ITEMID: 001-104539
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KASABOVA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
JUDGES: Georgieva;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 7. The applicant, born in 1964, is a journalist by profession. Between 1 August 2000 and 28 February 2001 she was employed at Compass, a leading daily newspaper in her hometown of Burgas. According to a certificate issued by her employer, in 2000 her gross monthly salary there was 190 Bulgarian levs (BGN), and in 2001 it rose to BGN 210.
8. 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 these schools 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.
9. 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.
10. 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 fiftyseven 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 BGN 300; 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.
11. Following this complaint, on 7 July 2000 the Minister of Education and Science appointed three officials from the Ministry to inspect the work of the admissions commission. Having done so between 10 and 14 July 2000, the three officials produced a fivepage 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.
12. 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 bribetaking. 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. On 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 bribetaking.
13. The applicant learned about the story and decided to cover it in an article, which appeared on pages one and four of the 12 September 2000 issue of Compass. It bore the headline “Corruption in Burgas education!”, the subheadline “Four experts and a doctor sacked over bribes?” and the applicant’s byline, and read, in so far as relevant, as follows:
“Four experts of the Burgas inspectorate of [the Ministry of Education and Science] will be sacked for corruption if [the Minister] heeds the findings made by his representatives after an inquiry conducted following a bribetaking alert, a source from the inspectorate revealed yesterday. Last Thursday the investigators reported on their findings after a onemonth investigation in Burgas, which included interviews with parents who had given money to have their children admitted to elite schools on the basis of false diagnoses. According to the uncorroborated information the matter concerns 40 boys and girls who got onto the lists despite having no right to benefit from the privilege under the Regulation on pupils with congenital and acquired diseases. For each child via the ‘alternative’ route the experts pocketed at least 300 [United States] dollars. The sum total of the bribe is about 15,000 dollars, said the source. It is not clear how the stringpullers will be dealt with and whether they will now have to surrender their places to their genuinely sick peers, teachers commented.
The experts incriminated in the corruption are [Mr R.E.], [Ms A.M.], [Mr G.D.] and [Ms T.K.] of the vocational education department. The commission, which consisted of five members including the doctor from the French Secondary School Dr [N.P.], deliberated in June.
The doctor’s task was to present the findings of [a special medical commission in charge of assessing degrees of disability] at the deliberations and advise on which diagnoses corresponded to the rules. According to the four educationalists, the doctor should bear the whole responsibility because she misled them. For instance, she deliberately wrote ... ‘bronchial asthma’ instead of ‘chronic asthma’; by this means the children in respect of whom money was paid took the places of those truly deserving of the privilege. There were 20 candidates in respect of whom Dr [N.P.] declared that she was their general practitioner. They did not pass through the [abovementioned special medical commission] at all, the other members assert. They accept blame only for having been too trusting and not having personally checked what was written in the minutes. After the alert the doctor was subjected to checks by the Health Ministry. If the allegations against her are confirmed she will lose the right to practise. According to unofficial information, Dr [N.P.] forged health records by using stamps from the First, Second and Third polyclinics. Yesterday the school doctor was not available for comment.
It transpired that she never gave anybody her home address. For her part, during the investigation [Dr N.P.] said that she was innocent because the educationalists had deliberately withheld from her this year’s shortened list of illnesses. She had thus been acting under the old instructions. As this issue goes to press it is not clear what [the Minister] has decided for his Burgas staff. Here, employees of the head of the inspectorate, [Ms M.P.], insisted that she should be punished as well for failing to exercise due supervision. Twenty-four experts sent the Ministry a protest letter insisting that [Ms M.P.] be removed for incompetence. ...”
14. The same day Ms T.K., Ms A.M., Mr R.E. and Mr G.D. wrote to Compass denying the allegations against them, requesting that the applicant be punished and advising the newspaper that they intended to take legal action.
15. Two days later, on 14 September 2000, Compass ran a second article by the applicant. Its headline was “Education kickbacks affair confirmed” and its subheadline read “Blue MP saves corruption suspects from sacking”. In that article the applicant reported on the comments of the head of the Burgas education inspectorate about the affair, the statements of Dr N.P., who denied any wrongdoing, and the reaction of Ms T.K., Ms A.M., Mr R.E. and Mr G.D. to her first article.
16. In a box appearing after the article the newspaper published the response of Ms T.K., Ms A.M., Mr R.E. and Mr G.D. It read as follows:
“Rebuttal of the article ‘Corruption in Burgas education!’ published in issue 52 of Compass on 12 September 2000
Dear Editors,
We are seriously disturbed and appalled by the aforementioned article by a journalist on your paper, Ms K. Kasabova. The lady should be aware of the fact that such grave accusations should be published only when incontrovertible proof exists.
We categorically maintain that the article is a libel which aims to injure the reputation of [the education inspectorate] of the [Ministry of Education and Science] and to deeply hurt our personal and professional dignity.
We insist that Ms K. Kasabova be held accountable for the truthfulness of her allegations. We insist that Ms K. Kasabova publish the documents allegedly incriminating us in ‘taking 15,000 United States dollars’, or that the editors publish an apology on the same page of the newspaper!
We advise you that we will protect our rights as civil servants and citizens by all lawful means.”
17. In an addendum appearing just below the box the applicant wrote:
“Dear ladies and gentlemen educationalists, Please accept my apologies if I have offended you by imputing to you acts that you did not perpetrate. I sincerely wish you success in the difficult struggle to protect your rights as civil servants and citizens by all lawful means. I trust that this struggle will include efforts allowing truth and justice to prevail.
Yours, Katya Kasabova”
18. On 7 October 2000 Compass published a third article written by the applicant, under the headline “Burgas no. 1 education chief removed” and with the subheadline “Compass triggered inquiry with articles about bribes”. The article mainly reported on the dismissal of the head of the Burgas education inspectorate following the internal inquiry conducted by the Ministry of Education and Science. It also commented further on the improper school admissions affair.
19. 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 the editorinchief of Compass with the Burgas District Court (Бургаски районен съд). They alleged that in her three articles 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. More specifically, they took issue with the phrases “Four experts of the Burgas inspectorate of [the Ministry of Education and Science] will be sacked for corruption if [the Minister] heeds the findings made by his representatives after an inquiry conducted following a bribetaking alert”; “[the admission of] their children ... to elite schools on the basis of false diagnoses”; “For each child admitted via the ‘alternative’ route the experts pocketed at least 300 [United States] dollars. The sum total of the bribe is about 15,000 dollars” and “The experts incriminated in the corruption are [Mr R.E.], [Ms A.M.], [Mr G.D.] and [Ms T.K.] of the vocational education department”, as well as with some phrases contained in the articles published on 14 September and 7 October 2000. In their view, by publishing these phrases the applicant and the editor had committed libel, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see paragraphs 35 and 36 below). They sought compensation in the amount of BGN 30,000.
20. In a subsequent filing the complainants specified that they sought BGN 5,000 each for nonpecuniary damage. On 22 February 2001 they withdrew their claims and the charges against the editor of Compass, but maintained the charges and claims against the applicant.
21. The trial took place on 9 March, 9 April, 28 May, 16 July and 15 October 2001 and 13 February, 22 April and 10 May 2002. The court heard evidence from the applicant, the complainants and a number of witnesses called by both parties. On 9 April 2001 the applicant stated that she had the names of many parents who had paid money to obtain the admission of their children to specialised schools, but that none of them would come forward to testify about that for fear of jeopardising their children’s future. On 10 May 2002 a witness for the applicant who was a member of a local anticorruption nongovernmental organisation said that many parents had gone to him, and that he knew from friends and people working in the education inspectorate that amounts of the order of 300 United States dollars (USD) were being taken for a child to be improperly admitted to a specialised school. Since he had known the applicant for years, he had passed that information on to her. He told her that ten or fifteen parents had confided that they had paid USD 300 each to a member of the commission, without identifying the member in question. However, he could not name those parents for obvious reasons.
