ITEMID: 001-101704
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ALEKSEY PETROV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Aleksey Iliev Petrov, is a Bulgarian national who was born in 1962 and lives in Sofia. He is widely known in Bulgarian society, as a former officer of the national antiterrorist squad and as later being connected with a number of insurance and other companies. He was represented before the Court by Mr A.V. Lukanov and Ms R. Radkova, lawyers practising in Sofia.
An outline of the background to the case may be found in paragraphs 683 (more specifically, paragraphs 18, 51 and 75-80) of the Court’s recent judgment in the case of Kolevi v. Bulgaria (no. 1108/02, 5 November 2009), which concerns, among other things, the investigation of the assassination of a highranking prosecutor, Mr Kolev, who had previously made a number of serious allegations against the Chief Prosecutor.
Mr E.S. is a poet, literary critic, former member of Parliament, and prominent public figure widely known for his publications on crimes allegedly committed by highranking officials. In 2002 he published an open letter to the Supreme Judicial Council and other institutions, stating that the Chief Prosecutor had committed crimes and had a mental disorder.
On 4 December 2002 Mr E.S. called on the Minister of Justice and handed him one hundred and five documents allegedly incriminating the Chief Prosecutor, Mr N.F., in various misdeeds and offences. He asked the Minister to pass those documents to the Supreme Judicial Council. One of the documents was a photocopy of a document entitled “[Mr G.T.]’s explanations”. In it Mr G.T., the former branch manager of a private bank, described his curriculum vitae, his business ventures and his dealings with the applicant between 1997 and 2000, and alleged that the applicant had been blackmailing him and threatening him and his family with violence, and on one occasion had even assaulted him physically, all in order to force him to enter into transactions beneficial to the applicant or to companies with which he was connected.
The next day, 5 December 2002, Mr E.S. gave an interview for Trud, a daily newspaper. He said that the documents that he had handed to the Minister concerned a number of cases. One of them was the case of Mr G.T., which the prosecuting authorities had tried to conceal. The documents made it clear why. The interviewer asked “Why?” and Mr E.S. replied “Simply because this man has been racketeered and robbed by [the applicant]. Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention.”
In the evening of 28 December 2002 Mr Kolev (see above) was shot dead by an unknown assailant in front of his home in Sofia.
In the morning of 29 December 2002 Mr E.S. went to the police to give a statement in connection with the assassination. In the afternoon he gave a similar statement to the investigator in charge of the case. The full content of that statement may be found in paragraphs 7580 of the Court’s judgment in the case of Kolevi (cited above).
Between his interviews with the police and with the investigating authorities Mr E.S. was interviewed by Darik Radio, a radio broadcaster. The main topic was Mr Kolev’s assassination and the probable reasons for it. In the course of the show the host asked Mr E.S. about the content of his earlier statement to the police. Mr E.S. replied “Well, I shared my version that, first, this is a political assassination, in the sense that it concerns the interests of the Chief Prosecutor, and second, that persons probably behind it were Mr N.F., the Chief Prosecutor, and possibly [the applicant].” The host asked him whether that would be the content of his testimony, and Mr E.S. replied “Yes, it would be, in connection with the cases at hand. Now, I made the acquaintance of [Mr] Kolev during the summer of this year, we have had at least fifteen meetings, and during the last of those he shared with me that he expected [the applicant] to snatch him.” In reply to a question about the content of the conversation during that last meeting, Mr E.S. said “The meeting had to do, like all the other meetings, with issues relating to the Chief Prosecutor. It was about the murder of [Ms N.G.] in 2000. We were discussing the possibility of finding a witness who would be able to confirm that on the evening of the murder [Ms N.G.] had been expecting [the Chief Prosecutor]. The thing is, she was in fact an intermediary between the Chief Prosecutor’s Office and the criminal world. She was used for money transfers and she had compromising recordings of such meetings. She probably tried to use them preventively on that occasion. You know that she was working for [the applicant] and actually...” The host interrupted Mr E.S., saying that nothing was known about Ms N.G. Mr E.S. continued “In fact, strong dependence and the connection between the Chief Prosecutor and [the applicant] is linked with that murder”.
After that the conversation moved on to the authorities’ reaction to Mr E.S.’s statements, and then to the relations between Mr Kolev and the Chief Prosecutor and the reasons for Mr Kolev’s assassination. Mr E.S. said “[Mr] Kolev was trying to uncover the truth about a very bizarre case. I will tell you his version, but I must add that a very serious investigation will be necessary to dig out the truth about that version. The case concerns [Mr S.J.], the Yugoslav national who was arrested in Bulgaria ... [Mr Kolev]’s version was that the Serbian mafia had sought contacts in Bulgaria, people who would be able to arrange his escape. They came across [the applicant] who told them ‘I am close to the Chief Prosecutor, I can arrange that’. The Serbian mafia paid about three million dollars...” Asked by the host to whom the money had been paid, Mr E.S. replied “To [the applicant], who gave one million to [Colonel] F.S. [, head of the special antiterrorism squad] and one million to [Mr] N.F. [, the Chief Prosecutor]” Then Mr E.S. described how an attempt to get Mr S.J. out of prison had been foiled and that this, coupled with the failure to return the money, had been the probable reason for an assassination attempt on the applicant in the summer of 2003. The host interrupted him, saying that he was raising serious allegations against the Chief Prosecutor. Mr E.S. replied “I am not making allegations, I am saying what I know about the case. I am not maintaining that this is the truth, I am saying what I have heard from [Mr] Kolev. I would like that to be well understood ...”
The same day Mr E.S. gave an interview for BTV, a television network, in which he repeated the story about the alleged attempt to arrange Mr S.J.’s escape. In reply to a question, he said “I am saying that this is the version that I have learned from [Mr] Kolev and in respect of which he was seeking proof. ...”
Later that day and the following day Trud and another daily newspaper, 24 Hours, printed articles summarising and commenting on Mr E.S.’s interviews with Darik Radio and BTV.
On 16 December 2002 the applicant lodged a criminal complaint with Sofia District Court (Софийски районен съд) against Mr E.S.. He alleged that in his interview for Trud Mr E.S. had disseminated injurious statements about him and had imputed an offence to him. More specifically, he took issue with the phrases “Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]” and “Instead of acting on [Mr G.T.’s] complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention”. In the applicant’s view, by making those statements Mr E.S. had defamed him, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see Relevant domestic law below) and had injured his reputation as a wellknown public figure. He sought compensation in the amount of 30,000 Bulgarian levs (BGN), plus interest.
The Sofia District Court examined the case at three hearings. The first, due to take place on 24 February 2003, was adjourned because Mr E.S. was absent. The other hearings were held on 21 April and 16 June 2003. The applicant did not appear in person at either of those. On both occasions his counsel expressly stated that the applicant was prevented from attending on account of illness, but did not insist on his attendance and wished the case to proceed despite his absence. Having regard to those declarations, on both occasions the court decided to proceed with the case. On 21 April 2003 it heard Mr G.T., who had been called as a witness by the applicant. At the request of counsel for the applicant, the court admitted in evidence “Mr G.T.’s explanations” (see above), which Mr E.S. had produced as an attachment to his reply to the applicant’s complaint, and presented them to Mr G.T.
