Can a minority discriminate the majority? In late April 2008 the Protection Against Discrimination Commission (PADC) ruled on an argument that appeared to be more of a linguistic issue. Can a proverb, turned inside out, be an act of discrimination? It turned out it can. Vasil Chaprazov, editor-in-chief of a Roma newspaper, Drom Dromendar, was convicted for an article entitled “Evelina Doseva from the Council of Ministers is Lying Like an Old Bulgarian Woman”, published in July 2007. He had to publish an apology and abstain from such statements in the future. The decision had an unusual media response. First of all, because it was a precedent. For the first time a representative of a minority was accused of discrimining a representative of the majority. We are used to expect that the law, the Protection Against Discrimination Act (PADA), is designed to protect the minorities. Secondly, because Ms. Doseva is an employee of the governmental National Council for Cooperation on Ethnic and Demographic Issues (NCCEDI), a body of the Council of Ministers. And thirdly, because the proverb in its original version – “Lie like an old Gypsy woman” – is used every day. The academic dictionary contains a series of derisive expressions for the Roma ethnic group. “Behaves like a Gypsy” and “a Gypsy job” are expressions known and used in everyday speech and in the media. This is why some public figures criticized the conviction of a Roma newspaper for such an expression. Not because of the formal aspect of the issue, since no one objects the correctness of the anti-discrimination commission’s decision from a legal point of view. The critics believe that this decision created a misbalance, placing both the commission and the plaintiff in a delicate situation. Is it at all possible for a minority to discriminate a majority? What is the case law of the PADC and the courts on similar cases? Are the decisions enforced? To discuss these issues, we invited Ms. Esen Fikri, attorney, PADC member and a member of the jury that ruled on the Doseva v. Chaprazov case. We also invited Mr. Krassimir Kanev, chair of the Bulgarian Helsinki Committee. We also invited the parties to the case to express their arguments in separate interviews featured below. THE PLAINTIFF: THEY VIOLATED MY DIGNITY ON PURPOSE - Ms. Doseva, how did you learn about the Drom Dromendar article? Are you a subscriber, did you see it by chance or did others tell you about it? - I was told by representatives of Roma organizations who attended the conference [discussed in the article]. At first I read the article in the newspaper’s electronic publication, then in the print version. The National Council for Cooperation on Ethnic and Demographic Issues is subscribed. What insulted you - the heading or the text? Where do you see discrimination? 1 OBEKTIV
THE DEFENDANT: I LOST FAITH IN THE COMMISSION - Mr. Chaprazov, when did you find out about Ms. Doseva’s complaint? - Several months ago. I received a copy of the complaint accompanied by a request to send the issue with the article, a current status certificate for the publishing company and the editor’s office internal rules. I did nothing. It seemed ludicrous. It never crossed my mind that the PADC might make such a decision, to hold us responsible for the title. On such a basis, even a hundred years won’t be enough for them to start proceedings on account of ·creation of a hostile and insulting envi-
- I believe that an article with such a heading is a violation of my dignity and honour. Not only because the statement is not true, but also because the purpose of the tone that is used is to violate my human dignity. The Constitution of the Republic of Bulgaria, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights proclaim that everyone has the right to protect him- or herself against a violation of their honour and dignity. In this case, both my dignity (i.e. my regard of myself) and my honour (i.e. the regard of the others for me) were unlawfully violated. This was done by words published in a public Roma printed periodical. Starting with the heading, the article purposefully underlines my ethnic origin. It opposes a Bulgarian to the Roma community. Furthermore, in this specific case I am mentioned as an expert at NCCEDI, a structure in which many Roma organizations participate. The quoted cream of the joke in the article, as well as its overall tone, creates a hostile and insulting environment to me. The essence of my job requires everyday contacts with the Roma community and its self-organized structures; the successful implementation of my duties depends to a great extent on the confidence the Roma community has in me. In this respect, the content of the article matches the definition of ·abuse” under the Protection Against Discrimination Act. In this case, there is a violation of Art. 5 of the Act, as the defendant has published an article that is in violation of this provision. What I asked in my complaint to PADC is the commission to require that in the future the defendant abstain from such and similar discriminatory actions, as well as to reinstate the situation prior to the violation by publishing an appropriate apology. - Why did you chose to go to commission and not the court, which can also review complaints under the act? - Because it is a more specialized body and because by law the proceedings take 30 days. Only in cases of factual and legal complexity can the deadline be extended by up to 30 days. - What would you do if the newspaper doesn’t publish an apology? - The law requires the commission to exercise control on compliance with the involuntary administrative measures. Under Art. 67, para 2 of the act, the person who has been imposed a penalty or an involuntary administrative measure must initiate actions to implement the compulsory recommendations and must notify the Commission in writing about this within a deadline defined in the decision, but up to a month. Otherwise, the act provides for a fine of BGN 2,000 to BGN 10,000 (between EUR 1,000 and 5,000). My actions are targeted solely to Vassil Chaprazov in his capacity of editor of the newspaper, and not to the Roma community. The laws must be observed so that we could feel free, and as a Bulgarian citizen I respect and trust our judiciary.
