CASE OF RAICHINOV v. BULGARIA
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. At the relevant time the applicant was the head of the Ministry of Justice’s division responsible for the financial and logistical support for the judicial system. In this capacity, he sometimes attended the meetings of the Supreme Judicial Council – the body responsible for, inter alia, allocating the judicial budget. The Supreme Judicial Council consists of twentyfive members, including the chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court, and the Prosecutor-General. Its meetings are presided over by the Minister of Justice. 9. The Supreme Judicial Council held a meeting on 15 December 1993, at which the issue of the endofyear bonus for judges, prosecutors, and investigators was discussed. The applicant attended the meeting, as he usually did in cases when budgetary matters were considered. The deputy ProsecutorGeneral, Mr S., who was a member of the Council, was also present. 10. At some point during the meeting, after commenting the provisions of the State Budget Act, the applicant said: “You have decided to have financial matters dealt with by Mr S. For me he is not a clean person...”. He then added: “I can prove this”. The Prosecutor-General reacted vehemently, asking the applicant to leave the room. The applicant tried to continue but was interrupted by Mr S. who asked him to clarify what he meant by “unclean person”. The Minister of Justice intervened and requested the applicant to retract the words “unclean person”. The Prosecutor-General reacted immediately: “There is no retraction, there are prosecution authorities. This is already a problem, this is already a crime”. The Minister insisted on the applicant apologising for the words “unclean person”. Thereupon the applicant said: “Alright, I apologise”. Because of the tense situation all financial matters which were due to be discussed at the meeting were adjourned. 11. Immediately after the meeting the ProsecutorGeneral requested a copy of the minutes. He received it on 27 December 1993 and on 12 January 1994 sent it to the Sofia City Prosecutor’s Office with instructions to carry out a preliminary inquiry with a view to opening criminal proceedings against the applicant. On 11 February 1994 the Sofia City Prosecutor’s Office transmitted the case file to the Sofia District Prosecutor’s Office with instructions to open criminal proceedings against the applicant for insult. The investigation was to be performed not by an investigator, as would usually be the case, but by a prosecutor. 12. On 16 February 1994 the Sofia District Prosecutor’s Office instituted criminal proceedings against the applicant for “having said publicly ‘for me he is not a clean person’ in respect of [Mr S.] in his presence ... which was degrading for the latter’s dignity”, contrary to Article 148 § 1 (1), (3) and (4) in conjunction with Article 146 § 1 of the Criminal Code. 13. On 20 April 1994 the applicant was charged. 14. The investigation was concluded on 16 June 1994 and the applicant and his counsel were allowed to consult the case file. After having done so, counsel for the applicant requested that all members of the Supreme Judicial Council who had been present at the meeting be questioned and that an expert report be prepared to compare the audio tape of the meeting with the written minutes. The prosecutor in charge of the investigation refused, reasoning that the facts of the case had been elucidated by the evidence already gathered, which supported the accusation. 15. The applicant was indicted. The trial against him took place on 11 April 1995 at the Sofia District Court. The court heard two witnesses: the alleged victim of the insult, Mr S., and another member of the Supreme Judicial Council. Mr S. stated that it was difficult for him to say whether the applicant’s remark had changed the Supreme Judicial Council’s opinion of him. The other witness stated that sometimes the discussions in the Council were quite heated but that no one had ever used such words or made such remarks. Three other witnesses called 16. After that the court heard the parties’ closing argument. Counsel for the applicant pleaded for a verdict of not guilty, relying, inter alia, on Article 10 of the Convention. She argued that the words “for me he is not a clean person” were only an expression of the applicant’s personal opinion about Mr S. The applicant’s words were objectively not rude, vulgar or insulting. He had simply exercised his right to voice what he thought about another person, in purely neutral terms. To equate this with an insult would mean that only those who had a favourable opinion of Mr S. would be allowed to express it. In her view, the entire case had been sparked by the ProsecutorGeneral’s vindictiveness. 