Of statues and Santa Claus: does Article 10 protect hooliganism acts on a historical figure’s statue?

By Juncal Montero Regules, PhD fellow of Research Foundation Flanders (FWO) at the faculty of Law, Hasselt University

On 6 April 2021, the Fourth Section of the European Court of Human Rights (ECtHR, the Court) held that a non-criminal conviction for placing Santa Claus accessories on a communist leader’s statue in the context of nation-wide political protests violated the applicant’s freedom of expression. Handzhiyski v. Bulgaria concerns the distinction between satirical and political protests, and wanton acts of vandalism and hooliganism, as well as the necessity of the sanction against acts which do not destroy or physically impair documents. The judgment stands in line with previous case-law on monuments and political protests, while again breaking with the interpretative line in Sinkova.

Facts and judgment

The facts of the case took place in December 2013, against the background of anti-government protests which started in May of that year, when a new coalition government, led by the Socialist Party, was formed in Bulgaria following parliamentary elections. Protests erupted against the newly-formed government in the wake of the elections, and continued until mid-January 2014. In the midst of widespread citizens rejection, the government stepped down in July 2014.

In the early hours of the 25th December 2013, the statue of Mr. Dimitar Blagoev, situated in the central square of Blagoevgrad, was painted in red and white by unknown persons, so as to resemble Santa Claus. The plinth of the statue was daubed, using white spray, with the words “Father Frost”. Shortly before 10am on the same day, the applicant, Mr. Handzhiyski, placed a red Santa Claus hat on the painted statue’s head and a red sack at its feet. The sack featured a white band with the word “resignation” on it. Later that day, he was arrested and placed in police detention for twenty-four hours. He was charged and found guilty of minor hooliganism for having placed the cap and the sack on Mr. Blagoev’s statue, for which he was fined around 51 euros. The Regional Court upheld the lower court’s judgment, considering that the applicant’s act amounted to minor hooliganism, as his act had been indecent and had breached the public order.

Two aspects are relevant for the case: the details of the statue and the applicant’s standing. Mr. Blagoev was the founder of the Bulgarian Social-Democratic Party (1891), which became the Bulgarian Communist Party between 1919 until 1990, and currently operates under the name Bulgarian Socialist Party. In 1950 the town of Blagoevgrad was named after him, and in 1971 his statue was placed in its central square. Shortly after the fall of the communist regime, the municipal council proposed to rename the town with one of its old names. This proposal was rejected. Blagoev’s statue was removed around the same time, but the decision was repealed by a new municipal council and the statue was again erected in the square. As to the applicant, he was, at the time of the facts, chairman of the Blagoevgrad chapter of the political party Democrats for a Strong Bulgaria, which was not represented in Parliament, and which supported the anti-government protests.

The applicant claimed before the ECtHR that the domestic courts’ judgments, finding him guilty of minor hooliganism, violated his right to freedom of expression under Article 10 of the Convention, as the interference in his fundamental right had not been necessary in a democratic society. The Court found that there had been a violation of Handzhiyski’s right to freedom of expression.

The applicant’s acts were considered expression falling within the scope of Article 10, “seen in its proper context”. The Court considered that the applicant sought to engage in political protest and impart his ideas about the government and the political party which supported it (§ 45). The applicant’s conviction and fine thus amounted to an interference with that freedom of expression. Such interference was prescribed by law and pursued the legitimate aim of protecting the rights of others – passers-by who might have been insulted. The Court, however, noted that there had been no risk to public safety in the applicant’s actions, as they were entirely peaceful and unlikely to cause public disturbances (§ 47).

The Court stated that the applicant’s actions could be seen as  having elements of satirical expression and political protest. When assessing the necessity of the interference, the Court held that measures, including proportionate sanctions, designed to dissuade acts which could destroy monuments or damage their physical appearance, could be seen as necessary in a democratic society (§ 53). Mr. Handzhiyski did not act violently, nor did he damage the statue in any way, as “he merely placed a cap on its head and a sack at its feet”, both of which were removed by municipal workers almost instantaneously.

The Court noted that in 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. It turned to a number of elements to be considered in the assessment of such interference: the precise nature of the act, the intention behind it, the message sought to be conveyed by it, and the social significance of the monument. According to these factors and to the context behind the applicant’s acts, the Court declared that his intention was to protest against Bulgaria’s political situation, rather than to condemn Mr. Blagoev’s historical role or to express contempt towards him. The Court acknowledged that the applicant “simply used Mr. Blagoev’s monument as a symbol of the political party that he wished to criticize” (§ 56). Moreover, the Court reiterated that expressive conduct, which shocks, offends or disturbs is protected under Article 10 (as is well-established case-law: see Handyside v. the United Kingdom). The interference with the applicant’s right to freedom of expression was not deemed to be necessary in a democratic society. The Court, by six votes to one, found a breach of Article 10 of the Convention. The domestic authorities violated Mr. Handzhiyski’s freedom of expression when imposing on him a non-criminal sanction over his actions against the statue.