22. On 25 July 2001 the applicant requested the withdrawal of the judge examining the case, citing her hostile and biased demeanour at trial, in particular towards witnesses called by the applicant, her refusal to allow the applicant to adduce evidence and use notes when testifying, and mistakes in the trial record. On 10 September 2001 the judge refused the request, saying that decisions whether or not to allow evidence depended on its admissibility and relevance, that the applicant could have sought the rectification of any mistakes in the trial record, that to allow the applicant to use notes when testifying would run counter to the rules of criminal procedure, and that the manner in which the evidence was assessed was reviewable on appeal and was not a ground for withdrawal.
23. In a judgment of 11 May 2002 the Burgas District Court found the applicant guilty of having, in the printed press, disseminated injurious statements of fact about, and imputed offences to 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. It applied Article 78a of the Code (see paragraph 39 below) and replaced the applicant’s criminal liability with four administrative fines of BGN 700 each. It also ordered the applicant to pay each of the complainants BGN 1,000 for nonpecuniary damage, dismissing the remainder of their claims, and awarded them BGN 312 in costs (BGN 12 for court fees and BGN 300 for lawyers’ fees). Lastly, it ordered the applicant to pay BGN 160 in court fees. The court described its findings of fact and held as follows:
“In the course of the trial [the applicant] gave explanations. It should however be noted that in addition to being evidence the statements of the accused are also a means of defence. [The applicant] says that she conducted a journalistic inquiry which is governed by the unwritten rules of conscience and a moral duty to warn society. She had conversations with parents who claimed that some [pupils] had arranged for [their admission] by paying the commission. [For example, a pupil] had boasted that her father had paid [USD] 300 for her admission. At that point the Minister of Education had already ordered an inquiry into [such] allegations. [The applicant] does not indicate the names of the parents who gave her information about the payment of specific sums of money to the complainants for the improper admission of their children. Her assertions do not match the remaining evidence, namely [the testimony of a witness for the complainants and] the parents’ complaint to the Minister. The complaint says that ‘other pupils brag in their classes that for 300 dollars they will be admitted to the English Language Secondary School’, but does not specify to whom [this money] will be given. As regards [the above-mentioned pupil], it is mentioned that she was admitted with a diagnosis of ‘chronic pyelonephritis’ and kidney insufficiency although she is an active sportswoman, but this does not automatically lead to the conclusion that [her] father paid money to the commission. [A witness for the applicant] does not mention the name of a single parent who gave money to have his or her child admitted without an examination, and does not know who may have received such money. The article says ‘The sum total of the bribe is about 15,000 dollars, said the source’. At trial [the applicant] testified that she arrived at this amount by multiplying 40 children by 300 dollars (the sum paid by the father of [the aforementioned pupil]), which came to about 15,000 dollars.
[The applicant] maintains that another source was [the head of the Burgas education inspectorate], who had said ‘I will talk if the Minister allows it, I do not stand behind this number of 40, there may be more’. [This witness] occupied the post of head of [the Burgas inspectorate] from May to September [2000] and says that she did not meet [the applicant] before the publication of the article on 12 September 2000. However, even her [subsequent] statement does not contain allegations of corruption.
In her explanations [the applicant] relies on [Dr N.P.’s] statements about individuals’ respective roles in the improper admissions process. [She alleged] that [Mr R.E., one of the complainants] had put the documents of the [abovementioned pupil] before the commission and had said ‘She is to be admitted with no questions asked.’ There was also a child diagnosed with having one leg 3 cm shorter than the other who had excellent marks in sport. Blank forms with signatures and seals from various medical centres were available in case of need. When questioned at trial, [Dr N.P.] said that the documents of the [pupil diagnosed with chronic pyelonephritis] were left because the parents and the child were unable to appear in person, which was in any case not required. As regards the blank forms, there was one remaining from a previous year ... with an old seal and with no connection to the present commission. The foregoing cannot lead to the conclusion that the complainants have committed an offence under Article 301 [of the Criminal Code: bribetaking].
[Under Article 147 § 2 of the Criminal Code,] the perpetrator is not punished if he or she proves the truthfulness of the injurious statements of fact disseminated or of the imputation of an offence. The law creates a rebuttable presumption that all injurious statements of fact are false and that all imputed offences have not been committed. That is, the burden of proving the truth [of these statements] lies with the accused. An author’s subjective certainty of the truthfulness of his or her assertions does not relieve him or her of liability; this certainty must be corroborated by objective facts. Neither the truthfulness of the injurious statements nor that of the imputation of an offence was established during the course of the trial. Article 147 § 2 cannot therefore be applied.
The offence proscribed by Article 147 § 1 of the [Criminal Code] [seeks to protect] individuals’ reputation and public esteem. The opportunities to freely express opinions and to seek, receive and impart information are among the fundamental rights enshrined in the [Constitution]. Article 57 § 2 [of the Constitution] prohibits the abuse of rights or their exercise in a manner detrimental to the rights and the lawful interests of others. Articles 39 § 2 and 41 § 1 [of the Constitution] provide that the exercise of the right to express an opinion and the right to information must not be used to the detriment of the rights and reputation of others. The existence of the offence of defamation is a guarantee that the competing rights protected by the Constitution will not be flouted. The same limitation exists in Article 10 § 2 of the European Convention on Human Rights, which provides that 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 for the protection of the reputation or rights of others.
The conduct element of the offence consisted in action. Both forms of the criminal act have been perpetrated: dissemination of untrue injurious statements of fact and imputation of an offence which has not been committed.
The dissemination (bringing to the knowledge of third parties) occurred through an article published in issue 52 of Compass on 12 September 2000, under the headline ‘Corruption in Burgas education!’ and the subheading ‘Four experts and a doctor sacked over bribes?’, reporting that ‘Four experts of the Burgas inspectorate of [the Ministry of Education and Science] will be sacked for corruption if [the Minister] heeds the findings made by his representatives after an inquiry conducted following a bribetaking alert’, [and mentioning] ‘the children in respect of whom money was paid’. It was established that the internal inquiry was not carried out pursuant to an alert about bribetaking by the commission, but in relation to breaches of [the school admission regulations]. The experts were simply taking note of the diagnoses already made by [specialised medical commissions in charge of assessing degrees of disability]. The [assertion] that they will be dismissed for corruption, and that the commission was checked up on following a bribetaking alert is injurious. In her statement at trial [the applicant] says that before writing the article she did not acquaint herself with the parents’ complaint or with the report of the Ministry of Education’s internal inquiry.
The defence objects that the statements of fact featuring in the article cannot be characterised as injurious because the matter involves proven wrongdoings: the word ‘corruption’ as used in the article is not equivalent to bribetaking, but rather implies the existence of serious violations in the admission of pupils. The court finds this argument unconvincing. [The article specifically says] not only that the [complainants would be] sacked, but [also] that the inspection [was carried out] following ‘information about bribetaking’.
The imputation of an offence consists in the [applicant’s] allegations, made in an article published in issue 52 of Compass on 12 September 2000 under the headline ‘Corruption in Burgas education!’, and the subheadline ‘Four experts and a doctor sacked over bribes?’, stating: ‘For each child admitted via the ‘alternative’ route the experts pocketed at least 300 [United States] dollars. The sum total of the bribe is approximately 15,000 dollars, said the source’ [and] ‘The experts incriminated in the corruption are [Mr R.E.], [Ms A.M.], [Mr G.D.] and [Ms T.K.] of the vocational education department.’
