CASE OF KARAAHMED v. BULGARIA
Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 9 - Freedom of thought conscience and religion (Article 9 - Positive obligations;Article 9-1 - Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
4. The case concerns an incident which took place on Friday, 20 May 2011, in front of the Banya Bashi Mosque in the centre of Sofia, in which leaders, members and supporters of the Bulgarian political party Ataka clashed with Muslim worshippers who had gathered around the mosque for the regular Friday prayer. The case also concerns the ensuing official investigations into that incident. 5. The Banya Bashi Mosque was built in 1576 and is currently the only operating mosque in Sofia. It can hold up to 700 worshippers. According to information provided by the Chief Mufti’s Office, there are about 30,000 Muslims in Sofia; some of them are Bulgarian nationals, and others immigrants from Turkey, the Middle East and Africa. The mosque is fitted with loudspeakers which were installed soon after the fall of the communist regime in 1989. Those loudspeakers are turned on during the call for prayer, which lasts about five minutes five times a day, and during the whole of the Friday prayer. They are turned off between 10 p.m. and 6 a.m. to comply with the regulations concerning the level of urban noise. 6. The mosque itself is surrounded by railings approximately 1.5 metres high. Two sides of the mosque face onto a park, behind which is the Sofia Central Mineral Baths (“Софийска централна минерална баня”). One side faces onto a side street, Triaditsa Street. The final side faces onto the Princess Marie Louise Boulevard. There, the pavement of the boulevard is approximately 15 metres wide. Owing to a lack of space inside the mosque, worshippers often pray around the building during the Friday prayer, placing their prayer rugs on the boulevard pavement. On the boulevard side of the mosque, there is also a single storey extension, which is not protected by railings, the top of which is just over 1.5 metres high. It is therefore possible to gain access to the mosque compound from the boulevard by climbing onto the roof of the single storey extension. 7. Ataka is a Bulgarian political party. It was founded in April 2005 and, since then, in parliamentary elections has gained around 7-9% of the popular vote and 21-23 seats in Parliament. The party’s leader, Volen Siderov, has been a Member of Parliament for Ataka since June 2005. 8. In 2006 Ataka and Mr Siderov began a campaign against the noise emanating from the loudspeakers installed on Banya Bashi Mosque. That year, they gathered about 35,000 signatures for a petition, presented to the Sofia Municipal Council on 18 July 2006, which called for the removal of the loudspeakers. On the evening of 18 July 2006 Ataka organised a rally against the “howling” emanating from the loudspeakers during the call to prayer. 9. In 2007 Ataka’s mayoral candidate for Sofia, Mr S. Binev, declared that, if elected, he would ban the calls for prayer broadcast from those loudspeakers because he believed that they disturbed persons who had other religious beliefs. 10. On Friday, 29 April 2011, supporters of Ataka mounted loudspeakers on a car and circled close to mosque, playing recordings of church bells and Christian chants during the regular Friday prayer that was taking place at the time. This was repeated during the week that preceded the incident of 20 May 2011. In the words of one of Ataka’s Members of Parliament, this was done to counter the “noise terror” emanating from the mosque. 11. At about 12 noon on Friday, 20 May 2011, worshippers began to gather in and around the mosque for the regular Friday prayer. The applicant was one of them. He, along with thirty or forty other worshippers, remained outside the mosque, either in the surrounding park or on the pavement on Princess Marie Louise Boulevard. Prayer rugs were spread out on the pavement boulevard, in keeping with the worshippers’ normal practice. 12. At the same time, between one hundred and one hundred and fifty members and supporters of Ataka gathered in front of the mosque on the boulevard to protest against what they called the “howling” emanating from the loudspeakers installed on the mosque. The group included Mr Siderov, Mr D. Chukolov, the party’s deputy leader, Ms D. Gadzheva, a Member of Parliament for the party, and Mr D. Stoyanov, a Member of the European Parliament for the party. 13. According to information provided by the Government in the course of proceeding before the Court, on 19 May 2011 Ataka had notified the municipality that, pursuant to Article 8(1) of the Assemblies, Meetings and Demonstrations Act 1990 (see paragraph 46 below), it intended to hold an assembly in the park behind the mosque (i.e. between the mosque and the Central Mineral Baths). This was scheduled for 1-5 p.m. on 20 May with 300 participants. This notification was received by the municipality at 9.54 a.m. on 19 May 2011. 