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BOZHKOV v. BULGARIA - 3316/04 [2011] ECHR 700 (19 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/700.html
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[2011] ECHR 700
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FOURTH
SECTION
CASE OF
BOZHKOV v. BULGARIA
(Application
no. 3316/04)
JUDGMENT
STRASBOURG
19
April 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bozhkov v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Sverre
Erik Jebens,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. de Gaetano,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 29 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 3316/04) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Bozhidar Mihaylov
Bozhkov (“the applicant”), on 22 January 2004.
The
applicant was represented by Mr Y. Grozev, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The
applicant alleged that his conviction and punishment for writing a
newspaper article had been in breach of his right to freedom of
expression.
On
24 June 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1 of the Convention), and to conduct
the proceedings in the case simultaneously with those in Kasabova
v. Bulgaria (no. 22385/03) (Rule 42 (former 43) § 2 of the
Rules of Court).
The
application was later transferred to the Fourth Section of the Court,
following the re composition of the Court’s sections on 1
February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant and the newspaper
The
applicant, born in 1968, is a journalist by profession. At the
relevant time he was employed by Sega, a national daily
newspaper, working as a correspondent in his hometown of Burgas.
B. Background to the case
In
the Bulgarian education system, after the seventh or eighth grade,
when pupils complete their primary education, they can continue
either in an ordinary or in a specialised secondary school. The
ordinary secondary schools’ curriculum does not usually involve
the intensive teaching of a special subject such as mathematics,
foreign languages or engineering. Enrolment in them is on the basis
of documents only and does not typically present a problem. The
curriculum of the specialised secondary schools does include the
teaching of such subjects, and pupils are admitted to them
exclusively on the basis of competitive examinations, which take
place in June (the school year in Bulgaria starts on 15 September).
Under regulations issued by the Ministry of Education and Science,
pupils with certain medical conditions can be admitted to specialised
secondary schools without an examination, as an exceptional measure.
On
5 May 2000 the head of the Burgas education inspectorate, a
territorial division of the Ministry of Education and Science,
appointed a commission to select for admission to specialised
secondary schools pupils with certain chronic medical conditions or
special educational needs. The commission’s members were four
employees of the inspectorate, Ms T.K., Ms A.M., Mr R.E. and Mr G.D.,
and a paediatrician, Dr N.P.
On 12 June 2000 fourteen parents of children who were
sitting competitive examinations to gain admission to specialised
secondary schools wrote a letter to the Ministry of Education and
Science. They said that one hundred and fifty seven children had
been admitted to specialised secondary schools in Burgas on the basis
of a medical condition and not following a competitive examination.
Most of those were apparently the children of medical doctors,
paramedical staff and teachers. The parents complained that whereas
they were paying thousands of levs for private preparatory lessons,
certain pupils had been bragging that they would be admitted to the
English Secondary School in Burgas in exchange for paying
300 Bulgarian levs (BGN); indeed, only a month later this had
become a fact. They cited several examples of perfectly healthy
children who had been diagnosed as suffering from serious chronic
illnesses. They said that they were not blaming the admissions
commission, which had merely been taking note of the prior
conclusions of medical doctors and allocating the pupils to schools
depending on the nature of their purported health problems. They
insisted that the Ministry should set up a special commission to
investigate. A number of parents subsequently staged daily public
protests in front of the building of the Burgas education
inspectorate.
Following this complaint, on 7 July 2000 the Minister
of Education and Science appointed three officials of the Ministry to
inspect the work of the admissions commission. Having done so between
10 and 14 July 2000, the three officials produced a five page
report on 18 July 2000. The report, which was not made public, found
that the commission had committed a number of violations of the
school admissions regulations, such as admitting pupils who did not
have the requisite medical conditions, making findings on the basis
of invalid medical documents and poorly documenting its activities.
It also said that there were indications that Dr N.P. had been
forging documents. The report’s proposals included “imposing
disciplinary punishments on the commission’s members,
commensurate with the violations found and in line with the Labour
Code”. On 25 September 2000 the Minister imposed on Ms T.K., Ms
A.M., Mr R.E. and Mr G.D. the disciplinary punishment of a “warning
of dismissal”, citing a number of violations and omissions in
the school admissions procedures.
Some time after that the Burgas regional prosecutor’s
office opened an inquiry concerning Ms T.K., Ms A.M., Mr R.E. and Mr
G.D. On 12 December 2002 it instituted a formal investigation
against “the implicated officials of the education
inspectorate” on suspicion of bribe taking. In the course
of this investigation the authorities interviewed the four officials,
some parents who had complained to the Ministry of Education and
Science and parents alleged to have given bribes to have their
children admitted to “specialised” schools. In 28 October
2003 the prosecutor’s office decided to discontinue the
investigation without bringing charges. It said that while the
officials had indeed breached their duty and had been given a
disciplinary punishment as a result, there was no evidence that they
had done so as a result of bribe taking.
C. The impugned article
The applicant learned about the story and decided to
cover it in an article, which appeared on pages one and two of the 11
September 2000 issue of Sega under the headline “Bribes
scandal in Burgas secondary schools”. It bore the sub headline
“[The Ministry of Education and Science] sacks four experts for
taking money from sick children” and the applicant’s
byline, and read, in so far as relevant, as follows:
“Four employees of the Burgas inspectorate will be
punished because they took bribes in relation to the admission of
sick children to elite secondary schools, Sega has learned.
The Education Minister [D.D.] will decide their fate today. [Mr
R.E.], [Mr G.D.], [Ms T.K.] and [Ms A.M.] were hired to compile
a list of pupils with congenital or acquired diseases who will
continue their education in elite secondary schools. An investigation
by inspectors from Sofia which took place between 10 and 15 June
found that the four officials, together with [Dr N.P.], placed 40
people in secondary schools and vocational secondary schools on the
basis of forged medical certificates.
Under [Ministry] regulations, children with more serious
illnesses should be placed higher on the list.
However, the inspection showed that these places had
been taken by children in whose medical records non-existent
complications had been deliberately inserted. The documents were
provided by [Dr N.P.] and the commission did not check their
accuracy.
The affair was exposed after angry parents of children
whose applications had been rejected sent a letter to the [Ministry
of Education and Science]. The commission of representatives from the
Education and Health ministries proposes that the four experts be
sacked as a disciplinary measure and that [Dr N.P.] be banned from
practising medicine.
