ITEMID: 001-98014
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF AKHMETOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1967 and lives in Chelyabinsk.
8. In 1996 the applicant was detained in connection with criminal proceedings instituted against him and placed in remand prison IZ-70/3 in the Chelyabinsk Region.
9. On 30 December 1998 the Chelyabinsk Regional Court found the applicant, who had previous convictions, guilty of a number of criminal offences, including banditry, kidnapping and unlawful use of weapons. He was sentenced to the death penalty and to confiscation of property.
10. Between 14 December 1999 and 26 April 2000 the applicant was held in remand prison IZ-77/2 in Moscow pending the examination of his appeal.
11. On 28 February 2000 the Supreme Court of the Russian Federation altered the sentence, commuting the death penalty to fifteen years' imprisonment, ten years of which to be served in a prison and five years in a correctional facility.
12. From 10 May 2000 until an unspecified date in 2006 the applicant was held in prison YaV-48/T-1, Chelyabinsk Region (учреждение ЯВ-48/Т-1 по Челябинской области).
13. On an unspecified date in 2006 the applicant was transferred to prison no. T-2 in the Vladimir Region.
14. On 29 February 2007 the Metallurgicheskiy District Court of Chelyabinsk reviewed the sentence. Under the revised sentence, the applicant was to serve the entire term of his imprisonment in a correctional facility.
15. Since 1993 the applicant has suffered from a cavernous haemangioma of the right parietotemporal area.
16. In 1995 the applicant underwent examination and carotid ligation in the Microvascular Surgery Centre at Chelyabinsk Regional Hospital no. 1.
17. Following the applicant's placement in remand prison IZ-70/3 in 1996, he was examined by the prison doctors in connection with his complaints concerning the growth of the tumour and occasional haemorrhages of the tumour and the right auricle. The doctors subsequently applied antiseptic dressings and haemostatic medicines.
18. During the applicant's detention in remand prison IZ-77/2, Moscow, from 14 December 1999 to 26 April 2000 he was regularly examined by the prison doctors.
19. On 10 May 2000, following the applicant's transfer to prison YaV-48/T-1, he was examined by the deputy head of the prison medical unit. He was diagnosed with cavernous haemangioma of the head and right auricle and aseptic dressings were applied regularly.
20. On 24 May and 20 August 2000 the applicant was placed in the surgical department of penitentiary hospital IK-3. There he was examined by a neurosurgeon and oncologist and diagnosed with a cavernous haemangioma of the right temporal and parotid area involving the right auricle.
21. On 19 November 2000 the applicant was placed in penitentiary hospital IK-3 for surgery. On 14 December 2000 he underwent ligation of the occipital artery and of branches of the carotid artery with a view to reducing the blood supply to the tumour. A short-term improvement was observed after the surgery: the tumour decreased in size and the sores epithelised. The applicant was discharged from hospital on 15 January 2001 in a satisfactory state.
22. On 11 June 2001 the applicant was against placed in the surgical department of penitentiary hospital IK-3 on account of a growth in the tumour. There he was examined by M., microsurgeon of the Microvascular Surgery Centre at Chelyabinsk Regional Hospital no. 1, who had operated on the applicant in 1995 and 2000, with a view to determining the prospects for radical surgery. M. stated that, taking into account the previous surgeries, excision of the haemangioma, ligation of the nutrient stem and subsequent plastic surgery for the injury to the skull was recommended. Angiography and magnetic resonance tomography were also recommended.
23. On 8 October 2001 the applicant underwent tomography in Chelyabinsk Regional Hospital no. 1, since it was not possible to carry this out in penitentiary hospital IK-3. According to the angiosurgeon, the results of the tomography were not conclusive and angiography with intracranial vascular opacification was required.
24. On 25 October 2001 prison YaV-48/T-1 requested the Ministry of Justice to grant permission for the applicant's transfer with a view to providing him with the medical aid required.
25. On 19 February 2002 the Ministry of Justice granted permission to transfer the applicant to detention facility US-20/12 in St Petersburg. On 21 February 2002 the relevant instruction was sent to prison YaV-48/T-1.
26. From 15 April to 8 May 2002 the applicant was placed in facility US-20/12 in St Petersburg, where he was examined by E., an otolaryngologist-oncologist. The applicant was diagnosed with haemangioma of the right temporal and parietal areas and recurrent arrosive haemorrhages from the right auricle, which were life-threatening. It was recommended that he undergo radical removal of the tumour, with simultaneous plastic surgery of the injury and embolization of the vessels, in an oncological centre specialising in head and neck tumours.
27. According to the doctors of facility US-20/12, such treatment was not possible within the penitentiary system. They stated that an examination should be carried out by the Special Medical Commission (SMK) with a view to deciding on the applicant's possible release in connection with his state of health.
28. Between 30 July and 10 October 2002 the applicant was placed in the surgical department of penitentiary hospital IK-3 in Chelyabinsk, where he underwent medical examinations prior to the meeting of the SMK. The relevant medical record, no. 2388/618, stated as follows:
“Diagnosis established by the referring medical institution: cirsoid haemangioma of the right parietotemporal area... 31 July 2002...
Diagnosis upon discharge [from the hospital]: cavernous haemangioma affecting the right parietotemporal area and the right auricle. 16 September 2002...”
29. On 22 August 2002 the applicant was examined by surgeon K., Doctor of Medicine, Head of the Centre for Plastic and Aesthetic Surgery Plastes. After examining the applicant, she stated as follows:
“Complaints concerning a tumour in the right parietotemporal area and the right auricle. According to the patient, the tumour appeared in 1993 and has been growing slowly. In 1995 he underwent surgery in the microsurgery department of Chelyabinsk Regional Clinical Hospital no. 1 (ЧОКБ №1); the external carotid artery was ligated on the right side. In 1996, after trauma to the soft tissues of the head, he noted continued growth of the tumour. [The patient] was examined in 2001. He underwent computer tomography of the brain...
Conclusion: the patient has vascular malformation of the soft tissue of the right parietotemporal and parotid areas involving the right auricle (cavernous haemangioma). The illness does not fall within the category of cancerous tumours and is not of immediate danger to the patient's life. The non-abundant haemorrhages stop without assistance. [Surgery] is not possible in the surgery department of YaV-48/3 [hospital]. Radical ablation of the growth, with simultaneous plastic surgery to the soft tissues injury using an advanced flap, is possible only in specialised departments.”