ronment”, for racist, discriminatory and insulting publications against the Roma. - Did you appear at the Commission’s hearing? - No. I’ve seen how the commission works. Last year I was a witness in the proceedings against the mayor of the Ovcha Kupel municipality, Plamen Yordanov, who had said on radio that it’s better to have a landfill than Roma housing in the municipality. The meeting was in the same composition, immediately before the local elections. The mayor was not convicted. To the contrary, the commission created a reputation for him of a person who can say whatever he wants about the Roma without any consequences. ·Such a Roma settlement would be more dangerous in proximity to residential neighbourhoods than a landfill” was what mayor Yordanov had said on national radio and hadn’t apologized for it. And he was spared by the commission. Wasn’t that in fact an election ad promoting impunity when actions, words are targeted at Roma. In the end, this person, the representative of the state, was re-elected. - What is you opinion about the complaint and the decision? - I haven’t received the decision yet, I read about it in the newspapers. - Will you appeal before the Supreme Administrative Court? - I don’t want to. It enormously time- and energy consuming and I don’t see any point. I think that the journalistic community and the Union of Bulgarian Journalists are the ones that need to react to it. - Will you publish the apology demanded by the PADC? - Absolutely not. If I were born a hundred more times, I would still refuse to do it. It is insulting to Bulgaria, not to me. The state law is forcing a double standard on us. Every day someone in the media is pouring vile on the Roma, not on Ivan or Hasan who is Roma. Here is a title from the Telegraph daily: ·Man kills, dismembers and sets buddy on fire”. The ethnic origin of this one is not mentioned. Another title from the Telegraph: ·Roma methods humiliate Themis” - it’s about the behaviour of Ataka supporters?! And it’s part of this civil servant’s job to fight to overcome this attitude. Neither Evelina Doseva, nor the NCCEDI where she works, react. But we, the Roma, must accept them, trust them. And when they feel personally affected - support them (the jury that convicted Drom Dromendar was chaired by a Roma, Lalo Kamenov). - So you have reserves not only to the commission, but also to the NCCEDI? - Of course. The board has never reacted to what we read in the newspapers daily; it doesn’t notice the unlawful acts against the Roma. Desislav Chukolov from Ataka, a member of the European Parliament, tells all of Europe that the Roma in Bulgaria are criminals, that Roma killed the Belneyski sisters, and not a single politician, not a single state institution reacts. Has the NCCEDI signalled the commission? This didn’t stop their employee from filing a lawsuit against the only Roma newspaper that barely makes ends meet. It must be stopped, the Roma must fear the civil servant. - Is this your interpretation of the complaint? - Yes. The board drained the blood of the Roma organizations, transformed their leaders into lapdogs. If you have doubts, read the audit report of the National Audit Office and the NCCEDI report for 2007.