Those concerned have declined to comment to the media
and [Dr N.P.] has been unavailable for two weeks.”
In an additional article published on 16 September
2000 under the headline “Blue MP promises to hush up false
medical records scandal in Burgas”, the applicant again
reported on the story, quoting comments made by Dr N.P. and
mentioning that the Minister of Education and Science had been
supposed to decide a few days earlier whether to impose disciplinary
punishments on Ms T.K., Ms A.M., Mr R.E. and Mr G.D.
D. The proceedings against the applicant
1. The proceedings before the Pomorie District Court
On 7 December 2000 Ms T.K., Ms A.M., Mr R.E. and Mr
G.D. lodged a criminal complaint against the applicant and Sega’s
editor in chief with the Burgas District Court (Бургаски
районен съд).
They alleged that by respectively writing and publishing the 11
September 2000 article the applicant had disseminated, and the editor
had allowed to be disseminated, injurious statements of fact about
them and had imputed an offence to them. In their view, by so doing
the applicant and the editor had committed libel, contrary to
Articles 147 § 1 and 148 § 2 of the Criminal Code (see
paragraphs 28 and 29 below). They sought compensation in the amount
of BGN 30,000.
At
some point during the proceedings the complainants dropped the
charges against Sega’s editor in chief.
The
Burgas District Court held hearings on 19 April and 18 May 2002. The
judge examining the case was also in charge of another case which the
four complainants had brought against another journalist in relation
to an article covering the same events. After convicting the other
journalist on 11 May 2002,
the judge withdrew from the case, citing negative comments made by
the applicant about her judgment in the other case. On 12 July 2002
all the judges of the Burgas District Court stated that they did not
wish to take part in the examination of the case, citing public
protests by journalists and the airing of allegations that they were
all biased against the applicant. Accordingly, on 25
July 2002 the Supreme Court of Cassation ordered that the case
be transferred to the Pomorie District Court
(Поморийски
районен
съд).
The
trial before the Pomorie District Court took place on 6 November
and 18 December 2002 and on 29 January and 14 February 2003. The
court heard evidence from the applicant, the complainants and a
number of witnesses called by both parties, including the supervisor
of the four complainants and the deputy regional governor of Burgas.
In a judgment of 14 February 2003 the Pomorie District
Court found the applicant guilty of having, in the printed press,
disseminated injurious statements of fact about Ms T.K., Ms A.M., Mr
R.E. and Mr G.D., officials carrying out their duties, contrary to
Article 148 §§ 1 (2) and (3) and 2 taken in conjunction
with Article 147 § 1 of the Criminal Code. The court acquitted
the applicant of the charges of having imputed offences to them and
of having committed the offence in public, contrary to Article 148
§§ 1 (1) and 2 of the Code. It applied Article
78a of the Code (see paragraph 32 below) and replaced the applicant’s
criminal liability with four administrative fines of BGN 500 each.
The court further ordered the applicant to pay each of the
complainants compensation for non pecuniary damage amounting to
BGN 100, plus interest from 11 September 2000 until settlement, and
dismissed the remainder of their claims. Finally, it ordered the
applicant to pay BGN 16 in court fees. The court described the facts
set out above and continued as follows:
“To gather the information necessary for his
article, [the applicant] had conversations with parents protesting in
front of the [Burgas education inspectorate]... From them he learned
about the alert which had triggered the appointment of the
[inspection commission]. He talked to the head of [the inspectorate],
[Ms P.], and [other journalists] from Sofia (whose names he did not
disclose), from whom he learned that the inspection had revealed a
number of violations and that it was expected that there would be a
proposal to the Minister to impose stiff disciplinary punishments on
the complainants. [The applicant] asserts that he [also] talked to
the deputy regional governor in charge of education, [Mr G.S.].
[However], at trial [Mr G.S.] testified that his conversation
with the applicant had taken place after, not before, the article’s
publication.
Another witness, ... a colleague of the complainants,
[testified that] the article’s publication had had a severe
negative impact on [them], leaving them very depressed, worried and
unable to do their work with their usual confidence.
On the basis of these findings of fact the court makes
the following findings of law:
According to Article 147 § 1 of the [Criminal
Code], the offence of defamation consists in disseminating injurious
statements of fact about someone or imputing an offence to him or
her. ... The complainants accuse [the applicant] of committing both
forms of the offence – disseminating untrue injurious
statements of fact and imputing an offence to them. The complainants
and their counsel maintain that the imputed offence was the taking of
bribes from children, [contrary to] Article 301 [of the Criminal
Code]. Having read the article carefully, the court finds that [the
applicant] did not impute an offence to the complainants. The article
does not contain any allegation that the complainants took bribes.
Its first part (including the headings) stated that the complainants
would be punished with disciplinary dismissal for having taken
bribes. [The applicant] did not comment on the appropriateness of the
purportedly impending punishment, and in the second part of the
article described in a relatively detailed manner what he considered
to be the facts of the matter, which would form the grounds for the
punishments. These facts did not include bribe taking. It is
averred that the unlawful admission of pupils was made possible by Dr
[N.P.]’s fabrication of false medical documents and that the
complainants relied on these documents without checking their
accuracy. Taken together these parts of the article lead to the
conclusion that [the applicant] did not allege that the complainants
had taken bribes. The court accordingly finds [him] not guilty of the
charge of imputing an offence. It is therefore not necessary to
discuss the evidence and the facts suggesting the commission of such
an offence, or [the applicant’s] certainty ... that it had
taken place.
[The applicant] did, however, commit the other form of
[defamation]. In his article [he] disseminated an injurious statement
of fact, namely that the complainants would be punished with
disciplinary dismissal for having taken bribes for having children
admitted to elite secondary schools in Burgas. The injurious
character of this statement is a meta legal characteristic. The
law does not spell out the content of this notion. For this reason,
whether or not a circumstance is injurious must be determined on the
basis of [public opinion]. The dismissal of an individual from an
official post for taking bribes is generally seen as a sign of that
individual’s poor morals. The court accordingly accepts that
the disseminated statement is injurious.
