CASE OF RUMYANA IVANOVA v. BULGARIA
No violation of Art. 6-1+6-3-d;No violation of Art. 10
Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
5. The applicant is a journalist by profession. At the relevant time she was employed as a reporter at 24 Hours, one of the leading national daily newspapers. She continues to work there at present. 6. Following a serious banking crisis in 199697, during which a number of banks were sunk into insolvency by, inter alia, non-performing and unsecured loans extended to corporate and individual clients, the Bulgarian legislature enacted a comprehensive package of bank reform legislation (see Capital Bank AD v. Bulgaria, no. 49429/99, § 45, 24 November 2005). Part of that package was the Information on NonPerforming Credits Act of 1997 (“Закон за информация за необслужвани кредити”), which stipulated that the Bulgarian National Bank should compile a list of all bank borrowers with loans that had been due for more than six months, send this list to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities, and the National Assembly, and publish it in a special bulletin. The persons on this list were colloquially referred to as “credit millionaires”. 7. On 21 January 1998 the head of the banking supervision department of the Bulgarian National Bank presented the list to the chairman of the National Assembly. 8. Between 1994 and 1997 Mr M. D. was a Member of Parliament elected on the ticket of the political party Movement for Rights and Freedoms. He was deputy chairman of the Economy Committee and a member of the Budget and Finance Committee of the National Assembly. In the spring of 2001 he became involved with the newly formed coalition National Movement Simeon II, which won the parliamentary elections on 17 June 2001. During the 1990s Mr M. D. was a member of and shareholder in a number of commercial companies. Between 1995 and 2001 his name was mentioned in at least twentyfour reports in national newspapers. 9. On 22 January 1998 Trud, a leading national daily newspaper, published an article under the headline ‘Credit millionaires disclosed’ and the caption ‘Several incumbent and former members of Parliament appear on the list’. In the article the newspaper reported on the handover of the list of “credit millionaires” to the chairman of the National Assembly the previous day and mentioned, inter alia, that several companies connected with the name of Mr M. D. were on the list. According to the article, the company Maxcom Holding owed 3.2 billion old Bulgarian levs (BGL) to one bank, the company FBK Maxcom owed BGL 9.4 billion to another bank, and the company Maxcom OOD was indebted in an amount of BGL 7.8 billion. 10. On 30 January 1998 Mr M. D. issued civil libel proceedings against the publisher of Trud, Media Holding AD. He said that the allegation made in the article that he was a “credit millionaire” was not true. He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of Parliament. He sought BGL 10,000,000 in nonpecuniary damages. 11. In a judgment of 9 January 1999 the Sofia City Court dismissed the action. It held that Mr M. D.’s allegations had not been supported by any evidence and were therefore unsubstantiated. Neither party had attended either of the hearings in the case. Mr M. D. had not sought leave to adduce any evidence. He had therefore not proven his claim that he had suffered any damage on account of the impugned article. Apparently Mr M. D. did not appeal and the judgment entered into force on 9 March 1999. 12. On 3 August 2001 the parliamentary group of the National Movement Simeon II held a closeddoors meeting in the National Assembly in order to discuss, inter alia, the candidates for the position of deputy Minister of Finance in charge of customs. For this reason the applicant, who at that time worked as a parliamentary reporter, went, together with other journalists, to the National Assembly lobby. There they met Members of Parliament, who told them that Mr M. D. was being considered for the abovementioned position. One of the MPs apparently said that his candidacy would probably not be approved because the Prime Minister was wary of the fact that Mr M. D.’s name featured on the list of “credit millionaires”. At that point the applicant called the editor of 24 Hours and said that she would prepare an article on the topic. She also telephoned Mr N., the press officer of the customs administration, asking him whether Mr M. D.’s name was on the list of “credit millionaires”. Mr N. replied that as far as he knew that was so, and referred the applicant to the Full list of credit millionaires, published by the Trud publishing house in 1998. It was stated in the preface of that publication that two companies linked with Mr M. D. – FBK Maxcom and Maxcom OOD – were on that list. The applicant checked in an electronic law database and found that Mr M. D. had been a member (first directly, and after 1993 through another company) of the company Vitaplant OOD, which was also among the debtor companies on the list. After unsuccessfully trying to contact Mr M. D. by telephone, she wrote an article about the story. 13. According to the applicant, in the meantime other journalists from 24 Hours had contacted various institutions which could have had information on the matter (the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the National Assembly, the Ministry of Finance, the Bulgarian National Bank) and all of them had confirmed that Mr M. D. featured on the list of “credit millionaires”. 14. The article, which appeared on page eight of the 4 August 2001 issue of 24 Hours under the headline “Foreign Company to Run Customs under Concession?” and the applicant’s byline, was worded as follows: “The King’s men were intensely discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister. Simeon SaxeCoburggotski was concerned about the fact that [Mr M. D.]’s name is on the list of credit millionaires, confided sources close to him. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Three of his companies – Maxcom Holding, FBK Maxcom and Maxcom OOD –, had debts totalling 20,400,000 levs. The uncertainties about [Mr M. D.] have brought the name of [Mr E. D.] on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” 15. The article was accompanied by photographs of Mr M. D. and Mr E. D. with their names in the captions. 16. Later that day the applicant got in touch with Mr M. D. and was told that the statements in her article were not true. 17. After the first printed copies of the newspaper were circulated, Mr M. D. called 24 Hours’ editor and said that he was not a shareholder in Maxcom Holding, FBK Maxcom, or Maxcom OOD. The editor then decided to amend the article in the subsequent printed copies of the newspaper. The new version, which featured solely the picture of Mr M. D., but not that of Mr E. D., read as follows: “The King’s men were discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister. According to insiders, Simeon SaxeCoburggotski received reports that [Mr M. D.] is on the list of credit millionaires. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Mr M. D. categorically denied this. He said ‘I am not a debtor, but a creditor’. According to former Members of Parliament, the allegations that he was a credit millionaire were being spread by people who wanted to smear his name. Illwishers used the similarity between the names of [Mr M. D.]’s companies and the names of those companies featuring on the list of credit millionaires. This was done to foil his candidacy for the position of deputy Minister of Finance. In recent days the name of [Mr E. D.] has been brought on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” 18. The first version of the article was featured in 5,205 copies of the newspaper, 5,079 of which were sold. The second version was featured in 230,817 copies, 202,568 of which were sold. 19. Two days later, on 6 August 2001, 24 Hours ran an additional article including the response from Mr M. D. The article, which appeared on page ten, was under the caption ‘You are wrong’ and its headline was ‘[M. D.]: I am not a credit millionaire!’. It read as follows: “In an article on page eight of issue 208 of this year, under the headline ‘Foreign Company To Run Customs under Concession?’, [the applicant] links my name to companies which feature on the list of credit millionaires. This statement does not correspond to the truth. I reiterate that I have never been a shareholder, member or manager in the companies Maxcom Holding, FBK Maxcom, or Maxcom OOD, nor can I be in any other way linked with debtor companies. Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation. To my displeasure I notice that 24 Hours, a newspaper which I respect, has joined in the foul attack. In my opinion, the publication of unauthentic, unverified and incorrect information does no honour to your newspaper and offends its readers.” 20. Alongside the article there was a photograph of Mr M. D. with his name in the caption. 21. Shortly after these events Mr M. D. announced that he had withdrawn his candidacy for the post of deputy Minister of Finance. 22. On 8 October 2001 Mr M.D. lodged a criminal complaint against the applicant with the Sofia District Court. He alleged that the statements made in the article were not true. In particular, he had never been a shareholder, member, or manager of the companies mentioned in the article – Maxcom Holding, FBK Maxcom or Maxcom OOD –, nor did he appear as an individual on the list of “credit millionaires”. In his view, by writing the article containing the untrue statements the applicant had committed libel, contrary to Articles 147 § 1 and 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). He further alleged that he had suffered substantial nonpecuniary damage as a result of the applicant’s act, and sought compensation in the amount of 10,000 new Bulgarian levs (BGN). He declared that he would donate any award made by the court to a church. 23. On 28 November 2001 the judgerapporteur at the Sofia District Court sent a copy of the criminal complaint to the applicant, invited her to file a reply, and set the case down for trial. 24. In her reply the applicant said that the allegations made in the criminal complaint were untrue and unproven. The article did not consist of her own statements; she had simply relayed information coming from Members of Parliament. This information had been verified through all available sources. The applicant had been certain that Mr M. D. had indeed been a “credit millionaire”, which was the actual vilifying circumstance, not the mere fact that he was involved in certain companies. 25. The trial took place on 25 March, 10 April, 15 May, 19 June and 16 September 2002. The Sofia District Court admitted in evidence a number of documents produced by the applicant and Mr M. D., and questioned several witnesses, one of whom was Ms N., a journalist who had been in the National Assembly on 3 August 2001 (see paragraph 12 above). While initially giving leave to the applicant to adduce evidence relating to Mr M. D.’s links with companies which had failed to repay bank loans, the court later revoked its order and refused to admit such evidence, holding that these matters could be elucidated through the evidence already gathered. The court also gave leave to the applicant to call one of the Members of Parliament whom she had talked to on 3 August 2001. She tried to secure his presence, but failed to do so. She accordingly left it to the discretion of the court to subpoena him, but refused to name him. Her counsel