30. On 20 September 2002 the applicant was examined by the SMK, which concluded that, having regard to the list of illnesses that could serve as a basis for early release from serving one's sentence, the applicant was not entitled to such release. The report of the examination stated:
“Complaints: a tumour in the right temporal and parietal areas spreading to the right auricle.
Anamnesis: ...The patient notes ... that the haemangioma on the right side appeared in 1993. In 1995 [he] underwent surgery in OKB no. 1 [hospital] [ОКБ № 1], and the external carotid artery was ligated on the right side. After surgery the tumour diminished somewhat. Rapid growth of the tumour, ulceration of the upper segment of the auricle and frequent haemorrhages from that area in 1996. On 19 November 2000 [he was] placed in the surgery department of the YaV-48/3 hospital. Ligation of the cervical branch of the temporal artery on 14 December 2000 – insignificant effect... In agreement with the medical unit of [the penitentiary service] he was placed in institution US-20/12 (Ус 20/12) between 15 April and 8 May 2002 with the diagnosis: cavernous haemangioma of the right parietotemporal area, recurrent arrosive haemorrhages from the right auricle affected by the tumour, threatening the patient's life. Recommended: ablation of the tumour with simultaneous plastic surgery in an oncocentre by oncologist [E.]. Such treatment is not feasible in the penitentiary system's facilities.. ...
Examination by Z., the senior external surgeon of the medical unit [of the Chelyabinsk Region penitentiary service]: taking into account the anamnesis, the tumour has been growing slowly over the past seven years. No changes in bone tissue, no possibility of taking material for histological study on account of the risk of haemorrhage and impossibility of stopping it in the given circumstances, no changes in lungs, brain; the tumour is benign. Diagnosis: vascular malformation of soft tissues of the right parietotemporal and parotid areas involving the right auricle. No threat to life...
Final diagnosis: vascular malformation of soft tissue of the right parietotemporal and parotid areas involving the right auricle.”
31. On 21 October 2002, after the applicant's return to prison YaV-48/T-1, he was examined by a regional medical-social commission. The commission decided not to grant him the status of a disabled person.
32. It appears that between 2 and 28 January 2003 the applicant was again placed in a penitentiary hospital. Medical record no. 372/76 stated:
“...28 January 2003. Diagnosis upon discharge [from the hospital]: ...vascular malformation of the parietal and temporal areas, of the right auricle.”
33. On 2 February 2003 the applicant was examined by K, Head of the Department of Maxillofacial Surgery of Chelyabinsk Town Clinical Hospital no. 3. The report of the examination stated:
“Complaints about a tumour in the right temporal, parotid and cervical [areas] and the auricle. There is progressive tumour growth: the tumour currently measures 15x14 centimetres, protrudes from the surface of the skin and pierces it with a vascular figure. Auscultation creates noise in the parotid and temporal [areas]... In the auricle area there are zones of necrosis...
Diagnosis: vast haemangioma... of the right temporal, parotid and parietal areas and the auricle.
Surgery is not recommended because of the high risk to life. Sclerotherapy (SHF, X-ray therapy) is recommended...”
34. On 14 March 2003 the administration of prison YaV-48/T-1 requested the Ministry of Justice to assist with the applicant's treatment, since there were no facilities for X-ray therapy in the prison.
35. On 29 April 2003 the Ministry of Justice replied that the administration of prison YaV-48/T-1 should apply with a request for the applicant's transfer to penitentiary hospital OZh-118/5 in Voronezh. The prison authorities applied for such a transfer.
36. On 25 August 2003 hospital OZh-118/5 in Voronezh refused the request on the ground that it had no specialists qualified for the treatment of the applicant's condition. On the same date the prison authorities again requested the Ministry of Justice to assist with the applicant's treatment by SHF and X-ray therapy.
37. On 18 September 2003 the administration of prison YaV-48/T-1 received an order on the applicant's transfer to facility US-20/12 in St Petersburg. On 19 October 2003 the applicant left for the facility.
38. The applicant was placed in inter-regional penitentiary hospital IK-12 (MOB) from 24 November 2003 to 7 January 2004. He underwent a biopsy and was examined by a panel consisting of the head of the hospital, the deputy head of the medical department, the deputy head of the surgical department and the head of the otolaryngological department. The applicant was also examined by Sh., the head of the neurological department of Town Hospital no. 2, and E, an oncologist. According to the panel's report, treatment of the applicant's condition was not possible in hospital IK-12 (MOB). The applicant was discharged in a satisfactory state and supervision by a maxillofacial surgeon was recommended.
39. Following the applicant's return to prison YaV-48/T-1 on 26 February 2004 he complained about occasional haemorrhages and pains. He received treatment consisting of dressings with haemostatic sponges and analgesics.
40. On 27 March 2004 the applicant was examined by plastic surgeon M. and stomatologist F. They reached the following conclusions:
“The patient has vascular malformation of the soft tissue of the right temporal and parietal areas and the ear with ulceration. There is a risk of profuse bleeding. Angiography is necessary. It will be possible to decide whether surgical treatment is possible only after the angiography.”
41. From 8 April to 2 June 2004 the applicant was placed for examination in penitentiary hospital YaV-48/3. He was discharged in a satisfactory state.
42. After the applicant's return to prison YaV-48/T-1 on 8 June 2004 he was examined by the prison doctor every day.
43. According to the Government, on 18 June 2004 the applicant, who was trying to avoid placement in a disciplinary cell, caused himself injuries in the area of the tumour; this resulted in profuse bleeding. He was urgently placed in a surgical department of the Verkhneuralsk Central District Hospital. There he underwent haemostatic therapy and on 21 June 2004 he was discharged in a satisfactory condition. During the subsequent period of his detention in prison YaV-48/T-1 minor haemorrhages occurred; these were stopped by dressings.
44. On 13 July 2004 the applicant was again placed in the surgical department of penitentiary hospital IK-3 for examination with a view to determining subsequent treatment.
