Budinova and Isaev v. Bulgaria: Consolidating ECtHR protection against general anti-minority hate speech, while risking entrenching impediments

Ms Margarita S. Ilieva

Margarita is a strategic international equality and human rights litigator with 20+ years of experience. She consults international organisations, such as OHCHR, IOM, OSCE/ ODIHR, FRA, Equinet, and the Council of Europe, on hate crime, hate speech, victims’ rights, discrimination law, business and human rights, strategic litigation, human rights evaluations, and more. She is a regular speaker at the Academy of European Law. The author designed and brought the Budinova and Isaev litigation at the domestic level. She also litigated the Budinova and Chaprazov precedent before domestic courts and the ECtHR.

Introduction

In May 2025, in Budinova and Isaev v. Bulgaria, the European Court of Human Rights (ECtHR) reaffirmed, for the fourth time, that minority members who are not individually targeted by hate speech are owed protection under Article 8 ECHR (respect for private life) against hate speech sufficiently abusive to their communities. The ECtHR reiterated the illustrative criteria for assessing the requisite toxicity level of such hate speech. It found a violation of Article 14 (non-discrimination) with Article 8 ECHR, as the domestic courts had failed to even acknowledge the impugned speeches’ impact on the applicants as individuals, never considering their Article 8 rights, let alone as a counterbalance to freedom of expression.

Budinova and Isaev is an important solidification marker for ECtHR jurisprudence on anti-minority hate speech not directed against individuals (general hate speech). General hate speech (targeting communities) is by far the prevalent type of hate speech, impacting the vast majority of victims, compared to personal hate speech (targeting individuals belonging to communities).

However, the judgment also marks pronounced non-growth – hopefully, not stunting – of that jurisprudence. Again, the ECtHR implicitly limits protection against general hate speech to intentional and extreme vilification of, and incitement against, most vulnerable minorities. The ECtHR reiterates that minoritised individuals’ Article 8 rights to be protected from vilification of their communities must be balanced against “competing” Article 10 ECHR (freedom of expression) rights. It fails to reconcile this with its jurisprudence, in cases brought by domestically sanctioned hate speakers, that Article 10 does not apply to extreme and deliberate sweeping hate speech.

This post examines Budinova and Isaev as an iteration of general hate speech precedence (mentioned below): while respectably consolidating the sound principles that emerged with the latter into now settled case law, Budinova and Isaev markedly reaches for no next level. After setting out the ECtHR’s findings, I analyse the persisting limitations that now define the case law. Limitations consist of protection depending on: a) speaker mal-intent and speech being extreme (implied requirements); b) impact analysis effectively excluding lived experience; c) balancing Article 8 rights against Article 10 freedom of expression (explicit requirement), which assumes Article 10 applicability to extreme deliberate vilification of vulnerable communities. Arguably, these persistent limitations require reconsideration to prevent stunting the ECtHR’s case law on general hate speech. The ECtHR’s case law on general hate speech, which affects the most hate speech victims, is high-stakes, meriting its own best version and therefore warranting growth.

Budinova and Isaev 

Roma journalists and rights activists brought a civil court action, alleging harassment, against a party leader who used, in two parliamentary speeches, sweeping anti-Roma slander and dehumanising language. The domestic courts dismissed their claims, reasoning that harassment required “specific negative consequences […] in the personal sphere” of complainants who were not targeted.

The ECtHR, extensively relying on its 2021 Budinova and Chaprazov v. Bulgaria precedence, reiterated, as a general principle, the non-exhaustive factors to determine whether group negative stereotyping is sufficiently prejudicial to affect individual group members’ sense of identity and self-worth, thus triggering Article 8: 

1. target group characteristics, including vulnerability;

2. impugned content, including specific negative stereotyping and its evocativeness and ability to attain group identity and dignity;

3. content form, context, and reach, and author status (§87).

   
   

The ECtHR reiterated that those factors should be assessed as a set, their “interplay” being decisive and requiring case-by-case analysis, emphasising the societal context. (§88) It also reiterated, relying on Petrov v. Russia (part of Yevstifeeyev and Others v. Russia), that the “applicant’s subjective perceptions of the [factors] are not decisive” (§89). 