14. The Government also provided copies of three letters which they had received from various authorities in the course of the proceedings. The first, from the municipality, stated that the Sofia Directorate of the Ministry of Internal Affairs was notified of the planned demonstration on 19 May 2011 at 10.50 a.m. The second, from Ministry of Internal Affairs, stated that the Sofia Directorate only learned of the demonstration at 11.40 a.m. on 20 May 2011 when they received information that supporters of Ataka had started to gather in the park beside the mosque. Until that moment, the Sofia Directorate had received no information about the demonstration. At this point, specialist police officers were dispatched to scene. A request for cooperation from the municipality was then received by the directorate by fax at 12.13 p.m. The third, from Directorate of Religious Denominations (“Дирекция по вероизповеданията”), a governmental agency attached to the Council of Ministers, stated that, around 11 a.m. on 20 May 2011, they were informed by the Deputy Chief Mufti that the Ataka demonstration was going to be held in proximity to the mosque and that they immediately contacted the Ministry of Internal Affairs, after which the specialist police officers were dispatched to the mosque. They also contacted the municipality, which confirmed that permission had been given for the assembly to take place in the park between the mosque and the Sofia Central Mineral Baths. 15. Video recordings of the event made by the media and broadcast on Bulgarian television have been provided to the Court by the parties. On the basis of those recordings, the following events can be established. 16. The demonstrators congregated, not on the Central Mineral Baths side of the mosque, but on Princess Marie Louise Boulevard in front of the mosque, where the worshippers had already began to gather for Friday prayers. Most of the demonstrators were wearing black t-shirts featuring the inscriptions “Erdogan, you owe us 10 billion” and “Ataka says: No to Turkey in the EU”. Many carried large Bulgarian flags and Ataka flags, which were green and featured the inscriptions “Ataka” and “Let’s get Bulgaria back”. In the course of the demonstration, the participants played Bulgarian patriotic songs from loudspeakers mounted on cars. 17. The recordings also show the demonstrators shouting invective at the worshippers, calling them “Turkish stooges”, “filthy terrorists”, “scum”, “janissaries”, “cut-offs” and “Islamists”. They also depict the protestors shouting “Off to Ankara!”, “Do not soil our land!”, and “Your feet stink! That is why you wash them!” One of the participants in the rally can be seen slowly 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!” 18. While this was happening, the mosque’s imam, using the loudspeaker system, repeatedly appealed to the worshippers not to respond to the demonstrators’ provocation. 19. When the Friday prayer started, one demonstrator climbed onto the roof of the single storey extension and played two loudspeakers on the roof in order to suppress the sound of the prayer. Five or six worshippers then interrupted their prayers, climbed onto the roof and tried to move the loudspeakers. 20. In response, several more demonstrators entered the mosque compound by climbing onto the roof of the single storey extension. A scuffle ensued, in which members and supporters of Ataka, some of whom were carrying wooden flagpoles and metal pipes, moved against the worshippers and started hitting them. Some of the worshippers hit back in response. Some can be seen holding and waving plastic tubing which appears to have been torn from the side of the mosque. Approximately ten police officers also climbed onto the roof of the single storey extension to separate the fighting parties; three people were then arrested. While this was happening two or three other police officers can be seen attempting to keep the demonstrators in the park beside the mosque and back from the side of the single storey extension: at this point, there were over a hundred demonstrators in the park. Some of them can be seen throwing eggs at the worshippers. 21. Another few police officers can be seen attempting to maintain a human cordon between the remaining demonstrators (another fifty or so) who were standing on the boulevard 3-4 metres back from the area where the worshippers’ prayer mats are spread out, though several members of Ataka, including its leaders, can be seen standing in that latter area, just in front of the mosque railings. 22. The demonstrators then continued to pelt the worshippers with eggs and stones and insult them. One of the demonstrators can be seen on the video recording wielding rolled up banner and shouting “We have been putting up with you for so many years. Where else would permit this [praying outside a mosque]? To whom are you praying?” 