said that even though the MPs who had spoken to the applicant had been named in Ms N.’s testimony, that did not allow the unequivocal identification of this witness and hence precluded a request to summon him. The court held that, failing clear identification of the witness, it was impossible to subpoena him. It added that the defence had had ample opportunity to secure his presence, but had failed to do so. 26. In a judgment of 16 September 2002 the Sofia District Court found the applicant guilty of having divulged a vilifying fact about another person in a publication, contrary to Article 147 § 1 and Article 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). The court applied Article 78a of the Code (see paragraph 34 below) and replaced the applicant’s criminal liability with an administrative fine of BGN 500. The court further ordered the applicant to pay Mr M.D. BGN 2,000 plus interest from 4 August 2001 until settlement, as compensation for his injured reputation, and awarded him BGN 550 in costs. The court described the facts set out in paragraphs 1219 above, except the part concerning Mr M. D.’s indirect membership of Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and held as follows: “...The actus reus of the offence of defamation is characterised by the divulging of vilifying – and untrue – circumstances relating to a specific individual. The expression used by [the applicant] – ‘credit millionaire’ – is derived from the Information About NonPerforming Credits Act [of 1997], on the basis of whose section 3 the administration of the [Bulgarian National Bank] has published a list of all debtors, persons who have outstanding credits. Therefore the expression ‘credit millionaire’ has a negative connotation and presupposes intolerance and extremely negative public attitudes. These are people who have prospered financially due to credits from financial institutions which they have failed to repay. In this sense, from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest. The law bans these persons from holding certain official posts. The above characterises the expression used by [the applicant] – ‘credit millionaire’ – as vilifying and damaging to the public reputation of the person [in respect of whom it is used] and the esteem of his personality. The vilifying circumstance has been divulged through the press to a large number of readers. The fact that the first version of the article had a smaller circulation than the second, which also contained [Mr M. D.’s] rebuttal, is of no consequence, because the circulation of the printed material has no impact on the criminality of the act. The act has been committed wilfully, the form of mens rea being recklessness. [The applicant] realised the criminality of her act and its injurious consequences, and accepted that they would occur. [She] pursued another aim, which is not unlawful –informing the newspaper’s readers of the latest news about the candidates for the post of deputy Minister of Finance in the SaxeCoburggotski cabinet –, but was aware that the information published was untrue and did not correspond to the actual facts. The court’s findings in this respect are based on the fact that [the applicant] did not carry out a proper journalistic enquiry before publishing her story. No regulations for conducting a journalistic enquiry were in existence at the time when the article was published. Accordingly, in his or her work each journalist had to abide by and comply with the settled customary rules in the branch, which are in line with Articles 39 to 41 of the [Constitution of 1991 – see paragraph 31 below], which contain requirements and restrictions in the exercise of the rights proclaimed thereby. In the instant case, it was established that [the applicant] had not carried out the required comprehensive and thorough journalistic enquiry, as required by the rules of investigative journalism, that is, to receive confirmation from two independent sources. The first of [the applicant]’s sources was a Member of the majority in Parliament, who conveyed the information relating to [Mr M. D.] off the record, citing no sources, that is, it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels. He should have therefore, according to best journalistic practice, been considered an unreliable source. This fact obliged [the applicant] to duly check the information she had received through other, public and reliable, sources and not trust completely what she had heard in Parliament. The information received from [Mr N.] did not in fact constitute another dependable source of information. The latter relied on the publication of the Trud publishing house The Full List of Credit Millionaires, in whose preface [Mr M. D.] had been identified as a debtor through three of his companies – FBK Maxcom, Maxcom Holding and Maxcom OOD. [The applicant] was therefore under the obligation to check whether [Mr M. D.] indeed owned shares in these companies, because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic. This conclusion is reinforced by the fact that the publication in issue gave the names of the companies, not of their shareholders, for which reason the statement in its preface was not confirmed by its contents. However, [the applicant] did not take the requisite steps to verify the facts alleged by [Mr N.] and the publication’s preface. She merely established, after a check in the APIS information system, that [Mr M. D.] was a shareholder in the company Vitaplant [OOD], which also featured on the list of persons with outstanding credits. The company Vitaplant [OOD] was not, however, among the companies connected to [Mr M. D.]’s name in the publication’s preface, and that should have prompted [the applicant] to doublecheck her assumptions. However, [the