OBEKTIV: The PADC decision on the complaint by Evelina Doseva had a great media impact. It turned into news of the ·man bites a dog” type, a Roma newspaper has discriminated a Bulgarian woman. Is this the only reason behind the interest in this case? ESEN FIKRI: I don’t see any extraordinary interest in this case. Many PADC decisions get public attention because they are taken in connection with requests to amend discriminatory provisions or practices. The public attitudes are such that the intolerance is targeted first at the representatives of the Roma community. Our polls have not found Roma intolerance to the majority or to other ethnic groups. The polls register intolerance by all other ethnic groups to the Roma. This may be of interest but I don’t think that this individual case could be used to make general conclusions about minorities discriminating the majority. OBEKTIV: Have you had other such cases? ESEN FIKRI: No. We had a similar complaint filed with us, but it didn’t include a direct complaint, it was derived from its context. The proceedings on that complaint were terminated due to deficiencies that were not eliminated within the respective deadline. KRASSIMIR KANEV: This decision is interesting not only as a precedent. Besides challenging public opinion, I believe it left a feeling of injustice among wide circles in Bulgarian society. We can’t say that the measure imposed by the commission is not proportional. But the decision is problematic in a wider social context. When you read it and you see the powers vested in PADC by law, you’ll see why it leaves a feeling of injustice and causes quite a few angry reactions. What do I mean? The publication is entitled ·Ms Doseva Is Lying Like an Old Bulgarian Woman”. The subject of the complaint is not whether the article if truthful 3 OBEKTIV
if the invitation to the conference [discussed in the article] was sent or not. Even if it were truthful, we could still talk about abuse. On the other hand, phrases like ·Lie like an old Gypsy” are widely used in Bulgarian society, not only at the individual level, but in the public area as well. Run an Internet search and you’ll find thousands of places where such expression are used. This discriminatory speech against the Roma has become idiomatic. The Protection Against Discrimination Act provides two opportunities for review of complaints: in court or by the commission. If the commission were a court, I wouldn’t have a problem with its approach because the court makes rulings on the basis of complaints. The legal and the social role of the two bodies, however, is different. Article 50, item 2 of the act reads: ·Cases may be reviewed on the initiative of the commission”, while the court does not have the right to self-referral. When the commission has ruled on this unique case in Bulgarian public space, we have the right to ask what is the frequency of its self-referrals with regard to drastic discriminatory public speech and public writing against the minorities? The national-socialism ideology is openly preached in Bulgaria. Hate against Roma, Jews, Turks is instilled on a wide ideological level. Books preaching this ideology are on sale in some of the largest bookstores in our country. If the anti-discrimination commission would like to act in a really just manner, it should have made thousands of decisions on instilling hate, on abuse against ethnic minority representatives, before making a just decision convicting an ethnic minority representative of abusing the majority. This is the only way in which the commission can build trust and respect, given the role prescribed it by law.
ESEN FIKRI: This individual case should not be used to make general conclusions. The law is the same for everyone and we are applying it as such, regardless of the fact that in this case a majority representative is filing a complaint against a minority representative. KRASSIMIR KANEV: I agree with you completely, but the way the commission is implementing the law is different than the way a court does. The commission has the authority to enforce the law in such a way as to create a wider sense of justice than the court on a specific case. I have no comments with regard to your ruling on this case, but given that we are surrounded by an environment in which hate speech is spilling from all directions and is assuming extreme forms, that the commission has made only a couple of decisions on hate speech - one of them against a minority representative - is extremely insufficient. Considering the fact that the commission had the option of self-referral and didn’t make use of it, the public will feel its role is inadequate. It should care about its image. ESEN FIKRI: The public has an acute sense of justice, but the PADC cannot decide frivolously its cases based only on the principle of justice, as there is a certain legislative framework. If the commission was the body that delivered the final judgment, I could have agreed that justice should have greater weight in comparison to written law; but as it is, the commission, like any other administrative body, is subject to judiciary control and it doesn’t make sense for us to go beyond the law because our decision can