JUSTICE - No. 67

47 Fall 2021 Regarding Bulgaria’s rulings on the matter, the European Court said that the Bulgarian courts had in effect “downplayed [the statements’] capacity to stigmatize Jews as a group and to arouse hatred and prejudice against them.”Moreover, it said that the courts had “failed to carry out the requisite balancing” of constitutional rights.7 The European Court declared a violation of the applicants’ right to privacy and nondiscrimination. The Context and Significance of the European Court’s Ruling This ruling can be seen as a continuation of the European Court’s consistent case law position that hate speech, racist, xenophobic or antisemitic speech is not protected under the Convention’s right to freedom of expression – even when made by parliament members. This ruling also makes clear that one does not have to be personally named for the statement to be considered hate speech. The Bulgarian position had been that since the applicants’ parents had not perished in the Holocaust, and since they were not personally named – they could not be, nor should they have been, offended by Mr. Siderov’s statement. The European Court holds that this position is incorrect – one does not have to be personally named, and one’s family members do not have to have perished in the Holocaust for someone to feel discriminated against. This ruling confirms what some national courts in Europe have already acknowledged: some forms of hate speech are of such a nature that they violate the rights of every single person belonging to the vulnerable group that is verbally attacked. The ruling also confirms that the state has an obligation to enable victims of discriminatory speech to have access to effective legal measures. This case also shows that in the end, laws are open to interpretation and that it is up to prosecutors and judges to call or not call something for what it is – in this case blatant antisemitism. As much as there is a need for clearly worded and understood laws, there needs to be a political will to call out rhetoric when it is so obviously racist, xenophobic or antisemitic. n Talia Naamat is a practicing attorney in Israel. She completed a law degree at Bar Ilan University in 2005, and a master’s degree in comparative religion from Tel Aviv University in 2015. She is the co-editor of the compendium of legal textbooks, “Legislating for Equality,” collating worldwide laws on freedom of religion, nondiscrimination, and protection of minorities in all UN member states. The last volume on Asia and Oceania was published in 2019. 7. Ibid., Sec. 105, p. 30.

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