In a judgment of 16 June 2003 (reported on p. 153 of an unofficial collection of the Sofia District Court and Sofia City Court caselaw in defamation cases, Обида и клевета в практиката на Софийския районен съд, Сиби, 2005 г.) the Sofia District Court acquitted Mr E.S. and rejected the applicant’s claim for compensation. The court described its findings of fact and the manner in which it has assessed the evidence, and held as follows:
“The accused [Mr E.S.] has not committed [the offence of defamation] of which he has been accused.
[He] is the author of the two impugned statements in the interview that he gave for Trud on 5 December 2002.
However, by [making those statements] he did not carry out the actus reus of the offence of defamation. The court reached this conclusion in view of the following.
A literal reading of the publication shows that the impugned statements were an answer by the accused to a question as to how the documents which he had handed to the Minister of Justice made it clear that there had been [the prosecuting authorities’] attempt to ‘conceal’ the case with [Mr G.T.]. In reply to the journalist’s question, the accused summarised the contents of one of the documents and explained his reasons for handing the documents to the Minister of Justice.
Indeed, the reason for the publication was that the accused had handed one hundred and five documents to the Supreme Judicial Council through the Minister of Justice. As can be seen from the initial exposé made by the journalist, this was simply because of the existing public interest in the allegations made by the accused against the Chief Prosecutor Mr N.F., which the publication characterised as ‘scandalous allegations’.
For the court, those facts are essential for the proper resolution of the case.
Firstly, they indicate that the accused’s interview concerned an issue which, in as much as it relates to the prosecuting authorities in their capacity as a public authority empowered under the Constitution to bring offenders to justice and to prosecute publicly prosecutable offences, is part of the considerable public interest in combating crime. This is undoubtedly sufficient to accept that the publication of information concerning that issue was in the public interest. The documents which the accused handed to the Supreme Judicial Council contain, according to him, information about the prosecuting authorities’ failure to investigate offences. The court is therefore satisfied that the stated goal of allowing those documents to be studied by the public is in the public interest.
The first impugned statement – ‘Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ – sheds plenty of light on the accused’s position. That phrase does not contain any information which could, directly or even indirectly, in the context of the whole interview, injure the [applicant]. Therefore, it cannot harm his honour or dignity. The accused actually criticises the authorities competent to verify the information about an offence featuring in ‘[Mr G.T.]’s explanations’ for failing to do so.
The court therefore finds that by saying ‘Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ the accused did not carry out the actus reus of the offence of defamation.
Secondly, the court accepts that the accused [Mr E.S.], in his capacity as a public figure engaged in politics, has certain obligations and duties towards the public and the proper functioning of the State authorities. Therefore, when he discovered documents showing that the prosecuting authorities were not functioning properly due to misconduct by some of their officials, the accused was under a duty greater than that of the ordinary citizen to hand those documents to the competent authorities.
In its judgment in the case of Thorgeir Thorgeirson v. Iceland [25 June 1992, Series A no. 239] the European Court of Human Rights reiterated a principle established in its caselaw – that ‘freedom of expression constitutes one of the essential foundations of a democratic society ... and is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10 [of the Convention], is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established’. In the same judgment the European Court of Human Rights emphasised the preeminent role of the press in a State governed by the rule of law, and noted that while that press must not overstep the bounds set, inter alia, for ‘the protection of the reputation of ... others’, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.
In the case at hand the information published by the accused in the press was important for maintaining the rule of law and for exercising democratic control over the judicial power. It should therefore enjoy heightened protection. The Constitutional Court ... has emphasised that a distinction needs to be made between, on the one hand, information relating to political matters and other matters in the public interest, and, on the other, information satisfying curiosity about a person’s private life, which should be protected by barriers reflecting the morals and the mentality of reasonable people. Following this line of reasoning, the Constitutional Court, in interpreting Articles 3941 of the Constitution, has said that ‘information falling into the first category clearly enjoys heightened protection. Therefore, critical opinions and statements of fact which could harm the reputation of a given person should not be ruled out ... they can be regarded differently on account of their object and direction, and may be treated differently.’
Next, the court finds it unequivocally established that one of the documents to which the accused refers in his interview contains statements of fact about criminal offences [allegedly] committed by the [applicant]. The statement in ‘[Mr G.T.]’s explanations’ that the [applicant] racketeered and robbed him undoubtedly amounts to the imputation of an offence. The content of those ‘explanations’ shows that they impute to the [applicant] specific acts, sufficiently individualised as to their time, place and manner of execution. The unidentified author of the document has used the word ‘robbery’ (on p. 3), which does not refer to the offence of robbery, as defined in Article 198 of the Criminal Code, but has been used in the colloquial and not strictly legal sense of the term. It refers to coercing someone through force or threats to transfer assets or to incur a pecuniary obligation. Those acts constitute the actus reus of the offence of extortion, as defined in Article 213a of the Criminal Code. Descriptions of offences of the same kind (threats of violence with a view to coercing [Mr G.T.] to contribute assets to the capital of [an insurance company]) feature on p. 4; on p. 5 (the same threats, this time in relation to the transferring of shares in [a company]); on p. 6 (use of force to lift impediments to the licensing of [that company]).
Therefore, by saying ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ [Mr E.S.] correctly summarised the contents of the document entitled ‘[Mr G.T.]’s explanations’. The photocopy which the accused had is a document in the general meaning of that term – an object manifesting a statement through written signs.
The question to be answered is therefore whether – in addition to announcing in public, before the media, that he has performed his civic duty to inform the authorities about offences which had come to his knowledge – the accused could have committed defamation by relating the information about those crimes contained in his sources.
In principle, the actus reus of defamation ... consists in the dissemination of untrue and injurious statements of fact about another person or in the imputation of an offence that the other person has not committed, something [the accused] has not done. The narrow interpretation of the penal law – the only one permissible – makes it clear that the act is criminal only when the injurious statements of fact emanate from the offender, or when the offender, in order to present his statement as the mere recitation of somebody else’s statement before third parties, ostensibly relies on sources of information which in fact do not exist.
The correctness of this interpretation is confirmed by the legislature’s difference of approach in formulating the right to information under Article 41 § 1 of the [Constitution] and its permissible restrictions, and the wider communication right under Article 39 § 1 of the Constitution to express one’s opinion. Article 41 § 1 of the Constitution provides that everyone has the right to seek, receive and impart information, but that 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.
The limitations on the communication rights (the expression used by the Constitutional Court ... to describe the rights under Articles 3941 of the Constitution) consist in statutory penalties. The criminalisation of defamation is one of the legal devices protecting personal dignity against abuse of the constitutional rights to information and to express one’s opinion, in those cases where the statement amounts not to a qualification or a value judgment but to a statement presented as fact.
However, the right to information, as defined in Article 41 § 1 of the Constitution, is wider than the one whose exercise in breach of the envisaged limitations is contrary to Articles 147 and 148 § 2 of the Criminal Code. The criminalisation of defamation is an interference by the State, provided for by law, with a person’s right to communicate specific statements about another person when they are injurious or impute an offence to that other person, and are not true that is, when they unlawfully impinge on someone’s reputation. Therefore, the criminalisation of defamation protects a person’s right to honour and dignity against the unscrupulous exercise of the right to freedom of expression, when the viewpoint and the statement emanate from the alleged defamer. The actus reus of defamation as an unlawful personal conduct does not include seeking, receiving or disseminating information ... already created by someone else.