The allegation concerned an offence under Article 301 [of the Criminal Code]. The abovementioned evidence did not show that an offence under Article 301 of [the Code] – bribetaking – had been committed. [A witness for the applicant] does not say which parent gave money to whom; in their letter to the Ministry of Science and Education ... the parents specifically wrote ‘We are not making any allegations against the commission of the [Ministry’s] regional inspectorate, as it merely notes down the conclusions of the [special medical commission] and assigns pupils with health problems to different schools depending on the type of illness’; [a further witness for the applicant] confirmed the contents of this letter. As regards the source mentioned in the quotation, at trial [the applicant] said that she had arrived at the sum of 15,000 [United States] dollars by multiplying 40 children by 300 dollars, i.e. she was not quoting any source. It can be seen from [the Minister’s reply to a question in Parliament] that ‘the Ministry of Education and Science has received no reports naming officials alleged to have perpetrated acts of corruption, and we are therefore not in a position to refer the matter to the prosecuting authorities for investigation.’
Defamation is an offence requiring resultant harm. In the instant case this condition has been fulfilled, because third parties have learnt of the injurious statements and the imputed offence.
The form of mens rea was direct intent... [The applicant] understood the antisocial character of her act, foresaw its dangerous consequences and wished them to occur. She was aware of the injurious character of what she wrote and knew that by imputing an offence to the complainants she would injure their reputation. She must have known that alongside her immediate purpose – informing society – she would bring about the antisocial result of impinging on another’s legal sphere by making discrediting allegations.
[The applicant] has fulfilled the conduct and fault elements of the offence under Article 148 §§ 1 ([2]) and (3) and 2 in conjunction with Article 147 § 1 [of the Criminal Code] by
1. ... disseminating injurious statements of fact about, and imputing an offence to, [Ms T.K.], an official carrying out her duties, in the printed press.
2. ... disseminating injurious statements of fact about, and imputing an offence to, [Ms A.M.], an official carrying out her duties, in the printed press.
3. ...disseminating injurious statements of fact about, and imputing an offence to, [Mr R.E.], an official carrying out his duties, in the printed press.
4. ...disseminating injurious statements of fact about, and imputing an offence to, [Mr G.D.], an official carrying out his duties, in the printed press.
DETERMINATION OF THE PUNISHMENT
The [applicant’s] offence is punishable by a fine ranging from five to fifteen thousand levs and public reprimand. [The applicant] is an adult, has not been convicted of a publicly prosecutable offence, [and] there is no indication that she has ever [had a finding of criminal liability against her replaced under Article 78a of the Criminal Code]. In view of this, the court accepts that all the formal prerequisites are in place for it to apply the imperative rule of Article 78a and waive [the applicant’s] criminal liability, as the aims of the punishment [as defined in the Criminal Code] may be achieved through the [simple] imposition of an administrative penalty.
In determining the quantum of the punishment – the fine – the court had regard to the gravity of the [applicant’s] act, her personality and her motivation [for committing the offence].
In view of the foregoing, the court considers that the aims of the punishment can be fully attained by imposing an administrative penalty in the form of a fine of BGN 700 in respect of each of the offences.
In assessing the dangerousness of the offence and of the offender the court had regard to [the applicant’s] criminal record – she has not been convicted –, the relatively serious nature of her offence, her motives and the character of her act, its consequences, [and her] degree of culpability. It therefore imposes an average penalty, [in view of] the balance of mitigating and aggravating factors.
Concerning the civil claim:
Each of the complainants claims BGN 5,000 in damages. Under section 45 of the [1951 Obligations and Contracts Act], a tort [consists in the] culpable commission of a wrongful act which causes damage. Seeing that the civil claim in the criminal proceedings has an accessory character and that [the applicant] has been found guilty of the offence proscribed by Article 148 §§ 1 ([2]) and (3) and 2 in conjunction with Article 147 of [the Criminal Code], all these elements are in place.
The existence of damage stemming from the offence [of defamation] is an irrebuttable presumption and does not need to be proved. Evidence is only necessary in respect of the extent of the damage.
[A witness for the complainants] testified that the publication had had negative effects on their mental state. They had found it hard to perform their jobs [and] their state of health had worsened. She knew the complainants as honest and decent people, good professionals who had a responsible attitude towards their work. [A second witness for the complainants] said that [they] had reacted forcefully because they wanted retribution. [A third witness for the complainants] knew [them] as honest people who had been depressed after [the publication of] the article, because their reputation had been brought down, they had felt ill and Mr G.D. had even taken sick leave. [According to a fourth witness for the complainants], ‘each one of them [had] suffered deeply as a result of [the] articles’. This testimony shows that the complainants have sustained pain and suffering.
Section 52 of the [1951 Obligations and Contracts Act] says that the amount of compensation for nonpecuniary damage is to be determined by the court in equity. In view of the proven pain and suffering, the court finds that the equitable amount of compensation for nonpecuniary damage is BGN 1,000 for each of the complainants. It dismisses the remainder of the claims as unproven.”
24. On 6 June 2002 the applicant appealed to the Burgas Regional Court (Бургаски окръжен съд), challenging the entirety of the lower court’s judgment. She asked the court to rehear her and all the witnesses.
25. On 10 June 2002 the complainants also appealed, contesting the quantum of the punishment and the amount of damages awarded.
26. On 2 September 2002 the court turned down the applicant’s request to rehear her and the witnesses, saying that all of them had already given evidence at trial, and that the applicant did not specifically argue that any procedural violations had taken place or that any facts remained unclear.
27. The court heard the appeal on 20 December 2002. The complainants partly withdrew their claims, stating that although in their initial complaint they had also referred to the applicant’s second and third articles (see paragraphs 15 and 18 above), they no longer maintained their grievances in respect of them. They also specified that they sought BGN 3,000 each. The court accordingly discontinued the proceedings in respect of the dropped charges and allowed the amendment of the civil claim; it also heard the parties’ closing arguments. Counsel for the applicant produced a brief prepared by Article 19, an international nongovernmental organisation defending freedom of speech. The court refused to admit it to the file. It admitted in evidence a certificate issued by the Burgas prosecuting authorities stating that criminal proceedings had been instituted against officials of the regional inspectorate of the Ministry of Education and Science following allegations of bribetaking (see paragraph 12 above).
28. In a brief filed on 27 December 2002 and largely coinciding with his oral arguments at the hearing, counsel for the applicant cited a number of this Court’s judgments and argued that the Burgas District Court had erred by concentrating solely on the acts alleged against the complainants and, accordingly, on the availability of sufficient proof of bribetaking. If it had read and analysed properly the full text of the article – which contained many phrases removing certainty from the allegations and distancing the applicant from them – it would have found that she had not asserted that bribetaking had taken place. Moreover, the court had ruled ultra petita, as, in finding the article defamatory, it had relied on a phrase not pleaded by the complainants – “the children in respect of whom money was paid”. It had also erred by holding that the applicant had perpetrated both forms of defamation – disseminating injurious statements of fact and imputing an offence –, and by holding that speculating about a future event – the dismissal – could amount to an allegation of fact. Furthermore, the facts asserted by the applicant – the existence of signs of bribetaking – were true. An internal inquiry had indeed taken place. It had found that numerous serious violations had occurred which could hardly be explained by professional negligence alone. There were indications that parents had given money to obtain admission for their children. While all of these indeed constituted only prima facie evidence of bribe-taking, this was all the applicant had claimed. She had acted in good faith, checking her sources. Although she had been aware that she might upset certain people, she had decided to go to print in the best interests of the children who had not been admitted. She had done so in an urgent situation, going to press only three days before the start of the school year. She had made public a story which was the subject of lively discussion in the town, and had achieved a positive effect, preventing future instances of corruption. The court had to take into account all these factors and assess the necessity of the interference with the applicant’s freedom of expression in concreto.