According to Article 147 § 2 [of the Criminal
Code], [those making allegedly defamatory assertions] are not to be
punished if the assertions are found to be true. This means that
defamation has been committed only if the injurious statements
disseminated are untrue. In the instant case this is so. It has been
established that the complainants were not dismissed but [only]
warned that they could face dismissal and that this did not happen on
11 September 2000. It is, however, rather more important to point out
that the grounds for the disciplinary punishments were not the taking
of bribes but the violations described in the report of the
inspecting commission and in the reasons for the orders imposing
disciplinary punishments.
The untrue injurious statement was disseminated through
the publication of the article in Sega. It is well known and
not disputed [by the parties] that this newspaper is circulated on
the territory of [the entire country]. The court therefore accepts
that the aggravating element of Article 148 §§ 1 (2) and 2
[of the Criminal Code] is present.
The untrue injurious statement disseminated was
connected with the performance of the complainants’ duties. As
members of the admissions commission for pupils with chronic medical
conditions and special educational needs they were ‘public
officials’ within the meaning [of the Criminal Code]. The court
therefore accepts that the aggravating element of Article 148 §§
1 (3) and 2 [of the Code] is [also] present.
The untrue injurious statement was not disseminated in
public. The fact that the offence was characterised [as having been
committed through the printed press makes it impossible for it to
have been committed in public]. An injurious statement is considered
to have been disseminated in public if this was done in the presence
of several persons, whereas the dissemination of information in the
printed press ... involves no direct contact between the person
imparting the information and those receiving it. The court therefore
finds [the applicant] not guilty of [disseminating the injurious
statement in public] contrary to Article 148 §§ 1 (1) and 2
in conjunction with Article 147 § 1 [of the Criminal Code].
The defence disputes the existence of mens rea.
It asserts that [the applicant] was not aware that the statements he
made were untrue. What is more, according to the defence [the
applicant] believed that the complainants had been taking bribes in
performing their duties as members of the commission. This belief was
based on objective facts. These arguments are inapposite and should
not be addressed by the court, as in the impugned article [the
applicant] did not allege that the complainants had been taking
bribes. Seen from this perspective, whether or not [the applicant]
believed that bribes had been taken is irrelevant. What matters is
whether [the applicant] was aware of the untruthfulness of [the
assertion] that on the day of publication of the article the Minister
of Education and Science ... would impose on the complainants the
disciplinary punishment of ‘dismissal’ on the grounds
that they had taken bribes from sick children. This is so because,
[according to the Supreme Court of Cassation’s case law,]
‘when [a journalist] has properly verified the truthfulness of
the information in line with established journalistic practice [and]
the internal non binding rules of the relevant newspaper or
publishing house’, by using the sources available in practice,
[he or she can be said to have acted] in a professional manner and in
good faith, which excludes criminal and civil liability for
defamation ([citation]). It has not been established that [the
applicant acted] in a professional manner and in good faith. None of
the sources used by [him] provided information to that effect. The
information which [he] received from the head of the inspectorate,
[Ms P.], and [other journalists] from Sofia indicated that at the
close of the inspection the commission appointed by the Minister was
to propose that the complainants be subjected to stiff disciplinary
punishments (on unspecified grounds). Before the publication of the
article [the applicant] did not talk to the deputy regional governor,
[Mr G.S.]. The conversations conducted with parents of children [not
admitted] could not give [the applicant] reliable information either
about the internal control measures envisaged by the Minister or
about the grounds for taking them. At the time of publication there
was not a single source indicating to [the applicant] that the
complainants would be dismissed as a disciplinary measure or that the
grounds given by the Minister for that would be bribe taking.
The court therefore finds that [the applicant] realised the
untruthfulness of the injurious statements he disseminated and that
the offence was therefore intentional. [The offence of defamation]
does not require the defamed persons to sustain damage. The
anti social consequences of such an act arise simply from the
dissemination of the injurious statements. By publishing his article
[the applicant] intended just that – to bring the untrue
injurious statements to the knowledge of an unlimited number of
people. The offence was committed with direct intent because [the
applicant] was aware of the anti social character of his act and
wished its adverse consequences to occur...
In sum, the court finds that [the applicant] has
committed with respect to each of the complainants an offence under
Article 148 §§ 1 (2) and (3) and 2 in conjunction with
Article 147 § 1 [of the Criminal Code]. (The four offences were
committed [in a single act].) The penalty for such an offence is a
fine ranging from five to fifteen thousand levs and public reprimand.
[The applicant] has not been convicted of a publicly prosecutable
offence ... and the offences have not engendered pecuniary damage.
[The case thus comes under] Article 78a [of the Code], and [the
applicant]’s criminal liability should be replaced with an
administrative fine of BGN 500 to BGN 1,000.
To determine the amount of the fine, the court ... took
into account the mitigating and aggravating circumstances. [The
applicant] was not found to have committed other transgressions, i.e.
he does not exhibit criminal tendencies and the level of risk he
presents to society is low. Despite the existence of two additional
qualifying elements (which is of itself an aggravating factor), the
non pecuniary damage sustained by the complainants as a result
of the offence is negligible (see below for more on this point). [The
applicant] denies any wrongdoing, which is his right, but at the same
time has provided detailed explanations about the case and practical
cooperation in ascertaining the truth. For these reasons, the court
finds that there is a preponderance of mitigating circumstances, and
fixes the punishment for each offence at the minimum amount, namely
BGN 500.
The complainants’ claims for damages are
well founded, because in all cases the dissemination of untrue
injurious statements tarnishes the good name of the persons
associated with the alleged facts. Under sections 45 and 52 [of the
1951 Obligations and Contracts Act] the compensation [for
non pecuniary damage] must be
determined by the court in equity. The court finds that the sum of
BGN 5,000 claimed by each of [the complainants] would amount to just
compensation for the non pecuniary damage suffered by them as a
result of the slur on their reputations. However, [the applicant] is
not liable to pay the entirety of that sum. Apart from the untrue
injurious statements, in his article [he] also reported true
injurious facts, in respect of which he does not bear any criminal or
civil liability. The article points out that the complainants
committed violations which led to the unlawful admission of children
to the above mentioned secondary schools. These facts were true.
Their publication by [the applicant] was legal, because in publishing
them he was exercising his constitutional right to seek and impart
information, and helping other citizens to exercise their
constitutional right to receive information (Article 41 § 1 ...
of the Constitution).