The salient point in the case at hand is that the accused is not the author of the statement that [Mr G.T.] has been racketeered and robbed by the [applicant]. The accused is not the source of the statement about the offences allegedly committed by the [applicant]. By making that statement in front of the journalist – and thus before the readers of Trud – the accused actually correctly relayed the contents of the document, which is the material source of the information. The accused thus took part in the dissemination of [that] source of information. In fact, in as much as by interviewing Mr E.S. for the newspaper the [journalist] gave him the opportunity to describe the contents of the source, she for her part was also party to the dissemination of the impugned statement. However, neither the accused [Mr E.S.] nor the [journalist] has carried out the actus reus of defamation. To hold otherwise would unduly limit the right to information and thus endanger the free flow of information and journalism in general, and would discourage people from discussing matters of public interest. Such an interpretation, apart from being contrary to the law, would not be necessary in a democratic society, as required under Article 10 of [the Convention].
No evidence has been put forward, and it has not been alleged in the criminal complaint, that the accused is the author of the document entitled ‘[Mr G.T.]’s explanations’. On the contrary, those ‘explanations’ and the testimony of [Mr G.T.] before this court show that the accused [Mr E.S.] is not the author of the document. The accused is not personally acquainted with [Mr G.T.] and could not be aware of his personal and biographical background at the level of detail set out in the ‘explanations’. No evidence has been put forward to prove that the accused would be interested or able to obtain such information.
In its caselaw the European Court of Human Rights always carefully distinguishes between cases in which [applicants] have been punished in respect of their own statements and those in which they have disseminated statements made by others. For instance, in its judgment in the case of Jersild v. Denmark [23 September 1994, Series A no. 298] the European Court [of Human Rights] found that a central feature of the case was the fact that the applicant had not made the impugned statements himself, but had merely facilitated their dissemination in his capacity as a television journalist. In that connection, the judgment lays down another essential principle of presentday regulation of the right to information disseminated though the press or [other] media: ‘The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’. In conclusion, the European Court [of Human Rights] held that the applicant’s criminal conviction had amounted to a breach of his right to freedom of expression, enshrined in Article 10 of [the Convention].
The European Court [of Human Rights] made a similar distinction in its judgment in the case of Thorgeir Thorgeirson [cited above], where it again held that there had been a breach of the applicant’s right to freedom of expression resulting from his conviction for defamation by the national courts for having, in his capacity of author of a press publication, disseminated information received from others about brutality in the Reykjavik police.
The European Court [of Human Rights] thus, on the one hand, clarified the difference between liability for one’s own statements of fact and for statements of fact emanating from another source of information, and, on the other, emphasised that the necessity for any restrictions must be convincingly established.
Even though those principles were formulated chiefly in respect of the press and the audiovisual media, the court finds that they are fully applicable in respect of information of public interest disseminated by public figures and politicians.
In view of the foregoing reasons, the court finds that only the author of the document called ‘[Mr G.T.]’s explanations’ can be held liable for defamation. The court therefore finds that by saying ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ the accused [Mr E.S.] has not carried out the actus reus of the offence ... under Article 147 of the Criminal Code, or, a fortiori, of the aggravated offence under Article 148 [§§ 1 (1) and 2] in conjunction with Article 147 § 1 of [the Code].
Even though the accused’s act is objectively unable to constitute defamation, because it amounts to the correct reproduction of text written by another person, the court finds it necessary, for the sake of completeness ... to give additional reasons in respect of the veracity of the statements contained in the ‘explanations’.
The accused acted in good faith in respect of the wellfoundedness of his statements. He made them in pursuit of his democratic aims: to expose weaknesses in the work of the prosecuting authorities with a view to achieving greater transparency in their functioning and to eliminating any irregularities. The court accepts that his actions could actually contribute to the achievement of those aims because they allowed the competent authorities to check the documents presented carefully and to determine whether they contained information about official misconduct or offences committed by representatives of the prosecuting authorities or others. The accused was not able to carry out such checks himself because he did not have the authority to conduct an independent and comprehensive investigation. Even if he had had a conversation with [Mr G.T.] and the latter had denied being the author of the ‘explanations’, that would not have been sufficient to accept that the allegations in those ‘explanations’ were false. This is because, if there is any truth in the allegations in the ‘explanations’ about links between certain departments of the Ministry of Internal Affairs and the prosecuting authorities and criminal organisations, [Mr G.T.], if he is indeed the ‘explanations’’s author, could justifiably fear for his life and limb because the threat against him stems from the State itself. A comprehensive, objective and complete check on the truthfulness of the ‘explanations’ would entail tracking down individuals and taking a number of measures in the context of a preliminary inquiry: interviewing all those mentioned in the ‘explanations’, checking the register of companies for information about companies mentioned in the ‘explanations’ and changes in their capital, identifying the officials of the National Service for Combating Organised Crime and of the Ministry of Internal Affairs with whom [Mr G.T.] has discussed his relations with the [applicant], checking whether [Mr G.T.] has complained to the Ministry of Internal Affairs, and so on. The court finds that it does not have to elucidate those matters in the present proceedings, because they would not alter its final conclusion that the offence [of which Mr E.S. has been accused] has not been committed. It should however be mentioned that the statements of the accused in his interview for Trud about the existence of such documents should prompt the investigating and the prosecuting authorities to check whether offences have been committed on the occasions mentioned in the interview. The testimony of [Mr G.T.] shows that he had thus far not been interviewed about those matters.
In the abovementioned case of [Thorgeir Thorgeirson] the Reykjavik police had accused the applicant of an offence partly because of his failure to justify what it considered to be his own allegations. In its judgment the European Court [of Human Rights] emphasised that in so far as the applicant had been required to establish the truth of his statements, he had been faced with an unreasonable, if not impossible task.
‘[Mr G.T.]’s explanations’ in addition contain comprehensive and accurate personal and biographical information, a detailed description of the companies in which [Mr G.T.] has been a shareholder, descriptions of specific events, and details about other individuals identified with their personal and family names. [Mr G.T.] also points out that the assertions about his relations with the [applicant] are accurate, except for the allegations of physical violence. His testimony shows that the ‘explanations’ are signed in a manner that is at least similar to his signature. The court therefore finds that the accused had at his disposal enough objective elements to form the belief that those explanations emanated purported to be their author. In [its caselaw] the Supreme Court of Cassation points out that when a publication mentions matters based on objective facts, the person concerned is acting in good faith, and this precludes criminal or civil liability for defamation.
The court finds that the accused’s failure to establish the manner in which he obtained ‘[Mr G.T.]’s explanations’ is irrelevant to the proper resolution of the case. In its judgment in the case of Goodwin v. the United Kingdom [27 March 1996, Reports of Judgments and Decisions 1996II] the European Court of Human Rights held that the protection of journalistic sources is one of the basic conditions for press freedom and of freedom of speech.
It is true that as a result of the publication the public learned that there exists a document accusing the [applicant] of committing an offence. However, that assertion is true, such a document exists, and there is therefore no room for the assertion to be rebutted. At the same time the [applicant], protesting his innocence, is the one who should be most interested in the carrying out of a detailed investigation into the matter by an independent commission of the Supreme Judicial Council and the public announcement of its results. Indeed, that is the proper forum where he can vindicate his reputation.
Given that the actus reus of the offence of defamation with which the accused is charged is lacking, there is no point in discussing mens rea.