23. The parties accept that five police officers, five worshippers and Ms D. Gadzheva, who was hit on the chin by a flying stone, were injured in the course of the incident. It is not possible from the video recordings to determine who was responsible for her injury. One of the Muslim worshippers had to be hospitalised because he had concussion. Two police vehicles also sustained damage. 24. In apparent response to the police arresting two demonstrators on the roof of the single storey extension, Mr Siderov, surrounded by members of Ataka and journalists, then spoke into a microphone and addressed the police officers who were present at the scene. He asked them why they had not arrested any of “the real criminals who threw the stones” and accused them of bothering “Bulgarian patriots” rather than Islamists who “promoted violence against Christianity”. He then turned to the senior police officer at the scene, asking him if he was a janissary and suggesting that he put on a fez. Finally, he stated that, in Bulgaria, there was no Bulgarian police only a Turkish one and that those police officers present were a disgrace to their uniforms. 25. The incident ended at around 1.55 p.m. when, led by Mr Siderov and others, the demonstrators left the scene, Mr Siderov stating that he was going to Parliament to ask for the resignation of the Minister of Internal Affairs. As Mr Siderov was about to leave, at least four demonstrators wearing black t-shirts can be seen on the video recording piling some of the worshippers’ prayer rugs and setting fire to them. No action was taken against those responsible, though it appears the police did call the fire brigade. 26. A number of politicians, including the then President of the Republic, Georgi Parvanov, condemned Ataka’s involvement in the incident. 27. On 27 May 2011 the Parliament adopted a declaration also condemning the incident. It read as follows: “Members of Parliament categorically condemn the aggression of the political party ‘Ataka’ of 20 May 2011 against worshippers in the centre of the capital. It is particularly scandalous that this was done on a Friday, a holy day for Muslims, at the time of their obligatory prayer. With those actions, that party isolated itself from democratic society in Bulgaria. The conduct of that party is deeply alien to the Bulgarian people, to its religious and ethnic tolerance. We express our profound disquiet at the attempts to undermine the ethnic peace and to stir up religious tensions between Bulgarian citizens. Following its attempted aggression against ethnic peace, which gives rise to a threat to the national security of the Republic of Bulgaria, the political party ‘Ataka’ has become dangerous for the government of the country. The Bulgarian Constitution says that it is impermissible to use religious communities and institutions, or religious beliefs, for political ends. We, Members of Parliament, insist that all competent State authorities, including the prosecuting authorities and the courts, take the necessary measures to ensure compliance with the Constitution and the laws of the Republic of Bulgaria. We call on the mass media to behave responsibly, which in this tense time full of provocations means not to provide a platform to the voice of hatred.” 28. There have been two separate series of investigations into the events at the mosque that day: one by the police, the other by the National Investigation Service. 29. In a letter dated 18 March 2014, the Ministry of Internal Affairs set out the progress made in the police investigations. Three investigations had been opened: one into the injury sustained by Ms Gadzheva; a second into injuries sustained by two police officers and a cameraman, and criminal damage to the mosque and a police car; and a third into the violence directed towards the worshippers. The first two investigations have been suspended without anyone being charged. 30. The letter also stated that, in the course of the third investigation, thirty people had been interviewed as witnesses, and video recordings and other evidence had been obtained. In the course of that investigation, seven people had been charged (“привлечени като обвиняеми”) with aggravated hooliganism contrary to Article 325 § 2 of the Criminal Code (see paragraph 49 below). No information has been provided about whether those people were then prosecuted and, if so, whether any convictions were obtained. 31. An investigation was also opened by the Sofia City Prosecutor’s Office on 25 May 2011. The focus of that investigation was whether there had been any offences committed under Article 164 § 1 of the Criminal Code (the prohibition on hate speech motivated by religion: see paragraph 55 below). 32. On 6 December 2011 the applicant asked to be allowed to take part in that investigation as a victim within the meaning of Article 74 § 1 of the Code of Criminal Procedure 2005 (see paragraph 58 below). On 13 December 2011 the Sofia City Prosecutor’s Office refused the applicant’s request. It said that the offence under Article 164 § 1 of the Criminal Code 1968 was a “conduct” (“формално”) one (see paragraphs 55 and 57 below) and could therefore not have a victim. 