The evidence gathered in the case leads to the
conclusion that the reputations of [the complainants] have suffered
chiefly as a result of the true injurious facts reported by [the
applicant]. [The relevant regulations] lay down a procedure whereby
the State [in line with its constitutional obligations] encourages
education, creating conditions for the vocational training of
children with special needs or medical conditions. Since this
activity is a constitutional obligation of the State, its performance
in strict compliance with the relevant rules is of paramount
importance. Seen from a different perspective, when the performance
of this activity has been marred by a series of serious violations
and this has led to the unlawful admission of pupils to the detriment
of other pupils who have recognised medical conditions or needs,
these violations inevitably lead to the loss of the good names of the
officials concerned. For these reasons, the court finds that the
reputations of [the complainants] suffered as a result of their own
illicit behaviour. When imparting information about this [the
applicant] went too far – alongside the true injurious
statement he made an untrue statement about the impending punishments
and the grounds for them. As a result, [the complainants’]
reputations suffered additionally, but not materially, because even
if [the applicant] had not said what punishments would be imposed by
the Minister, [the complainants’] reputations would have been
greatly impaired anyway. [The applicant] is liable only for the
non pecuniary damage arising out of the dissemination of the
untrue injurious statements. In view of the foregoing, the court
finds that the equitable amount of compensation is BGN 100 for each
of [the complainants]. The remainder of the civil claims are
groundless and are to be dismissed.”
In a decision of 13 March 2003 the Pomorie District
Court ordered the applicant to pay the complainants’ costs,
amounting to BGN 300.
2. The proceedings before the Burgas Regional Court
Both
the applicant and the complainants appealed. The applicant argued,
among other things, that the institution of criminal proceedings
against the complainants on charges of bribery meant that there were
grounds to suspect that they had committed such offences and that he
had been justified in mentioning that fact in the article.
The
Burgas Regional Court (Бургаски
окръжен съд)
heard the appeal on 4 July 2003.
In a final judgment of 23 July 2003 it upheld the
applicant’s conviction and sentence, but increased the award of
damages, ordering the applicant to pay BGN 1,000 to each of the
complainants. The Regional Court also upheld the lower court’s
ancillary costs order. It held, in so far as relevant, as follows:
“...
Concerning the arguments ... that the [lower court’s]
judgment is ill founded and in breach of substantive law: The
appeal states that criminal proceedings were instituted against the
complainants on charges of bribery in breach of Article 302 § 1
[of the Criminal Code], and that for this reason [the applicant]
cannot be deemed to have intentionally made untrue and injurious
assertions. It can however be seen from the reasoning of [the lower
court] that [the applicant] was acquitted of the charge of imputing
to the complainants the offence of bribery. The [lower court’s]
reasoning on that point is fully shared by this court and,
accordingly, the objections that the [lower court’s] judgment
was unfounded or in breach of substantive law do not call for further
discussion.
The court finds that the punishments imposed on [the
applicant] were properly fixed. [The lower court] correctly replaced
[the applicant’s] criminal liability [under] Article 78a of
[the Criminal Code] with fines in the minimum amount allowed by the
law, namely BGN 500 for each of the offences, taking into account
[the applicant’s] lack of a criminal record or other
anti social acts, [the] lower level of risk [he poses] to
society, [and] his detailed explanations about the facts of the case.
In its reasoning the court said that the non pecuniary damage
sustained by the complainants was not significant. That view cannot
be shared by [this court]. Unlike pecuniary damage, the non-pecuniary
damage caused through a criminal act should not be taken into account
for the purpose of fixing the punishment. The non pecuniary
damage suffered by the victims of crime is strictly individual and
should be taken into account solely for the purpose of fixing the
amount of compensation, not the quantum and type of the punishment.
Nevertheless, [this court] considers that the minimum penalties
imposed on [the applicant] will [be sufficient to] further the aims
of the punishment, as envisaged by [the Criminal Code]. The court
therefore finds that this part of the [lower court’s judgment]
should be upheld.
As regards the civil claims for compensation for
non pecuniary damage:
The court finds unfounded the complainants’
requests to increase the amount of compensation to BGN 5,000 for each
of them. It is true that the complainants sustained non-pecuniary
damage – a blemish on their reputations, concerned as they are
about their professional standing and good names – as a result
of the offences against them. [The lower court], however, correctly
stated in its reasoning that [the applicant’s] article had
reported injurious facts which were true, namely that the
complainants had committed violations in their work, which led to the
unlawful admission of children to secondary schools, and which were
more significant than the fact that the complainants would be
dismissed. For this reason, the court considers that [the lower
court] was right not to allow the civil claims in full. However, in
[this court’s] view, the awards [it] made are too small. The
amount of BGN 100 for each of [the complainants] cannot make good
their suffering resulting from the affront to their dignity. Regard
being had to the way in which the offence was committed –
circulation of the injurious assertions in a publication which is
sold nationwide, thus bringing them to the attention of large number
of people –, [as well as] the negative impact this had on the
complainants’ mental state, health and capacity for work ...,
this court finds that it would be just to award the complainants BGN
1,000 each. This part of [the lower court’s] judgment should
therefore be modified, by increasing the amount which [the applicant]
has to pay to the complainants to BGN 1,000 for each of them in
respect of non pecuniary damage.
Concerning the costs of the proceedings:
In a decision of 13 March 2003 [the lower court] ordered
[the applicant] to pay the complainants the amount of BGN 300 for
costs. [The applicant] was found not guilty of the charge of imputing
an offence and of the charge under Article 148 §[§] 1 (1)
[and 2] of [the Criminal Code]. Under [the relevant provisions of the
Code of Criminal Procedure], he must accordingly bear the full cost
related to the charges of which he was found guilty... However, in
this court’s view, [the lower court] correctly ordered the
applicant to pay the entirety of the costs in the case, because the
complainants are also a private prosecuting party and it is the
court’s practice in such cases to award the costs in full. ...”
3. The payment of the fine, damages and costs
In 2003 the authorities issued enforcement proceedings
against the applicant to recover the fine. Those proceedings were
closed on 2 April 2008 following the payment of the fine, plus
interest, in its entirety. The total amount paid by the applicant was
BGN 2,229.71.
In 2003 the four complainants also issued enforcement
proceedings against the applicant to recover the damages and the
costs awarded to them. The amounts due were paid by Sega
between February 2004 and April 2005. The newspaper recovered the
sums paid by deducting them from the applicant’s salary. The
total amount paid in this way was BGN 7,621.04.