be repealed, no matter how just it is. This is why we enforce the law in the same way to everyone. OBEKTIV: In similar cases, why doesn’t the commission use self-referral instead of waiting for complaints? What is the share of self-referrals in all cases reviewed? ESEN FIKRI: The commission uses the statutory opportunity of self-referral on issues of public importance. We have a series of self-referrals about access to emergency aid. An example of a self-referral about hate speech was the information contained in the news bulletin mentioning the ethnic origin of Roma only. If you access the websites of the regional directorates and conduct a search of their news bulletins for 2006 and before, you’ll see news about registered crimes committed by ·unknown perpetrators of Roma origin”. These are two mutually exclusive things - that the perpetrator is ·unknown” and ·of Roma origin”. Another example is when the perpetrator is indicated by his initials and the addition that he is of Roma origin. Our decision was that the Ministry of Interiormust eliminate this practice. That the ministry is appealing the decision before SAC is another issue. But the self-referral had a preventive role. OBEKTIV: Why is the Interior Ministry appealing the decision? ESEN FIKRI: They claim procedural violations and request that the decision is repealed. We didn’t fine them, just like we didn’t fine Mr. Chaprazov. I wouldn’t agree
that a 1,000 or 2,000 leva (EUR 500 or 1,000) fine would put an end to discrimination. If we had fined the minister of interior affairs with the maximum amount of BGN 2,000 and hadn’t issued a recommendation, there would have been no result. As for the criticism that the commission should have issued at least a thousand decisions with regard to hate speech against minorities, regardless of whether in the press or in the electronic media, I suppose this number was conditional. The commission has ruled on such cases, upon self-referrals, signals and complaints. This was the case with the National Guard show on BBT, in which Mr Kanev also participated, on a signal by Toma Nikolaev. The topic of the broadcast was ·The Gypsies: Citizens with precedence”. In another decision, we established harassment by ethnic origin in a bTV news release, again upon signal. The broadcast was about a raped girl and the text of the news didn’t indicate that the child and the perpetrators were Roma; the video, though, revealed this. The commission should not be the only entity criticized. Other bodies that have special powers in this field should also be considered. The commission has no right to terminate a broadcast or to revoke the license of a television operator. This is within the competence of the Council for Electronic Media (CEM). For every violation of the Protection Against Discrimination Act that falls within the scope of the Radio and Television Act (RTA), we send the file and our decision to CEM which can apply adequate measures. In the National Guard case, we sent the decision in which we had established harassment and the video that the TV station had provided us. The Council replied there was no violation of the RTA. We don’t want to desert from our powers but there is a special regulator. When discrimination is found, we send them our decision and the materials. I believe Mr Kanev, who participated in that show, would agree with me. We can’t physically monitor all newspapers, radio and TV broadcasts, and initiate a self-referral for every phrase used. As to the self-referral rules, every member of the committee can submit a report. The law provides no framework or provision in what cases the commission may use self-referral. So it’s at the discretion of each commission member, as well as at the discretion of the commission, which is the body that decides to initiate proceedings on a self-referral proposal. KRASSIMIR KANEV: PADC is not a court that can only review cases that come in by complaint. It should establish a wider sense of justice and a more systematic approach to the issue of discrimination. If I were a member of the commission, I would say: ·Let’s see where hate speech is most widely used, where it gets an expression through channels with widest access, and where it can affect the largest number of people.” That’s where I would initiate a self-referral in the first place. For example, Volen Siderov preaches hatred from the parliamentary tribune. His words are then relayed OBEKTIV 4