29. In a final judgment of 17 January 2003 the Burgas Regional Court upheld the applicant’s conviction and sentence. It found that the lower court had erroneously failed to rule on the charges relating to the two articles of 14 September and 7 October 2000, but that the complainants’ withdrawal of these charges had made the error good and had obviated the need to correct it. It also found that, because of the partial withdrawal of the charges and the related reduction and detailing of the complainants’ damages claims, there was no need for it to rectify the lower court’s failure to determine which part of the damages was awarded in respect of which article. The court continued:
“Having fully reviewed [the lower court’s] judgment ... [this court] finds that the appeals are ILLFOUNDED.
The overall assessment of the oral and written evidence gathered by the [lower court] confirms the facts as set out in detail in [its] judgment...
...
In reviewing [the applicant’s] act, which consisted in the writing of the [impugned article], [the lower court] correctly held that [her offence] was committed by action. [She] fulfilled the conduct elements of both forms of the offence of defamation, as in her article she disseminated the injurious untrue statement of fact ... that the persons named in the article – the four complainants – ‘WILL BE SACKED FOR CORRUPTION’ and at the same time imputed to them an offence which they had not committed, telling her readers that ‘FOR EACH CHILD ADMITTED VIA THE ‘ALTERNATIVE’ ROUTE THE EXPERTS POCKETED AT LEAST 300 [UNITED STATES] DOLLARS. THE SUM TOTAL OF THE BRIBE IS ABOUT 15,000 DOLLARS ... THE EXPERTS INCRIMINATED IN THE CORRUPTION ARE [MR R.E.], [MS A.M.], [MR G.D.] AND [MS T.K.]’. It is true that ... in its reasons ... [the lower court], citing the article, also mentioned the phrase ‘the children in respect of whom money was paid’. This does not however mean that [the lower court] ventured outside the [charges brought by the complainants], relying on a phrase which [the latter did not find fault with], as incorrectly argued by the defence. If [the lower court] had relied on this phrase it would have found the applicant criminally liable for it. [However, it can be seen from its reasoning] that it held that the injurious statement of fact was ‘the [assertion] that they would be dismissed for corruption, and that the commission was checked on following a bribetaking alert. [The lower court did not find] the phrase ‘the children in respect of whom money was paid’ to amount to an injurious assertion of fact or an imputation of an offence, and the objection in this regard is unfounded.
The argument of the defence that the phrase ‘will be sacked for corruption’ concerns an uncertain future event and not a fact, and that, accordingly, it cannot amount to defamation is groundless. Analysis of the impugned phrases shows that the complainants’ supposed impending dismissal for being corrupt (which is asserted as a fact) is an injurious statement because it affects their personalities and is liable to tarnish their reputations. The legal conclusions would be completely different if [the applicant] had merely stated ‘they will be sacked’ without mentioning the specific reason for that, namely corruption. This word undoubtedly refers to the complainants’ conduct and attributes negative qualities to them, characterising them negatively in their capacity as individuals and public officials. [The applicant], in her capacity as the author of the article, told the readers of the newspaper that the impending dismissal of the complainants was on account of corruption, which was presented as a fact in the article, that is, as something that had already happened, something real. It is exactly this which makes the news of their future dismissal injurious. Moreover, from a legal viewpoint, future events as well as negative facts in which an event is lacking are nonetheless facts. The use of the future tense does not therefore exculpate [the applicant], but should rather be taken as a mitigating circumstance, justifying a lesser penalty... Undoubtedly the negative consequences flowing from the defamatory assertion of a future dismissal (as stated in the article) are less than those flowing from a dismissal already carried out for corruption. However, in both cases the author undermines the good name of the person and their positive reputation. For similar reasons, the criminal nature of the act depends little on whether [the applicant] used the expression ‘accused of corruption’ or ‘corrupt’. The opinion of the defence that an allegation is defamatory, that is, capable of damaging the victims’ reputations only in the latter case is not shared by [this court].
With the second impugned phrase [the applicant] imputed to the complainants an identifiable serious intentional offence, namely bribe-taking (Article 301 et seq. [of the Criminal Code]). [The lower court], in line with the established caselaw and the prevailing morality, correctly found that this also characterises negatively the personalities of the complainants. As a rule, an offence, as an antisocial, guilty and punishable act, ... is in all cases reprehensible from a moral viewpoint and without exception reflects negatively on the personality of its perpetrator. For this reason, [the applicant’s] assertion that as a result of a bribe the complainants received about 15,000 dollars categorically affects their good names and dignity as citizens and professionals. It was thus properly characterised as defamatory by [the lower court]. The argument of the defence that the impugned article did not contain allegations that the complainants had accepted bribes was correctly rejected as unfounded by [the lower court]. In the article [the applicant] unequivocally explained to readers the reason for and the amount of the bribe, specifying that ‘for each child admitted via the ‘alternative’ route the experts pocketed at least 300 dollars. The sum total of the bribe is about 15,000 dollars’.
As to the [applicant’s] defence that the information in the article was true, the court finds this defence untenable. No evidence proving in an incontrovertible manner the truth of the injurious assertion that the complainants would be dismissed for corruption has been gathered, either by the [lower court] or before the adoption of [this court’s] judgment. The [four orders] of 25 September 2000 show that the complainants were indeed disciplined after the publication of the article. However, they were not dismissed but merely given a warning of dismissal, which is obviously not the same thing. There is no indication whatsoever that their dismissal was proposed or discussed. They were penalised for the numerous violations committed by them in the course of their work as members of the commission for assigning pupils with chronic illnesses and/or special educational needs to specialised secondary schools, not for engaging in corrupt practices. It has not been established that the complainants committed the offence of bribetaking. For this reason, the [lower court] correctly refused to apply Article 147 § 2 [of the Criminal Code]. This provision states that [persons making allegedly defamatory allegations] are not to be punished if they prove the truth of the injurious statements or the imputation of an offence. In view of the presumption of innocence [enshrined in the Constitution and the Criminal Code], and in the absence of a final conviction establishing that the complainants committed the offence of bribetaking, the [lower court’s] conclusion that the prerequisites of Article 147 § 2 ... have not been met is correct and lawful. Only a final conviction is capable of establishing the truth of [the applicant’s] assertion that the complainants committed the offence of bribetaking.
In view of its duty ... to gather not only incriminating, but also exculpating and mitigating evidence, [the lower court] reviewed the availability of information to the effect that the complainants had committed the imputed offence, that is, taken bribes. This approach by [the lower court] was in [the applicant’s] interest, in view of the rule embodied in Article 147 § 2 [of the Code]. The defence is therefore mistaken in its belief that [the lower court] erred by examining the complainants’ acts. [That court] also discussed in detail [the applicant’s] act and, as can be seen from the operative provisions of its judgment, correctly found that her acts, and not those of the complainants as incorrectly argued by the defence, were the subjectmatter of the case.