E. Other developments
On 3 April 2001 a member of Parliament officially
questioned the Minister of Education and Science about the affair. On
9 April 2001 the Minister replied, saying, inter alia, that
the officials found guilty of committing violations of the admissions
procedure had been disciplined and that the Ministry did not have
competence to institute criminal proceedings, which was a matter for
the prosecuting authorities.
On 3 July 2002 another journalist who had covered the
story, Ms K. Kasabova,
together with three officials of the Ministry of Education and
Science, testified about the “sick children” affair
before the National Assembly’s Standing Committee on Complaints
and Petitions. At the end of the hearing the Committee unanimously
resolved to send the material to the Burgas prosecuting authorities
with a view to the possible initiation of criminal proceedings
against Ms T.K., Ms A.M., Mr R.E. and Mr G.D., asking the Minister of
Health whether the medical doctors responsible had been punished, and
asking the Minister of Education and Science whether penalties had
been imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. and whether the
penalties had corresponded to the posts they occupied.
II. RELEVANT DOMESTIC LAW
A. The Constitution
The relevant provisions of the 1991 Constitution read
as follows:
Article 32 § 1
“The private life of citizens shall be inviolable.
All citizens are entitled to be protected against unlawful
interference in their private or family life and against
infringements of their honour, dignity and reputation.”
Article 39
“1. Everyone is entitled to express an
opinion or to publicise it through words, whether written or oral,
sounds or images, or in any other way.
2. This right shall not be exercised to the
detriment of the rights and reputation of others, or for incitement
to forcible change of the constitutionally established order,
perpetration of a crime or enmity or violence against anyone.”
Article 40 § 1
“The press and the other mass media shall be free
and not subject to censorship.”
Article 41
“1. Everyone has the right to seek,
receive and impart information. The exercise of that right may not be
directed against the rights and the good name of other citizens or
against national security, public order, public health or morals.
2. Citizens shall have the right to
information from State bodies or agencies on any matter of legitimate
interest to them, unless the information is a State secret or a
secret protected by law or it affects the rights of others.”
Article 57 § 2
“Rights shall not be abused, nor shall they be
exercised to the detriment of the rights or the legitimate interests
of others.”
B. The Criminal Code
Article 147 of the 1968 Criminal Code, as in force
since March 2000, provides as follows:
“1. Any person who disseminates an
injurious statement of fact about another or imputes an offence to
him or her shall be punished for defamation by a fine ranging from
three to seven thousand levs, as well as by public reprimand.
2. The perpetrator shall not be punished if
he or she proves the truth of the said statement or imputation.”
If the defamation is committed through the printed
press, or if the defamed parties are public officials carrying out
their duties, it is punishable by a fine ranging from BGN 5,000 to
BGN 15,000, as well as by public reprimand (Article 148 §§
1 (2) and (3) and 2, as in force since March 2000). Since March 2000
all instances of defamation are privately prosecutable offences
(Article 161, as in force since March 2000). In 1998 Article 148
survived a challenge of unconstitutionality, with the Constitutional
Court ruling that increased penalties where the defamed parties were
public officials did not disproportionately restrict freedom of
expression (реш. № 20 от
14 юли 1998 г. по к. д.
№ 16 от 1998 г., обн., ДВ,
бр. 83 от 21 юли 1998 г.).
The mens rea for the offence of defamation can
only be direct intent or oblique intent (recklessness), not
negligence (Article 11(4)). Mens rea, in the form of intent or
negligence, is an essential element of any criminal offence (Article
9 § 1 and Article 11 §§ 1, 2 and 3).
In a judgment of 26 May 2000 (реш.
№ 111 от 26
май 2000 г.
по н. д.
№ 23/2000 г., ВКС,
II н. о.)
the Supreme Court of Cassation held that provided that, prior to
publication, journalists checked their information in line with the
practice established in the profession or with the internal rules of
the relevant medium, by using the sources available in practice, they
could not be held to have acted wilfully or even negligently and were
not guilty of defamation. It went on to say that, owing to the
accessory nature of a civil party claim, the general rule of
tort law that fault was presumed was not applicable to the
examination of tort claims in criminal defamation proceedings. In
such proceedings, the rules governing fault as an element of the tort
of defamation were those of the criminal law. The court also held
that under Bulgarian law strict liability could not be applied in
respect of defamation, and referred to the constitutional principle
that public officials were subject to wider limits of acceptable
criticism than private individuals.
Article 78a § 1, as in force at the relevant
time, mandated the courts to replace convicted persons’
criminal liability with an administrative punishment – a fine
ranging from 500 to 1,000 levs – if (i) the offence of which
they had been convicted was punishable by up to two years’
imprisonment or a lesser penalty, in respect of an intentional
offence, (ii) they had not previously been convicted of a
publicly prosecutable offence and their criminal liability had not
previously been replaced by an administrative punishment, and (iii)
the pecuniary damage caused by the criminal act had been made good.
The administrative fine could not be higher than the criminal fine
envisaged for the offence (Article 78a § 5). Along with the fine
the court could impose occupational disqualification of up to three
years, if such a punishment was envisaged for the offence (Article
78a § 4).
III. RELEVANT INTERNATIONAL MATERIALS
On 4 October 2007 the Parliamentary Assembly of the
Council of Europe adopted Resolution 1577 (2007), Towards
decriminalisation of defamation, in which it called on the Member
States to, inter alia, guarantee that there is no misuse of
criminal prosecutions for defamation (point 17.2); remove from their
defamation legislation any increased protection for public figures
(point 17.6); ensure that under their legislation persons pursued for
defamation have appropriate means of defending themselves, in
particular means based on establishing the truth of their assertions
and on the general interest (point 17.7); set reasonable and
proportionate maxima for awards for damages and interest in
defamation cases so that the viability of a defendant media organ is
not placed at risk (point 17.8); and provide appropriate legal
guarantees against awards for damages and interest that are
disproportionate to the actual injury (point 17.9).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained under Article 10 of the Convention about his
conviction and punishment for having written the impugned article.
