Last Updated on May 12, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 69725/10
Dimitar Georgiev DIMITROV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 13 November 2018 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 4 November 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Dimitar Georgiev Dimitrov, is a Bulgarian national, who was born in 1959 and lives in Pazardzhik. He was represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Nedyalkova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s allegations against Officer I.
4. On 24 August 2008 the applicant suffered injuries in a traffic accident.
5. The police in Pazardzhik opened criminal proceedings against another participant in the accident. Officer D. was initially in charge of the investigation, and subsequently the case was taken over by Officer I.
6. On 24 November 2008, upon a proposal by the police investigator (Officer I.), a prosecutor of the Pazardzhik District Public Prosecutor’s Office discontinued the criminal proceedings, on the ground that it had been the applicant and not the other participant who had been responsible for the accident; no criminal offence had thus been committed as it had been only the applicant who had suffered injuries as a result.
7. Upon an appeal by the applicant, on 26 January 2009 the above decision was upheld with finality by the Pazardzhik Regional Court.
8. In the meantime, on an unspecified date the applicant visited the office of the local newspaper Videlina and showed documents concerning the investigation to a journalist. He was interviewed and made oral statements.
9. On 29 January 2009 the newspaper published an article entitled “The absurd history of a traffic accident”. The article criticised the police and the prosecution for their handling of the case, often citing statements and arguments made by the applicant in his appeal against the prosecutor’s decision of 24 November 2008 (see paragraphs 6 and 7 above). The article contained in particular the following paragraph:
“And also, the last police officer to investigate the case [Officer I.] stated plainly on 18 September that he had taken the case from [Officer D.] because [the other participant in the accident] had been a personal friend of his since 20 years. The appeal in which all this is described is dated 12 December 2008.”
2. Criminal proceedings against the applicant
10. In July 2009 Officer I. initiated a private prosecution of the applicant, claiming that the paragraph quoted above had defamed him, implying that he had abused his office. He brought in addition a tort action against the applicant, claiming non-pecuniary damage.
11. During the ensuing trial the applicant’s defence argued that the paragraph at issue did not contain a defamatory statement, and that it reflected the applicant’s personal impressions during his conversation with Officer I.
12. The Pazardzhik District Court, examining the case at first instance, found, on the basis of witness testimony, including from Officer D. and his and Officer I.’s superior, that the applicant’s case had been transferred to Officer I. by the superior, after his colleague had gone on leave, and that the work organisation at the police office made it impossible for an investigating officer to take up a case upon his own discretion. It also established that the journalist in Videlina having authored the impugned article had been instructed by his editor to adhere to what had been stated in the documents given to him by the applicant. When interviewed by the journalist, the applicant had stated once again that Officer I. had told him that he had taken over the case due to his friendship with the other participant in the accident, and also that his case had been discontinued because of Officer I.’s partial attitude.
13. In a judgment of 7 December 2009 the Pazardzhik District Court convicted the applicant for defamation under Article 148 § 2 of the Criminal Code, finding that his impugned statement had been untrue. The applicant had implied that Officer I. had abused his office, which had damaged the latter’s professional reputation. The applicant’s statements had been disseminated through the press and could potentially reach a large audience. The applicant had acted with criminal intent.
14. The Pazardzhik District Court set the applicant’s punishment below the minimum provided for under Article 148 § 2 of the Criminal Code (5,000 Bulgarian levs (BGN), the equivalent of 2,560 euros (EUR)), considering that there were numerous mitigating circumstances, such as the applicant’s state of health and the lack of previous convictions. It thus fined the applicant BGN 2,500 Bulgarian levs (the equivalent of approximately EUR 1,280) and sentenced him in addition to public reprimand. It ordered him to pay another BGN 2,500 in non-pecuniary damage to Officer I., plus default interest as of 29 January 2009 (which, as of the date of the final judgment in the case – 11 June 2010 (see paragraph 16 below) – amounted to BGN 398 (EUR 203)).
15. The applicant lodged an appeal. The Pazardzhik Regional Court gathered additional evidence, including documents and witness testimony. Counsel for the applicant argued once again that the allegations made in the article of 29 January 2009 had not been defamatory, and also that it had not been proven that Officer I. had not made the statement attributed to him by the applicant.
16. In a final judgment of 11 June 2010 the Pazardzhik Regional Court upheld the applicant’s conviction and sentence. It also reached the conclusion that the applicant’s impugned statement was untrue, as it had been shown that the case concerning the traffic accident of 24 August 2008 had been transferred to Officer I. by his superior and after Officer D. had gone on leave. Accordingly, the applicant had disseminated through the press untrue and defamatory allegations.
B. Relevant domestic law and practice
17. The relevant domestic law and practice have been summarised in the Court’s judgment in Marinova and Others v. Bulgaria, nos. 33502/07 and 3 others, §§ 42-44 and 49-51, 12 July 2016).
COMPLAINTS
18. The applicant complained that his conviction and sentence related to his statement published on 29 January 2009 breached his rights under Article 6 and Article 10 of the Convention.
