The Boyan Rasate case sets a difficult balance between rights and freedoms

| Maria Nikolova,

On May 10 the Commission for Protection against Discrimination met to review the case against Boyan Stankov, who calls himself Rasate, accused of having used racist and xenophobic language in the Jaws show on Nova Television on October 26, 2009. The broadcast discussed the possibility for Bulgaria joining the European Union project on member-state assistance in solving the problem with the African refugees arriving in Malta, by accepting refugees in Bulgaria. [1]

Mr. Stankov expressed his disagreement with the involvement of our country in this initiative. He justified his opinion by saying that the African refugees are culturally, morally and psychologically retarded, drug traffickers whose arrival would increase crime and cause Bulgarians to lose their jobs. Stankov pointed out the tolerance to the homosexuals as an example of the burden that the Bulgarians already feel.

In modern days, such a nationalist, racist and xenophobic political position could be disregarded as a sign of political infancy and a manifestation of very bad taste, if not for two very important circumstances. Firstly, during certain periods this position enjoys great popularity in society. Secondly, hate speech always requires an examination whether there are grounds for the application of the right to freedom of expression, as guaranteed by article 10 of the European Convention on Human Rights.

The popularity of the nationalist idea in recent years led to the election of two representatives of the Bulgarian party Ataka as members of the European Parliament. At the same time, the leader of the British National Party [2], Nick Griffin, also won a seat in the European Parliament, an event called “abnormal” and “a sad day for British politics” by another MEP, Sir Robert Atkins.[3] In these cases the wide public support to the extreme right idea resulted in compromising its own concept. For positive PR, the Ataka party used Toma Nikolaev, director of the De Facto Roma Information Agency. He explained that the racist hate speech of the party’s leader, Volen Siderov, doesn’t target all Roma but only those “who conduct murder, who steal, who somehow make use of the state and the privileges they have been given”. [4] The party’s newspaper makes the slightly confusing statement that “ATAKA shows greater ethnic tolerance to the Gypsies than the Bulgarian Socialist Party”. [5] The British National Party also went through a similar curious development. 27 years after its inclusion in the party’s by-laws, the rule that only white people can be party members was found to be discriminatory by the British Equality and Human Rights Commission [6], which referred the case to court. The court held a violation of the British Race Relations Act and sentenced the party to pay booking fees in the amount of 60,000 pounds, as well as to amend its by-laws and make it consistent with antidiscrimination standards. [7] As a consequence the party was forced to change its white Britain slogan to the vague “Integrity of Local Britons. [8] Earlier, in October 2009, despite massive public protests, the party leader was allowed to take part in a high level discussion in BBC’s Question Time [9]. In a tense debate in which Griffin was accused of assuming a xenophobic position, he was forced to say that his extreme racist views were a way of gaining political popularity and that he had subsequently revised them.

So far Boyan “Rasate” Stankov hasn’t had to face the harsh reality of the competent and informed public debate in which he could test his on political and personal integrity, the adequacy of his statements and his ability to face representatives of the groups he attacks on racial grounds. The comfort of public support is still too stable, as is the passive consent of the public in response to strong words as “fatherland” and “patriotism. [10] The same holds true for the refusal of the courts to end this comfort. In its decision of December 15, 2009 on a lawsuit against Volen Siderov for hate speech against ethnic Turks, the Supreme Court of Cassation found no discrimination and held that Siderov’s statements do not create a hostile environment and do not incite ethnic hatred but are a manifestation of the constitutional freedom of speech.