45. On 5 August 2004 the applicant underwent angioarteriography of the vessels of the head.
46. On 11 August 2004 the applicant was examined by M., a plastic surgeon, and O., the head of the vessel surgery department of Chelyabinsk Regional Hospital no. 1. They stated, in particular:
“The patient has evident pathology of intracranial sections of the right and left vertebral arteries feeding the pathological centre (malformation). Ligation of the vertebral arteries is impossible because of the high risk of truncal stroke. Excision of the vascular tumour and plastic surgery is impossible because of its very big size and feeding by intracranial sections. Palliative therapy is recommended.”
47. On 18 August 2004 the applicant was examined by radiologist K., who stated:
“The patient has vast cavernous haemangioma of the right parietotemporal area spreading to the auricle and neck. There is vast ulceration with decomposition. Branches of the external carotid artery were previously ligated. Taking into account the amplitude of the lesion and decomposition effects, radiotherapy for sclerosing is not recommended.”
48. On 24 August 2004 the applicant was discharged from the hospital in a satisfactory state. Palliative treatment was recommended (antiseptic dressings, haemostimulating therapy and, in the event of haemorrhages, haemostatic therapy). He was also referred for examination by the medical-social commission. The medical unit of prison YaV-48/T-1 complied with the recommendations. The applicant was regularly examined by the unit doctors and received dressings.
49. On 20 October 2005 the applicant was placed in Regional Somatic Hospital no. IK-3 for haemostatic therapy and examination by the medical-social commission. He was granted category-3 disability status.
50. On 24 October 2005 the applicant was discharged from the hospital in a satisfactory state. In prison YaV-48/T-1 he continued to receive symptomatic therapy and antiseptic dressings.
51. On 25 November 2004 professor D., Department of Vascular Surgery of the Vishnevsky Institute of Surgery, issued a medical opinion on the basis of the results of the angiography:
“From the results of the angiography it follows that the main source of blood supply for the [affected] zone is the basin of the vertebral artery through intracranial vessels. Therefore, any interference ... is connected with an extremely high risk of neurological complications (haemorrhagic or ischemic stroke) and can be performed only in highly specialised neurosurgical institutions. Radical surgical treatment with ablation of all the affected areas is impossible because of the amplitude of the lesion. It is recommended that the patient be supervised by a surgeon and, in case of haemorrhage, stitching of angiomatous tissues.”
52. On 30 January 2006, upon studying the applicant's medical file, the Moscow State Medical-Stomatological University refused to accept him for treatment.
53. On 15 February 2006 the Ministry of Justice informed the administration of prison YaV-48/T-1 that the applicant could be placed for treatment in the Krasnoyarsk Regional Hospital. The prison administration requested an order for his transfer.
54. On 20 May 2006 the Ministry of Justice replied that the order could be granted only upon confirmation from the Krasnoyarsk Regional Hospital that it would accept the applicant for treatment.
55. On 14 July 2006 the Krasnoyarsk Regional Hospital replied that it could not accept the applicant since it did not have the technical facilities for the treatment required.
56. From 26 October 2006 to 20 March 2007 the applicant underwent treatment for tuberculosis in penitentiary hospital IK-3.
57. On 27 February 2007 the Tyumen Regional Hospital informed the penitentiary authorities, in reply to their request, that it could not provide treatment to the applicant given the absence of the necessary technical facilities.
58. Following the applicant's transfer to prison no. T-2 in the Vladimir Region, he was placed in the surgical department of the penitentiary hospital. On 1 February 2008 he was examined by an oncologist, who diagnosed him with a giant cavernous haemangioma of the head and stated that surgical treatment was not recommended because of the extent of the propagation of the tumour. He recommended symptomatic treatment only.
59. On 13 March 2008 the applicant was again examined by the medical-social commission, which granted him category-2 disability status.
60. In 2003 the applicant applied to a court seeking to have the failure to provide him with adequate medical aid in prison declared unlawful. He also asked the court to order his placement in the Chelyabinsk Oncological Centre for treatment.
61. On 16 September 2003 the Tsentralniy District Court of Chelyabinsk dismissed the claim. The court found that the following medical aid was provided to the applicant during his imprisonment: between 28 February and 10 May 2000 – examination by doctors and conservative treatment; between 24 May and 20 August 2000 – placement in the surgery department of YaV-48/3 (ЯВ 48/3) hospital for convicts, Chelyabinsk, consultations with a neurosurgeon and oncologist; 19 November 2000 – placement in the YaV-48/3 hospital for another elective operation conducted on 14 December 2000; between 11 June and 4 December 2001 – placement in YaV-48/3 hospital, computer tomography conducted on 8 October 2001; between 15 April and 8 May 2002 - treatment and consultations by doctors in institution US-20/12, St Petersburg (учреждение УС-20/12 ГУИН по Ст.-Петербургу и Ленинградской области); between 30 July and 10 October 2002 – placement in the surgery department of YaV-48/3 hospital; 22 August 2002 – consultation by the Department Head of the Plastes (Пластэс) centre; 20 September 2002 – an examination by a special medical commission (СМК); 1 October 2002 – a medico-social examination (МСЭ) in Magnitogorsk; 26 January 2003 – placement in the YaV-48/3 hospital; 3 February 2003 – consultation by the head of Chelyabinsk hospital no. 3 (ЧЛХО МУ 3 «ГКБ № 3 г. Челябинска). The court held that the medical aid provided had been sufficient. The applicant appealed.
62. On 20 November 2003 the Chelyabinsk Regional Court upheld the judgment on appeal.
63. On 3 March 2004 the Deputy Head of Hospital IK-12 (ИК-12) of the Main Department for the Execution of Sentences replied to a query by the applicant's wife:
“In reply to your request... I inform you that [the applicant] was placed in [IK-12 hospital] between 24 November 2003 and 19 January 2004 with the diagnosis: racemose haemangioma of the right parietal area, the right auricle and the right half of the neck. Recurrent arrosive haemorrhages threaten the patient's life.
Surgical treatment is not feasible in [the penitentiary system's] facilities. Progressive growth of the tumour is possible in the absence of treatment. Out-patient supervision has been recommended... The possibility of a fatal outcome in the event of trauma to [the area of the haemangioma] is very high. It is possible to stop haemorrhage only in specialised surgical in-patient facilities. Branches of the external carotid artery are involved in the tumour.”
