1. Source of the legal provision[1]

Article 419a. of the Criminal Code of 1968 [Наказателен Кодекс], as amended by Official Gazette, No. 33 of 2011, in force as of May 27, 2011[ДВ, бр. 33 от 2011 г., в сила от 27.05.2011 г., изм. – ДВ, бр. 67 от 2023 г]. Available in the original language via: Lex.bg <https://lex.bg/laws/ldoc/1589654529>  

2. Legal Provision in English

Article 419a. (1) Whoever publicly justifies, denies or grossly belittles a crime committed under this chapter[2] and the act is committed in a way that may create a danger to use violence or to create hatred against individuals or groups of people united by race, skin colour, religion, origin, national or ethnic affiliation, shall be punished with imprisonment from one to five years. (2) The penalty under para. 1 also applies when the crime under this chapter was committed during and in connection with the National Socialist regime. (3) Whoever incites another to commit a crime under para. 1 and 2, is punishable by imprisonment for up to one year.

3. Legal Provision in the original language

Чл. 419а. (1) Който публично оправдава, отрича или грубо омаловажава извършено престъпление по тази глава и деянието е извършено по начин, който може да създаде опасност да се упражни насилие или да се създаде омраза срещу отделни лица или групи от хора, обединени по раса, цвят на кожата, религия, произход, национална или етническа принадлежност, се наказва с лишаване от свобода от една до пет години. (2) Наказанието по ал. 1 се налага и когато престъплението по тази глава е извършено по време на и във връзка с националсоциалистическия режим. (3) Който подбужда другиго към престъпление по ал. 1 и 2, се наказва с лишаване от свобода до една година.

4. Key Points

  • Bulgaria does not have a specific law criminalising Holocaust denial, or a general prohibition on genocide denial. However, Bulgarian law criminalizes the justification, denial, or gross belittlement of crimes against peace and humanity if the act is carried out in a manner that may incite hatred or violence against individuals or groups based on race, skin colour, religion, origin, national, or ethnic affiliation.
  • Article 419(a)(2) of the Criminal Code further clarifies that the provision also applies to crimes committed by the National Socialist regime, although it does not explicitly reference the Holocaust.
  • These offences are punishable by imprisonment from one to five years.
  • The European Commission initiated an infringement procedure against Bulgaria for the partial and incorrect transposition of the EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereafter ‘EU FD 2008’), which is currently still pending at time of writing.

5. Background

The Bulgarian Criminal Code provisions relating to genocide denial were adopted very late, coming into force only on 27 May 2011, likely as a direct result of the EU FD 2008. Its original version only included crimes against peace and humanity, without any specific reference to the National Socialist regime. Apparently under the pressure of an EU infringement proceeding,[3] Article 419a of the Criminal Code was amended in 2023, whereby a special reference to the National Socialist regime in paragraph two was inserted. The reluctance to directly refer to the Holocaust seems to fit into the more general memory policy in the country, one primarily focused on remembering the atrocities committed by the communists. Importantly, the procedure is still ongoing due to the lack of inclusion of hate speech as an aggravating circumstance.[4] This practice is noticeable in a much earlier memory law, the Law Declaring the Communist Regime in Bulgaria Criminal of 2000.[5] This Law clearly delineates the contemporary Bulgarian memory policy, stating in Article 1 (2) that the Bulgarian Communist party was responsible for leading the country to “national catastrophe,” and declaring in Article 3 the Party itself a criminal organisation (not unlike how the German Nazi organisations were characterised during the Nuremberg Trial). Article 2 gives a very specific overview of the communist crimes, which range from very specific, such as (Article 2 (2) 2) “the human rights violations” or (Article 2 (1) 6) “the deprivation of property rights”, to more general ones, such as (Article 2 (1) 1) “the purposeful and deliberate destruction of the traditional values of European civilization” or (Article 2 (2) 6) the subordination of “the interests of the country to a foreign state.” In addition to the much more recent history of the communist atrocities, one of the reasons for such a peculiar memory policy might lie in the collective Bulgarian memories of World War II. These are predominantly shaped by the narrative of the Bulgarians as saviours of their 48,000 citizens of Jewish origin during WWII – generally glossing over[6] the memories of the deportation of over 11,000 Jews from the occupied Yugoslav and Greek territories which were denied Bulgarian citizenship.[7] Such collective memories may lead to a lesser interest in the questions of Holocaust in Bulgaria, and a greater focus on the period of communism.

