DONCHEVA-STOYANOVA v. BULGARIA and 1 other application (European Court of Human Rights)

Communicated on 10 September 2019

FIFTH SECTION
Application nos. 68591/14 and 16822/15
Irina EmilovaDONCHEVA-STOYANOVA against Bulgaria
and PeneYanev GININ against Bulgaria
lodged on 7 October 2014
and 27 March 2015 respectively
STATEMENT OF FACTS

The applicant in application no. 68591/14, Ms Irina EmilovaDoncheva‑Stoyanova, is a Bulgarian national, who was born in 1963 and lives in Pernik.

The applicant in application no. 16822/15, MrPeneYanevGinin, is a Bulgarian national, who was born in 1953 and lives in Mokrishte, Pazardzhik region.

Both applicants are represented before the Court by Mr M. Ekimdzhiev and Mrs S.H. Stefanova, lawyers practising in Plovdiv.

A.    The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1.   Application no. 68591/14 lodged on 7 October 2014 by Irina Emilova DONCHEVA-STOYANOVA.

At around 21h00 on 13 January 2013 a police officer, X, stopped the applicant on the road and fined her for a breach of the Road Transport Act, in particular for driving with one defective car light. The same evening she attempted to file a written complaint at the police station against X, stating in it that the official who had imposed the fine on her had smelled of alcohol and asking that an inquiry be carried out into her complaint. The police officer who received her at the police station expressed a disbelief that X could smell of alcohol, told the applicant that X does not drink and handed the complaint back to her. She took this reaction as an attempt to dissuade her from pursuing her complaint and insisted that it be registered. The officer then called a colleague of his who was on duty that night and the latter heard the applicant, read her complaint and gave it an incoming registration number.

She was then told to wait, following which X appeared and, in her presence, asked a colleague of his to test him on the spot for alcohol. A test was carried out and it gave a negative result, after which the applicant excused herself before X, in the presence of several other police officers. X did not accept her apology and requested to be formally directed to a medical facility for a blood test for alcohol. The applicant did not withdraw her complaint. She and the police officer who had registered her complaint were invited to accompany X to the medical facility which they did. X’s blood was tested for alcohol the same night and the test established zero alcohol units in his blood. At the medical facility X was wearing his police uniform, as he was on duty the whole night. There were three medical staff in the facility, in addition to a doctor.

The following day the applicant’s complaint was further processed within the regional police department in the context of which it was brought to the knowledge of a number of officials. X was asked to make a written statement in connection with the complaint and he did so. On 30 January 2013 the Director of the Regional Department of the Ministry of the Interior informed the applicant that an inquiry had been carried out following her complaint and that it had concluded that the police officer in question had not been under the influence of alcohol when he had stopped and fined her.

On 1 February 2013 X brought a private criminal prosecution against the applicant for defamation under Article 148 § 2 in conjunction with Article 147 § 1 of the Criminal Code, together with a civil claim for non‑pecuniary damage in the amount of BGN 2,000 (approximately EUR 1,000). On 28 November 2013 the Pernik District Court found the applicant guilty of the above offence and imposed on her an administrative penalty of BGN5,000 (approximately EUR 2,500) along with ‘a reproach’ to be broadcast on local television. The court also ordered her to pay BGN 1,200 (approximately EUR 600) in compensation to the police officer, as well as EUR 150 to the officer for his legal costs and EUR 25 in court fees. The court also decided not to absolve the applicant from criminal responsibility and not to impose on her an administrative penalty instead, because her action had been directed at a public official.

The applicant appealed against the above judgment. In a final decision of 24 April 2014 the Pernik Regional Court upheld the lower court’s judgment in its entirety. It found in particular that the dissemination of an injurious statement of fact concerning a public official represented an abuse of one’s right to freedom of expression and merited a penal sanction. It had been enough that the allegationin question had become known to three police officers for it to be considered as having been publicly disseminated. The applicant had maintained her complaint even after X had given a negative result for alcohol when tested at the police station; therefore, her actions had not represented a legitimate signal by a citizen about unlawful actions of an official, but rather had been aimed at hurting the officer’s reputation.

2.   Application no. 16822/15 lodged on 27 March 2015 by PeneYanev GININ

Two road traffic police officers stopped the applicant on 24 April 2013 and booked him for driving without using a safety belt and for not having the car lights switched on. The applicant was waiting outside, next to his car, for the paperwork to be completed, when he saw one of the officers, Y, stop another car for driving without the lights switched on. The driver of the other vehicle took out a banknote of BGN 20 (around EUR 10) and handed it over to Y, who in turn passed it on to his colleague who was sitting in a police car nearby. The driver of the other vehicle then drove away without having been booked.

The applicant immediately called emergency telephone number 112 and described what he had just witnessed. During the following 20 minutes no one appeared and the police officers who had stopped the applicant drove away.

The applicant called the emergency number again and insisted in relating what he had seen. He was then invited to meet the head of the police in Pazardzhik, which he did. According to the applicant, while he was sitting in the office of the police head, Y went in and out of the office several times, behaved aggressively towards the applicant and threatened to sue him.

On 25 April 2013 the head of police of Pazardzhik ordered a thorough inquiry into the applicant’s report. The inquiry ended on 17 May 2013 with the conclusion that no offence had been committed.

On 22 August 2013 Y brought a private criminal prosecution against the applicant for defamation under Article 148 § 2 in conjunction with Article 147 § 1 of the Criminal Code, and a civil claim for non-pecuniary damage in the amount of EUR 1,500. On 2 June 2014 the Pazardzhik District Court found the applicant guilty of that offence, absolved him from criminal responsibility and instead imposed on him an administrative punishment of EUR 500. The court also ordered the applicant to pay EUR 1,000 in non-pecuniary damages to Y and EUR 40 in court fees. Having concluded that the applicant had not proven his allegations, the court held that his actions had been defamatory.

Following an appeal by the applicant, the Pazardzhik Regional Court upheld the lower court’s judgment in its entirety in a final decision of 22 October 2014.

B.     Relevant domestic law and practice

The relevant statutory provisions and case-law have been set out in paragraphs 41-53 of the Court’s judgment in the case of Marinova and Others v. Bulgaria, nos. 33502/07, 30599/10, 8241/11 and 61863/11, §§ 49-53, 12 July 2016.

COMPLAINTS

The applicants complain under Article 10 of the Convention that their conviction and punishment, in one case entailing criminal responsibility, for making complaints against public officials, coupled with the orders to pay damages to those officials, were in breach of their right to freedom of expression. They further complain under Article 13 of the Convention in conjunction with Article10 about the absence of an effective remedy.

COMMON QUESTIONS

1.  Has there been an interference with the applicants’ right to freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference necessary in terms of Article 10 § 2 (see Marinova and Others v. Bulgaria, nos. 33502/07 and 3 others, §§ 86-95, 12 July 2016)?

2.  Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 10 of the Convention, as required by Article 13 of the Convention?

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