64. On 14 November 2005 the Deputy Head of the Medical Department of the Federal Service for the Execution of Sentences replied to the applicant's wife:
“...Surgical treatment of [the applicant] in Moscow institutions is not possible. The decision with regard to surgical treatment of [the applicant] can be taken after he has been examined in the place where he is serving his sentence.”
65. On 15 February 2006 the First Deputy Head of the Medical Department of the Federal Service for the Execution of Sentences replied to the applicant's wife:
“The Federal Service for the Execution of Sentences examined your request concerning the transfer of your husband ... who is serving his sentence in ... the Chelyabinsk Region to Moscow for specialised medical treatment.
[Your husband's] illness is subject to elective operative treatment and requires high-technology (expensive) medical aid. The procedure for providing such aid to patients held in institutions of the Federal Service for the Execution of Sentences is not established by the federal executive authority responsible for the legal regulation of health protection and social development.
Since the legislation requires [the patient's] voluntary informed consent to medical interference, it follows that only your husband ... may apply for such treatment. If he gives his written consent for the transfer and medical intervention, he can be transferred to the regional hospital for convicts ... of the Krasnoyarsk Region, where there are technical facilities for the provision of the required additional medical aid (endovascular surgical intervention and plastic surgery, provided participation of external specialists from other medical institutions). The procedure for providing additional medical aid to convicts is governed by the internal regulations of correctional facilities.
The possibility of such treatment in the Burdenko Institute of Neurosurgery or in the Hospital of Surgical Stomatology and Maxillofacial Surgery ... is not provided by [relevant regulations].”
66. On 22 May 2006 the Chief Medical Officer of the Krasnoyarsk Regional Hospital pertaining to the Federal Service for the Execution of Sentences (ФГЛПУ КТБ-1 ГУФСИН России по Красноярскому краю) replied to the request of the applicant's wife::
“In reply to your request concerning hospitalisation of [the applicant] for in-patient treatment in [the Krasnoyarsk Regional Hospital for convicts] and after having studied the medical documents provided, we have to inform you that the treatment, including surgical intervention, is not feasible in the facilities of [the Krasnoyarsk Regional Hospital for convicts] even with the assistance of external specialists from other medical institutions, because of an absence of technical facilities for the operation, diagnostics, control and treatment ... [and] of possible post-operative complications which would be life-threatening for the patient.”
67. On 28 March 2008 the head of prison no. T-2 of the Vladimir Region informed the applicant's wife of the applicant's placement in the penitentiary hospital and the examination by an oncologist on 1 February 2008. The letter also stated that the haemangioma only posed a threat to the applicant's life in the event of haemorrhages from its vessels. However, during the period under supervision there had been no such haemorrhages. At the same time the haemangioma increased by 1-1.5 centimetres.
68. The relevant extracts from the General Reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“a. Access to a doctor
...35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-57850
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF DOMBO BEHEER B.V. v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Franz Matscher;R. Pekkanen
TEXT: 7. The applicant (hereinafter "Dombo") is a limited liability company under Netherlands law; it is the continuation of a public limited company (naamloze vennootschap) originally founded in 1958. It has its registered office in Nijmegen. At the material time, its business included holding shares in several other companies, for which it provided management; these subsidiary companies engaged in commercial activities. The shares in Dombo were held by a foundation (stichting) which issued certificates of shares; these were apparently all held by a Mr H.C. van Reijendam. The company’s management also included Mr van Reijendam; he was the sole managing director from 1963 until his dismissal (see paragraph 15 below), except for a short period between 4 February 1981 and 23 March 1981 during which he was suspended as managing director and temporarily replaced by a Mr C.U. and a Mrs van L.
8. At the material time, Dombo banked with the Nederlandsche Middenstandsbank N.V. (hereinafter "the Bank") through its branch office in Nijmegen. The manager of that office was a Mr van W.; under the Bank’s company statutes his position was not that of managing director of the Bank itself and his powers to represent the Bank, which included allowing credit up to a certain maximum, were strictly circumscribed. An agreement existed between Dombo and the Bank under which Dombo and its subsidiaries enjoyed credit in current account, i.e. the possibility of overdrawing on accounts held with the Bank. In August 1980 this credit facility amounted to 500,000 Netherlands guilders (NLG), with an additional temporary overdraft facility of up to NLG 250,000. This agreement had been formalised in a written confirmation of an oral agreement to that effect and in a contract dated 11 August 1980 under which the Bank opened a joint account (compte-jointovereenkomst) in the name of Dombo and its subsidiaries, who assumed responsibility jointly and severally for meeting their obligations to the Bank.
9. A dispute arose between Dombo and the Bank concerning the development of their financial relationship during the period between December 1980 and February 1981. In the ensuing civil proceedings both parties gave renderings of the facts which differed materially on significant points.
10. Dombo’s account may be summarised as follows.
(a) In early December 1980 the Bank, through the manager of its Nijmegen branch, Mr van W., agreed orally to raise the maximum of the credit available to Dombo by NLG 1,600,000 to a total of NLG 2,100,000. As Mr van Reijendam had explained to Mr van W., Dombo required this extension to take over the commercial operations of a certain limited liability company, O., which had gone bankrupt; action was needed urgently. This oral agreement was to be formalised later; at this point, however, Mr van Reijendam did agree in writing to stand surety himself for Dombo and its subsidiaries to the amount of NLG 350,000. Following this alteration of the agreement of 11 August 1980 Dombo opened an account with the Bank earmarked for its activities in connection with the O. takeover and the Bank provided letters of credit on a number of occasions.
(b) In early January 1981 Dombo was offered the opportunity to take over two other limited liability companies, T. and D., which had run into financial difficulties. To finance these takeovers Dombo required another extension of the credit limit; this was discussed between Mr van Reijendam and Mr van W. Following these discussions the Bank made Dombo an offer in writing dated 22 January 1981 to raise the maximum credit to NLG 5,000,000. In anticipation of this extension, the Bank paid out NLG 350,000 in connection with the takeover of T. and D. and subsequently agreed to a withdrawal by Mr van Reijendam of another NLG 100,000 for the same purpose. Mr van W. required security for these sums in the form of a mortgage and made Mr van Reijendam sign a blank power of attorney. The Bank made use of that document to have a deed drawn up by a notary mortgaging all immovable property belonging to Dombo, its subsidiaries and Mr van Reijendam personally. This mortgage was surety for a credit of NLG 1,600,000, i.e. it further secured the extension of the credit referred to in sub-paragraph (a) above.
