EQUINET Legal Training CONFLICTS BETWEEN THE RIGHT TO EQUAL TREATMENT

1. EQUINET Legal Training CONFLICTS BETWEEN THE RIGHT TO EQUAL TREATMENT AND OTHER FUNDAMENTAL RIGHTS 12-13 September 2011, Vienna (Austria)

2. Interethnic Initiative for Human Rights Foundation versus Plamen Yordanov, Mayor of district Ovcha Kupel within Metropolitan Municipality 1. The Facts 2.The actions taken by the equality body 3.The decision of the equality body/ court 4. Lessons learnt 5. Useful COMMISSION FOR PROTECTION AGAINST DISCRIMINATION , BULGARIA

3. І.The facts 1. Architect-in-Chief’s proposal – temporarily to settle 150 Roma families in Ovcha Kupel neighbourhood 2. Impact of proposal on neighbourhood’s inhabitants ( they don’t wish to have Roma quarter) 3. On 14.11.2006 Darik Radio broadcasted news devoted on this proposal • piece of interview presenting the opinion of District’ Mayor Plamen Yordanov • coverage on general feeling of that same neighbourhood’s inhabitants • piece of interviews of Roma people (target group) expressing their hopes and expectations COMMISSION FOR PROTECTION AGAINST DISCRIMINATION , BULGARIA

4. І.The facts 4. The statement of District’s Mayor – opposed the idea to build temporary houses for Roma people in that neighborhood • comparing Romas with cows and dung-hill (Roma settlement in proximity to a neighborhood is more dangerous than a dung-hill; cows will be a lesser challenge than a Gypsy quarter ) • linked their settlement to an invasion and to growth of criminality • Roma people are not capable to cohabit together with the rest population(civilization) because of the lack of elementary habits

5. І.The fact Full text of Mayor’s opinion broadcasted by radio: “I support the citizens of Ovcha Kupel neighbourhood. I strongly oppose the idea to construct homes for 120 Roma on the territory of Ovcha Kupel neighbourhood, because in 6 months or less, those 120 Roma families will soar in number. Their relatives, friends and acquaintances from all over Bulgaria will come here. Conflicts between Bulgarians and Roma will escalate. You are a criminal reporter, so let me tell you that if that idea becomes fact, you will have dozens of cases to cover here... The cows in this district are by far harmless than a Gypsy settlement. I am sorry … but don’t you see what will happen there only within half an year? … I don’t mind Roma. They have to cultivate gradually, to gain the usual habits of civilized citizens; but in the meanwhile, they cannot live among citizens because other people will suffer of their lack of elementary habits. Such a Roma settlement is a dozen times more dangerous for the residential area than a dung-hill. Roma will swarm the area, they will rob the quarter. Residents will start selling out their apartments. Each door will be broken, each basement and every cellar will be robbed. It will be an invasion.”

6. ІІ.The actions taken by the equality body 5. Interethnic Initiative for Human Rights Foundation filed a signal to the CPD ( equality body) alleging that Mayor’s opinion expressed in Radio interview constitutes discrimination – ethnic based harassment and incitement to discrimination. 6.According to Foundation’s signal CPD started a proceeding against District’s Mayor Yordanov • Investigation of the case • Public hearings • Delivering of legal binding decision

7. ІІ.The actions taken by the equality body 7.Investigation of the case • The CPD delivered the signal to the Mayor and asked for his written explanation and position regarding Foundation’s accusation of discrimination. • Collecting of needed evidences – a record of broadcasted transmission (incl. Mayor’s statement) • The radio’s management refused to deliver asked records relying on expiration of keeping term - Radio operator’s obligation to save records of aired transmissions is limited to 3 months. • The record was available on the radio operator’s website – CPD downloaded it , but the radio’s management didn’t verify its authenticity.

8. ІІ.The actions taken by the equality body 8.Public hearings 8.1. Defendant’s objections • to exclude the record downloaded from the web site of radio because of its questionable authenticity • interview was not broadcasted in its totality and fullness • he had nothing against Roma and his belief was that the way for socialization of Roma community with the rest citizens should start with initial adaptation. • none demands on evidences • the signal is unfounded - to be dismissed

9. ІІ.The actions taken by the equality body 8.2. Claimant’s position • statements constitute discrimination- harassment and incitement to discrimination against people of Roma origin • put in CD containing record of radio transmission (prepared by radio management at request of other NGO in 3 months time frame) incl. a letter signed by the radio manager ; invoice and receipt for record’s preparing, • request for interrogation of witnesses - people of Roma origin regarding their perceptions and feelings in result of Mayor’s statement 8.3. Defendant disputed the letter of radio manager regarding his signature ( it is not signed by radio manager).