[A certificate issued] by the Burgas regional prosecutor’s office ... shows that [this office] opened [an inquiry] into the unlawful admission of pupils ... by a commission of the [Burgas regional inspectorate of the Ministry of Education and Science] during the 2001/02 school year. After completing the inquiry [the prosecuting authorities] instituted [a criminal investigation] against officials of [the inspectorate] suspected of having taken bribes... However, the certificate does not say whether these officials were the complainants. [In any event,] this does not alter [the lower court’s] conclusion that [the applicant’s] act was contrary to Article 148 §§ 1 (2) and (3) and 2 in conjunction with Article 147 § 1 [of the Criminal Code], a conclusion which is fully shared by [this court]. Even if it were to be assumed that these criminal proceedings for bribery were directed against the complainants in their capacity as members and ... chairman of the commission ..., this fact alone is not enough to rebut the presumption of innocence and establish the truth of the injurious statements and the imputation of an offence, because the conclusion of these criminal proceedings by a final conviction of the four complainants of the offence of bribery is an uncertain future event. It is not disputed between the parties that at the time of the adoption of [this court’s] judgment the criminal proceedings against the complainants are pending at the pre-trial stage. The ongoing nature of the investigation does not constitute grounds for adjourning the instant case until its completion, in view of the legal timelimits for concluding the criminal proceedings, which, if excessive in length, may engender a real risk that the absolute limitation period for prosecuting [the applicant] will expire. An adjournment of the case is therefore unacceptable, because it would deprive the complainants of the right to obtain a judicial determination of the charges levelled by them owing to the expiry of the limitation period for prosecuting the offence [allegedly] committed by [the applicant]. Nor do the criminal proceedings pending against the complainants constitute grounds for staying the proceedings in the instant case, although the outcome of the investigation concerning them is of great importance for [the applicant’s] liability and the application of Article 147 § 2 [of the Criminal Code]. The court may stay a criminal case only in a limited number of situations [envisaged by the Code of Criminal Procedure]. The existence of a criminal investigation against the complainants, the outcome of which is determinative for the resolution of the present case, is not such a situation. There are, then, no grounds for staying the proceedings in the instant case pending completion of the criminal proceedings against the complainants. It follows that, in so far as it has not been properly established that the complainants committed the imputed corrupt acts, [this court] endorses [the lower court’s] conclusion that [the applicant’s] act amounted to defamation contrary to Article 148 §§ 1 (2) and (3) and 2 in conjunction with Article 147 § 1 [of the Criminal Code].
It is conceivable that the criminal proceedings against the complainants may end in a final conviction... [Their conviction] would undoubtedly establish the truth of the injurious statements disseminated and of the imputation of an offence, as required under Article 147 § 2 [of the Criminal Code]. If that were to happen, [the applicant] could request the proceedings to be reopened and [the judgments against her] to be set aside, relying on the existence of a new fact which was not known to [the courts trying her case]. For these reasons, the information in the certificate issued by the prosecuting authorities is only an indication that there were grounds for investigating officials of the [regional inspectorate of the Ministry of Education and Science] for corruption, but it by no means disproves the charge that the injurious statements and the imputation of an offence were false. The defence’s contention that the proving of the injurious statements obeys the normal rules on distribution of the burden of proof in criminal proceedings is incorrect and illogical precisely because of the complainants’ interest in proving their charge. Article 83 §§ 1 and 2 [of the Code of Criminal Procedure] provides that the burden of proof ... is on the private prosecuting party. [The applicant] is not required to prove her innocence. However, in the circumstances, seeing that the complainants have no interest in triggering the application of Article 147 § 2 [of the Criminal Code], because this would lead to the non-imposition of the punishment they seek, it has to be accepted that the burden of proof shifts to [the applicant]. [The lower court’s] conclusions on this point are correct. Of course, ... [the applicant] does not have the onus of proving the charges, but merely the existence of the prerequisites for not punishing her under Article 147 § 2 [of the Criminal Code]. The burden of proving the charges rests with the complainants.
As to [the applicant’s] objection that [she acted without mens rea], [this court] accepts the defence’s argument that [the applicant] did not act with direct intent to defame the complainants ... as incorrectly held by [the lower court]. However, as a whole the objection that she acted without mens rea and thus did not commit an offence is groundless. In reply to the complainants’ rebuttal of the article, published in Compass on 14 September 2000, in the same issue of the newspaper [the applicant] wrote a note in her capacity as the article’s author. Part of the content of this note: ‘Dear ladies and gentlemen educationalists, please accept my apologies if I have offended you by imputing to you acts that you did not perpetrate’, as well as [the applicant’s] explanation [at trial] that she did not write the article with the intention of offending anyone, lead the court to accept that [she] perpetrated the offence with oblique intent... She was aware of the antisocial character of her act. She foresaw its harmful consequences, namely that the newspaper’s readers would learn of her assertions that the complainants were to be dismissed for corruption and about the offence of bribery imputed to them, which would inevitably negatively affect their reputations. [The applicant] did not wish these harmful consequences to occur as a direct result of her act. However, in pursuing her direct, and in principle noble, goal not to allow children to suffer detriment in the process of applying for admission to elite secondary schools, she knowingly accepted that these consequences would inevitably occur. This positive attitude towards the result of the offence makes her act unlawful.
In order not to have the intention of committing defamation, the accused must be certain, on the basis of objective facts, that the injurious statements or the imputation are true. The information contained in the testimony of [a witness for the applicant] and the article in the issue of Sega of 11 September 2000 under the headline ‘Bribes scandal in Burgas secondary schools’..., in which the complainants are accused of corruption, is not based on such objective facts. It could not give [the applicant] a justified assurance that the injurious statements and the imputation were true. [The lower court] remarked correctly that not a single parent or pupil who gave such information to the applicant had been named. The [abovementioned witness for the applicant] does not say which parents of children who were denied admission complained to him that ‘sums of 300 [United States] dollars were pocketed to allow in [healthy] children instead of sick ones’ ... Contrary to her assertions, [the applicant] did not carry out a proper journalistic inquiry before drafting her article. [Her assertions] that she received the information from the parents of children who were not admitted (which were not corroborated by the testimony of any parent) and that the information in the article ... in the 11 September 2000 issue of Sega confirmed the allegations in the impugned article do not lend support to [her] argument that she ‘complied with all possible requirements of goodfaith journalism’. In accordance with the principle that journalists have to be objective, proper journalistic inquiry requires them to check the reliability of their sources. In the instant case, [the applicant] could have asked the [Ministry of Education and Science] about the reasons behind and the content of the [parents’] letter mentioned in the article in Sega. Counsel for [the applicant] mistakenly objects that [she] had not been made aware that [the Ministry] had received an alert from protesting parents. In line seven of the impugned article [the applicant] pointed out that [the Ministry’s internal inquiry] had been ordered by [the Minister] pursuant to ‘an ALERT concerning bribetaking’. She was obviously aware of an alert (a letter) received by [the Ministry]. There is no indication in the case file that any of the protesting parents or children with whom [the applicant] claims she conversed many times said that the complainants had engaged in corrupt acts. If [the applicant] had checked what alert had been received by [the Ministry] and the exact reason why [the Minister] had ordered an [internal inquiry], she would have no doubt reached a different conclusion. The protesting parents complained about ‘the ruthless race between doctors to earn more money by giving false diagnoses to minors applying for admission to secondary schools’ ... It is not disputed that none of the complainants is a medical doctor. Clearly, then, the protests were directed against the actions of the doctors, not against those of the commission of which the four complainants were members. No complaints of corrupt acts on the part of the complainants from parents, pupils or officials were received by [the Ministry] or by the [newly] formed ‘Citizens’ Association for the Salvation of Burgas’, of which [the abovementioned witness] is a member. [When giving evidence at trial, this witness] testified about a complaint which he had received from ten or fifteen individuals who had confided that they had each given 300 [United States] dollars to a member of the commission. He had shared this information with [the applicant]. The information did not, however, contain objective facts capable of convincing [the applicant] as a journalist of the truthfulness of what she wrote in the article and thus absolving her of any intention to defame. On the one hand, [the witness] did not name any specific individual who was in a position to confirm his words, and, on the other, the corruption complaint concerned only one (unidentified) member of the commission, not all four complainants as asserted in the article. It should also be noted that there was a further member of the commission who is not a complainant [in this case], the witness Dr N.P. The [internal inquiry] carried out following complaints by parents had the task of checking whether the complainants had, as members of the commission, complied with [certain Ministry regulations], not whether they had taken bribes. For these reasons, [the court] finds no force in the defence’s argument that [the applicant’s] intent did not comprise the inaccuracy of the injurious statements disseminated and of the imputation of an offence. Even though the sources ... mentioned by [the applicant] herself could not, in the circumstances, have assured [her] of the reality of the situation, [she] wrote the impugned article. As correctly found by [the lower court], [the applicant] did not use a source for the amount of the bribe – ‘about 15,000 [United States] dollars’ –, but made the calculation herself by multiplying 40 children by 300 dollars. The above shows that the journalistic objectivity and thorough research required of each publication were lacking.