Article
10, in so far as relevant, provides as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. The parties’ submissions
The
Government submitted that the applicant had published his article
without proper journalistic enquiry. They cited at length the reasons
given by the Pomorie District Court and asserted that both levels of
jurisdiction, having fully considered the arguments of the parties to
the libel proceedings and their evidence, had determined the claim
impartially, giving reasons that were fully consonant with this
Court’s case law. The Government drew attention to the
fact that the four officials had availed themselves of an avenue of
redress accessible to any defamed individual. In their view, it was
also telling that the courts had waived the applicant’s
criminal liability and simply imposed an administrative penalty on
him. The award of damages had also been in reasonable proportion to
the injury to the claimants’ reputations. It was also worth
noting that the prosecuting authorities had discontinued the criminal
investigation against the officials owing to lack of evidence that
they had asked for or taken bribes. The interference had therefore
been proportionate and justified.
The
applicant disagreed. He pointed to several factors which made his
conviction disproportionate. He had been reporting on a matter of
great public concern, namely corruption. The authorities had acted
secretively and had been reluctant to reveal information about the
issue, which had made it necessary to engage in more assertive
reporting. He had been convicted for a factual inaccuracy which he
had been unable to avoid even after verifying his story in line with
good journalistic practice. The allegation that bribes had been taken
had a reliable basis, namely the high number of irregularities in the
admissions procedure and the allegations of parents whose children
had been denied admission. Those allegations had appeared credible
and were quite specific. The focus of his short article had been more
on reporting the parents’ protest and the inquiry by the
Ministry of Education and Science. In writing the article, he had
relied on interviews with parents and students, and information from
colleagues and from the head of the education inspectorate.
The
applicant further submitted that the penalties imposed on him had
been excessive; indeed, the very fact of his conviction had been
disproportionate. The reasons adduced by the national courts had been
partly irrelevant and insufficient. Those courts had focused entirely
on the internal inquiry by the Ministry of Education and Science and
fully disregarded the information from parents. Such an approach
neglected the role of the press and the context in which the article
had been published. Despite the public protests by parents the
authorities had not been very active in investigating the
irregularities in the admissions process, which made them a less
reliable source in that respect. It had therefore been fully
justifiable for the applicant to rely on the information from
parents. This, coupled with the high number of irregularities, could
reasonably be interpreted as an indication of corruption. Moreover,
the article had specified that at the time of writing no final
decision had been taken on how to punish the four officials. It had
been written under pressure of time, but with reasonable care and on
the basis of sound fact finding.
B. The Court’s assessment
The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
1. Whether there was interference, and whether it was
“prescribed by law” and pursued a legitimate aim
It
was not disputed that the applicant’s conviction, coupled with
the order to pay damages, constituted interference – in the
form of a “penalty” – with his right to freedom of
expression. Nor was it contested that this interference was
“prescribed by law”, namely Articles 147 and 148 of the
Criminal Code (see paragraphs 28 and 29 above), and was aimed at
protecting the “reputation or rights of others” within
the meaning of Article 10 § 2 of the Convention.
2. “Necessary in a democratic society”
(a) General considerations
The
arguments adduced before the Court concentrated on the question
whether the interference had been “necessary in a democratic
society” to achieve that aim. The determination whether this
was so must be based on the following general principles emerging
from the Court’s case law (see, among other authorities,
Cumpǎnǎ and Mazǎre v. Romania [GC], no.
33348/96, §§ 88 91, ECHR 2004 XI, with further
references):
(a) The
test of “necessity in a democratic society” requires the
Court to determine whether the interference corresponded to a
pressing social need. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those delivered by
independent courts. The Court is therefore empowered to give the
final ruling on whether a “restriction” is reconcilable
with freedom of expression as protected by Article 10.
(b) The
Court’s task in exercising its supervisory function is not to
take the place of the competent domestic courts but rather to review
under Article 10 the decisions they have taken pursuant to their
power of appreciation. This does not mean that the supervision is
limited to ascertaining whether the respondent State exercised its
discretion reasonably, carefully or in good faith; what the Court has
to do is to look at the interference complained of in the light of
the case as a whole, including the content of the statements held
against the applicant and the context in which he or she has made
them.
(c) In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were relevant
and sufficient and whether the measure taken was proportionate to the
legitimate aims pursued. In doing so, the Court has to satisfy itself
that the national authorities, basing themselves on an acceptable
assessment of the relevant facts, applied standards which were in
conformity with the principles embodied in Article 10.
(d) The
Court must also ascertain whether the domestic authorities struck a
fair balance between the protection of freedom of expression as
enshrined in Article 10 and the protection of the reputation of those
against whom allegations have been made, a right which, as an aspect
of private life, is protected by Article 8 of the Convention.
An
additional factor of particular importance in the present case is the
vital role of “public watchdog” which the press performs
in a democratic society. Although it must not overstep certain
bounds, in particular in respect of the reputation and rights of
others, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on political issues and on other matters of
general interest (ibid., § 93, with further references). The
Court must apply the most careful scrutiny when, as here, the
sanctions imposed by a national authority are capable of discouraging
the participation of the press in debates over matters of legitimate
public concern (see, among other authorities, Tønsbergs
Blad A.S. and Haukom v. Norway, no. 510/04, § 88, ECHR
2007 III).
The
Court further notes that the article in respect of which the
applicant was convicted and penalised was reporting facts relating to
alleged irregularities and corrupt practices in the admission of
students to secondary schools (see paragraph 12 above). There can be
no doubt that this was a question of considerable public interest,
even sparking parliamentary debates and a hearing before a
parliamentary committee (see paragraphs 25 and 26 above), and that
the publication of information about it formed an integral part of
the task of the media in a democratic society.
It
should also be observed that the individuals mentioned in the article
were public officials, whom the Court has found as a rule to be
subject to wider limits of acceptable criticism than private
individuals (see Thoma v. Luxembourg, no. 38432/97, § 47,
ECHR 2001 III; Pedersen and Baadsgaard v. Denmark [GC],
no. 49017/99, § 80, ECHR 2004 XI; Mamère v.
France, no. 12697/03, § 27, ECHR 2006 XIII; and Dyundin
v. Russia, no. 37406/03, § 26, 14 October 2008).
However, the national courts were unable to take that into account
and were instead bound to punish the applicant more severely (see
paragraphs 18 and 22 above), because Article 148 §§ 1 (3)
and 2 of the Criminal Code treats the official capacity of the victim
of an alleged defamation as an automatic aggravating circumstance
(see paragraph 29 above). The Court will revert to this matter below.