(c) On 28 January 1981 the Bank, through Mr van W., unexpectedly and inexplicably withdrew its confidence in Mr van Reijendam, called on him to resign and froze all Dombo’s accounts without warning, this in spite of the fact that its total debit balance was then NLG 783,436.06 and therefore well within the agreed limit of NLG 2,100,000.
11. The Bank’s rendering of the facts may be summarised as follows.
(a) The Bank acknowledged that Dombo had asked for a higher credit limit in connection with the takeover of the commercial activities of the company O. It had agreed in principle but had required certain additional information to be provided by Dombo, including its annual statement for the previous year (1979); these had never been received and an agreement to raise the existing credit facilities as claimed by Dombo had therefore never been reached. However, in connection with the takeover of the activities of the O. company (which it approved of in principle) and the urgent need for funds, the Bank had been prepared to enable Dombo to act in anticipation of the extension of the credit facilities by providing letters of credit on a number of occasions. Mr van Reijendam had been asked to stand surety for these himself to the amount of NLG 350,000. By the end of January 1981 the sum for which the Bank had bound itself amounted to NLG 848,000. The Bank pointed out that there was a difference between a letter of credit and a credit under a current account agreement; the former implied only occasional and short-term risk, whereas the latter involved more permanent, long-term risk.
(b) The Bank acknowledged also the second request for an extension of the credit facilities for the takeover of the companies T. and D. In this connection, Mr van Reijendam had indicated that others would stand surety for at least NLG 2,000,000. Relying on that statement, the Bank had written to Dombo on 22 January 1981 that it agreed in principle to an extension of the credit facilities to NLG 5,000,000, subject however to certain conditions regarding annual statements and securities. No annual statements had been forthcoming, nor any securities either, and so the Bank had written to Dombo on 19 March 1981 withdrawing the offer.
The Bank acknowledged the transfer of NLG 350,000 but denied having been aware of the purpose for which that sum was intended. It claimed that Mr van Reijendam had misled it in this regard. This also applied to the withdrawal of the NLG 100,000. The Bank had referred to this deception in its letter of 19 March 1981 and stated that in consequence it would annul the credit agreement (which it had nevertheless continued to honour) if Mr van Reijendam were to take up his position as manager of Dombo again (see sub-paragraph (c) below).
The Bank claimed that it had required the mortgages as surety for the letters of credit referred to in sub-paragraph (a) above and the withdrawal of the above-mentioned sums of NLG 350,000 and 100,000. The mortgages had been established under a power of attorney drawn up by a notary who - as the document itself showed - had read it aloud before Mr van Reijendam signed it. The Bank denied that there had been a blank power of attorney. (c) The Bank denied categorically that it had frozen Dombo’s accounts on 28 January 1981. In any case, withdrawals from these accounts had by then exceeded the agreed maximum of NLG 750,000, the balance being NLG 784,657.75 in debit. It had, however, made it clear that it no longer had confidence in Mr van Reijendam after the above-mentioned deception had come to light. The Bank’s doubts concerning his suitability to continue managing Dombo were later confirmed when Mr van Reijendam was suspended as managing director with effect from 4 February 1981 and shortly afterwards committed to a mental institution under a court order. During the period from 4 February 1981 until 23 March 1981 the Bank continued its dealings with Dombo under different management, consisting of Mr C.U. and Mrs van L. It continued to allow credit to finance the activities taken over from the O. company. After Mr van Reijendam’s return the Bank had allowed Dombo every opportunity to reduce its debt; when it became clear that Mr van Reijendam was not prepared to do so, it had annulled the credit agreement with effect from 30 October 1981. Only then had it frozen the accounts.
12. On 11 March 1983, pursuant to a court order which it had obtained for that purpose, Dombo seized certain moneys which it still owed to the Bank and summoned the Bank before the Arnhem Regional Court (arrondissementsrechtbank), claiming financial compensation for the damage caused by the Bank’s alleged failure to honour its commitments.
13. After extensive argument in writing - in which each party presented written pleadings three times and produced a considerable number of documents and Dombo offered to produce witnesses (in particular the managing directors, Mr C.U. and Mrs van L., who had temporarily replaced Mr van Reijendam, to prove that there had been negotiations at that time to raise the credit limit from NLG 2,100,000 to NLG 2,600,000) - the Regional Court delivered an interlocutory judgment on 2 February 1984 allowing Dombo to call witnesses to prove, firstly, that the Bank had frozen Dombo’s accounts on 28 January 1981 and, secondly, that the existing credit arrangements had been extended by NLG 1,600,000 in December 1980. In addition, it ordered the appearance in person (comparitie) before one of its judges of representatives of Dombo and the Bank able to give information and empowered to agree to a friendly settlement.
14. The Bank appealed against this interlocutory judgment to the Arnhem Court of Appeal (gerechtshof), arguing that Dombo’s claim should have been dismissed out of hand. According to the Bank, Dombo had abandoned the original basis of its claim, and the basis which it had in the meanwhile adopted for it obviously could not support it. Besides, Dombo had no interest in the claim and the Regional Court’s requirement of evidence was in any case too vague and one-sided.
After both parties had submitted a written statement and produced new documents and, through their lawyers, pleaded their cases orally (Dombo repeating its offer to provide evidence), the Court of Appeal, in a judgment of 8 January 1985, refused to accept the Bank’s arguments and confirmed the judgment of the Regional Court.
At the request of both parties, the Court of Appeal did not refer the case back to the Regional Court but proceeded to deal with the case itself. Accordingly, it ordered the hearing of witnesses to go ahead on 13 February 1985 before one of its own judges, Mr van E., but reserved the decision on the date of the personal appearance of the parties’ representatives until the witnesses had been heard.
15. Dombo called a number of witnesses, including Mr van Reijendam. Producing the minutes of a shareholders’ meeting dated 29 June 1984, it claimed that Mr van Reijendam had been dismissed as managing director for reason of "lack of funds". It further produced a document from which it appeared that Mr van Reijendam had been registered as an unemployed person seeking employment on 27 November 1984 and an extract from the commercial register from which it appeared that another person had been appointed managing director of Dombo on 10 December 1984.