Applying the “group characteristics” criterion, the ECtHR reiterated that Roma are disadvantaged and vulnerable, and in need of special protection, in particular, against their negative stereotyping (§90). Under “content”, the ECtHR, engaging in extensive textual analysis of the speeches, found they contained “lurid references” to violent crime as an “emotive hook” to sweeping statements describing Roma as lawbreakers, criminals, abusers, morally condemning and dehumanising them, using insults, such as “brazen, arrogant and brutalised humanoids”, “brutalised thieves and rapists, drunk beyond recognition”, and “women with the instincts of street bitches” (§91). The Court reasoned that the language created an “us-versus-them dichotomy”, portraying non-Roma as victims. The Court found the language was similar to that in Budinova and Chaprazov – “deliberately inflammatory” and “amounted to extreme negative stereotyping meant to vilify Roma in Bulgaria and stir up prejudice and hatred towards them” (§93).

Concerning the speaker’s repeated caveat that he was only speaking about part of the Roma, the Court held that this did not alter his “extreme stereotypes” and “generic labels”, which “singled out lawbreaking in one specific community” (§94).

Under “form, context, reach, and author position”, the ECtHR found that the speeches made in Parliament on behalf of the entire parliamentary group were highly visible and reached a wide audience (§95). The speaker was the well-known chairman of a then ascendant political party, who soon after became Deputy Prime Minister. Such a representative national figure was more likely to influence, even incite, voters, his words having “weight and authority” (§96). Therefore, even though the speeches were not part of a wider campaign (unlike in Budinova and Chaprazov), they were “capable of having a sufficient impact on the sense of identity of Roma” to reach the level required to affect the applicants’ private life: Article 8 applied (§97).

On the merits, the ECtHR found that the domestic courts “refused to accept that [the] statements had affected the applicants, finding that only actual and observable consequences […] in their immediate legal situation could demonstrate such an impact”. The courts had no “regard to the need to ensure” respect for the applicants’ private life and “did not even reach the stage of conducting a balancing exercise between the two competing Convention rights” under Articles 8 and 10 (§118). This was in breach of Article 8 with Article 14 (§119-20).

Critique

Budinova and Isaev is the fourth ECtHR judgment recognising individual victims of general anti-community hate speech. First were Budinova and Chaprazov (mentioned above) and its twin Behar and Gutman v. Bulgaria (2021) decided on the same date and in the same manner by the ECtHR, followed by Nepomnyashchiy and Others v. Russia (2023). Budinova and Isaev was decided on the same date and in the same manner as its twin Asen Asenov v. Bulgaria, which concerned the same speeches and similar domestic failings.

Below, I argue that five years after Budinova and Chaprazov, Budinova and Isaev risk entrenching case law flaws engendered by the former. Still, it is a worthy iteration of the landmark safeguarding standard that Budinova and Chaprazov constitutes, now consolidating ECHR protection against general hate speech into settled case law. It is, namely, because of this solidifying effect of the judgment that, if unexamined, the shortcomings discussed below threaten to become settled features of the case law, stunting it.  

1. Intentional vilification

In Budinova and Isaev, mirroring the seminal Budinova and Chaprazov, the Court observed that the content was “deliberately inflammatory” and “meant to vilify Roma” (§93) (emphasis added). The Court concluded that such speech was “capable of having sufficient impact” (§97) – not that it did have, or necessarily must have had such impact. The Court failed to note that such a speaker's mal intent was indeed more than required for hate speech to impact the Roma, including the applicants, triggering Article 8. Although the Court does not explicitly state that speaker mal-intent is a formal requirement, its reasoning implies or may imply that such mal-intent is expected for Article 8 applicability. Its repeated emphasis on speech being “deliberately inflammatory” and “meant to vilify” risks encouraging domestic courts to treat these elements as necessary conditions for Article 8 protection.

However, based on the Court’s criteria, group negative stereotyping is capable of disparaging individual community members even if a speaker had no demonstrable intent of doing so. Sufficiently impactful anti-minority content can be expressed by deeply prejudiced individuals who believe in their own misguided good intentions, for instance, to “save” mainstream society from those othered, whom they genuinely see as its abusers, wishing only to voice perceived “truth” about them, and not to vilify or insult them.

2. Extreme content

As in Budinova and Chaprazov, the Court assessed the content as “inflammatory” and “extreme negative stereotyping” (§93), concluding that it could have a sufficient impact on the Roma as such, including the applicants (§97). Again, not noting that such extreme content was in fact more than enough to trigger Article 8 applicability, the Court’s language can be construed as implying that such a degree of negativity is necessary and required. Although the Court does not expressly posit content extremity as a formal requirement, domestic judges and, even more importantly, victims may well perceive content extremity as an implied requirement and accordingly deny, and not seek, protection in less extreme cases. 