(b) As to the assessment of whether the
applicant acted as a responsible journalist
The
Court notes, firstly, that the applicant was acquitted of imputing
the offence of bribe-taking to the four officials concerned and,
secondly, that he conceded that the statement in respect of which he
had been convicted – to the effect that the officials were to
be dismissed because of corruption – was a statement of fact
which ultimately proved to be untrue. In those circumstances, the
Court sees no reason to engage in a detailed analysis of the manner
in which the national courts approached the questions of burden and
standard of proof (contrast Kasabova v. Bulgaria, no.
22385/03, §§ 58 62, 19 April 2011). Its inquiry will
instead focus on whether those courts made an acceptable assessment
of whether the applicant had acted fairly and responsibly in
gathering and publishing the impugned information.
In
that connection the Court observes that Article 10 does not guarantee
wholly unrestricted freedom of expression even with respect to press
coverage of matters of serious public concern and relating to
politicians or public officials. Under the terms of its second
paragraph the exercise of this freedom carries with it “duties
and responsibilities”, which also apply to the press. These
“duties and responsibilities” are liable to assume
significance when, as in the present case, there is a question of
attacking the reputation of named individuals and undermining the
“rights of others”. By reason of the “duties and
responsibilities” inherent in the exercise of the freedom of
expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith in order to provide
accurate and reliable information in accordance with the ethics of
journalism (see, among other authorities, Bladet Tromsø and
Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR
1999-III). Indeed, in situations where on the one hand a statement of
fact is made and insufficient evidence is adduced to prove it, and on
the other the journalist is discussing an issue of genuine public
interest, verifying whether the journalist has acted professionally
and in good faith becomes paramount (see Flux v.
Moldova (no. 7), no. 25367/05, § 41, 24 November 2009).
In
the recent case of Rumyana Ivanova, the Court found that, in
view of the nature of the applicant’s allegation (that an
individual featured on an official list via certain companies owned
by him), the task of researching and demonstrating it was not
unreasonable or impossible (see Rumyana Ivanova v.
Bulgaria, no. 36207/03, §§ 63 65, 14 February
2008). By contrast, the nature of the allegation in the present case
(that the four complainants would be dismissed for bribe taking)
made it very difficult, if not impossible, for the applicant to
provide direct corroboration of it (compare with Thorgeir
Thorgeirson v. Iceland, 25 June 1992, § 65 in fine,
Series A no. 239). That difficulty stemmed from two sources.
First,
the event to which the article was referring lay in the future. It
was therefore inherently impossible for the applicant to know for
certain what disciplinary sanctions would be imposed on the four
complainants, and on what specific grounds. Of course, he could have
overcome that difficulty simply by delaying publication. However, it
is not for the Court to substitute its own views for those of the
press as to the appropriate timing of publication of a news story.
News is a perishable commodity and to delay its publication, even for
a short period, may well deprive it of all its value and interest
(see Observer and Guardian v. the United Kingdom,
26 November 1991, § 60, Series A no. 216, and Sunday Times
v. the United Kingdom (no. 2), 26 November 1991, § 51,
Series A no. 217). In as much as the story related to the school
admission process, it was not unreasonable to publish it before the
beginning of the school year four days later; the Minister imposed
the punishments another ten days after that (see paragraph 10 in
fine above).
Secondly,
at the time of publication the authorities had not yet released any
official information on the results of the internal inspection
carried out by the Ministry (see paragraph 10 above). The lack of
such information, coupled with the uncontested existence of numerous
irregularities in the admission of students, could reasonably have
prompted the applicant to report on anything that was available,
including uncorroborated information (see, mutatis mutandis,
Flux (no. 7), cited above, § 44). It should be reiterated
in that connection that the situation must be examined as it
presented itself to the journalist at the material time, rather than
with the benefit of hindsight (see Bladet Tromsø and
Stensaas, cited above, §§ 66 in fine and 72).
It
is true that the national courts, in assessing whether or not the
applicant had acted with mens rea, examined the steps which he
had taken to ensure the accuracy of the published information and
found them insufficient (see paragraphs 18 and 22 above). However,
the courts did not take the above mentioned matters into
account, and disregarded other factors which were equally relevant
for determining whether or not the applicant had acted in good faith.
For instance, they paid no heed to the overall thrust of the article
and the fact that it also included accurate allegations about a
number of breaches of the school admissions regulations committed by
the four officials. While they treated that matter merely as a
circumstance justifying a lower award of damages, the Court considers
that, in view of the overall thrust of the article (see Castells
v. Spain, 23 April 1992, § 48 in limine, Series A no.
236; Perna v. Italy [GC], no. 48898/99, § 47
in limine, ECHR 2003 V; and Timpul Info Magazin
and Anghel v. Moldova, no. 42864/05, § 35, 27
November 2007), that element was equally relevant for the assessment
of whether or not the applicant had acted as a responsible
journalist. The criterion of responsible journalism should recognise
the fact that it is the article as a whole that the journalist
presents to the public. It is true that the applicant could have
phrased the impugned statement in a more careful manner, so as to
highlight the fact that the actual disciplinary penalties to be
imposed on the officials and the exact grounds for them were still
uncertain. However, it cannot be overlooked that he did point out
that “the Minister [would] decide their fate [that day]”
(see paragraph 12 above) and that the article was a short news flash
which called for concise wording. The Court therefore sees no reason
to find that the applicant acted out of a desire to publish
information with reckless disregard for its accuracy. Indeed, the
allegations made by the protesting parents, coupled with the high
number of irregularities in the school admission procedure (see
paragraphs 9 and 10 above), made it at least plausible that the
inspection relating to the four officials’ professional conduct
might touch upon the issue of corruption and lead to disciplinary
sanctions on such grounds. It is noteworthy in that connection that
the prosecuting authorities later opened an investigation concerning
the officials on suspicion of bribe taking (see paragraph 11
above).
Having
regard to the above factors, the overall context of the case and the
important public interest involved, the Court is satisfied that the
applicant acted as a responsible journalist. It would emphasise in
that connection that if the national courts apply an overly rigorous
approach to the assessment of journalists’ professional
conduct, the latter could be unduly deterred from discharging their
function of keeping the public informed. The courts must therefore
take into account the likely impact of their rulings not only on the
individual cases before them but also on the media in general. In the
instant case, the four officials’ interest in protecting their
reputation was not sufficient to outweigh the vital public interest
in ensuring an informed debate on a matter of considerable public
interest. It is significant in that connection that, as pointed out
by the national courts (see paragraphs 18 and 22 above), the bulk of
the harm to the officials’ reputation stemmed not from the
untrue allegation made by the applicant in respect of the
disciplinary sanctions imposed on them, but from his accurate
reporting of their unlawful behaviour in the school admission
process.