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Acts against statues, monuments, and sacred places are a common way of expressing discontent, disagreement and rejection towards the political ideas they represent. The ECtHR has decided on several cases involving such actions: frying eggs over the Eternal Flame at Ukraine’s Tomb of the Unknown Soldier (Sinkova v. Ukraine), performing protest songs in a Moscow Cathedral (Mariya Alekhina and Others v. Russia – see our blogpost here), erecting obscene sculptures on the stairs of the Prosecutor General’ Office (Mătăsaru v. the Republic of Moldova – blogpost here), pouring paint on statues of Ataturk (Murat Vural v. Turkey), displaying dirty laundry near the Hungarian parliament (Tatár and Fáber v. Hungary). In these previous cases, the applicants all faced prison sentences, and the Court focused on the imposition of such criminal sanctions. In the present case, on the contrary, the domestic courts imposed a non-criminal fine on the applicant. The Court here focused on the action itself, and on the conditions under which an imposed sanction in response to such action can be considered necessary in a democratic society.

The outcome of the case is positive for the protection of the right to freedom of expression. Putting a Santa Claus hat on the statue of a historical political figure and a red sack at its feet with the word “resignation” in the context of nation-wide anti-government protests is protected by the right to freedom of expression as established under Article 10 ECHR. This is so, because these actions had elements of satire and political protest. Importantly, the applicant’s actions did not damage the statue, and his intention was to criticize the governing political party through the actions against the statue.

The judgment can be seen as a continuation in the application of standards and criteria developed in previous cases. In the Pussy Riot case (Mariya Alekhina), Tatár and Fáber, and Murat Vural, the Court found that provocative performances amounted to political expression protected by the right to freedom of expression, and that authorities had interfered with such right in ways that violated the applicants’ right to freedom of expression. This interpretative line is followed in the present case, where, for the first time, it is applied to a case involving non-criminal sanctions for “hooliganism” against a statue. Importantly, the judgment does not follow the Court’s reasoning in Sinkova (voted ‘worst judgment of 2018’ by the Strasbourg Observer’s readers), where it found that the criminal conviction, the pre-trial detention and the (suspended) prison sentence for a non-violent performance art protest at a war memorial did not violate Article 10 ECHR (see Ó Fathaigh and Voorhoof’s post here). In essence, the Court considered that the applicant had “only” been convicted on account of the frying of the eggs, rather than for expressing her views, thus undermining the essence of the freedom of artistic protest. This interpretation is in fact suggested by Judge Vehabovic in his dissenting opinion in the present case, where he holds that a violation of Article 10 should have been appreciated. He considers that “this case has many similarities with the case of SinkovaHandzhiyski v. Bulgaria, dissenting opinion of Judge Vehabović), and that, by not applying the same standards, the Court is being inconsistent.

The dissenting opinion raises an interesting point: “the message sent out [in Handzhiyski] is a dangerous one – whenever any desecration of monuments take place it will be justified as long as it is the result of non-violent protest that caused no damage to the statue or monument itself. This approval might easily undermine the principle of the rule of law and could be understood as an invitation to similar non-violent acts against any statue, monument or sacred places, acts that may well injure the feelings of those who support their existence” (Handzhiyski v. Bulgaria, dissenting opinion of Judge Vehabović). The Court indeed relies on the non-violent character of the applicant’s actions, which leads to a more nuanced assessment of the necessity of the interference (§ 55), and on the context of prolonged nation-wide anti-government protests. The question arises as to what extent this should be applied. What would fall within the Court’s definition of violent acts? Could the nature and intention of the act, its message, and the social significance of the monument outweigh the violent nature of expressive acts? Would actions against statues of former authoritarian and colonialist figures fall within the scope of Article 10 if, and only if, they would take place within wider political protests? Could their desecration be eventually justified as freedom of expression?

In Handzhiyski, the Court leaves the door open for taking another stance in future cases concerning desecration of statues and monuments, in what can be seen as a reference to recurrent controversies in many states over statues and monuments of controversial figures:

“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” (§ 53).

It is clear that non-violent actions on monuments are protected by Article 10 ECHR, in light of this judgment and previous ones, mainly Murat Vural. However, as the assessment criteria of the non-criminal sanction under the necessity requirement are new, it remains to be seen how the Court will apply them to more ambiguous cases.

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