In view of the foregoing, the court finds that ... the accused [Mr E.S.] has not imputed to the [applicant] publicly prosecutable offences under Articles 19899 and 213a14 of the Criminal Code ...
The court finds that the claim for compensation brought by the [applicant] against the accused [Mr E.S.] is illfounded. The accused has not committed an unlawful act, which is one of the necessary preconditions for [a tort to exist]. It is therefore pointless to discuss the questions of damage, causal connection and fault. For these reasons, the court rejects the claim ...”
On 27 June 2003 the applicant appealed to Sofia City Court (Софийски градски съд).
The appeal was assigned to a three-judge panel which comprised two judges who earlier had taken part in the examination of an interlocutory appeal which the applicant had lodged in the second case (see below).
In an additional pleading dated 12 October 2003 the applicant argued that Sofia District Court had erred by relying on “Mr G.T.’s explanations” to acquit Mr E.S., because of the dubious value of that document and because Mr G.T., called as a witness, denied the statements made in it. The applicant also argued that the lower court had erred in interpreting the substantive law and the caselaw of the Supreme Court of Cassation, thus rendering nugatory the presumption of falsity under Article 147 § 2 of the Criminal Code.
On 3 November 2003 the court set the appeal down for hearing. It found no need to hear witnesses.
In an additional submission of 27 November 2003 newly retained counsel for the applicant argued that (a) the case should have been examined in the first instance by Sofia City Court and not Sofia District Court; (b) by hearing Mr G.T. as a witness and questioning him about irrelevant matters, Sofia District Court had breached the rules of procedure and had shown bias in favour of Mr E.S.; (c) by proceeding with the case on 21 April and 16 June 2003 in the applicant’s absence, the lower court had breached the rules of procedure and had infringed his right to take part in the proceedings; (d) by admitting in evidence a photocopy of “Mr G.T.’s explanations” and by refusing to admit evidence adduced by the applicant the lower court had breached the rules of evidence; (e) the lower court had incorrectly identified the allegedly defamatory statements; (f) the lower court had erroneously failed to analyse evidence establishing his good reputation; (g) the lower court had analysed erroneously a number of points of fact and law. He requested the court to oblige Mr E.S. to answer a number of questions, to appoint a psychiatric expert to assess his mental capacity, to appoint an expert with a view to determining the exact tenor of Mr E.S.’s interview, to call as a witness the journalist who had taken the interview, and to request a copy of a prosecutorial case file.
At the hearing on 8 December 2003 counsel for the applicant reiterated his evidentiary requests. The court refused to call the journalist as a witness, finding that the facts had been sufficiently established and that her testimony would not add anything. It refused to appoint experts, finding that it did not need expert knowledge to assess the relevant facts. It held that it did not need to obtain a copy of the prosecutorial case file because it would be irrelevant. It went on to say that there was no problem in admitting “Mr G.T.’s explanations” in evidence. Lastly, the court noted that, in view of the criminal character of the proceedings, it could not compel Mr E.S. to answer questions, because that would infringe his protection against selfincrimination. After that the court heard the parties’ closing statements and reserved judgment.
On 9 December 2003 counsel for the applicant requested that the case be assigned to a different bench, citing his suspicion that the judges hearing the appeal were not impartial in view of their participation in the examination of the interlocutory appeal in the other case (see below) and in view of unofficial pressure to decide in favour of Mr E.S. It seems that he did not receive a reply.
In a final judgment of 29 January 2004 Sofia City Court upheld the Sofia District Court judgment in the following terms:
“[This court] fully shares the firstinstance court’s findings of fact and law.
Firstly, Sofia District Court has correctly established the facts of the case. This court also finds that the accused [Mr E.S.] made the impugned statements in the course of his interview with the journalist from Trud given on 5 December 2002. It is not in dispute that his replies, as printed in the newspaper, were identical to those made to the [journalist]. The [lower] court also correctly found that the occasion for the interview had been the fact that [Mr E.S.] had handed the Minister of Justice one hundred and five documents supporting his earlier allegations relating to the Chief Prosecutor [Mr N.F.]. This can be seen both from the tenor of the questions put to [Mr E.S.] and from the introductory part of the publication, where these matters are described.
Sofia District Court correctly found that the accused was in possession of a photocopy of a document whose introductory part named the witness [Mr G.T.] as its author. It also correctly found that this piece of evidence must be admitted and analysed, even though it was a photocopy whose author was not identified in the course of the proceedings. One has to bear in mind that this evidence contains printed text which contains objective information. Neither the fact that the document is not an original nor the fact that, being a photocopy, it cannot be graphologically tested with a view to identifying its author, can serve as grounds not to admit it in evidence. Moreover, its existence directly relates to the question whether the impugned act is criminal or not.
That photocopy contains text which can lead to the conclusion that [Mr G.T.] had been forced by the [applicant] to enter into transactions, sign documents, convey and contribute assets for the benefit of [an insurance company] connected with the [applicant]. The [lower] court correctly found that the document’s text reflects statements made by its author and sets out statements which can lead to the conclusion that [Mr G.T.] has been the victim of a criminal offence. It also correctly found that that offence (if what is said in the document is true) should be characterised as extortion, contrary to Article 213a of the Criminal Code. This court is likewise certain that the impugned statement ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ constitutes a correct reproduction of the allegations made in that document.
The charges [against Mr E.S.] are under Article 148 § 2 read in conjunction with § 1 and with Article 147 § 1 of the Criminal Code, the actus reus of the offence consisting in the imputation of a criminal offence to [the applicant]. It is indisputable that one of the impugned statements made by [Mr E.S.] (and later printed in the newspaper) amounts to an allegation that [the applicant] has committed an offence. However, the proper interpretation of Article 147 § 1 of the Criminal Code and more specifically of the second actus reus envisaged by that provision shows that, for an allegation to be defamatory, it must originate from the accused. This court firmly believes that it is absolutely inadmissible to engage the criminal liability of a person who quotes (in the event correctly) information or statements made by another. This conclusion finds support in the text of the [Code], where the legislature, when characterising the offence, used the word ‘impute’ to define the actus reus. The grammatical interpretation of that word also leads to the categorical conclusion that, for there to exist an imputation of an offence, it must originate from the accused, not from a third party. A different construction would, firstly, run counter to the Criminal Code and, secondly, lead to a complete impossibility of exchanging information (characteristic of a democratic society).
In as much as there is no evidence showing that the accused is the author of the impugned statement, but on the contrary – it has been established that he discovered that information (a document which contained it), this court likewise finds that the accused [Mr E.S.] has not carried out the actus reus of the offence [of which he is accused].
The court fully shares the conclusions of the Sofia District Court concerning the nature of the information which the accused laid out before the media and the nature of his actions. The [lower] court correctly found that the occasion for the interview had not been [the applicant]. During the course of the entire interview [Mr E.S.] answered questions relating to his handing over of documents concerning the prosecuting authorities as an organ of the State. The accused shared his view about certain actions or omissions of representatives of the prosecuting authorities. He gave an assessment of the functioning of that institution and revealed the information which he knew (contained, in his view, in documents that he had handed to the Minister of Justice) and which corroborated his assertions. The two impugned phrases were part of one such example. It should here be pointed out that matters touching upon the functioning of the prosecuting authorities, as a body authorised under the Constitution to perform certain functions in a democratic State, are not and cannot be matters which are personal or which touch upon the individual’s private life. On the contrary, those are matters relating to an essential institution which is of great public importance and enjoys heightened public interest. The [lower] court correctly found that the caselaw under the [Convention] and the Constitutional Court’s [caselaw] show that such information concerns a matter of public interest and not the individual’s private life. It is absolutely impermissible to prevent any person from disseminating and making public information which he or she knows and which relates to the functioning of a State institution. To hold otherwise would unduly circumscribe the right freely to express opinions, and would in turn hamper the functioning of a democratic society. It is precisely the opportunity to disseminate and discuss such information that allows society to exercise control over the authorities.