applicant] assumed that the link uncovered by her was sufficient to corroborate the statement that [Mr M. D.] was a credit millionaire. She thus failed to comply with her duty of thoroughly verifying the information through reliable, independent sources. [The applicant] did not check whether the statement in the [publication’s] preface that [Mr M. D.] was connected to three debtor companies corresponded to the truth, which was mandatory. The fact that she works at a daily newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries. She had access to information in the register of companies, which is public, in order to check the veracity of the information she had gathered. Not only did [the applicant] not do that, but in her article she relied on a document with which she had not been duly acquainted – the official list of borrowers compiled by the [Bulgarian National Bank]. The statement in her article that the three companies – Maxcom Holding, Maxcom OOD and FBK Maxcom – were companies of [Mr M. D.] was not supported by due journalistic enquiry. Her source, [Mr N.], relied on the publication of Trud, which in fact means that [the applicant]’s information was solely based on the preface of the list, which was not enough, considering that this information had not been verified either. The readers’ right to be informed of socalled ‘hot news’ does not absolve the article’s author from checking carefully the accuracy of her publication. The fact that [the applicant] did not take the necessary steps in this direction confirms the court’s conclusion that her act was wilful. There must be a balance between the reader’s right to information and the rights of the persons affected by journalistic materials. The one responsible for this balance is the author, who must abide by the rules of investigative journalism. It is beyond doubt that the time and means available to a journalist on a daily newspaper for a proper enquiry concerning a current issue are greatly limited, but [the applicant] was bound to do what was possible to verify the information she had gathered. In the case at hand [the applicant] had enough time to consult the register of companies, so as to report on the rumours heard in the lobby of the Parliament building and at the same time to present the actual facts. It is precisely [the applicant]’s passivity in respect of this second element which makes her act criminal. The lack of a full enquiry into the facts, performed with due journalistic care, and the applicant’s own statement that she did not carry out a full enquiry into Mr M. D.’s involvement in the companies mentioned in the article, allow [the court to conclude] that she was not confident that her allegations were true. On the contrary, the fact that [the applicant] is an experienced journalist, maintains contacts with colleagues of hers from other media, with whom she exchanges information concerning such news, allows [the court to conclude] that she knew that information about outstanding credits of [Mr M. D.] had been published before. She was therefore aware that the two newspapers which had published similar articles had also published refutations, and had apologised to [Mr M. D.] for the untruthfulness of their allegations. [The applicant] did not do all she was professionally bound to do in respect of the specific enquiry, which points to intent. She allowed herself to rely on sources which she had not checked, but which made her article look persuasive and objective. CONCERNING THE PENALTY: In determining the type and quantum of punishment the court had regard to the following: The court is of the view that all necessary prerequisites for replacing [the applicant]’s criminal liability and imposing an administrative punishment on her are in place. The offence committed by her is punishable by a fine. [The applicant] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability... For this reason, the court is of the view that [the applicant] should be exonerated of criminal liability and punished administratively by a fine. In determining the amount of the fine the court had regard to [the applicant]’s means, earned as a journalist, as well as to certain mitigating circumstances, such as a critical attitude to her act, cooperation in establishing the facts, [and] good character. All of these favour a lower fine, that is [BGN] 500. The court contemplated the possibility ... of imposing an additional punishment, but accepted that this is not necessary as the fine is sufficient to reform and deter [the applicant] and the general public. CONCERNING THE CIVIL CLAIM: The existence of damage resulting from the offence under Article 147 § 1 of the [Criminal Code of 1968] is an unrebuttable presumption and, in view of the court’s finding that the applicant acted with mens rea, the only outstanding issue is the quantum of damage. It is beyond doubt that the publication authored by [the applicant] damaged [Mr M.D.]’s reputation and public esteem. He should therefore be compensated for that damage. At the same time it has not been proved beyond doubt that the article has affected [Mr M. D.]’s business relations with his partners, [or] has hindered his prospective career in the executive, that is, has prevented him from being appointed to a highranking position. [His] allegations in this respect remained a mere conjecture, lacking clear distinction between reality and possibility. All averments in a criminal complaint are subject to proof at trial, including the quantum of the damage. For this reason, the lack of evidence leads to the conclusion that [Mr M. D.]’s claim for BGN 10,000 is unproven. [The claimant] is not relieved of the burden of proving the exact quantum of the sustained damage, irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes. The court ruled in equity, as required by [the law] and the established caselaw, accepting that [the applicant] should be ordered to pay [Mr M. D.] the amount of BGN 2,000 as compensation for the nonpecuniary damage suffered as a result of the offence. [The applicant] is to pay interest on this amount at the legal rate from 4 August 2001 until settlement. ...” 