by all newspapers. He is a politician and thus has access to many media. It would be logical for the commission to target its self-referral to such a source. There are different types of hate speech. Someone called someone else ·an old Bulgarian woman”, we all agree that it’s hate. But take the book The Foundations of National Socialism by a prominent Bulgarian author, The Boomerang of Evil by Volen Siderov or The Protocols of the Zion Sages, take the Ataka newspaper, which is published daily in a large circulation incomparable to that of the Drom Dromendar, and you’ll see they contain much more intense hate speech. It borders even Bulgaria’s obligation to criminalize this type of hate speech. Art. 4a of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates that the states ·shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin”. Preaching a fascist ideology, instilling national and racial hatred and enmity, instigating discrimination must be prosecuted. Many of the things that are published and that are hate speech meet these criteria. Whether speech should be criminalized is a different issue. The powers of the commission do not cover this but it can deal with this speech within the framework it has been given by law. OBEKTIV: Does the PADC have summaries of what people are complaining of most often - employment discrimination, etc. - like the summaries of case law? ESEN FIKRI: Yes. Summaries are published in the commission’s report. Periodically, almost every month, we calculate the share of the different types of complaints by different criteria. Our analyses indicate that people complain of discrimination mostly with regard to their right to employment and not with regard to hate speech. When the discrimination arises from legislation, the commission reviews the case in its 9-member composition and issues instructions and recommendations to the competent authorities to amend the respective document and eliminate the discriminatory texts. As for systematic and targeted hate speech on behalf of some media, when there is premeditation the act borders with crime. There are two texts in the Penal Code but no lawsuit has been filed under either of them. In 1991-92, there was a proposal for an interpretive decision on one of the texts; it was rejected because there was no case law to interpret and harmonize. OBEKTIV: Last year your jury heard the case against the mayor of the Ovcha Kupel municipality in Sofia, Plamen Yordanov. Has it been completed? ESEN FIKRI: Yes. We heard the final statements of the parties. We gave them the opportunity to submit written comments. We received such comments. We’ll soon announce our decision. 5 OBEKTIV
OBEKTIV: The complaint against Plamen Yordanov is for words spoken on November 14, 2006. There is still no decision, even though the deadline is 30 days, plus another 30 days if one of the parties cannot be found. Evelina Doseva is a similar case. She filed her complaint on July 19, 2007, and the subpoena was sent to Vasil Chaprazov on December 5, i.e. 5 months later. What were the reasons for this delay? ESEN FIKRI: Ms. Doseva’s complaint was against the Kuna Publishing House. As we were unable to find such a publishing house in the Commercial Registry, we had no choice but instruct her to indicate the name of the person she was complaining from. She filed a complaint against the newspaper’s editor-in-chief. It was established that the publisher was not a legal entity but a sole proprietor. It was then that the actual proceedings began. Mr. Chaprazov obviously doesn’t know how many letters we’ve sent him before December 9! Some of them returned without reaching the addressee, others were refused. We sent him the case materials by e-mail. The problem of notifications is serious for any proceedings, administrative or judicial. We are sending our case documents by post. Some cases are flabbergasting, say the documents are sent on April 12 and have not been received by May 16! That’s why we are using e-mail and telephones. In Mr. Yordanov’s case, records and signatures were disputed, appraisals were conducted, additional evidence was collected and all this resulted in extending the proceedings but it was not the commission’s fault. KRASSIMIR KANEV: I think PADC has problems observing the deadlines. It is headed to becoming bogged down by cases. This is why we need to consider amending the law, so as to be able to respond to the increasing number of complaints to the commission. Otherwise a time will come when reviewing them would be pointless, as that would take two or three years, as it is in court. The number of commission members needs to be increased, regional divisions need to be established, more juries need to be formed that could review complaints, so that the proceedings can be effected in shorter timelines. The time for this has come. What’s good is that, unlike other commissions, this is a functioning body, but it seems it will face serious problems in the future. OBEKTIV: Is there a danger the commission to start scheduling meetings five or six months after receiving the complaints? ESEN FIKRI: I don’t think that it will come to that, but the growth in complaints is indeed significant. They increase by the day. We are a state administration and we have a deficit of human resources in two aspects. Firstly, staff numbers are regulated for the state as a whole. Even if we could increase the number of our staff positions, without the respective budget they will