Even if the court were to refrain from holding that the actus reus of the offence has not been carried out because the accused is not the author of the impugned statement but has merely disseminated it during the course of a public appearance, the accused should still not be held criminally liable, because of the absence of mens rea. It is not in dispute that the offence of defamation can be committed only with intent (direct or oblique). The act is criminal if the accused realises the criminal character of the act that he imputes to the victim and also realises that that act has not been perpetrated. In the case at hand, [Mr E.S.] was in possession of a detailed document containing information which unequivocally showed that more than one criminal offence had been committed. On its face, the document contained all the necessary features. It was entitled ‘explanation’, which is typical of criminal proceedings, its author (a real person) was named, the document was comprehensive, dated and signed. It is true that it was a photocopy, but this is completely normal in view of the fact that it looked like a document that naturally belonged in a criminal case file. There is no evidence whatsoever that [Mr E.S.] was aware that the document might be false or that it might not have been drawn up by the person purporting to be its author, or that the information in it was false. It would therefore be completely unwarranted to find that the accused has committed in intentional offence. It should be observed that the evidence gathered in criminal proceedings should establish ... unequivocally and categorically both the actus reus and the mens rea. [The latter] has not been so established; indeed, it was not proven by any of the available evidence. On the contrary, in as much as it was found that [Mr E.S.] was in possession of the document (it was produced by him in the course of the proceedings) and that its contents were correctly reproduced, there is no reason to assume that that he had the intention of imputing an offence to [the applicant] while knowing for certain or believing that he had not committed one.
This court finds that it should examine whether the accused disseminated the information contained in the document after having tried to verify its veracity. It is true that there is no evidence that [Mr E.S.] checked the information that he had received, but in view of the nature of the document whose photocopy he had obtained he could not have checked it. As already mentioned, that document bore all the marks of a document produced within the framework of a criminal investigation. Since the accused is [merely] a social figure, he could not have checked whether that document was genuine or what it contained. He did not have official powers, nor did he have the opportunity of acquainting himself with the materials in a potential criminal case. He did not therefore have any opportunity to check the document’s contents. It is not disputed that it was the responsibility of the authorities to check whether the allegations in that document were true (that is, the prosecuting authorities), not of a private individual. That is also an argument in support of the proposition that the accused had good reason to reveal and make public the information that he had received, not hide it. Even if it is accepted that he should have checked (which he did not do), it is beyond doubt that the failure to do so cannot lead to the conclusion that his act was intentional.
As regards the second impugned statement (which was in fact made first) – ‘Instead of acting on [Mr G.T.’s] complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ –, this court also finds that it does not contain any information concerning [the applicant]. Therefore, by saying those words [Mr E.S.] carried out neither the actus reus nor the mens rea of the offence under Article 147 [§ 1] of the Criminal Code. The arguments given by Sofia District Court on this point are entirely correct and do not need to be repeated here.
The court cannot accept the argument made by counsel for [the applicant] that the Supreme Court of Cassation’s constant caselaw in similar cases clearly shows that the accused did commit the offence. Firstly, the case does not concern the spreading of rumours, because rumours are what are generated when the information which is being disseminated does not have a source. Here, the source was clearly identified; the case concerns the reproduction of an independently existing document. It is immaterial that the caselaw relied on by [the applicant] runs counter to the constant case-law on the application of [the Convention] (which has priority over the caselaw applying our domestic law), which says that the normal exchange of information in a democratic society does not oblige those who disseminate information to reveal their sources.
Secondly, the court cannot agree with [the applicant]’s argument that the accused was expressing his own opinion. On the contrary, he reproduced – correctly – the contents of a document which was in his possession. His statement does not contain a personal assessment of the facts and does not reflect an opinion. The impugned phrases support his assertions concerning the actions of a State authority and not [the applicant] personally. Those assertions are outside the ambit of the present case.
The court does not accept that the accused sought to achieve the unlawful and noxious result proscribed by Article 147 § 1 of the Criminal Code. There is not a single piece of evidence to support that proposition, and, as explained in detail above, the aim of [his] media appearance was not connected with [the applicant]’s personality or activities.
As regards the argument ... that the caselaw cited by the [lower] court relates to the activities of persons exercising the profession of journalist, whereas [Mr E.S.] was not a journalist, this court finds that the accused’s profession is irrelevant. Whether an individual is a journalist or something else makes no difference to the criminality or otherwise of his or her act. It cannot be accepted that an act can amount to a criminal offence depending on the profession of its perpetrator.
Concerning the argument that the above-mentioned document is false, one should bear in mind that if the veracity of the assertions contained therein had been established, we would have been in the situation envisaged in paragraph 2 of Article 147 of the Criminal Code. In the case at hand, it was not indisputably and categorically established whether the assertions in the document are true or not. However, the question whether they are true is relevant solely for the purposes of Article 147 § 2 of the Criminal Code. The court should pursue that point only if it finds that the actus reus of the offence under paragraph 1 [of Article 147] has been carried out. Since this is not the case, the court does not find it necessary to give reasons or gather evidence concerning the veracity of the assertions made in the document.
In view of its conclusion that the impugned act is not criminal, the court does not need to discuss the [applicant]’s arguments concerning the existence of the various aggravating factors enumerated in Article 148.
...
In view of the foregoing and given that the accused has not carried out the actus reus of the offence, [the lower court] was right to dismiss the claim for compensation. ...”
On 10 February 2004 counsel for the applicant obtained a copy of the judgment and of the transcript of the hearing of 8 December 2003. On 13 February 2004 he requested that the transcript be rectified, arguing that it did not adequately reflect the tenor of his closing speech. It seems that he received no reply to his request.
On 29 January 2003 the applicant lodged a criminal complaint against Mr E.S. with Sofia District Court. He alleged that in his interviews for Darik Radio and BTV Mr E.S. had disseminated injurious statements about him. More specifically, he took issue with the allegation that in 2002 the Serbian mafia had given him three million United States dollars to prevent the extradition of Mr S.J. to the Netherlands. In the applicant’s view, by making those statements Mr E.S. had defamed him, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see Relevant domestic law below) and had injured his reputation as a wellknown public figure. He sought compensation in the amount of BGN 50,000, plus interest.
In a second criminal complaint, dated 20 February 2003, the applicant accused Mr E.S. of libelling him, again in the interviews with Darik Radio and BTV. More specifically, he took issue with the allegation that he had been involved in Mr Kolev’s and Ms N.G.’s murders. In the applicant’s view, by making this allegation Mr E.S. had defamed him, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see Relevant domestic law below) and had injured his reputation as a wellknown public figure. He sought compensation in the amount of BGN 50,000, plus interest.
The first criminal complaint was assigned to Bench 13, Sofia District Court. The second criminal complaint was assigned to Bench 8.