THE LAW
19. The Court is of the view that the complaints fall to be examined solely under Article 10 of the Convention, which reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Arguments of the parties
20. The Government urged the Court to dismiss the application for non‑exhaustion of domestic remedies, on the ground that in the domestic criminal proceedings the applicant had failed to make, even in substance, a complaint under Article 10 of the Convention. They argued in addition that the interference with the applicant’s right to freedom of expression had been lawful and had been aimed at protecting the rights of Officer I., and that in addition a fair balance had been achieved between the different interests involved. In that latter aspect the Government referred to the following: the applicant had been convicted for having made a statement of fact, which had been shown by the domestic courts to be untrue; Officer I. was a civil servant, entitled to protection from abusive attacks against his reputation, so as to be able to work free from undue perturbation; the applicant was not a journalist and had not commented on general issues of public interest; nor had he complained of the behaviour of Officer I. to the latter’s superiors; and lastly, the penalty imposed to the applicant by the national courts had been moderate.
21. The applicant disagreed. On the Government’s objection as to non‑exhaustion of domestic remedies, he pointed out that the national courts were obliged to apply Article 10 of the Convention of their own motion. He argued furthermore that it was the newspaper which had to be held liable for any damage caused to Officer I., and that his own liability on that account meant that the interference with his Article 10 rights was unfair. Lastly, he pointed out that it had been too hard for him to prove something allegedly told to him face to face.
B. The Court’s assessment
22. The Court takes note of the Government’s objection relating to non‑exhaustion of domestic remedies, disputed by the applicant (see paragraphs 20-21 above). However, the Court does not need to decide on it, as it considers the application in any event inadmissible for the reasons below.
23. The applicant’s conviction for his statement published in Videlina on 29 January 2009 amounted to an interference with his right to freedom of expression. This interference was lawful, as it was based on Article 148 § 2 of the Criminal Code. Furthermore, the interference pursued the legitimate aim of protecting the rights, and in particular the reputation, of Officer I. The Court has thus to determine whether the interference was “necessary in a democratic society”, that is to say whether it corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities were relevant and sufficient.
24. The present case should be distinguished from Marinova and Others (cited above), where the applicants had been punished for complaining of misconduct on the part of public officials, after their complaints addressed to those officials’ hierarchical superiors had been found to be groundless. In the present case the applicant never complained to Officer I.’s superiors, or sought his recusal from the case, and his eventual conviction for defamation was not related to his allegations made in this submission. On the contrary, his conviction concerned a statement which had been made public and had been disseminated through the press, after the applicant had explicitly sought its publication.
25. Moreover, the applicant was not convicted for having made a value judgment, but a statement of fact – namely that Officer I. had told him that he had taken over the investigation of the applicant’s traffic accident because the other participant in that accident had been a friend of his (see paragraph 9 above). While, undoubtedly, it would have been difficult for the applicant to prove what Officer I. had told him face to face, it is significant that he was allowed all procedural means to prove his allegations. The Court sees no ground to question the domestic courts’ conclusion, based on numerous pieces of evidence and thorough analysis, that these allegations had remained unproven (seeCoutant v. France (dec.), no. 17155/03, 24 January 2008, andRumyana Ivanovav. Bulgaria, no. 36207/03, § 63, 14 February 2008).
26. The applicant’s impugned statement was aimed at Officer I., a public official. While it is true that the limits of acceptable criticism with regard to such officials may in some circumstances be wider than in relation to private individuals (see Steur v. the Netherlands, no. 39657/98, § 40, ECHR 2003‑XI; Medžlis Islamske Zajednice Brčko and Others, [GC], no. 17224/11, § 98, 27 June 2017; Marinova and Others, § 88, cited above), it should remain open to the competent State authorities to adopt measures, even of a criminal-law nature, intended to react appropriately to defamatory accusations devoid of any foundation (see Coutant, cited above).
27. As concerns the present case, it is significant that the applicant’s allegation against Officer I. was not made in the context of an open discussion of matters of public concern (see Janowski v. Poland [GC], no. 25716/94, § 32, ECHR 1999‑I). The allegation at issue, while not grossly defamatory, was quite serious, suggesting abuse of power. Eventually, it proved to be groundless. In addition, it must have had a negative impact on the police officer’s good name and reputation, amplified by the fact that it had been disseminated through the press.
28. In view of the above, the Court considers it legitimate that the applicant was imposed a criminal-law sanction for such a defamatory statement (see Coutant, cited above). In addition, the Court does not find that sanction excessive or unreasonable. It notes that the applicant was reprimanded and fined BGN 2,500, an amount which was well below the minimum provided for by law, and that in setting that amount the national courts took into account the applicant’s individual circumstances (see paragraph 14 above). In addition, the applicant was ordered to pay damages to Officer I. – BGN 2,500, plus BGN 398 in interest at the time of the final judgment in the case (ibid.) – again an amount which does not appear unreasonable.
29. In sum, having regard to the nature of the applicant’s allegation against Officer I., the fact that it was disseminated through the press, and the punishment and the damages ordered against him, the Court considers that the interference with the applicant’s right to freedom of expression was proportionate to the aim pursued, and that the domestic courts gave relevant and sufficient reasons to justify such interference.
30. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 December 2018.
Milan Blaško Gabriele Kucsko-Stadlmayer
Deputy Registrar President
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