17. In a judgment of 12 April 1995 the Sofia District Court found the applicant guilty as charged and sentenced him to a fine of 3,000 old Bulgarian levs (BGL) and to a public reprimand. The court held as follows: “The actus reus consisted of uttering words which were humiliating and disparaging for [Mr S.] in his presence. It is not disputed ... that the accused ... said in respect of [Mr S.] ‘For me he is not a clean person’. The expression has an insulting character, because it dishonours [Mr S.]. It contains a disapproval of his ethical and moral qualities, which is irreconcilable with his being in charge of the budgetary funds of the judiciary. In this fashion the personality of [Mr S.] and his authority in front of the other members of the [Supreme Judicial Council] were disparaged. ‘Not a clean person’ has only one interpretation, that the person concerned has a tainted consciousness and lacks morality. Even if this is the [applicant’s] personal opinion about the qualities of [Mr S.], the remark was aimed at affecting the honour and the dignity of [Mr S.]. Criticism ..., especially when it comes to the public manifestations of persons who represent state institutions, has to be consistent with the rules of society, ethics and the common rules of decency and morality. These must not be trampled on under the pretence that the personal opinion about another is a matter of perception and [represents the exercise] of the constitutional right to freedom of expression... It is unconstitutional and criminal to criticise in an insulting form, as in the case at hand... The offence was intentional... It was committed in public, in front of twentyfive members of the Supreme Judicial Council and the deputyMinister of Justice. This increases the gravity of the offence, because the offensive words were heard not only by the victim, but also by a large group of persons... The fact that the [applicant] apologised to the victim after being invited to do so by the [Minister of Justice] does not remove the criminal character of his act or its harmful consequences. By uttering words which were humiliating for the victim, [the applicant] completed the offence and the harmful consequences arose. The derogation of the victim’s reputation was irreversible. The fact [that the applicant apologised] must, however, be taken into consideration for the purpose of assessing the gravity of the offence ... and for the purpose of sentencing. The defence’s argument that the [applicant’s] act was not criminal because it was in fact the expression of a personal criticism by a person exercising his freedom of expression ... cannot be sustained. The right to freedom of expression carries the duty, set out in Article 39 § 2 of the Constitution, not to exercise this right to the detriment of the reputation of another. The present case represents an abuse of this right, because the personal disproval of [Mr S.] which the [applicant] expressed publicly had a humiliating content. The negative opinion was expressed indecently, in an insulting and humiliating manner, which is contrary to the law. This implies that the [statement] was contrary to both Article 146 of the Criminal Code and Article 39 of the Constitution and Article 10 of the European Convention for Human Rights ..., which enshrine the right to freedom of expression, but in the bounds of decency, respect for the rights of every member of society, tolerance and respect for the reputation of the others...” 18. The applicant appealed to the Sofia City Court. His counsel again argued that the applicant’s remark had not been couched in offensive terms, that he had expressed his personal views in an entirely acceptable way and that a penalty imposed on him for having voiced an opinion ran counter to his freedom of expression. 19. The prosecution appealed as well, requesting an increase of the applicant’s sentence. 20. The Sofia City Court held a hearing on 27 November 1995. 21. In a judgment of 23 January 1996 the Sofia City Court dismissed the applicant’s and the prosecution’s appeals. It held, inter alia, as follows: “The [court below] correctly concluded that the [applicant’s] words had an insulting content. The expression was examined by the district court in accordance with the meaning which was put in it – a disapproval of the ethical and moral qualities of [Mr S.], which was incompatible with his being in charge of the budgetary funds of the judiciary; a disapproval aiming to impinge on the victim’s personal dignity. The [words] were analysed by the firstinstance court in view of their objective potential to impinge on the dignity of the victim, because they exceeded the bounds of ethical communication and the generally accepted rules of decency. The defence’s arguments ... that the [words] in issue were in fact the [applicant’s] personal opinion, the expression of which is protected by the rule of Article 39 of the Constitution, are unfounded. The district court was correct in concluding that the expression of a personal opinion about someone, even though a constitutionally protected right, should not exceed the bounds set out in paragraph 2 of [Article 39 of the Constitution]. In other words, the right to freely express one’s opinion may not be used to infringe the rights and reputation of another... In its reasoning the district court examined all arguments of the defence, relying on the courts’ constant caselaw under the Constitution and the European Convention for Human Rights. ...” 