16. The Bank objected to Mr van Reijendam being heard. It based this objection on the rule that a party to the proceedings could not himself be heard as a witness (see paragraphs 23 and 25-26 below). It claimed that Mr van Reijendam’s dismissal did not reflect the true state of affairs but had been effected only to enable him to testify.
In a judgment of 12 February 1985 Judge Van E. upheld this objection and refused to hear Mr van Reijendam. He had become convinced that both Mr van Reijendam’s dismissal as managing director of Dombo and the appointment in his place of another person were shams (schijnhandelingen) which served no other purpose than to enable Mr van Reijendam to testify in the instant proceedings. He pointed out that Mr van Reijendam had been present at the oral pleadings before the Court of Appeal on 30 October 1984 and had not protested when Dombo’s lawyer referred to him as Dombo’s managing director. He added that in his view the motives alleged for the dismissal were implausible.
The other six witnesses produced by Dombo were heard on 13 and 20 February 1985. One of them, Mr C.U., was heard on both dates. This witness had been Dombo’s financial affairs manager from the middle of 1977 until May 1980 and had since retained links with Dombo as an external adviser. During November and December 1980 he had "been very closely involved" with the running of Dombo and this had led to his appointment as statutory managing director after the suspension of Mr van Reijendam on 4 February 1981 (see paragraph 11, sub-paragraph (c), above). On 13 February Mr C.U. stated, inter alia, that he had been present at several meetings of the parties between November 1980 and 28 January 1981 and that, although he could not recall the exact words used, he had heard Mr van W. say something like, "Then for the time being we will take a credit of NLG 1,600,000 as a starting-point". When examined for the second time at Dombo’s request, he corrected his statement to the extent that besides the original credit facility of NLG 500,000 a new facility had been agreed to the amount of NLG 1,600,000 in connection with takeovers (mainly of the activities of the O. company, a small part being intended for the takeover of the T. company). There had been several discussions, in which this witness had taken part, about the amount to which the credit was to be extended.
17. In the exercise of its right to have its own witnesses heard in reply (contra-enquête), the Bank called two of its employees, one of whom was the manager of its Nijmegen branch office, Mr van W.
Dombo objected to the hearing of Mr van W., stating the view that at all stages of the credit relationship, and also in the instant proceedings, he had been and remained the formal representative of the Bank; to hear him as a witness at this point, when Mr van Reijendam had not been so heard, would upset the fair balance that should exist between parties in civil proceedings.
18. By a decision delivered orally on 13 March 1985 Judge Van E. dismissed Dombo’s objection. He considered first and foremost that Mr van W. was a competent witness in the instant case since he was not a party to the proceedings either formally or in fact and went on to state that it could not follow from the fact that Dombo was put at a disadvantage because Mr van Reijendam was not heard as a witness while Mr van W. was so heard that Mr van W. was no longer a competent witness.
The Court of Appeal judge proceeded to hear the Bank’s witnesses immediately.
After the witnesses had been examined, both parties submitted extensive written pleadings in which they analysed the witnesses’ statements. Dombo submitted a large number of additional documents, including written statements by persons not heard as witnesses; the Bank also submitted further documents. Dombo then submitted pleadings in response to those of the Bank.
19. The Court of Appeal delivered its final judgment on 11 March 1986. It first examined the witnesses’ statements in detail. As far as the statements of the witness Mr C.U. were concerned (see paragraph 16 above), it observed that these contradicted each other on a significant point, namely the figure to which it had been agreed to extend the credit facility, and added that this discrepancy, for which no explanation had been given, adversely affected the convincingness of the statements of this witness. The Court of Appeal then examined a number of written depositions submitted by Dombo. Two of these were rejected because they were not signed. With regard to a deposition signed by Mr van Reijendam, the Court attributed the same value to it as to a statement made by Dombo itself.
The Court of Appeal went on to hold:
"The Court of Appeal is of the opinion that the evidence required from Dombo has not been provided. The statements of the witnesses [D., H. and O.] are not definite enough for this purpose and the statement of [C.U.] and the notarial statement made by [S.] - whose experience, as considered, dates only from after 12 May 1981 - are contradicted by those of the witnesses [Van W. and K.]. The fact that no written evidence is available of such an important agreement as that referred to by Dombo, as would normally be expected, compels the Court of Appeal to take a strict view of the evidence, and this should also be taken into account. It was established during the proceedings that between December 1980 and January 1981 the [Bank] in effect consented to extend the credit facilities to Dombo in various forms in larger amounts than Dombo was entitled to by virtue of any written agreement, but this does not necessarily mean that Dombo was entitled to the credit facilities for that reason alone, in the sense that the [Bank] would not be justified in applying a kind of temporary embargo on the facilities for reasons of its own. Although the ease with which the [Bank] allowed [Dombo] to exceed considerably the credit limit officially in force provides food for thought, it can be explained by the negotiations between the parties, which came to light during the proceedings, concerning the establishment of a substantially higher credit limit, in which - as was also common ground between the parties - the sum of NLG 2,600,000 was mentioned. It is clear from the statement of the witness [Van W.] - and Dombo did not contest this again after the examination of that witness - that at the end of January 1981 the then managing director of Dombo, by misleading the witness, twice succeeded in drawing considerable sums over and above what was already to be regarded as officially a substantial overdraft on Dombo’s consolidated accounts. This amount could reasonably provide the [Bank] with grounds for temporarily ‘shutting off the flow of credit’ to Dombo."
The Court of Appeal further held that since the agreement had not been proved, it was not necessary to examine the question whether the Bank had in fact frozen Dombo’s accounts in breach of it and it went on to dismiss Dombo’s claim.
20. In June 1986 Dombo filed an appeal on points of law (cassatie) to the Supreme Court (Hoge Raad). Paragraph 2 of its (quite extensive) statement of grounds of appeal (middel van cassatie) was particularly directed against Judge Van E.’s decisions to uphold the objections to hearing Mr van Reijendam as a witness for Dombo and reject those against hearing Mr van W. as a witness for the Bank. This paragraph argued, inter alia:
"Furthermore, the decisions of the Court of Appeal, (also) if considered in relation to one another, are incorrect in view of Article 6 (art. 6) of the [Convention], which guarantees everyone a fair hearing of his case in the determination of his civil rights and obligations. After all, this provision implies (inter alia) that the parties should be able to fight each other with equal means (‘equality of arms’) and that every party to civil proceedings should have the opportunity to present his case to the court in circumstances which do not place him at a substantial disadvantage vis-à-vis the opposing party."