Based on the Court’s criteria, however, less extreme content could be sufficiently impactful. It should not be necessary for minority women to be compared to “street bitches” in Parliament for them to access ECHR protection. Such a prohibitive threshold is punitively high for a huge number of victims facing severe negative stereotyping, which still falls short of Budinova and Isaev's drastic language.

3. Marginalised lived experience

Budinova and Isaev explicitly marginalises affected individuals’ lived experience as a possible criterion for general anti-minority speech severity and impact. The ECtHR went out of its way to point out that minority individuals’ perceptions of how the Court’s criteria apply to negative stereotyping targeting their communities are not decisive (§89). It did not include lived experience among its criteria. This goes against well-established international soft law, which holds that lived experience should inform all decision-making that impacts vulnerable groups. Such soft law includes, inter alia, the 2022 Council of Europe Recommendation on combatting hate speech, ECRI General Policy Recommendation No. 17, the EU “Union of Equality” framework, and the OSCE “Including the Voices of Hate Crime Victims in Policymaking and Policy Implementation” Practical Guide (see those authorities discussed here). The lived experience principle is imperative, as the extent of harm inflicted on vulnerable people cannot be reliably measured by those who do not share their vulnerability. Centring victims’ perspectives is a prerequisite to evidence-based decisions. Outsiders to victimhood are not in a position to truthfully gauge the consequences of the harm done to victims in light of their specific vulnerability.

Applicants’ subjective perceptions may not be decisive, but the lived experience of affected minority members should be given meaningful evidential and interpretive weight, on a par with the Court’s other criteria, when courts assess the social meaning and impact of hate speech. Conversely, in Petrov v. Russia and in prior cases (critiqued here) concerning well-meaning satirical negative stereotyping, which minorities and women renounced as harmful, the Court denied hearing (on admissibility) or protection (on the merits), assessing facts from a non-vulnerable perspective – that of the content author or the “objective” public interest – positing it as dominant, excluding or subordinating the vulnerable victims’ perspective (critique here).

4. Assumed Article 10 applicability to deliberate extreme negative stereotyping

As in Budinova and Chaprazov, the Court held that hate speech victims’ Article 8 rights must be balanced against freedom of expression, implying that Article 10 automatically applies to content such as that in Budinova and Isaev found to constitute extreme, deliberate vilification of vulnerable communities. This is not in line with the Court’s own settled jurisprudence in cases brought by hate speakers against states that sanctioned them, in which the Court has established that Article 10 does not apply to extreme hate speech (see here). By automatically accepting, in cases brought by general hate speech victims, that Article 10 applies to deliberate extreme negative stereotyping, the Court is not only inconsistent, but also exhibits structural asymmetry disadvantaging general hate speech victims, treating their cases less favourably than cases of states challenged for sanctioning hate speakers (see more on this disparity as demonstrated in Budinova and Chaprazov here). In cases brought by sanctioned hate speakers, the Court has consistently validated state sanctions by ruling that Article 10 does not apply to severe, intentional hate speech (discussion of this settled case law here). In such cases, the Court has held that extreme hate speech falls outside the scope of Article 10. Conversely, in victim-initiated cases, it proceeds on the basis that Article 10 is a competing right requiring balancing. This structural asymmetry disadvantaging general hate speech, which amounts to possible anti-victim bias, means that the Court scrutinises the applicability of Article 8 rigorously, enforcing high standards, as explained – effectively requiring intentional, extreme and wide-reach content to acknowledge victims – while readily assuming, rather than questioning and verifying, that Article 10 applies to sufficiently severe content (“deliberately inflammatory” and “extreme” in Budinova and Isaev (§93). This structural imbalance in the Court’s reasoning may appear as a double standard.

Conclusion

Budinova and Isaev is a sound judgment whose value lies in normalising the then unprecedented protection that Budinova and Chaprazov provided. This critical protection is now established and can grow to fully address victimhood. For its necessary growth, it arguably requires re-examination of the drawbacks discussed above. Victims of general anti-minority hate speech constitute a huge proportion of Europeans, such hate speech being systemic, affecting all members of all or most minorities. Combined, all targeted minorities’ members comprise a highly significant proportion of the European population. As victims of deeply harmful systemic othering that affects all aspects of their lives, including a chilling effect on their freedom of expression and democratic participation, they deserve commensurate recognition and safeguarding under the ECHR. This starts with having their lived experience finally centred by ECtHR judges.

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