6. Application

To the best of our knowledge, no prosecutions on the basis of either Article 419(a) or Article 108(1)[8] of the Criminal Code (relating to the prohibition of spreading of fascist and “other anti-democratic ideologies”) have been made in Bulgaria, despite a large number of calls to do so and despite over 100 reports of both types of crime having been filed by 2018. Furthermore, regular marches take place in Sofia commemorating a historical figure, general Hristo Lukov, who is considered to have been an “ally of Nazi Germany and a promoter of antisemitism”.[9] Furthermore, there openly exists a far-right party that is considered to be “neo-Nazi,” the “Bulgarian National Union – New Democracy” Party, whose leader, Miroslav Ivanov, has been known to publicly make antisemitic statements, perform Nazi salutes, and deny the Holocaust.[10] The inaction on the part of Bulgarian authorities when it comes to such instances has led to a case before the ECtHR (see below in section 7 Controversies).

7. Controversies

In the precursor to the ECtHR judgement of Behar and Gutman v. Bulgaria,[11] the applicants, belonging to the Jewish ethnic minority, took the Bulgarian state to court, seeking an apology from a Bulgarian politician, Volen Siderov from the Ataka party, who had made public statements, including in his two books, clearly denying the Holocaust.[12] However, their complaints were dismissed by the state prosecutors, who argued that Siderov was protected under free speech provisions.[13] Following unsuccessful appeals to national courts, the applicants brought their case to the ECtHR. The Court considered it on the basis of Article 14 in conjunction with Article 8 of the ECHR. In a unanimous decision, the Court found that, despite the fact that the two books were not widely distributed, the impugned statements had been capable of having a sufficient impact on the sense of identity of Jews in Bulgaria, and on their feelings of self-worth and self-confidence, and had reached the “certain level” or “threshold of severity” required, given that their author later became a prominent politician. It had thus affected the applicants’ “private life”. Article 8, and, therefore, Article 14, were applicable. Furthermore, the Court stated that Siderov’s statements “deserved no or very limited protection under Article 10, read in the light of Article 17.” As such, the inaction on the part of Bulgarian courts was a failure “to comply with their positive obligation to respond adequately to discrimination on account of the applicants’ ethnic origin, and to secure respect for their ‘private life’,” given Article’s 14 active requirement to combat racial discrimination.[14]

8. Further Reading

[1] The authors of the Compendium would like to thank Momchil Milanov for his guidance through Bulgarian law. [2] Chapter 14 of the Criminal Code, ‘Crimes Against Peace and Humanity’. [3] See European Commission, October infringement package: key decisions, 3 October 2024, https://ec.europa.eu/commission/presscorner/detail/en/inf_24_4561. [4] See European Commission, Marchinfringement package: key decisions, 13 March 2024, https://ec.europa.eu/commission/presscorner/detail/en/inf_24_663. [5] Law Declaring The Communist Regime In Bulgaria Criminal,  Pron. DV. No. 37 of May 5, 2000. [6] Nadège Ragaru, ‘Nationalization through Internationalization. Writing, Remembering, and Commemorating the Holocaust in Macedonia and Bulgaria after 1989’ (2017) 65:2 Südosteuropa 284-315, 284. [7] Deborah Mayersen, ‘Saving Bulgarian Jewry from the Holocaust: The Role of National Identity’ (2023) Ethnopolitics 1-18, 1. [8] Art. 108. (Amended – SG No. 41 of 1985, amended – SG No. 99 of 1989) (1) (Amended – SG No. 10 of 1993, amended – SG , No. 92 of 2002, amended – SG No. 38 of 2007) Whoever preaches a fascist or other anti-democratic ideology or violently changes the social and state order established by the Constitution of the Republic of Bulgaria shall be punished by imprisonment up to three years or with a fine of up to five thousand BGN. [9] Martin Dimitrov, ‘Bulgaria Tacitly Allows Neo-Nazis to March Again’ <https://balkaninsight.com/2018/02/16/bulgaria-tacitly-allows-neo-nazis-to-march-again-02-16-2018/> accessed 4.07.2024. [10] JP Staff, ‘Bulgarian far-right candidate denies Holocaust, praises Hitler, Nazis’ <https://www.jpost.com/diaspora/antisemitism/bulgarian-far-right-candidate-denies-holocaust-praises-hitler-nazis-672953> accessed 4.07.2024. [11] Behar and Gutman v. Bulgaria, no. 29335/13 (2021). [12] Krassen Nikolov, ‘Bulgaria convicted of ignoring Holocaust denial and anti-Semitism’ <https://www.euractiv.com/section/politics/short_news/bulgaria-convicted-of-ignoring-holocaust-denial-and-anti-semitism/> accessed 4.07.2024. [13] Cnaan Liphshiz, ‘Bulgarian courts failed to punish Holocaust denier, European tribunal rules’ <https://www.timesofisrael.com/bulgarian-courts-failed-to-punish-holocaust-denier-european-tribunal-rules/> accessed 4.07.2024. [14] Behar and Gutman v. Bulgaria, no. 29335/13 (2021).
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