Bench 13, which consisted of a single judge, examined the case at several hearings.
At a hearing held on 24 March 2003 the court requested the Sofia Bar to nominate a person to be appointed ex officio counsel for Mr E.S.
At the next hearing, held on 30 April 2003, the applicant did not appear in person. His counsel, both of whom were present, presented a medical certificate saying that he could not attend for health reasons. Mr E.S. was also absent. However, shortly before the hearing a lawyer presenting herself as acting on behalf of Mr E.S. had requested the court to examine the two criminal complaints jointly. Counsel for the applicant opposed the request and pointed out that the lawyer in question had not presented a power of attorney authorising her to act for Mr E.S. They also noted that the Sofia Bar had nominated ex officio counsel for Mr E.S., and urged the court to proceed with the case despite Mr E.S.’s absence. The court, noting that there were indications that Mr E.S. wished to retain counsel and not be represented by a courtappointed one, decided to adjourn the case to allow him to do so properly. It also noted that, while it could not formally rule on the joinder request because it emanated from an unauthorised representative, it could unofficially request the Bench 8 registry to provide a copy of the second criminal complaint.
At the next hearing, which took place on 28 August 2003, the applicant was again absent but represented by counsel. The court, at the request of counsel for Mr E.S. and over the objection of counsel for the applicant, decided to examine the two criminal complaints jointly. It held that there existed a link between the two complaints and that to avert contradictory rulings it was bound to examine them together. Indeed, the rules of criminal procedure mandated such a joinder, which would not prejudice the rights of the applicant because he would still obtain judicial pronouncement on both charges brought by him.
In reaction, counsel for the applicant requested the judge to withdraw from the case. They argued that by adjourning the case on 20 April 2003, by requesting, without a proper application by Mr E.S., a copy of the second criminal complaint from Bench 8, and by deciding to examine the two criminal complaints jointly, the judge had shown bias in favour of Mr E.S. The judge dismissed the request, saying that procedural rulings could not serve as grounds for requesting a judge’s withdrawal unless they plainly expressed bias. Her decision not to proceed with the case on 30 April 2003 had been fully warranted in view of Mr E.S.’s wish to retain counsel. Her decision to request a copy of the second criminal complaint had been a fully warranted case management decision in the interests of procedural economy. Nor had her decision to examine the two criminal complaints been indicative of bias.
On 4 September 2003 the applicant appealed against the judge’s decision to join the two complaints and not to withdraw from the case. He argued that the joinder of the two complaints would be an error and could delay the examination of the case. It also showed that the judge to whom the case had been assigned was biased in favour of Mr E.S. On 15 October 2003 the Sofia City Court declared the appeal inadmissible, observing that the lower court’s decision to examine the two criminal complaints jointly had been an interim case management decision which did not restrict the procedural rights of the parties and was therefore not subject to appeal separately from the final decision. The judge’s refusal to withdraw was likewise not amenable to interlocutory appeal.
The Sofia District Court held its last hearing in the case on 27 October 2003. In a judgment of the same date (reported on p. 260 of the abovecited unofficial collection of the Sofia District Court and Sofia City Court caselaw in defamation cases) it acquitted Mr E.S. and rejected the applicant’s claim for compensation. In the reasons for its judgment the court described the procedural history of the case, summarised the parties’ written and oral submissions, and set out in detail its findings of fact and the manner in which it had assessed the evidence. It went on to say that several injurious statements made in the course of one publication constituted one single offence and not several separate offences. Therefore, by making separate allegations in the course of the same interview Mr E.S. had not allegedly committed several offences but only one. The court also found that Mr E.S. could not be held liable for his words being republished by newspapers. Having clarified those preliminary points, the court continued as follows:
“The accused has not performed the actus reus of the offence of defamation. The actus reus of that offence consists in the dissemination of an injurious statement of fact about another or in the imputation of an offence to him or her. The criminal complaint alleges that [Mr E.S.] has disseminated an injurious statement about the [applicant], consisting in his assertion on radio and television that the latter had connections with the Serbian mafia, that that mafia had ordered him to foil the extradition of the Serbian citizen [Mr S.J.], paying him three million United States dollars to do so, and that he had split that sum between himself, Colonel F.S. and the Chief Prosecutor, but, as the order had not been carried out and the money had not been returned, there had been an attempt on the [applicant’s] life. It should firstly be noted that the law requires the explicit dissemination of an injurious statement of fact, that is, an assertion that an event has occurred which is injurious for the person concerned. The assertion must be clear and contain information presented by the asserter as certain, indubitable information about the matters presented. Thus, the actus reus presupposes dissemination (clear and precise) of a statement of fact which is injurious to another. The act of ‘disseminating’, as relating to the person committing that act, requires the asserter to make his own assertions; assertions which emanate from him personally and which he backs by his words, pretending to be certain that those events have occurred. In this respect, the logic of the law [of defamation] simply reflects one of the general principles of the criminal law: that a person can and should be liable only for his own acts. In the case at hand, the accused did not disseminate his own assertions and on several occasions expressly said that the information which he related were versions put forward by the murdered [Mr] Kolev, which the latter had sought to back by evidence. The accused moreover declared that he did not purport to state the truth, but only what he had heard from the murdered [Mr] Kolev, and would like that to be understood well. The overall content of the interviews that he gave shows that he never stated that he was certain that the events he related had indeed occurred, and that he did not present those matters as information emanating from him, because that information had been relayed to him by another person. In his interview for Darik Radio, in reply to a question by the host, the accused specified that the version was not his but belonged to the late [Mr] Kolev, and that he wished to add that the truth about that version (concerning [Mr S.J.]’s case) could be exposed only after a comprehensive investigation. Presented in such a way, the information put forward by the accused does not even amount to the dissemination of a statement of fact about another which the accused presented as true. He did not claim that the other person’s assertion was accurate; on the contrary, he expressly cast doubt on the truthfulness of the allegations that had come to his attention – firstly he characterised them as others’ ‘versions’, and secondly pointed out that they needed to be checked. The accused in fact acted as a sort of intermediary – he brought to the attention of third parties information contained in the words of another. Each viewer and listener who saw and heard the two interviews, if later relating to others the accused’s words, would likewise be an intermediary, disseminating another’s assertions and not his own, in respect of which act he cannot of course be held liable. In sum, the court comes to the following conclusion: a person who relates another’s and not his own assertions and expressly indicates that should not be liable for defamation because he does not perform the actus reus of that offence; he merely relates the words of another, cites his source, that is, the person who has disseminated the statement. The relating person is thus a ‘means’ through which the statements made by another become known to others. The disseminator should be liable only if it is established that the statements in fact emanate from him and not from the person to whom they are ascribed. In the case at hand, in view of its findings of fact, the court finds that the accused was not the author of the statement disseminated by him, and has therefore not performed the actus reus of the offence of defamation. In this connection, the court finds unhelpful the argument of counsel for the [applicant] that it would be absurd to accept the accused’s assertions as true, because the person to whom he ascribes them is dead and it cannot therefore be checked whether they really emanated from him. It would be absurd to reach a definitive conclusion as to whether an event has or has not occurred merely on the basis of the possibilities of proving it. The logic of counsel for the [applicant] leads to the conclusion that if the assertion’s source can be verified and it can be confirmed that he or she is the author of the information, the asserter should not be liable because the information emanated from another, but that in the specific situation where the assertion’s purported author has died the asserter should he held liable. The court cannot agree with that proposition and finds it absurd. An assertion cannot be attributed to a person who has specified that his knowledge about certain facts comes from another merely because that other person has died. This is a matter of proof; in the event that the accused’s assertions have been proved because they have not been duly refuted, he cannot be expected to endure negative consequences on account of a matter outside his control such as the death of the assertion’s author.