21. The Advocate-General (advocaat-generaal), in her advisory opinion (conclusie) of 8 January 1988, formulated the opinion that Dombo was right to argue that "according to current legal opinion" a person who "could be identified with a party" should be allowed to testify. In support of this view she referred to the new law of evidence in civil procedure, which had by then been accepted by Parliament (see paragraph 27 below). As an additional argument in favour of this proposition she pointed to Article 6 para. 1 (art. 6-1) of the Convention, on which Dombo could in her view properly rely. In this connection she argued, inter alia:
"In the present case the point was that [Mr van W.] was able to present his view of what was (or was not, as the case may be) agreed or discussed between himself and Mr van Reijendam in December 1980 to the court extensively (his statement comprises four pages in the official record and two pages in the judgment of the Court of Appeal), while Mr van Reijendam was not allowed to give his version of the events himself. Yet the success of Dombo’s action depended on that." She went on to advise allowing Dombo’s appeal.
22. The Supreme Court dismissed the appeal on 19 February 1988. It rejected Dombo’s arguments based on "current legal opinion", considering that the law of evidence in force was based on the exclusion of parties as witnesses in their own case so that it was not possible to anticipate the entry into force of the new law, which had an entirely different structure. It likewise rejected the complaint based on Article 6 para. 1 (art. 6-1) of the Convention; this was based, according to the Supreme Court, on the argument that the Court of Appeal had violated the principle that "the procedural rights of both parties should be equivalent". This line of argument, in the opinion of the Supreme Court, "... fails to recognise that in assessing the convincingness of the content of witnesses’ statements, the judge with competence to determine questions of fact is free to consider the nature and degree of involvement of a witness with a party in proceedings and that he must also judge a witness’s statement in the light of what the opposing party has put forward in its written pleadings or when appearing before the court in person".
23. Prior to the entry into force of the new rules of evidence in civil cases on 1 April 1988 (see paragraph 27 below) evidence in civil procedure was governed by the Civil Code (Burgerlijk Wetboek - CC) and the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering - CCP), both of which dated from 1838 and were largely based on the corresponding French codes. The former law, which applied at the time of the proceedings in issue, did not lay down in so many words that a person was not allowed to testify in a case to which he was a party. It was nevertheless generally accepted that, in the words of the Supreme Court, "one of the principles of the Netherlands law of civil procedure is that a person who is formally or substantively a party to litigation cannot be heard as a witness in his own case" (judgment of 1 February 1963, NJ (Nederlandse Jurisprudentie, Netherlands Law Reports) 1964, 157). This view was based on, inter alia, Article 1947 para. 1 CC, according to which relatives by blood or by marriage in a direct line, spouses and former spouses of parties to proceedings were disqualified from being witnesses. The rule that an actual party was not allowed to give evidence himself was repeatedly confirmed and strictly applied by the Supreme Court, as reflected by, inter alia, its judgments of 22 May 1953, NJ 1953, 647; 1 February 1963, NJ 1964, 157; 5 January 1973, NJ 1973, 106, and the judgments referred to below in paragraph 25.
24. However, it did not follow that it was impossible for the courts to hear parties in person. The courts had the following possibilities at their disposal:
(a) The "decisive oath" and the "supplementary oath" involved hearing a party to proceedings on oath.
(i) One party might call upon the other to confirm on oath the truth of a certain disputed fact. If the other party took the oath, then proof to the contrary was no longer admissible; if he refused, then the contrary statement was accepted as the truth. This was the "decisive oath" (beslissende eed) (Articles 1967-1976 CC).
(ii) The court also had the possibility of ordering, of its own motion or at the request of a party, that one or other of the parties should take the "supplementary oath" (aanvullende eed). It could impose such an oath on the party which was, in its view, the most appropriate for the purpose, provided that the statements to which the oath was to relate were neither proved nor entirely unsubstantiated (Articles 1977 and 1978 CC). It was in particular the supplementary oath on which parties not infrequently relied when there was a possibility that their evidence would be insufficient; they would ask the court for permission to supplement their evidence in this way if the court were to hold it to be insufficient on its own.
(b) The courts also had three possible ways of hearing parties which did not involve putting them on oath:
(i) By means of an "examination on points in issue" (verhoor op vraagpunten) of one party at the request of the other (Articles 234-247 CCP). The party requesting such an examination had to file his questions beforehand; however, the court was entitled to ask additional questions occasioned by the examination, as was the party who had requested it.
(ii) By ordering, of its own motion or at the request of either party, the personal appearance of the parties for the purpose of obtaining information (comparitie tot het geven van inlichtingen) (Article 19a CCP). In principle, such an order was for the appearance of both parties.
(iii) In the event of oral pleadings (pleidooien). Article 20 CCP allowed parties to present their cases themselves, but this was very rare; however, parties were frequently present at the oral pleadings and the court could make use of the opportunity to question them (Article 144 para. 2 CCP). It was commonly assumed that statements made in these three instances did not constitute evidence in support of the position of the party that made them.
25. If a party to proceedings was a legal person, then the rule disqualifying a party as a witness applied to any natural person who was to be identified with the legal person concerned.
A natural person was identified with a legal person if he had acted in the proceedings as its representative (as appears from, inter alia, the Supreme Court’s judgments of 27 June 1913, NJ 1913, p. 865; 28 April 1916, NJ 1916, p. 786; 19 January 1922, NJ 1922, p. 319; 17 January 1969, NJ 1969, 251), or if he was empowered by law or by its statutes to act as its legal representative (see, inter alia, the Supreme Court’s judgments of 9 January 1942, NJ 1942, 302; 12 January 1973, NJ 1973, 104; 26 October 1979, NJ 1980, 486; 18 November 1984, NJ 1984, 256).
26. Whether or not a person was qualified to be a witness had to be determined in the light of the situation obtaining when he was to make his statement. Under this general rule it was usually assumed that a former director of a legal person, who would have been prevented from giving evidence while he retained his position, qualified as a witness following his dismissal (see, inter alia, the Supreme Court’s judgment of 28 June 1985, NJ 1985, 888). However, this was not the case if the person concerned had not genuinely lost his position within the legal person and where his dismissal had to be construed as a sham (schijnhandeling) (see, inter alia, the Supreme Court’s judgment of 18 November 1983, NJ 1984, 256, and its judgment in the present case of 19 February 1988, published with an annotation in NJ 1988, 725).
