Friday 7 November 2008

Imprisoned Expressions - Kandzhov v. Bulgaria

In July 2000, Aleksandar Kandzhov put up two posters which allegedly insulted the Minister of Justice. In addition, he collected signatures calling for the resignation of the Minister. Within a day, Kandzhov was arrested and detained on the charges of insult and hooliganism. Three days later he was released on bail. In subsequent proceedings he was first convicted and later acquitted of the charge of hooliganism. The charge of insult was dropped.

In Strasbourg, the applicant complained about violations of his right to liberty and of the freedom of expression. Yesterday, the European Court issued its judgment in this case: Kandzhov v. Bulgaria. The Court meticulously analysed - and struck down - each step of the Bulgarian authorities' behavior. First it noted that "insult" was a privately prosecutable offence for which one could not be detained. Secondly, the charge of hooliganism had proven to be totally unfounded. As the Bulgarian Supreme Court had found, the applicant's behaviour had been peaceful and non-obstructive. Nor had there been any proof that the authorities could have reasonably believed that the applicant's conducted had amounted to hooliganism. Thus the relevant requirements of Article 5(1) ECHR (lawful detention and reasonable suspicion) had not been met. In addition, the Court found a violation of Article 5(3), the right to be brought promtply before a judge. Since this took 3 days and 23 hours, without any special difficulties or special circumstances applying, the requirement of promptness had been violated. The Court's reasoning on Article 10 partly followed from these conclusions. Mainly, the interference with the freedom of expression had not been lawful (the detention). In addition, albeit superfluous in the strict sense, the Court noted that the interference had been disproportionate. It held that the authorities "chose to react vigorously and on the spot in order to silence the applicant and shield the Minister of Justice from any public expression of criticism" (para. 73). In the same pragraph it added - in line with existing case law - that in a democracy:

[T]he actions or omissions of the Government and of its members must be subject to close scrutiny by the press and public opinion. Furthermore, the dominant position which the Government and its members occupy makes it necessary for them – and for the authorities in general – to display restraint in resorting to criminal proceedings, and the associated custodial measures, particularly where other means are available for replying to the unjustified attacks and criticisms of their adversaries.
Another telling example of the Court's crucial role in indicating the boundaries of state (and specifically politician's) action vis-à-vis its citizens!

The press release can be found here.