The next point is that the [accused] did not disseminate statements of fact, but hypotheses, versions and conjectures which were presented as such and not as uncontroverted facts. He asserted as a fact that he had known [Mr] Kolev and had had many conversations with him, but that fact has nothing to do with the [applicant]. The accused contends simply that [Mr] Kolev told him about versions on which he had worked and the content of those versions, and not that he knew whether such events had indeed occurred. With such a caveat the assertion does not amount to the dissemination of injurious statements of fact about the [applicant], but of suppositions relating to him. Therefore, the accused has not performed the actus reus of the offence of defamation, because by uttering the impugned phrases he did not disseminate an injurious statement of fact. He is not the source of the information which he disseminated. The actus reus of the offence defamation does not include searching for or receiving information or its dissemination after it has been created by someone else. In that connection, this court would point out that in its judgment in Thorgeir Thorgeirson [cited above] the European Court [of Human Rights] made a distinction and held that the applicant’s conviction for defamation for disseminating in the press information which he had learned from others was in breach of Article 10 of the Convention. The European Court [of Human Rights] made that distinction, explaining the difference between liability for one’s own statements of fact and liability for relating statements coming from another source of information. The [C]ourt also emphasised that the necessity for any restrictions must be convincingly established, in consideration of the fact that dissemination of information on matters of public interest is connected with the public’s right to receive information on important matters.
Secondly, the accused has not imputed the offence of murder to the [applicant]. In addition to what has already been said about him not making his own assertions, the court would add the following. The interview broadcast on Darik Radio and quoted in the press does not contain words used by the accused that could be characterised as assertions. He said that the ‘persons probably behind it were Mr N.F. (the Chief Prosecutor) and possibly [the applicant]’, and later that [Mr] Kolev had told him at their last meeting that he ‘expected [the applicant] to snatch him’. The use of the words ‘probably’ and, in connection with the [applicant], ‘possibly’, categorically show that the words were a supposition and not a statement of fact or an imputation of an offence. Moreover, the phrase has to be seen against the backdrop of the interview as a whole and not in isolation, because otherwise one may lose sight of the overall picture. Seen in context, that phrase was also one of the versions which [Mr] Kolev had shared with the accused and which concerned his relations with the Chief Prosecutor and the [applicant]. As regards the expression ‘to snatch him’, the court finds that it cannot amount to the imputation of an offence. The phrase obviously suggests negative actions and aggressive conduct, but cannot be unequivocally connected with a specific act (it could refer to various encroachments, such as extortion, coercion, bodily injury, etc.). It is possible only to surmise [about its meaning], and the conjectures of the different members of the audience in front of which the statement was made may vary. As regards [Ms N.G.]’s murder, the words said by the accused during the interview do not indicate that he imputed that offence to [the applicant]. He merely said that she had been working for [the applicant], but did not make any other assertions relating to [him]. He next said ‘... in fact, the strong dependence and the connection between the Chief Prosecutor and [the applicant] is linked with that murder’. A literal interpretation of that phrase shows that the accused did not state that the [applicant] had committed murder. He stated that there existed a dependence and a link between [the applicant] and the Chief Prosecutor, but did not specify whether those were negative or which one of them could be connected with the murder. In order to have performed the actus reus of the offence of defamation, the accused must have made statements indicating unequivocally and clearly that the allegedly defamed person has committed an offence. Since the accused did no such thing, the court finds that he did not impute an offence to the [applicant] and did not perform the actus reus of the offence of defamation.
The lack of actus reus shows that no offence has been committed, and it would therefore be superfluous to discuss mens rea. However, for the sake of completeness the court finds it necessary to address the lack of mens rea.
The accused declared clearly and many times that he was relating the content of his statement [to the police], which he later intended to repeat before [the investigating authorities], that is, in both interviews the accused related his testimony. At the same time he replied to journalists’ questions aiming to shed light and inform the public about the outrageous assassination of a public prosecutor. It is well known that the case was reported not only in the Bulgarian but also in the international media, and gave rise to a number of statements, with many public figures commenting on it in public. This clearly shows that the case was a matter of public importance. Therefore, any information relating to it is of public importance as well. Through his acts the accused was aiming to impart such information; his statements were not seeking to vilify [the applicant]; his goal was not to accuse him of committing an offence or to discredit him; the accused presented information relating to the actions through which he was trying to assist the investigation. His sense of civic duty impelled him to give a statement to the authorities and publicly to announce his perspective on the event, informing the public about what he had done. In this context, it should be noted that the accused is likewise a public figure – he is a politician and engages in public activities. This explains why he chose to express in public his position in relation to an acute civic problem. The mens rea of the offence of defamation can be only direct intent – the perpetrator must know that the injurious statement of fact or imputation is untrue and wish to vilify the person concerned. In the case at hand, both knowledge and desire are lacking, because the accused specified that he did not know whether the allegations which he was making public were true, and did not wish to vilify the [applicant] but simply to inform the public about a widely publicised case. Therefore, by relating the content of his statement to the authorities, the accused did not commit the offence of defamation.
In view of the foregoing, the court finds that the accused has not committed an offence [and therefore] acquits him of both charges brought [against him].
...
The claims for compensation are illfounded, because the accused against whom they have been brought has not committed the offences in respect of which he was brought to trial, and hence did not act unlawfully. The court accepts that the [applicant] must have felt negative emotions, but a person can be liable in tort only if all elements of the tort – unlawful conduct, damage, causal link between the conduct and the damage and fault – are in place. In the case at hand, there has been no unlawful conduct. It is therefore pointless to discuss the other elements, because the lack of even one element is equivalent to the lack of a tort.
For these reasons, the court dismisses both claims as ill-founded and unproven. ...”
On 7 November 2003 the applicant appealed. Sofia City Court heard the appeal on 29 March and 3 May 2004. At the second of those hearings the applicant was not personally present but was represented by counsel, who asked the court to proceed with the case.
In a final judgment of 17 May 2004 Sofia City Court upheld the Sofia District Court judgment. One of the judges who took part in the examination of the case was the judge who earlier, as a judge at Sofia District Court, had examined the first case against Mr E.S. (see above). The court held as follows:
“The actus reus of the offence has not been carried out, either in the form of an imputation of an offence or in the form of dissemination of an injurious statement of fact, in either interview – for Darik Radio or BTV.
When deciding whether the impugned statements were defamatory and amounted to the imputation of an offence, the court must analyse three separate statements made by the accused. The first concerns the worries of [Mr] Kolev about the prospect of [the applicant] ’snatch[ing] him’. The second were the stories ... about money received from the Serbian mafia in order to foil the extradition of [Mr S.J.]. The third was the statement before Darik Radio that the [applicant] had been implicated in [Ms N.G.]’s murder.