22. On 2 April 1998 the applicant lodged a petition for review with the Supreme Court of Cassation, claiming that the lower courts’ judgments were unfounded and in breach of the law. 23. On 27 April 1998 the Supreme Court of Cassation accepted the petition for examination and listed the case for hearing. 24. The court held a hearing on 10 June 1998. It heard the parties’ argument and reserved judgment. Prior to the hearing the applicant’s defence presented written observations, in which it argued that the lower courts’ judgments were unfounded and unlawful. In particular, the courts’ holding that the applicant’s words were offensive was arbitrary. On the opposite, they were not rude, vulgar or cynical, but completely neutral. The defence also reiterated its submissions in respect of the applicant’s right to voice personal opinions. 25. The Supreme Court of Cassation delivered its judgment on 8 July 1998, dismissing the petition in the following terms: “[The words] used by [the applicant] in the presence of [Mr S.] were humiliating and it cannot be accepted that this was in line with the rule of Article 39 of the Constitution, which guarantees to all Bulgarian citizens the possibility to express their personal opinion and criticise other persons. This possibility is subject to and dependent on the limitations of paragraph 2 [of this Article], according to which this right should not be used for impinging on the reputation of another. In the case at hand there has been an abuse of the right under paragraph 1 [of this Article], because the personal opinion, expressed by [the applicant] in respect of [Mr S.] has a disparaging content. The negative opinion is expressed in an indecent, insulting and humiliating manner... As such it falls under the prohibition of Articles 148 [and] 146 of the Criminal Code, because it not only goes against Article 39 § 1 of the Constitution, but also against Article 10 of the European Convention for Human Rights ... which enshrine the right to freedom of expression, but within the bounds of decency, respect for the rights of the person, tolerance, and protection of the reputation of the others. These rules are valid in all civilised and democratic societies. It is unconstitutional and criminally liable to ‘criticise’ in an insulting manner, as has been done in the case at hand. The words which were used had an insulting content, because they debased the victim’s dignity and his authority before the other members of the [Supreme Judicial] Council. They contained a disapproval of his moral and ethical qualities which is incompatible with his function as a person disposing with budgetary funds. What was said could be interpreted in one manner only: that the person in question has a tainted consciousness and lacks morality; it was aimed at impinging the honour and dignity of [Mr S.]. ...” 26. The applicant paid the fine on 9 May 1996. He was not publicly reprimanded and on 23 March 1999 a prosecutor of the Sofia District Prosecutor’s Office ordered that his sentence was not to be enforced because the relevant limitation period had expired. 27. Article 39 of the Constitution of 1991 provides: “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.” 28. Article 146 § 1 of the Criminal Code, as in force at the relevant time, provided: “Whoever says or does something degrading for the honour or the dignity of another in his presence shall be punished for insult by up to six months’ imprisonment or a fine of up to three thousand levs. The court may also impose a public reprimand.” 29. If an insult has been made in public, or against an official in the performance of his duties, or by an official in the performance of his duties, it was punishable by up to two years’ imprisonment or a fine of up to BGL 5,000 (Article 148 § 1(1), (3), and (4) of the Criminal Code, as in force at the relevant time). 30. At the relevant time insult was privately prosecutable in all cases, save when perpetrated in respect of or by an official, in which case it was publicly prosecutable (Article 161 of the Criminal Code, as in force at the relevant time, in conjunction with Article 146 § 1 and Article 148 § 1 (1) and (2) thereof). At present insult is privately prosecutable in all cases without exception (Article 161 § 1 of the Code, as amended in March 2000 and presently in force). 31. By Article 60 § 1 of the Code of Criminal Procedure of 1974, the victim of a criminal offence may make a civil claim in the context of the criminal proceedings, and request compensation for the damage sustained as a result of the offence. He or she may also take part in the criminal proceedings as a private prosecuting party alongside the public prosecutor (Article 76 of the Code of Criminal Procedure of 1974).