33. On 16 March 2012 the applicant appealed against that decision to the Sofia Appellate Prosecutor’s Office. On 2 April 2012 the Sofia Appellate Prosecutor’s Office referred the case back to the Sofia City Prosecutor’s Office, instructing it to rule on the applicant’s request by means of a formal decision. On 5 April 2012 the Sofia City Prosecutor’s Office did so, repeating the reasons that it had given on 13 December 2011. 34. On 17 April 2012 the applicant appealed against that decision. On 28 May 2012 the Sofia Appellate Prosecutor’s Office found that the question whether an offence was a “conduct” (“формално”) or a “result” (“резултатно”) one was irrelevant as to whether a person could be a victim of that offence. However, there was no evidence that the applicant had been present when the alleged offence had been committed or that the offence had directly affected him. It was therefore necessary to interview the applicant. 35. Accordingly, on 7 June 2012 the applicant was interviewed by the investigator in charge of the case. He stated that he had arrived at the mosque at 11.30 a.m. and had sat in the park between the mosque and the Central Mineral Baths until prayers began. He described the demonstrations’ behaviour in the course of their demonstration, including the insults he had heard. He said that the police had done their job well in keeping the groups apart. According to the applicant, in the course of the interview the investigator was hostile to him and his religion, asking him whether he knew whether he was entitled to pray in front of the mosque and whether he had obtained permission to do so by an appropriate authority. 36. On 16 August 2012 the applicant requested that the supervising prosecutor assign the case to another investigator on the basis that the original investigator was ethnically and religiously biased. He also requested access to the case file. 37. On 5 September 2012 the applicant once again asked to be allowed to take part in the investigation as a victim of the alleged offence. 38. On 19 November 2012 the Sofia City Prosecutor’s Office refused the applicant’s request, again finding that the offence under Article 164 § 1 of the Criminal Code 1968 was indeed a “conduct” offence (“формално престъпление”) (see paragraphs 55 and 57 below) and could therefore not have a victim. It went on to reject the applicant’s request to have the case reassigned to another investigator, reasoning that, not being party to the proceedings, the applicant had no standing to make such a request. For the same reason, the applicant had no right to inspect the case file. 39. On 31 October 2013, after unsuccessful appeals by the applicant to Sofia Appellate Prosecutor’s Office and the Supreme Cassation Prosecutor’s Office, the deputy Chief Prosecutor decided that “conduct” offences (“формални престъпления”) could in principle have a victim. It was therefore necessary to check whether the applicant had himself been prevented from carrying out his religious observances, and if so, in what way. That point had not been fully elucidated in his first interview, which made it necessary to interview him again, before deciding whether he could be allowed to take part in the proceedings in his capacity as a victim. 40. It appears that the National Investigation Service’s investigation is still ongoing. Although a number of witnesses have been interviewed and expert reports obtained, no charges have been brought against any person in the framework of that investigation. However, the Government have submitted part of the investigation file. This includes two statements given by a Mr M. In the second of those two statements he admitted to being the person responsible for cutting up the fez during the demonstration. He stated that he was instructed to do so by Mr Siderov and that Mr Siderov told him to do it before Mr Siderov arrived at the scene. He said he could not refuse because he was working for Ataka at the time. Mr M. also stated that it would have been possible to avoid any collisions between the demonstrators and worshippers if Mr Siderov had wanted. This could have been done by returning to the allocated place for the demonstration or by withdrawing after the scuffle on the single storey extension. Mr M. also stated that young, far-right supporters of Ataka had been drafted in from the town Gabrovo specifically for the demonstration and that they had been placed in the front line of the demonstration. In Mr M.’s view, Mr Siderov could have also avoided a confrontation with the worshippers had he not placed the Gabrovo group at the front of the demonstration. 41. From the investigation file as submitted to the Court, various efforts were made to summon the Ataka party leaders who were at the demonstration in order to interview them. With the exception of Mr Chukolov, the party’s deputy leader, who has been interviewed, those efforts have failed.