[This court] finds that the first expression – ‘snatch him’ – does not amount to an imputation of an offence or to a statement of something injurious. ... There would be defamation if [the asserter] points to specific matters which lead to the conclusion that the defamed person has either committed an offence or has engaged in morally reprehensible acts. Only the dissemination of statements presented as fact, not as opinion, amounts to defamation. There is constant caselaw to the effect that the impugned events must have occurred in the past or be occurring in the present, and not in the future. The impugned statement does not purport to present facts, but merely expectations on the part of the late [Mr] Kolev. (In fact, the impugned statement relates to the fact that the late [Mr] Kolev was worried about hypothetical and, according to him, probable actions [the applicant] might take against him. The meaning of the word ‘snatch’, although not standard Bulgarian, comes close to the meaning of the words ‘grab’ and ‘press’ and demonstrates [Mr] Kolev’s misgivings about the [applicant] putting him, in an unforeseeable manner, in an unfavourable situation in the near future.) The exact purport of those misgivings is unclear, because the meaning of the word ‘snatch’ cannot be ascertained because there is no such word in the literary Bulgarian language or jargon.
In [this court]’s view, the second and the third impugned statements contain sufficiently specific information about the [applicant]’s possible participation in the commission of criminal offences. Relying on [the Supreme Court’s caselaw], this court does not share the lower court’s view that the allegations do not clearly and unequivocally point to the commission of an offence. In both cases the criminal offences have been sufficiently spelled out. Those to whom the statement was addressed can clearly understand the allegation which has been made – that the [applicant] received a large sum of money and gave some of it to highranking officials with a view to inducing them to commit another offence. The time, the accomplices and the intended offence – helping a criminal to evade justice – are all clear. In the second case the audience likewise understood that [Ms N.G.] had been an intermediary in the giving and taking of bribes between individuals engaged in criminal activities and public prosecutors, and that the contacts necessary for that activity had been made as a result of the close relations between [the applicant] and the Chief Prosecutor. Again, the statement points to a specific criminal offence – continuously acting as an intermediary in the giving and taking of bribes with an accomplice – [Ms N.G.]. Even though Mr E.S. described the information put forward by him as [Mr] Kolev’s versions, it was specific enough and must be regarded as a statement presented as fact. Unlike a fact, a version is not something that has really happened but a mere conjecture about one of the possible ways in which the events have unfolded and the reasons for it; it is not subject to proof.
Nonetheless, the accused’s statements do not amount to the imputation of an offence, because they do not contain his own allegations. Two facts are of particular relevance in this connection – that Mr E.S. did not make his own allegations but repeated allegations [made by Mr] Kolev, and that he declared that he did not know whether they were true. The imputation of an offence – as well as the dissemination of an injurious statement of fact – consists in the making of untrue statements presented as fact. The statement made by [Mr E.S.] was that before his death [Mr] Kolev had had several conversations with him and that during those conversations [Mr] Kolev had told him that he was investigating possible versions of events as regards the participation of [the applicant] in the abovementioned events and had learned the information described above. That is a fact. For the reasons set out in the ‘facts’ part of this judgment, [this court] finds that this has been clearly established. It is also clear that [Mr E.S.] described this not only to the audience of the two medias but also to the authorities, under penalty of perjury. It must therefore be concluded that [he] did not disseminate untrue statements of fact but the content of his conversations with [Mr] Kolev. It is not unlawful to report the words of another.
Apart from those cases where the thing which is being reported is a rumour and where the assertion that the statement belongs to someone else is not true, the disseminated statement has an author who is different from the reporter; it is that author who should bear liability for defamation, if all required elements are in place. Put differently, [Mr E.S.] is not the author of the offence, but merely a third party before whom [the applicant] was defamed by [Mr] Kolev. The latter’s subsequent death, which amounts to a bar to the institution of criminal proceedings ... and to holding him liable for his statements, does not change the fact that he was their author.
There is a substantial difference between disseminating a statement about an offence and disseminating a statement that a specific person has committed an offence. Only an untrue statement can be defamatory. Only those who impute offences to others are liable for the truth of their statements. In contrast, those who merely relate statements made by others are not so liable, and not only if they manage to prove the truth of the statement, but also if they clearly identify the person who has made the injurious statement of fact or has imputed the offence. Such a distinction between the author of a statement and its reporter was made even in the Constitution [of 1879], which specifically provided, in Article 79 § 2, that ‘[i]f the writer is known and lives in the realm, the publisher, the printer and the distributor shall not be prosecuted’.
The constitutionally guaranteed right to express opinions and impart information is not absolute or unrestricted. The restrictions under Article 10 § 2 of the [Convention] call for a balance between two protected values – the public’s right to receive information and the individual’s right to inviolability of his honour and dignity. The matter about which the public has the right to be informed in the instant case is of vital importance – it concerns the assassination, in the centre of [Sofia], of a public prosecutor of the Chief Prosecutor’s Office. There are good reasons for the media to subject the investigation of that offence to intense public scrutiny. Even before the assassination the victim’s name was widely known and was associated by the public with his overt confrontation with the Chief Prosecutor. The content of the impugned statements shows that the [applicant]’s name is mentioned alongside the name of the Chief Prosecutor and the assertions concerning [the applicant] equally concern the Chief Prosecutor, due to the close link between the two. Domestic and European caselaw both state categorically that public officials are subject to wider limits of acceptable criticism than private individuals. Therefore, the [lower court’s] judgment is fully consonant with the view expressed by the Constitutional Court ... that the degree to which it is permissible to limit the right to express opinions freely depends on the importance of the countervailing interest deemed worthy of constitutional protection.
In support of their position counsel for the [applicant] argue that [Mr E.S.] on several occasions used the words ‘my version’, which in their view refutes the [lower] court’s finding that he had reported another person’s words. After analysing the two impugned interviews, [this court] finds that this argument is illfounded. It is true that the accused spoke of his versions and of the versions of the late [Mr] Kolev, but those versions concern different issues. [Mr] Kolev’s versions concern the link between the [applicant], the extradition of [Mr S.J.] and the murder of [Ms N.G.], whereas [Mr E.S.]’s version concerns the reasons for [Mr] Kolev’s murder.
The accused is not the author of the allegedly defamatory statements in the two publications in Trud and 24 Hours. The articles are editorial, they have not been signed by a named individual, but their content makes it clear that the accused was not their author and has not been interviewed by their authors. Those authors referred to the [radio and television] programmes which had already been broadcast. The accused is therefore not the perpetrator of that act, which is moreover not criminal. It is impossible to commit defamation by omission. ...
There are no grounds for finding the accused liable in tort either. The lower court correctly found the [tort] claims to be illfounded, because [Mr E.S.] has not perpetrated an unlawful act.”
The relevant provisions of the 1991 Constitution read as follows:
“The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour, dignity and reputation.”
“1. Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way.
2. That right shall not be exercised to the detriment of the rights and reputation of others, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or enmity or violence against anyone.”
“The press and the other mass media shall be free and not subject to censorship.”
“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.”
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 can show that the said statement or imputation is true.”
If defamation is committed in public or through the printed press, it is punishable by a fine ranging from BGN 5,000 to BGN 15,000, as well as by public reprimand (Article 148 § 1 (1) and (2) 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).
The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4)).
Article 349 of the 1974 Code of Criminal Procedure, as in force at the material time, provided that appellate judgments were subject to appeal on points of law only in (a) cases concerning publicly prosecutable offences or (b) cases concerning serious (that is, punishable by more than five years’ imprisonment) privately prosecutable offences.