As regards [the applicant’s] complaint that the conviction and sentence infringed her freedom to express her opinions and impart information, [the lower court] has given weighty reasons why this complaint is unfounded, in view of [the applicant’s] unacceptable infringement of the complainants’ competing fundamental and hence constitutionally guaranteed right under Article 32 of the [Constitution] to a good name. [The lower court] correctly referred to and construed Articles 39 § 2 and 41 § 1 of [the Constitution] and Article 10 § 2 of the European Convention on Human Rights, and rightly held that [the applicant’s] right to impart information could not be used to infringe the rights and the good name of the complainants in the manner described above. Analysis of these provisions and of the rules of Articles 146, 147 et seq. [of the Criminal Code] defining the offences concerned and enacted to guarantee compliance with the above provisions, makes it clear that journalists must exercise their constitutional right to express opinions and impart information in a way which excludes the commission of the offences of insult or defamation. Naturally, the principles of democracy and freedom of speech, as well as the public interest, require journalists to be able to publish in the media facts established as a result of proper journalistic inquiries, even though these facts may damage people’s reputations. However, journalists must verify the truthfulness of their statements by using every available means to check the reliability of the information [they] receive. [The applicant] failed to do so despite having the objective opportunity. The wording of Article 147 § 2 [of the Criminal Code] shows that in their articles journalists may disseminate injurious statements of fact or impute offences to others without fearing punishment, provided that they are able to prove the veracity of their assertions.
[This court] fully accepts the defence argument that through her actions [the applicant] sought to safeguard the interest of the public and in particular, as averred by her, the interests of the seventyfour children who had applied for admission to secondary schools. Motivation is, however, not an exculpating circumstance, but only a mitigating one...
For these reasons, [the lower court] was correct in holding that [the applicant] met the conduct and fault criteria ... of the offence of defamation...
Concerning the punishment: [The lower court] correctly applied the substantive law, as the prerequisites of Article 78a [of the Criminal Code] are met in respect of each of [the applicant’s] offences. The quantum of the administrative punishments was also set correctly... The [complainants’] request for harsher penalties than those imposed by [the lower court] is illfounded in view of the additional mitigating circumstances noted by this court. These are the specific motivation, the form of the mens rea and the applicant’s use of the future (that is, uncertain) tense. Taken together with the mitigating circumstances already noted by [the lower court], these warrant imposing less than the maximum penalty. The fact that the complainants are public officials is not a reason to allow their appeal either, because this aggravating circumstance has already been taken into account in framing the elements of the offence. On the other hand, the fact that the offence imputed to the complainants was a serious and intentional one shows that [the applicant’s] act was highly dangerous and makes it unacceptable to reduce the penalties imposed by [the lower court] to below the average.
As regards the civil claims, this court fully shares the reasons given by [the lower court] for finding [the applicant] liable in tort for the damage caused ... to each of the complainants. [The lower court’s] opinion that an award of BGN 1,000 to each of [the complainants] is just fully coincides with [this court’s] notion of equity. The award should therefore not be increased as requested by the complainants.
[The lower court’s] judgment is wellfounded and lawful and must therefore be upheld.”
30. The court also ordered the applicant to pay the complainants’ costs for the appeal proceedings, amounting to BGN 50 for each of them.
31. All four complainants issued enforcement proceedings against the applicant to recover the damages awarded to them. As a result, each of them obtained payment of BGN 1,318. In one of those cases, and in connection with the applicant’s debt towards the State treasury, an enforcement judge attached half of a flat belonging to the applicant. At the time of the latest information from her (12 February 2009), the attachment order had not been lifted because BGN 2,463 of her debt towards the treasury remained outstanding.
32. 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.
33. On 3 July 2002 the applicant, 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.
34. The relevant provisions of the 1991 Constitution read as follows:
“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.”
“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. That 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.”
“The press and the other mass media shall be free and not subject to censorship.”
“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.”
“Rights shall not be abused, nor shall they be exercised to the detriment of the rights or the legitimate interests of others.”
35. 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.”
36. 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.).
37. 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).
38. 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 civilparty 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.
39. 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).
40. According to the doctrine, to make out the defence of truth under Article 147 § 2, defendants do not need to prove that a complainant has been convicted by means of a final decision; the institution and outcome of criminal proceedings against the complainant are irrelevant (Раймундов, П., Обида и клевета, София, 2009 г., стр. 15758).
41. 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).
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-58374
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF KHALFAOUI v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. On 20 June 1993 the applicant was informed that he was the subject of a criminal investigation and placed in pre-trial detention on the charge of indecent assault by a person abusing the authority conferred on him by his duties. He was accused of indecently assaulting a woman patient during a vaginal and rectal examination while he was a houseman at a hospital in Montbéliard.
10. The applicant was released under judicial supervision on 24 January 1994. He was required not to enter the urban district of Montbéliard, save in obedience to a summons; to report once a week to Brunoy police station; to hand over his passport and identity card to the registry of the investigating judge; to refrain from entering into contact with the victim; and to deposit 60,000 French francs (FRF) with the registrar of the criminal court.
11. An order of 17 June 1994 partially modifying the conditions of judicial supervision enabled the applicant to travel to Tunisia between July and September 1994. A second application for modification of the conditions of judicial supervision, whereby the applicant sought permission to begin a four-year course of study in Tunisia, was refused by the investigating judge in a decision of 17 October 1994.
12. By an order dated 8 February 1995, the applicant was committed for trial in the Montbéliard Criminal Court.
13. After his trial on 2 June 1995, which the applicant attended in person, the Montbéliard Criminal Court sentenced him to three years’ imprisonment, with one of those years suspended, and ordered him to pay FRF 30,000 in damages to the civil party. The applicant was not present when judgment was delivered on 23 June 1995.
14. In a judgment of 21 November 1995 the Besançon Court of Appeal, after a hearing which was also attended by the applicant, upheld the impugned judgment with regard to the finding of guilt but increased the sentence to four years’ imprisonment, with two of those years suspended, and the damages awarded to the civil party to FRF 40,000. It did not issue a warrant for the applicant’s arrest.
15. On 27 November 1995 the applicant gave notice of an appeal on points of law against the above judgment.
16. By a letter of 20 August 1996, sent to his home in Tunis, the applicant was informed by the Principal Public Prosecutor’s Office at the Besançon Court of Appeal that he was required to surrender to custody on the day before the hearing in the Court of Cassation at the latest, pursuant to Article 583 of the Code of Criminal Procedure, and that the hearing in the Court of Cassation had been set down for 24 September 1996.
17. By a request submitted through his lawyer on 16 September 1996, the applicant applied to the Besançon Court of Appeal, under Article 583 of the Code of Criminal Procedure, for exemption from the obligation to surrender to custody before the hearing at which his appeal on points of law was to be examined by the Court of Cassation.
18. In support of the above request the applicant, who had returned to Tunisia after the Court of Appeal’s judgment of November 1995, produced a medical certificate dated 2 September 1996 from a professor at a Tunis hospital which stated that he had bacilliform pulmonary tuberculosis, first diagnosed in May 1996. This required him to take sick-leave from work and rest for two months, the time needed for intensive treatment of the contagious disease.
19. The applicant asserted that in those circumstances he could not leave Tunisian territory, that his state of health excluded any possibility of his undergoing imprisonment and that making the admissibility of his appeal on points of law depend on his prior incarceration breached Article 6 of the Convention.
