summary of the Facts
At around noon of Friday, 20 May 2011, worshippers, including the applicant, began to gather in and around the Banya Bashi Mosque in Sofia for the regular prayer. At the same time, over a hundred members and supporters of Ataka gathered in front of the mosque to protest against what they called the “howling” from the loudspeakers on the mosque. The group of demonstrators included a Member of Parliament for the party and a Member of the European Parliament for the party.
Video recordings of the event show most demonstrators wearing black t-shirts and many carrying flags featuring inscriptions such as “Let’s get Bulgaria back.” The recordings also show the demonstrators shouting insults at the worshippers, including “Turkish stooges”, “filthy terrorists”, “scum”, “janissaries”, “cut-offs” and “Islamists”. One of them can be seen cutting a Turkish fez with a pocket knife, saying, “Can you hear me? We shall now show you what will happen to each one of you!” At some point, once the prayer had started, several demonstrators climbed onto the mosque – some carrying wooden flagpoles and metal pipes – and hit the worshippers. Some of the worshippers hit back. Demonstrators also pelted worshippers with eggs and stones. The incidents ended at around 1.55 p.m., when the demonstrators left the scene. Before leaving, however, four of them piled some of the worshippers’ prayer rugs and set fire to them.
Two sets of investigations followed. The first series of investigations was carried out by the police, one of them into the violence towards the worshippers. In the course of this investigation, seven people were charged with aggravated hooliganism but no information was given on whether they had been prosecuted. The other investigation was opened by the Sofia City Prosecutor’s Office under the Criminal Code provision prohibiting hate speech motivated by religion. However, no charges have been brought against any person.
The Judgment in Short
Article 3 (alone or together with Article 14): Inadmissible
The Court found that the Article 3 threshold had not been met. As a result, it declared the complaint about the state’s failure to comply with its positive obligations manifestly ill founded. The Court accepted that the demonstrators’ actions had been premeditated and public: “their intentions were to mock publicly and debase the worshippers and their religion” (para. 75). However, it found that these actions were not so severe as to cause the kind of fear, anguish and feelings of inferiority required by Article 3. For the Court, the case did not involve prolonged actions that could have resulted in considerable mental suffering but a one-off event that lasted an hour and a half. The Court next differentiated this case from two cases of violence against Jehovah’s Witnesses in Georgia: Begheluri and Others v. Georgia and Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia. It noted that these two cases involved severe beatings, forced searches, and humiliating acts designed to force the applicants to act against their conscience, and took place in a national climate of religious intolerance at the material time. Finally, and since Article 14 has no independent existence, the Court also declared the Karaahmed applicant’s complaint under Article 14 together with Article 3 manifestly ill founded.
Article 9: Violation
The Court framed the case as one concerning the exercise of two sets of competing rights protected by the Convention: “the rights of Ataka and its supporters to freedom of expression and to peaceful assembly and the rights of the applicant and the other worshippers at the Banya Bashi mosque to pray peacefully in community together without undue interference” (para. 91). The Court noted that, given that Ataka’s views on Islam and its adherents were a matter of public record, it should have been clear to the domestic authorities that the demonstration outside the mosque coinciding with Friday prayers carried an “inherent risk of tension between the demonstrators and the worshippers at the mosque” (para. 100). The Court found that the domestic authorities had not given proper consideration as to how the competing rights could be fairly balanced, pointing to some steps that the authorities could have taken before and during the demonstration. The Court held that the result of the police’s response was that the demonstrators “enjoyed a virtually unfettered right to protest at the mosque that day, while the applicant and the other worshippers had their prayers entirely disrupted” (para. 107). Moreover, in examining the ensuing investigations into the incident, the Court found that the state failed to respond to the events properly. It thus concluded that the state failed to comply with its positive obligations under Article 9.
Article 9 Alone: The (In)Visible Harms
The examination under Article 9 alone does not fully capture what in my view was the crux of this case: the racial and religious motives at the root of the disruption of religious worship and abuse against the Muslim worshippers. These motives are evidenced by several of the slogans, shouts and acts carried by the demonstrators. They included, most disturbingly, insults such as “Turkish stooges”, “filthy terrorists” and “scum,” the cutting of a fez with a knife while threatening, “Can you hear me? We shall now show you what will happen to each one of you!” and the burning of some of the worshippers’ prayer rugs.