remain vacant because we couldn’t pay the experts. Secondly, civil servants’ salaries are regulated strictly, which makes the private sector more attractive. As for the regional representatives, we’ve initiated a change and we already have procured premises in some of the regional centers and have planned the necessary staff positions, but we don’t have the financial resources for their salaries. I think that this problem will be solved, so that the complaints could be reviewed faster. Initially we ask the party against which a complaint or a signal has been filed to submit its opinion. This party has the right to defend itself. We give it seven days but often new facts and circumstances appear that need to be reviewed by the commission, the collection of additional evidence may be needed. I don’t think that it’s appropriate and beneficial for us to formulate a decision with a ton of procedural violations, and have it repealed in court, in which case we would have to repeat the same study. OBEKTIV: Mr. Chaprazov declared he will not comply with this decision. What share of PADC’s decisions is enforced? ESEN FIKRI: Our decisions are enforced. I observe a process that may be interesting to the readers of Obektiv: even when the PADC decision is appealed, even when it is repealed by SAC, it is enforced. There are many examples to this end. Such an example is the decision against the Electricity Distribution Company - Plovdiv for rationing the electricity supply of bona fide clients in the Stolipinovo neighbourhood. The commission ruled that this is discrimination and instructed the electricity distribution company to provide permanent electricity supply to all clients who pay their bills on time. SAC terminated the preliminary implementation of our instructions and repealed our decision; nevertheless, the company implemented the respective measures and currently has a system that allows it to shut down the electricity supply to clients who have not paid their bills on an individual basis. Another example. There were proceedings against an order by the National Revenue Agency’s executive director that set up a methodology and criteria for selection during lay-offs. We found some discriminatory elements and prescribed their amendment. The Agency’s director appealed our decision but in reality implemented the instructions and repealed the rules on the selection during lay-offs. We have a decision that went through lawfulness control at SAC; our decision was confirmed but was nevertheless not implemented by the instruction’s recipient, so he was penalized. For a first violation, the penalty is a fine of BGN 2,000 to BGN 10,000 (EUR 1,000-5,000). KRASSIMIR KANEV: I have no information on the enforcement of the commission’s decisions but they have to be implemented like the instructions of any other state body.
OBEKTIV: Is there a difference between the case law of the commission under the Protection Against Discrimination Act and the civil courts? ESEN FIKRI: The case law under the Protection Against Discrimination Act has two aspects: claims filed with the civil courts and lawfulness control exercised by the SAC with regard to our decisions. There is no significant difference in the case law of the commission and that of the civil courts. I know this from the case law collection that we are preparing, and from the collection of civil courts’ case law with regard to claims filed under the Protection Against Discrimination Act. There are certain differences in the case law of PADC and that of SAC, which are probably due to the fact that SAC exercises control on the compliance with procedural rules. The decision could be correct but a formal error may have been made that could become the grounds for its repeal. There is a need for specialized conferences and discussions, because before the commission the parties are represented by lawyers and attorneys who have repeatedly reiterated that the law is exotic as it has a different burden of proof. It provides that a claim can be filed and proceedings can be initiated not only by victims but by third parties as well, which appears strange to many lawyers. There is also a constant investigation whether there are any specific persons affected by the act of discrimination. It is very difficult to prove who they are in cases when the discrimination is targeted at a wide group within society, consolidated by a common feature. OBEKTIV: What is the share of the decisions that are appealed, and what is the share of the appealed decisions that are repealed? ESEN FIKRI: We provide such statistics in our annual report. Quite a large number of our decisions are appealed. Some of them are confirmed, others are repealed and returned for another review. There are very few cases in which SAC has repealed a decision without returning the case for another review. KRASSIMIR KANEV: Our organization will conduct a large summary of the commission’s jurisprudence and that of the courts. We have collected all decisions under the Protection Against Discrimination Act with the exception of the decisions of the Sofia City Court (SCC) which refused to provide them. We appealed their refusal to the Sofia Administrative Court and it ruled that SCC must provide them to us. When that happens, we’ll be able to publish a study summarizing the case law of both the courts and the commission. However, it’s not comparable on all aspects. For example, the commission cannot award compensation. Comparison is possible with regard to how they approach the different signs of discrimination, its forms - direct, indirect, abuse, etc. We are still to see whether this jurisprudence is adequate. The questions were asked by Krum Blagov OBEKTIV 6