10. ІІ.The actions taken by the equality body 8.4. Collecting evidence during public hearings • Witnesses ( people from Roma origin and journalist who produced interviews and coverage in question ) • Expert’s report on radio manager’s signature – signature is real • View of radio transmission’s audio record

11. III.The decision of the equality body/ court 9. Statement and its context hurt personal dignity and create offending environment on the ground of ethnic origin ( the meaning of words used was very clear, no doubts on their potential and real humiliating nature, generalization of whole community - criminals incapable to live amongst civilization). • Constitute harassment on the ground of ethnicity 10.Reasoning • Freedom of expression -guaranteed right by virtue of Art. 39, §1 of the Constitution • Art. 39, §2 and Art. 57, § 2 of the Constitution - don’t allow to abuse ( misuse) rights, nor detriment of the rights or the legitimate interests of others( only defined in the Constitution)

12. III.The decision of the equality body/ court • The right on freedom of expression has constitutional limits - ban for exercising contrary to others rights • The aims of limits - to provide protection of competing interest and right of equally importance and constitutionally protected • Human dignity and right to equality - protected similarly by the Constitution and International Treaties whereto Bulgaria is a party – Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights. • Those International Treaties oblige State Parties to guarantee and ensure the exercising of those recognized rights .

13. III.The decision of the equality body/ court • Ban of discrimination (Art. 6, § 2 of the Constitution and Art. 4, § 1 of PfDA) - part of the legal guarantees ensuring the protection of human dignity. • The ban of discrimination (in the form of harassment) impairing human honour and dignity constitutes such restriction of the right to freedom of expression and opinion, permitted by the Constitution. • Judgment № 7 dated 04.06.1996 of the Constitutional Court on Constitutional case № 1/1996/ - interprets constitutional provisions regarding freedom of expression and its limits : Restrictions on statements that constitute incitement to hostility is based on the fundamental values laid down in the Constitution, such as tolerance, mutual respect and prohibition to incite to hatred on racial, national, ethnic or religious ground.

14. III.The decision of the equality body/ court 11. Operative Part of decision • Violation of discrimination ban –harassment • Imposes Fine amounting to BGN 1000 ( 500 Euros) • Instructs Mayor to voice his apology in the air of Darik Radio for his discriminatory statements • Instructs Mayor to publish in Troud Daily the operative part of this decision. • refrain from similar statements in future

15. III.The decision of the equality body/ court 12. Appeal proceedings in Supreme administrative Court • The litigation of district’s Mayor against equality body’s decision was unsuccessful . • 2 levels of jurisdiction within Supreme administrative court shared conclusions of the equality body – The Mayor has the right to express his opinion on this issue of local governance importance, but it doesn’t allow to do it humiliating and impairing others human dignity and honour.

16. IV. Lessons learnt The first CPD’s successful case on hate speech based on ethnicity Conclusions : • To ground decision’s reasoning on constitutional provisions, international treaties and jurisprudence • To take use of international soft law

17. V. Useful Council of Europe, Committee of Ministers • Recommendation (97)20 on Hate Speech • Recommendation(97)21 on the media and the promotion of a culture of tolerance ECRI • General policy recommendation N6Combating the dissemination of racist, xenophobic and antisemitic material via the Internet ECRI Declaration on the use of racist, antisemitic and xenophobic elements in political discourse (adopted on 17 March 2005) CERD, UN

18. Committee on the Elimination of Racial Discrimination(CERD), UN Convention on the Elimination of All Forms of Racial Discrimination General Recommendation No. 15: Organized violence based on ethnic origin (Art. 4) General Recommendation No. 27: Discrimination against Roma General Recommendation No. 29: Article 1, paragraph 1 CERD’s Case law Opinion - Communication No. 43/2008 Opinion - Communication No. 34/2004

19. Human Rights Committee, UN General Comments 10 and 11 • Council of European union Council Framework Decision 2008/913/JHA of 28В November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (in force from 06/12/2008, L OJ. 328/6 Dec 2008) • ECJ case Mesopotamia Broadcast A/S METV и Roj TV A/S срещу Bundesrepublik Deutschland - С – 244/10 ; С – 245/10 Art 22 a Directive 97/36 ( ethnic tolerance and mutual understanding in media-TV) preliminary ruling to be delivered

20. THANK YOU FOR YOUR ATTENTION! Esen Fikri, Commissioner, CPD, Bulgaria, kzd@kzd.bg e.fikri@kzd.bg esen_fikri@abv.bg