To be sure, the Court recognizes that the demonstration was not just about the loudness of the speakers at the mosque. The Court therefore does not buy the state’s contention that the reason for the demonstration was “the refusal of the mosque to comply with directions from the municipality as to noise level of the loudspeakers” (para. 86). The Court emphasizes that, even if not apparent before the demonstration began, the need to take steps became clear once the demonstration started. The Court says:
It understates the nature of this demonstration to say that it was only about the volume of the Friday call to prayer … These were acts which were not designed to express discontent at noise levels or even to express opposition to Islam but were clearly calculated to cause maximum disruption to the worshipper’s prayers and to provoke violence (para. 102).
While the Court does identify maximum disruption of religious worship and provocation of violence as the real intentions of the demonstrators, the motives at the root of such disruption and provocation are not made fully visible. The Court comes close when it acknowledges that the slogans shouted by the demonstrators were “anti-Turkish” and “anti-Islam” and that some of these slogans were “malicious and vulgar” (para. 102). Yet this is not quite the same as addressing whether the prayers were disrupted and violence provoked on account of the worshippers’ ethnic origin and religion.
As a result, the Court finds that the state failed to strike a proper balance in the steps taken to ensure the effective exercise of two rights: the rights of demonstrators to protest and the rights of the applicant and his fellow worshippers to pray together. The Court also finds that the state failed to comply with its duty to effectively investigate the interference with the religious rights of the worshippers caused by the demonstrators. Yet the state’s compliance with one significant positive obligation is not explicit: the procedural duty to investigate the religious and racial motives behind the violent disruption of religious worship.
Article 9 and Article 14? Making the Source of Violent Disruption of Religious Worship More Visible
Having found a violation of Article 9, the Court did not find necessary to examine the applicant’s complaint under Article 9 taken in conjunction with Article 14 (para. 112). It is not immediately clear what the applicant’s arguments and the state’s response were under these provisions. However, it flows from the applicant’s arguments under other ECHR provisions that he believed that he and the other worshippers endured such behavior at the hands of the demonstrators because of their religion and their belonging to a religious minority (see e.g. para. 69).
In Begheluri and Others v. Georgia, concerning violence against Jehovah’s Witnesses, the Court recalled in its analysis under Article 14, in conjunction with Articles 3 and 9, the following principle:
The Court also reiterates that an obligation to unmask a possible discriminatory motive behind violent incidents is implied in the responsibilities under Article 14 of the Convention … The foregoing is also necessarily true in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. (para. 173).
Though Article 3 was out of the picture in Karaahmed, in principle I do not see why the duty to take reasonable steps to unmask any racial/religious motives would not apply in the context of Article 9 and Article 14. This broader framework of analysis would allow in circumstances such as those of Karaahmed (i) to capture more fully the real nature of the demonstration and (ii) to assess more explicitly the state’s compliance with its obligation to effectively investigate the role that discriminatory motives played in the disruption of religious worship.
At a time when the climate is one of growing hostility toward Muslims in Europe, a more explicit analysis – or at least more explicit language under Article 9 – making the motives underlying the attack more visible would have sent a stronger message against racial and religious intolerance.
 Some more background information taken from the judgment: Ataka had led a campaign and organized a rally against the “howling” coming from the loudspeakers on the Banya Bashi Mosque during the call for prayers. Prior to the incident examined in the case, supporters of Ataka had on two occasions mounted loudspeakers on cars and played recordings of church bells and Christian chants during the Friday prayers in order to counter the “noise terror” emanating from the mosque – in the words of one of Ataka’s Members of Parliament (see paras. 7-10).
 Moreover, the applicant attempted to participate in the investigations opened by the Sofia Prosecutor’s Office under the criminal law provision prohibiting hate speech motivated by religion (paras. 31-39).
 See T Hammarberg, Human Rights in Europe: No Grounds for Complacency (Council of Europe 2011) 36–39 and 47–48; Group of Eminent Persons of the Council of Europe, “Living Together: Combining Diversity and Freedom in 21st-century Europe” (Council of Europe 2011) 15–16; Parliamentary Assembly of the Council of Europe (PACE), Resolution 1743 “Islam, Islamism and Islamophobia in Europe” (Council of Europe 2010) 1.