(c) As to the severity of the sanction
Although
in the light of the above mentioned reasons the Court is of the
opinion that the applicant’s conviction was in itself
disproportionate, it considers it necessary to also examine the
severity of the sanction imposed on him and the proportionality of
the damages and costs which he was ordered to pay.
It
begins by noting that while the use of criminal law sanctions in
defamation cases is not in itself disproportionate (see Radio
France and Others v. France, no. 53984/00, § 40, ECHR
2004 II; Lindon, Otchakovsky Laurens and July v. France
[GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007 XI;
Długołęcki v. Poland, no. 23806/03, § 47,
24 February 2009; and Saaristo and Others v. Finland, no.
184/06, § 69 in limine, 12 October 2010), the nature
and severity of the penalties imposed are factors to be taken into
account, because they must not be such as to dissuade the press from
taking part in the discussion of matters of legitimate public concern
(see Cumpǎnǎ and Mazǎre, cited above, §
111). In addition, an award of damages for defamation must bear a
reasonable relationship of proportionality to the injury to
reputation suffered (see Tolstoy Miloslavsky v. the United
Kingdom, 13 July 1995, § 49, Series A no. 316 B, and
Steel and Morris v. the United Kingdom, no. 68416/01, §
96, ECHR 2005 II). Indeed, those points were made by the
Parliamentary Assembly in its Resolution 1577 (2007) (see paragraph 33
above).
In
the instant case, although the proceedings started as criminal, the
trial court, in application of Article 78a of the Criminal Code,
waived the applicant’s criminal liability and imposed only an
administrative punishment (see paragraphs 18 and 32 above). In
Rumyana Ivanova the Court attached particular weight to that
factor (see Rumyana Ivanova, cited above, § 69). However,
it cannot overlook the fact that the possibility offered by Article
78a is apparently available only once, which means that, if convicted
a second time of defamation, the applicant is likely to face criminal
penalties.
In
any event, the Court finds that the overall sum which the applicant
was required to pay was a far more important factor in terms of the
potential chilling effect of the proceedings on him and other
journalists. The four fines imposed on him came to a total of BGN
2,000. However, that amount must not be seen in isolation, but
together with the damages – which were substantially increased
by the Burgas Regional Court (see paragraph 22 above) – and the
costs awarded to the complainants. Those came to BGN 4,000 and
BGN 300 respectively, making the total sum payable BGN 6,300
(EUR 3,221.14). That sum, which was the equivalent of more than
fifty seven minimum monthly salaries (BGN 110 (EUR 56.24) at the
relevant time), was payable by the applicant alone (contrast with
Worm v. Austria, 29 August 1997, §§ 15 and 57,
Reports of Judgments and Decisions 1997 V). Unlike
Rumyana Ivanova, where the Court was satisfied that BGN 3,050
was reasonable in the circumstances (see Rumyana Ivanova,
cited above, § 69), in the case at hand it finds that BGN 6,300
was an excessive sum. The evidence submitted by the applicant shows
that he struggled for years to pay it in full (see paragraphs 23 and
24 above and contrast with Stângu and Scutelnicu v. Romania,
no. 53899/00, § 56, 31 January 2006, and Mihaiu v.
Romania, no. 42512/02, § 71 in fine, 4 November
2008).
(e) Conclusion
In
conclusion, the Court finds that the national authorities did not
adduce sufficient reasons for the interference with his right to
freedom of expression and subjected him to disproportionate
sanctions. It follows that the interference in question was not
“necessary in a democratic society”.
There
has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed repayment of the amounts which he had been ordered
to pay in fines, damages to the civil claimants, costs and interest.
According to him, those came to 10,250 Bulgarian levs (BGN). He
further claimed 5,000 euros (EUR) in respect of non pecuniary
damage.
The
Government submitted that the claims were exorbitant. In their view,
the finding of a violation was sufficient compensation for any damage
suffered by the applicant.
The
Court considers that in view of the nature of the violation of
Article 10 of the Convention, the applicant is entitled to recover
the sums that he was ordered to pay in fines, damages and costs, plus
interest (see Lingens v. Austria,
8 July 1986, § 50, Series A no. 103, and Scharsach
and News Verlagsgesellschaft v. Austria,
no. 39394/98, § 50, ECHR 2003 XI).
However, the Court notes that, according to the evidence submitted by
the applicant, the total amount paid by him came to BGN 9,850.75 and
not BGN 10,250 (see paragraphs 23 and 24 above). The
Court therefore awards the applicant BGN 9,850.75,
plus any tax that may be chargeable.
The
Court further finds that an award of compensation in respect of
non-pecuniary damage is justified in this case. Making its assessment
on an equitable basis, as required under Article 41, the Court awards
the applicant the full amount claimed by him under that head (EUR
5,000), plus any tax that may be chargeable.
B. Costs and expenses
The
applicant sought the reimbursement of EUR 3,040 incurred in fees for
fifty hours’ work by his lawyer on the proceedings before the
Court, at BGN 100 per hour. He submitted a fee agreement between him
and his legal representative and a time sheet. He requested that
any sum awarded under this head be made payable directly to his legal
representative.
The
Government disputed both the number of hours claimed and the hourly
rate charged by the applicant’s lawyer.
According
to the Court’s case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. In the present case, regard being had
to the information in its possession and the above criteria, the
Court considers it reasonable to award the sum of EUR 2,500, plus any
tax that may be chargeable to the applicant. This amount is to be
paid directly into the bank account of the applicant’s legal
representative, Mr Y. Grozev.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable at the date of
settlement:
(i) BGN
9,850.75
(nine thousand eight hundred and fifty Bulgarian levs and
seventy five stotinki), plus any tax that may be chargeable, in
respect of pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, to
be converted into Bulgarian levs at the rate applicable at the date
of settlement, in respect of non pecuniary damage;
(iii) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable to the applicant, to be paid directly into the bank
account of the applicant’s legal representative, Mr Y. Grozev,
in respect of costs and expenses;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
