CASE OF KARZHEV v. BULGARIA
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1945 and lives in Sofia. 6. The applicant is a former prosecutor. For several years, until 2005 or 2006, he served as district prosecutor for Sofia, heading what has been described as the largest prosecution office in Bulgaria. While in that post, he got into a conflict with several of his subordinates, including B.K. and G.C. 7. After the applicant left his post, a commission was appointed with the task of looking into the prosecution office’s work under his management. B.K. and G.C. were among the commission’s members. The revision carried out by the commission led subsequently to the opening of criminal proceedings against the applicant, as it was alleged that he had exerted pressure on one of his subordinates in relation to the outcome of a case. 8. On 12 October 2006 the national daily Trud published an interview with the applicant, where he stated: “All my life I have fought against crime. What is more, I have tried to defeat the mafia present in the prosecution services. I admit that I have failed. And now I am bearing the consequences of that. The commission which carried out the inquiry [at the district prosecutor’s office] includes exactly those prosecutors, [B.K., G.C. and a third person], who staged a revolt at the time against the working methods I introduced. The aim of those methods was to eliminate any grounds for corrupt arrangements related to the cases. That did not suit those three prosecutors and the notorious [prosecutor N.N.].” 9. Warned by the journalist interviewing him that his words were strong, the applicant nevertheless continued: “I am saying things which will not surprise my colleagues. It is a public secret that one of the prosecutors I mentioned is known among barristers and “clients” of the prosecution not so much with his own name, but with another one.” The applicant then explained that the prosecutor at issue was known as “Prosecutor Rushvetchiyski” (прокурора Рушветчийски), meaning someone who takes bribes, derived from the colloquial word for bribe, rushvet (рушвет). 10. Asked by the journalist whether the Chief Public Prosecutor knew that, the applicant continued: “If he does not know, he may ask me. I am knowledgeable about corruption patterns. And because I respect his efforts to defeat these patterns, I will give him a well-meant advice: he should check the properties owned by the people accusing me of having committed an offence while doing my work.” 11. Questioned about a finding by the commission that a “bad psychological atmosphere” existed at the Sofia district public prosecutor’s office while it was headed by him, the applicant stated further: “The inspection might be right, if by ‘bad psychological atmosphere’ they mean my intolerance towards those prosecutors ..., who performed their duties in a sloppy manner, or attended meetings with the lawyers of criminals to decide on the outcome of cases. There were such prosecutors at the [Sofia district prosecutor’s office]. They became an organised group when the prosecutor [N.N.] came to work with us. ... The animosity between me and [N.N.’s] circle, comprising the unhealthiest elements in the prosecution service, is well known. As are known from media publications [N.N.’s] palaces, the companies owned by his wife in association with criminals. ... It is ironic that exactly those prosecutors which we at the [district prosecutor’s office] called “[N.N.’s] guardsmen” are in the group which is to check my work. Me being checked by Prosecutor Rushvetchiyski! Shame! And have the case files of the checkers also been checked?” 12. Asked then about the working methods he had introduced, the applicant stated: “Instead of commenting on whether the working methods introduced by me have been effective, I will give you simple statistics. I took over [the district prosecutor’s office] in 1996. During the previous year the prosecutors in it had drawn up 782 acts of indictment. 39% of those were remitted by the courts, and the acquittals were 12%. This means that the failures were 51%. The persons convicted were 768. Now pay attention to the statistics for 2004, after I introduced my working methods. Acts of indictment drawn up: 4,164. Only 8% of the cases remitted by the courts. Acquittals: 6%. Persons convicted: 3,594. I am not being smug about the obvious progress of the prosecution. On the contrary, I thought we could have improved even further. ...” Concerning the working methods at issue, the applicants said further: “The aim was to make the police officer and the prosecutor work side by side, exactly as European experts are recommending. And to reduce the possibilities for corruption deals made in private ... But I do not want to talk any further. My frustration is enormous. You understand why.” 13. In response to a question by the journalist as to why he had not discussed the matter with the Chief Prosecutor, the applicant said: “I don’t know if there is any point. In fact, what [he] is doing now in [his office] is what I tried to do at the time at the [Sofia district prosecutor’s office] – to sweep all the trash out of the house. I managed, to a certain extent, but at the end of the day many pieces of trash came to the surface. They are crushing me now. I hope sincerely that the same fate will not befall [the Chief Prosecutor].” 