20. In a judgment of 19 September 1996, following a hearing which the applicant did not attend, but at which he was represented by his lawyer, the Besançon Court of Appeal, rejecting State Counsel’s submissions, refused the request on the following grounds:
“Although the medical certificates produced show the onset of bacilliform pulmonary tuberculosis in May 1996, and the prescription of two months’ rest from 2 September 1996 onwards, they do not establish either that it is impossible for Mr Khalfaoui to travel and to follow a course of treatment appropriate to his condition in France or that any possibility of imprisonment is excluded, as alleged. Article 6 § 3 (c) of the Convention does not give defendants the right to decline to appear before the courts but only the right, if they do appear, to defend themselves in person or with the assistance of a lawyer. Consequently, the provisions of Article 583 of the Code of Criminal Procedure do not appear to be contrary in any way to the principles set out above ...”
21. In a judgment of 24 September 1996 the Court of Cassation declared the applicant’s right to appeal on points of law forfeit, on the ground that he had not surrendered to custody and had not obtained an exemption from the obligation to do so.
22. The relevant provisions of the Code of Criminal Procedure are the following:
“Judgments of indictment divisions, and judgments delivered in connection with serious crimes, lesser indictable offences and summary offences against which no ordinary appeal lies, may be quashed in the event of a breach of the law on an appeal on points of law lodged by State Counsel’s Office or by a party affected to his detriment ...
The appeal must be lodged with the Criminal Division of the Court of Cassation.”
The cases where an appeal on points of law lies for a breach of the law are listed in Articles 593 and 596 as: failure to give reasons, exceeding authority, failure to reply to submissions and, where lesser indictable offences are concerned, imposition of a penalty not prescribed by law.
“During the time allowed for an appeal on points of law and, where such an appeal has been lodged, until the Court of Cassation delivers judgment, execution of the judgment of the court of appeal shall be stayed, except in respect of orders concerning civil matters, and unless the court of appeal upholds the warrant issued by the trial court pursuant to Article 464-1 or Article 465, first sub-paragraph, or unless it issues a warrant itself under the same conditions and according to the same rules.”
“If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him, with or without payment of a surety, exemption from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit.
The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing.
For his appeal to be admissible, it is sufficient for the appellant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed. The governor of that prison shall admit him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal.”
23. Article 583 of the Code of Criminal Procedure has been amended by Law no. 99-515 of 23 June 1999, which increased the length of the term of imprisonment contemplated therein from six months to one year. The rest of Article 583 is unchanged.
Law no. 99-515 also added to the Code a new Article 583-1, which provides:
“The provisions of Article 583 are not applicable where a court has convicted a defendant in his or her absence after refusing to apply Article 410 or Article 411. In such a case an appeal on points of law lies only in respect of the legality of the decision in which the court refused to recognise the validity of the excuse put forward by the defendant pursuant to Article 410 or to try him in his absence in accordance with Article 411.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102814
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF CHUYKINA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 4. The applicant was born in 1949 and lives in the town of Kamenka-Dniprovska, Ukraine.
5. On 5 February 1998 the applicant instituted proceedings for compensation in the Energodar Local Court (“the Energodar Court”) against a private company, G., for selling her a defective television set.
6. On 18 June 1998 the case was transferred to the Kamenka-Dniprovskiy Local Court (“the Kamenka-Dniprovskiy Court”).
7. On 28 July 1998 the latter court found against the applicant. On 8 September 1998 the Zaporizhzhya Regional Court (“the Zaporizhzya Court”) quashed that judgment and remitted the case to the first-instance court for fresh consideration.
8. On 19 October 1998 the Kamenka-Dniprovskiy Court found for the applicant. On 24 November 1998 the Zaporizhzhya Court quashed that judgment and remitted the case to the Kamenka-Dniprovskiy Court for fresh consideration.
9. On 19 May 1999, following a decision by the President of the Zaporizhzhya Court, the case was transferred to the Vasylivskiy Local Court (“the Vasylivskiy Court”).
10. On 6 September 1999 the case was transferred to the Energodar Court, which, in a hearing on 26 January 2000, left the applicant's claim unexamined. The applicant appealed.
11. On 14 March 2000 the Zaporizhzhya Court quashed the decision of 26 January 2000 and remitted the case to the Kamenka-Dniprovsky Court for fresh consideration.
12. On 13 November 2000 the case was transferred to the Vasylivskiy Court, which on 1 February 2001 left the applicant's claim unexamined. On 6 March 2001 the Zaporizhzhya Court quashed that decision and remitted the case for fresh consideration to the same court.
13. On 13 December 2001 the Vasylivskiy Court left the applicant's claim unexamined. On 6 June 2002 the Zaporizhzhya Court upheld that decision. On 13 March 2003 the Supreme Court quashed the decisions of the lower courts and remitted the case for fresh consideration to the first-instance court.
14. On 12 February 2004 the Energodar Court allowed the applicant's claim in part, awarding her 17,614 Ukrainian hryvnias (UAH) in compensation for pecuniary and non-pecuniary damage.
15. On 28 April 2004 the Zaporizhzhya Court upheld that judgment with minor amendments.
16. The applicant did not appeal in cassation to the Supreme Court.
17. In 2004 insolvency proceedings were initiated against the defendant company.
18. The judgment of 12 February 2004 remains unenforced.
19. On 26 May 2004 the Bailiffs' Department of the Energodar Town Department of Justice (Відділ Державної виконавчої служби міського управління юстиції в Запорізькій області – “the Bailiffs' Department”) initiated enforcement proceedings in respect of the judgment of 12 February 2004.
20. The Bailiffs' Department did not enforce the judgment and the applicant complained to the Energodar Court, which, by judgments of 17 January, 23 June and 25 October 2005 and 27 April 2006, found the Bailiffs' Department liable for the failure to enforce the judgment of 12 February 2004.
21. Following the reorganisation of the State mechanism for enforcing judgments, the State Bailiffs' Departments were closed down without legal successors. The State Bailiffs' Services were created as the new enforcement bodies (see Relevant Domestic Law below).
22. In July 2006 the applicant instituted proceedings against the newly created Energodar Bailiffs' Service (Державна виконавча служба у м. Енергодар – “the Bailiffs' Service”) in the Energodar Court, seeking compensation for the damage caused as a result of the failure to enforce the judgment. On 16 October 2006 the court ordered that the Bailiffs' Department, which no longer performed any functions but remained in the State register of legal entities, should be joined as a co-defendant in the case.
23. On 10 November 2006 the Energodar Court granted the applicant's claims in part and awarded her UAH 3,660 in compensation for non-pecuniary damage caused by the non-enforcement of the judgment, to be paid by the Bailiffs' Department. It dismissed all her claims against the newly created Bailiffs' Service as it had not been found liable for the non-enforcement of the judgment in the applicant's favour.
24. On 16 January 2007, the Bailiffs' Department was finally liquidated and removed from the State register of legal entities.
25. On 1 March 2007 the Zaporizhzhya Court examined the applicant's appeal and found that the first-instance court had made a correct assessment of the legal relationship between the parties. It further quashed the judgment in the part awarding the applicant UAH 3,660 against the Bailiffs' Department and nullified the proceedings in this part on the ground that the Bailiffs' Department had been liquidated without a legal successor.
26. On 25 June 2007 the Supreme Court rejected a request by the applicant for leave to appeal in cassation.
27. The relevant provision of the Constitution provides as follows:
Article 55
“...Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers...”
28. The relevant provisions of the Code provide as follows
Article 205. Grounds for nullification of the proceedings
“1. A court shall, by its ruling, nullify the proceedings, if:
...
7) a legal person that was a party to the proceedings has been liquidated.”