It’s the freedom of speech, especially in its political and public context that is able to give those using hate speech the illusion of invulnerability. In international human rights protection practice there isn’t a single standard on the balance between the right to freedom of expression and the right to non-discrimination. Judgment of this balance is made largely on a case-by-case basis and necessarily includes a study of the “different context of expression, as well as of the different social roles of the speaker and the recipient”. [11] The UN Committee on the Elimination of Racial Discrimination (the Committee) held that “the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the freedom of opinion and expression” as “the exercise of this right includes obligations and duties indicated in article 29, paragraph 2 of the Universal Declaration of Human Rights, among which the obligation not to disseminate racist ideas is of paramount importance. [12] In the case Quereshi v. Denmark [13] concerning hate speech of Danish party leaders against Muslim foreigners, the Committee held that such comments of “hateful nature” have “particular seriousness”, especially “when made by political figures. [14] The European Court on Human Rights (ECtHR) on its part does not allow referral to the freedom of expression when it is being abused to perform activities contradicting the spirit and the letter of the Convention. [15] When justifying the presence or the lack of violation of freedom of speech, the ECtHR considers circumstances such as whether the alleged hostile message has reached a wide circle of people, whether its was “objectively presented and whether it is provoking public and academic debate, or instigates hatred and intolerance”. [16] In the case Gündüz v. Turkey upon complaint by the leader of a Muslim religious community who was punished in his country with imprisonment and fines for the instigation of hatred and hostility on religious basis, the ECtHR expresses its position on forms of expression in a public debate. The court held that the extreme views of the applicant “were counterbalanced by the interventions of the other participants in the program […] and were expressed in the course of a pluralistic debate in which the applicant was actively taking part” [17]. On these grounds the court held a violation of the right to freedom of expression.

The pending decision of the Commission for Protection against Discrimination on the complaint against Boyan “Rasate” Stankov will be very important, mostly due to the fact that whatever the result, the motives on the case will take part in the creation of the Bulgarian culture of competent and informed handling of the antidiscrimination norms and the international standards. And since currently the international community doesn’t have a single model for weighing the delicate balance between the right to freedom of expression and the right to protection against hate speech, our individual, thoroughly considered and responsible choice of own positive case law on cases against hate speech will be a matter of legal courage and independence.

 

 


 

 

[1] For additional information on the European Parliament’s legislative proposal on the refugee crisis in Malta, see the EP press release of May 18, 2010 at http://www.europarl.europa.eu/news/expert/infopress_page/022-74628-137-05-21-902-20100514IPR74627-17-05-2010-2010-false/default_bg.htm.[back]

[2] The British National Party was established in 1982. [back]

[3] See the electronic edition of The Guardian http://www.guardian.co.uk/politics/2009/jun/07/european-elections-manchester-liverpool [back]

[4] See Liliya Gyurova’s article of May 17, 2010 in the electronic edition of The Ataka newspaper http://www.vestnikataka.com/?module=displaystory&story_id=21941&format=html [back]

[5] Ibid. [back]

[6] The Equality and Human Rights Commission is a body similar to the Bulgarian Commission for Protection against Discrimination. For more information on the activities of the Commission, see http://www.equalityhumanrights.com/ [back]

[7] See the BBC News electronic edition of March 12, 2010 http://news.bbc.co.uk/2/hi/uk_news/politics/8564742.stm[back]

[8] Ibid. [back]

[9] Aired on October 23, 2009. See http://www.bbc.co.uk/iplayer/episode/b00nft24/Question_Time_22_10_2009/. BBC’s Question Time is a discussion forum that provides community members the opportunity to freely ask questions to politicians and public actors. [back]

[10] A total of four citizens participated with comments during Boyan Stankov’s appearance in Jaws on Nova Television. One comment was on an unrelated topic, while the remaining three were praises of Stankov’s patriotic views and appeals to respect him. [back]

[11] See Kanev, K., “Hate Speech” in Freedom of Expression, BHC, Sofia, 2010 (pending publication). [back]

[12] See Opinion of the Bulgarian Helsinki Committee on the legal regime on hate speech, submitted to the Commission for Protection against Discrimination with regard to the case against Boyan Stankov, p. 5. [back]

[13] Quereshi v. Denmark, Opinion on Communication No. 33/2003 of March 10, 2003, CERD/C/66/D/33/2003. [back]

[14] See opinion of the Bulgarian Helsinki Committee on the legal regime on hate speech, p. 5. [back]

[15] Ibid, p. 8. [back]

[16] Ibid, p. 10. [back]

[17] See Kanev, K., “Hate Speech” in Freedom of Expression, BHC, Sofia, 2010 (pending publication). [back]