Behar and Budinova v. Bulgaria: The Rights of Others in Cases of Othering – Anti-victim bias in ECHR hate speech law?

By Margarita S. Ilieva, a strategic equality and human rights litigator with extensive experience in hate speech. She litigated Behar,  Budinova and Panayotova and Others v. Bulgaria, and other landmark cases like Yordanova v. Bulgaria and Karaahmed v. Bulgaria.

The author was the architect of the cases discussed below, having brought them domestically in 2005 and lodged them with the Court in 2013. She represented them until 2018 when a substitute lawyer appropriated them.

Introduction

On 16 February 2021, the European Court of Human Rights (‘the Court’) decided ground-breaking cases of minority othering:  Behar and GutmanBudinova and Chaprazov. The twin cases, stemming from collective domestic litigation, concern anti-Semitic/ anti-Roma hate speech. The applicants, community members, were not personally targeted. Domestic courts failed to protect their ‘private life’ from ethnic discrimination leading to a finding of a violation of Articles 8 and 14 of the Convention.

For the first time the Court:

  • found violations in cases of general anti-minority speech; 
  • articulated criteria to assess if speech is sufficiently prejudicial to affect a community’s sense of identity/ its members’ self-worth.

This represents a quantum leap: the Court has struggled to recognize the impact of identity abuse on individual dignity. Consequently, the case law on hate speech has been lopsided. It is underdeveloped in cases brought by hate speech victims and far more evolved in cases brought by hate speakers under Article 10 as discussed in the commentary below.

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