27. The law of evidence in civil proceedings was extensively amended by the Act of 3 December 1987, Staatsblad (Official Gazette) 590, which entered into force on 1 April 1988.
The Bill on which the new law is based dates from as long ago as 1969. One of the reasons why it took so long for this Bill to become law was the controversy surrounding the question whether the above principle - i.e. that parties should not be allowed to testify -should be abandoned or whether, alternatively, it should be accepted that parties might be heard as witnesses. During the parliamentary proceedings this remained the subject of heated debate both in Parliament and outside it, but it was eventually decided to abandon the old practice. Article 190 CCP now allows parties to give evidence as witnesses in their own case. Accordingly, the decisive and supplementary oaths referred to in paragraph 24, sub-paragraph (a), above have ceased to exist.
It appears from the drafting history of this legislation that those cases "in which insufficiency of evidence on the part of one party leads to legal inequality" especially led to the conclusion that "the arguments in favour of allowing parties to testify should be given more weight than the fear of bias and problems of assessment, which incidentally are just as likely to occur in the case of other statements by witnesses". As an example of such legal inequality it was mentioned "that a party who is a natural person who is disqualified as a witness may be confronted with (for instance) a party who is a legal person, which is in a position to bring forward ‘third parties’, although the credibility of these witnesses is just as doubtful in view of their close connections with that party or the proceedings. ... [I]t is difficult to see why one individual should be allowed to make a statement under oath in court about matters in which he had a part while the other person involved should not. This even applies regardless of any insufficiency of evidence in the sense that no other evidence is available " (Parlementaire Geschiedenis Nieuw Bewijsrecht, Parliamentary Drafting History of the New Law of Evidence, pp. 189-90)
It should be observed that differences continue to exist between a witness who is a party to the proceedings in question and a witness who is not. For present purposes, it is sufficient to note that pursuant to Article 213 para. 1 CCP the statement of a witness who is party to the proceedings "concerning the facts to be proved by him cannot provide evidence to his advantage, unless the statement supplements incomplete evidence".
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84467
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SMORODINOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1958 and lives in the town of Novovoronezh in the Voronezh Region.
6. The applicant is a Chernobyl pensioner. She sued the Welfare Office for the unpaid allowances.
7. On 15 July 2003 the Novovoronezhskyy Town Court of the Voronezh Region (“the Town Court”) awarded her the unpaid disability allowance over the period between 1 July 2002 and 31 July 2003 in the amount of 22,109.75 Russian roubles (RUB). The judgment entered into force on 25 July 2003. It was enforced in full on 9 June 2005.
8. By a judgment of 15 March 2004 the Town Court awarded the applicant the unpaid food and disability allowances over the period between 1 July 2002 and 31 December 2003 in the amount of RUB 4,329.72 and RUB 643.85 respectively. The judgment acquired legal force on 25 March 2004. It appears that it has not been enforced to date.
9. On 15 March 2004 the Town Court recovered in the applicant's favour the unpaid disability allowance over the period between 1 August 2003 and 31 December 2003 in the amount of RUB 13,971.50. The judgment became final on 25 March 2004. It was fully enforced on 3 August 2005.
10. By a judgment of 6 May 2004 the Town Court awarded the applicant the unpaid disability allowance over the period between 1 January 2004 and 31 March 2004 in the amount of RUB 9,494.54. The court also increased the monthly disability allowance to RUB 5,664.85 as of 1 April 2004 and held that it had to be index-linked in accordance with legislation. On 17 May 2004 the judgment acquired legal force. On 10 June 2004 the Welfare Office ordered to increase the applicant's monthly disability allowance to RUB 5,664.85. On 11 November 2005 the applicant received RUB 9,949.54.
11. On 9 September 2004 the Town Court recovered in the applicant's favour the unpaid food allowance over the period between 1 January 2004 and 31 March 2004 in the amount of RUB 1,139.34 and the unpaid annual disability allowance for 2004 in the amount of RUB 1,132.96. The court also increased the applicant's monthly food allowance to RUB 679.78 as of 1 April 2004 and ordered to index-link it in accordance with legislation. The court further held that as of 2005 the Welfare Office was to pay the applicant an annual disability allowance and to index-link it in accordance with legislation. The judgment entered into force on 20 September 2004. It appears that it has not been enforced to date.
12. On 29 September 2004 the Town Court awarded the applicant RUB 12,659.40 for the unpaid disability allowance over the period between 1 April 2004 and 31 July 2004. On 11 October 2004 the judgment acquired legal force. It was fully enforced on 11 November 2005.
VIOLATED_ARTICLES: 6


ITEMID: 001-104541
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BOZHKOV 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: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. 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.
7. 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.
8. 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.
9. 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 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.
10. 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 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.
11. 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. 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 bribetaking.
12. 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 subheadline “[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.”
13. 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.
14. 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 editorinchief 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.
15. At some point during the proceedings the complainants dropped the charges against Sega’s editorinchief.
16. 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).
17. 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.
18. 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 nonpecuniary 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 bribetaking. 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 metalegal 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 caselaw,] ‘when [a journalist] has properly verified the truthfulness of the information in line with established journalistic practice [and] the internal nonbinding 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 bribetaking. 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 antisocial 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 antisocial 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 nonpecuniary 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 wellfounded, 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 nonpecuniary 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 nonpecuniary 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 abovementioned 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 nonpecuniary 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.”
19. In a decision of 13 March 2003 the Pomorie District Court ordered the applicant to pay the complainants’ costs, amounting to BGN 300.
20. 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.
21. The Burgas Regional Court (Бургаски окръжен съд) heard the appeal on 4 July 2003.
22. 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 illfounded 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 antisocial 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 nonpecuniary 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 nonpecuniary 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 nonpecuniary 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 nonpecuniary 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. ...”
23. 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.
24. 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.
25. 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.
26. 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.
27. 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. 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.”
“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.”
28. 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.”
29. 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.).
30. 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).
31. 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.
32. 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).
33. 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