27. On 15 October 2002 the applicant appealed to the Sofia City Court. She argued, inter alia, that the lower court had erred in varying its order giving her leave to present evidence on the ground that that evidence had already been adduced by the private prosecuting party. It had thus restricted her capacity to prove the veracity of her allegations against Mr M. D. The lower court had also erred in accepting that she had acted with mens rea, which was excluded on account of, in particular, the fact that there had been prior publications stating that Mr M. D. was a “credit millionaire”. The applicant finally stated that her conviction and sentence were contrary to, inter alia, Article 10 of the Convention. A journalist had the right to impart information received from others acting in their official capacity, which is how it was received in this case. She was under no obligation to verify publicly disclosed information. She had received the information from a Member of Parliament, immediately after a discussion within his parliamentary group on the matter, and had simply passed it on. 28. In a supplementary memorial of 24 March 2003 the applicant further said that she had not committed the actus reus of defamation, as Mr M. D. was indeed a “credit millionaire”, which was the actual vilifying circumstance, not the fact that he had been involved in certain companies. This fact was further evidenced by the judgment dismissing his tort action against Media Holding AD. The evidence presented merely proved that he was not on the list of “credit millionaires” as a physical person. It was therefore still possible that he could have been one through participation in certain companies, as she had tried to prove. The lower court’s findings in respect of, inter alia, Mr M. D.’s direct and indirect participation in the companies mentioned were likewise erroneous. The court had also incorrectly held that the applicant had acted recklessly. She personally, and also her colleagues, had made numerous checks through various sources, which had led them to believe, in good faith and in line with the rules of investigative journalism, that Mr M. D. was a “credit millionaire”. The alleged insufficiency of the verification could only indicate negligence, not intent. Finally, the fact that the impugned information had previously been made public excluded defamation. 29. The Sofia City Court held a hearing on 31 March 2003. It admitted in evidence a number of documents produced by the applicant with a view to establishing Mr M. D.’s participation in Vitaplant OOD, refused certain other evidentiary requests by the applicant, and heard the parties’ arguments. 30. In a final judgment of 19 May 2003 the Sofia City Court noted the facts set out in paragraphs 1216 above, including the part relating to Mr M. D.’s participation in Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and upheld the applicant’s conviction and sentence in the following terms: “... The parties are not in dispute about the facts [established by the court]. There is also no dispute about the [lower court]’s finding that the statement that a given person is a ‘credit millionaire’ because companies owned by him appear on the [Bulgarian National Bank]’s list of debtors with ‘bad credits’ is objectively vilifying for him or her. [The applicant’s] defence raises legal arguments, which outline two disputed questions. The first is whether there is defamation where the facts set out in the publication are untrue, but the conclusion made on their basis is true on other grounds. The defence argues that [Mr M. D.] is in fact a ‘credit millionaire’, not on account of the companies cited in the publication, but because of [his involvement in] another company – Vitaplant OOD. The second is whether an individual who owns a share in a company with outstanding credits can be deemed a ‘credit millionaire’. The view of [the court] on these questions is as follows: The expression ‘credit millionaire’ is not legally defined. It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use, by them personally or by physical or legal persons connected with them, of unsecured bank credits, which have remained unpaid and have been listed by the [Bulgarian National Bank] as unrecoverable. The expression is pejorative, because it implies that the people in question are supposedly responsible for the crisis in the banking system and the socalled ‘draining’ of the banks – generally persons who have become rich in a criminal way. A list of ‘credit millionaires’ as an official document emanating from the [Bulgarian National Bank] has never existed. There exists a list of the persons with outstanding credits as of 1997, which has been compiled pursuant to the Information on NonPerforming Credits Act [of 1997]. This Act requires the [reportable] credits to exceed 5,000 German marks – it does not concern only credits with seven or more figures. According to [the Act], the list is published in a special bulletin, which is not covered by bank secrecy and is sent to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities and the National Assembly. After its receipt at the National Assembly on 21 January 1998 the list was made available to journalists and was published in full or in part as a list of the “credit millionaires”. In fact, the vilifying circumstance is not to own specific companies, but to be a ‘credit millionaire’. In the view of the [court], however, such a dissection of the statement in [the applicant]’s publication and the application of paragraph 2 of Article 147 of the [Criminal Code of 1968] to one of the resulting parts cannot be made, for the following reasons. Readers are not bound to accept journalistic statements uncritically. An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful. Such facts in the case at hand are the citing of an official document featuring [Mr M. D.]’s name (untrue) and the citing of specific companies owned by [Mr M. D.] with specific debts (also untrue). There is no doubt that without these untrue allegations the statement that [Mr M. D.] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him. It would be wrong to divide an averment containing a vilifying circumstance into two parts for a second reason: the damage to the reputation and the public esteem of a defamed person is not a constant value. The degree of that damage may vary significantly. In the instant case, where there is a statement that an individual is a ‘credit millionaire’ because of his involvement in companies which have received credits, the [court] considers that the greater the amount of the outstanding credits, the more numerous the companies having received them, the more direct the connection of the individual with these debtor companies, and, last but not least, the noisier the public scandal, the more vilifying is the statement. [Mr M. D.] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not twenty million levs, if the article had cited one unknown company instead of three companies which had become notorious because of their link with criminal investigations, and if [Mr M. D.] had not been indicated as [their] sole owner instead of merely a shareholder [in them]. Because of the meaning implied in the expression ‘credit millionaire’ the [court] considers that in the event of a credit taken by a company, an individual could be deemed as having profited therefrom, in the range of millions of levs, only if [his or her] connection with that company is direct, and not through the intermediary of participation in companies which in turn participate in other companies, and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him. The link may likewise exist through participation in the management [of these companies]. At the time when the credit was received [Mr M. D.] did not participate directly in Vitaplant [OOD]. He was neither a manager of that company, nor a substantial shareholder. The credit itself was not in an amount which would make him a ‘millionaire’. The arguments relating to the existence of a civil judgment dismissing a tort action by Mr M. D. against Media Holding AD are irrelevant, as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the nonpecuniary damage sustained, whereas the civil courts are under no obligation to gather such evidence. This judgment is not binding on the criminal court. The arguments relating to the lack of mens rea are unfounded. The court considers that the [lower court] has correctly accepted as true [the applicant]’s statements that she had verified the information from two independent sources – the Members of Parliament and [Mr N.], after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers. In spite of that, the defamation was committed recklessly. [The applicant] has disregarded her duty to check the information she imparts with the only reliable source – the public register of companies – to which she had access. The opinion of the MPs was unofficial, as established by the testimony of [the applicant]’s colleagues, whereas [Mr N.], not having his own information, referred [the applicant] to the publication of Trud. This leads to the conclusion that [the applicant] was aware of the possibility that the vilifying information might not be accurate, but disregarded this concern in order to get her story to print as soon as possible.” 31. The relevant provisions of the Constitution of 1991 read as follows: “1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way. 2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.” “The press and the other mass media shall be free and not subject to censorship.” “1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals. 2. Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or it affects the rights of others.” 32. Article 147 of the Criminal Code of 1968, as in force since March 2000, provides as follows: “1. Whoever divulges a vilifying 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 a public reprimand. 2. The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed offence.” 33. If the defamation is committed through a publication, it is punishable by a fine ranging from five to fifteen hundred levs, as well as by a public reprimand (Article 148 §§ 1 (2) and 2 of the Code, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161 of the Code, as in force since March 2000). In 2005 an unofficial collection of the caselaw of the Sofia District Court and the Sofia City Court in defamation cases was published (Обида и клевета в практиката на Софийския районен съд, Сиби, 2005 г.); it reported the case against the applicant at p. 400. 34. Article 78a of the Code, as in force at the relevant time, allowed the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from BGN 500 to BGN 1,000 – if (i) the offence of which they had been convicted was punishable by up to two years’ imprisonment or a lesser penalty, in respect of an intentional offence, (ii) they had not been previously convicted of a publicly prosecutable offence and their criminal liability had not been previously replaced by an administrative punishment, and (iii) the damage caused by the criminal act had been made good. Along with the fine the court could impose occupational disqualification of up to three years.