14. On 16 October 2006 Trud published B.K. and G.C.’s response to the applicant’s allegations. That article has not been submitted by the parties. 15. On an unspecified date in 2007, B.K. and G.C. initiated a private prosecution of the applicant, alleging that he had insulted them and had committed the offence under Articles 146 and 148 § 1 of the Criminal Code (see paragraph 24 below). They found the following statements particularly offensive: “I have tried to defeat the mafia present in the prosecution services”; “the unhealthiest elements in the prosecution service”; “many pieces of trash came to the surface ...crushing me now”; as well as his allegedly calling one of them “Prosecutor Rushvetchiyski”. They claimed that the offence was aggravated because the insult had been made through the media and concerned them in their capacity as “public officials”. 16. In the context of the criminal proceedings, B.K. and G.C. also brought civil claims for damages against the applicant, each of them seeking 10,000 Bulgarian levs (BGN) in compensation. 17. The first-instance court, the Plovdiv District Court, heard a number of witnesses, who described the conflict between the applicant and B.K. and G.C. It also heard the applicant, who stated that when making the above statements he had not referred to either of the two complainants and pointed out that in the interview he had mentioned the names of two other prosecutors, in particular N.N. 18. In a judgment of 5 December 2007, the Plovdiv District Court acquitted the applicant and dismissed the civil claims against him. It considered that it had not been established that the expressions complained of had indeed referred to B.K. and G.C. It found further that the complainants had seen the statements as being aimed at them, and had felt their reputation and dignity as being harmed, “owing to their strained relations” with the applicant. 19. B.K. and G.C. lodged an appeal. In a final judgment of 22 May 2008 the Plovdiv Regional Court reversed the lower court’s ruling and convicted the applicant, finding that he was guilty of insult in an aggravated form. It set aside his criminal liability but imposed an administrative penalty on him – a fine of BGN 1,000 (the equivalent of 510 euros (EUR)). Furthermore, it ordered him to pay each of the complainants BGN 5,000 (the equivalent of EUR 2,551) in damages, plus interest, and BGN 412 (the equivalent of EUR 210) for the costs and expenses incurred by the complainants. 20. The Regional Court reasoned as follows: “It is a fact that the accused uttered the expressions indicated in the private criminal prosecution – “mafia in the prosecution services”, “Rushvetchiyski”, “the unhealthiest elements in the prosecution service” and “many pieces of trash came to the surface ...crushing me now”. It is also a fact that the expressions were uttered in an interview, which was published and disseminated through the mass media – the Trud newspaper ..., in its issue of 12 October 2006. It is a fact that the complainants ... were named in their capacity as public officials – being prosecutors at the Sofia district public prosecutor’s office – and in relation to their official duties.” ... “It has been established that the complainants were aware of those statements, on the basis of the testimony [of the witnesses], as well as on the basis of the article in Trud published on 16 October 2006, and presented in the case, which contained ... their response to the interview of 12 October 2006 ....” “It can be seen from the testimony [of the witnesses] that after reading the interview given by the accused ...the complainants felt that their honour and dignity had been harmed, which caused a feeling of humiliation ...” “The accused’s explanations show that he was aware that the incriminatory expressions were offensive and humiliating to those to whom they were addressed [and] the manner in which he disseminated them [shows] that he aimed to make them public and that they reach the complainants ...” “The accused’s claim in his defence, endorsed by the district court, that the incriminatory expressions were not directed specifically at the complainants ..., cannot be accepted by the appeal court. The fact that [the statements] may have been directed against two other [prosecutors whose names were mentioned in the interview], and that those people may have decided not to prosecute the accused for harming their honour and dignity, does not alter the fact that the accused’s criminal liability in respect of the two complainants must be engaged.” 21. The applicant paid in the amounts indicated in paragraph 19 above on 7 August 2008. The total amount paid, including interest and the fees charged by the enforcement official, was BGN 14,826 (the equivalent of about EUR 7,565). 22. On 5 January 2009 Trud published an interview with B.K. and G.C., where they discussed the applicant’s conviction.