29. In 2005 the Bailiffs' Service was restructured under Decree No. 320 of the Cabinet of Ministers of 23 April 2005 and the Act of Parliament of 23 June 2005 “on introducing amendments to the State Bailiffs' Service Act and the Enforcement Proceedings Act”. The above government decree specified that new bailiffs' services were to be created in place of the bailiffs' departments of the Ministry of Justice.
30. In implementing this restructuring, the Ministry of Justice issued Order No 1482 of 19 August 2005, and this was followed by orders of the regional departments of justice. The Zaporizhzhya Regional Department of Justice issued such an order on 25 August 2005 (Order No. 521/15). Under the orders the bailiffs' departments were liquidated without legal successors and the new bailiffs' services were created in their stead as new legal persons.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67437
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ALZERY v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Mohammed Alzery, is an Egyptian national, who was born in 1968 and lives in Egypt. He was represented before the Court by Mr K. Jönsson, a lawyer practising in Stockholm.
On 4 August 1999 the applicant arrived in Sweden and requested the Migration Board (Migrationsverket) to grant him asylum. He claimed that he was persecuted for political reasons in Egypt. The Migration Board appointed a legal representative for the applicant and interviewed him about his reasons for asylum.
On 30 October 2001 the Swedish Secret Police (Säkerhetspolisen –hereinafter referred to as “SÄPO”) submitted certain information regarding the applicant to the Migration Board and objected to his being granted asylum in Sweden in light of that information. Following this, on 12 November 2001, the Migration Board noted that it transpired from the information provided by SÄPO that the applicant had withheld important information and it decided to transfer the matter to the Government of Sweden for decisionUtlänningslagen) but that the assessment made by SÄPO, which the Migration Board found no reason to question, pointed in a completely different direction. Thus, it considered that the balancing of these two conflicting interests had to be made by the Government.
On 13 November 2001 the Aliens Appeals Board (Utlänningsnämnden), in a submission to the Government, stated that it shared the opinion of the Migration Board that the Government should decide on the application.
On 18 December 2001 the Government rejected the applicant's request and ordered his immediate expulsion from Sweden's own statements, were such that he could be considered as a refugee according to the Aliens Act. However, relying on the information submitted by SÄPO, the Government considered it established that he had held a leading position in an organisation which had been involved in terrorist acts and that he could be considered responsible for this organisation's activities. Thus, for reasons of national security, he should be refused protection in Sweden. Furthermore, the Swedish Government had received a guarantee from the Government of Egypt that the applicant would be afforded a fair trial in Egypt and that he would not be subjected to torture or inhuman treatment or punishment of any kind or be sentenced to death. For this reason, the Government found that the applicant could be expelled to Egypt without facing the risk of being treated contrary to Article 3 of the Convention or any other international treaty. It decided that the applicant should be expelled immediately and that SÄPO should be responsible for the implementation of this measure.
Consequently, on 18 December 2001, the expulsion was effectuated by SÄPO and, allegedly, with the help of American authorities who made available to SÄPO a small airplane to take the applicant to Egypt, where he was handed over to the Egyptian authorities. The applicant claimed that he was wearing shackles and handcuffs for the duration of the expulsion, which were attached to a special harness in the plane.
Not until the following day, 19 December 2001, was the applicant's lawyer informed about the decision and the expulsion. Moreover, it was only through the Government's decision that he became aware of the Egyptian Government's guarantee to the Swedish Government (a copy of it was submitted to him, upon request, on 18 March 2002) and the nature of the national security threat which the applicant was supposedly posing.
Apparently, upon return to Egypt, the applicant was immediately imprisoned and he alleged that he was tortured and ill-treated. He remained in prison until 27 October 2003 when the suspicion against him was disconfirmed and he was released. During his imprisonment, the Swedish Ambassador to Egypt visited him rather regularly, once a month in the first half year and then every other month in order to ensure that he was not ill-treated and to observe that the guarantee that the Egyptian Government had given to the Swedish Government was adhered to. According the Embassy's reports on the visits, the applicant had not stated during any of the visits that he had been tortured or ill-treated.
During the Ambassador's visit on 9 September 2002, he requested the prison authority to allow the applicant to sign the Court's power of attorney which the applicant's lawyer had sent to the Embassy in Cairo. On 26 September 2002 the Ambassador informed the applicant's lawyer by fax that the applicant, since he was detained, did not have the right to sign the power of attorney.
In the meantime, the applicant's lawyer in Sweden repeatedly requested the Migration Board, the Government and SÄPO to grant him access to all documents concerning the case, even those classified as secret. It would appear that, now, he has been granted access to most of the material, though not to all of it.
On 1 April 2002, the United Nations Human Rights Committee adopted its concluding observations regarding Sweden's fifth periodic report to the Committee (CCPR/CO/74/SWE). In paragraph 12 of these observations, the Committee expressed concern at cases of expulsion of asylum seekers suspected of terrorism to their country of origin. In this respect the Committee requested additional information concerning the judicial procedures which the applicant and one other person expelled at the same time to Egypt were facing or might face. The Swedish Government replied to this request on 15 December 2003 and submitted a further update on 23 June 2004 in which the Government, inter alia, stated that the Egyptian Government, although dismissing the allegation of torture as unfounded, had agreed to undertake an investigation into the matter. The modalities for such an investigation were being discussed. The Swedish Government also stated that they continued to have regular contact with the applicant although he had now been released.
Further, following a visit to Sweden in April 2004, the Council of Europe Commissioner for Human Rights, in his report dated 8 July 2004, mentioned the circumstances of the applicant's case and his expulsion from Sweden, noting that it highlighted the challenges that the fight against terrorism had created for the protection of human rights (CommDH(2004)13, §§ 18 and 19). He recommended the Swedish Government to “[a]dopt the necessary legislative and policy changes in order to ensure that the rights contained in Articles 3 and 13 of the European Convention are respected in relation to asylum-seekers who are considered to raise concerns of national security.” (ibid., § 49, point 5).
On 16 June 2002 the applicant's Swedish lawyer faxed an incomplete application form to the Court in which he briefly stated the reasons for lodging a complaint on behalf of his client against Sweden. The application form was also sent by ordinary mail. In the form, the lawyer very briefly stated the facts of the case, adding that the account would be completed. Further, under part III, “statements of alleged violations”, he claimed that Sweden had violated his client's rights under Articles 2, 3, 6 and 13 of the Convention and under Article 1 of Protocol No. 6, noting that the reasons for these allegations would be expanded upon in a separate document. He added that he requested respite to do so, within a reasonable time after the Supreme Administrative Court had delivered its decision, and that due to problems of secrecy (because of the national security interest) it was difficult for him to submit a complete application at that time; the application form was submitted in order to comply with the six month rule. Furthermore, under part IV, V and VII of the form, he noted that “it will be completed”.
The Registry replied by letter of 21 June 2002, acknowledging receipt of the fax and the original of the application form and stated that the Court “awaits further documents in the matter”. The case was assigned application number 23889/02 but was not allocated to a decision body, as no copies of national decisions or documents had been submitted.
On 20 August 2003 the file was destroyed as no further news had been received from the applicant's lawyer for more than one year.
Not until 19 March 2004, one year and nine months after receipt of his first fax, did the Court hear from the lawyer again. He then submitted a signed power of attorney and a request that he be granted respite until 3 May 2004 to file further documents.
As the file had been destroyed, the Court opened a new file under the current case number and, on 25 March 2004, sent an introductory letter to the lawyer.
On 23 April 2004 the lawyer contacted the Court, asking how it was possible that the case-file had been destroyed without his being informed about it beforehand and providing a brief explanation of the situation. After being requested to submit the reasons for his extensive silence in writing to the Court, the lawyer, by letter of 21 May 2004, complied with this request.