CASE OF BOZHKOV v. BULGARIA
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
6. The applicant, born in 1968, is a journalist by profession. At the relevant time he was employed by Sega, a national daily newspaper, working as a correspondent in his hometown of Burgas. 7. In the Bulgarian education system, after the seventh or eighth grade, when pupils complete their primary education, they can continue either in an ordinary or in a specialised secondary school. The ordinary secondary schools’ curriculum does not usually involve the intensive teaching of a special subject such as mathematics, foreign languages or engineering. Enrolment in them is on the basis of documents only and does not typically present a problem. The curriculum of the specialised secondary schools does include the teaching of such subjects, and pupils are admitted to them exclusively on the basis of competitive examinations, which take place in June (the school year in Bulgaria starts on 15 September). Under regulations issued by the Ministry of Education and Science, pupils with certain medical conditions can be admitted to specialised secondary schools without an examination, as an exceptional measure. 8. On 5 May 2000 the head of the Burgas education inspectorate, a territorial division of the Ministry of Education and Science, appointed a commission to select for admission to specialised secondary schools pupils with certain chronic medical conditions or special educational needs. The commission’s members were four employees of the inspectorate, Ms T.K., Ms A.M., Mr R.E. and Mr G.D., and a paediatrician, Dr N.P. 9. On 12 June 2000 fourteen parents of children who were sitting competitive examinations to gain admission to specialised secondary schools wrote a letter to the Ministry of Education and Science. They said that one hundred and fiftyseven children had been admitted to specialised secondary schools in Burgas on the basis of a medical condition and not following a competitive examination. Most of those were apparently the children of medical doctors, paramedical staff and teachers. The parents complained that whereas they were paying thousands of levs for private preparatory lessons, certain pupils had been bragging that they would be admitted to the English Secondary School in Burgas in exchange for paying 300 Bulgarian levs (BGN); indeed, only a month later this had become a fact. They cited several examples of perfectly healthy children who had been diagnosed as suffering from serious chronic illnesses. They said that they were not blaming the admissions commission, which had merely been taking note of the prior conclusions of medical doctors and allocating the pupils to schools depending on the nature of their purported health problems. They insisted that the Ministry should set up a special commission to investigate. A number of parents subsequently staged daily public protests in front of the building of the Burgas education inspectorate. 10. Following this complaint, on 7 July 2000 the Minister of Education and Science appointed three officials of the Ministry to inspect the work of the admissions commission. Having done so between 10 and 14 July 2000, the three officials produced a fivepage report on 18 July 2000. The report, which was not made public, found that the commission had committed a number of violations of the school admissions regulations, such as admitting pupils who did not have the requisite medical conditions, making findings on the basis of invalid medical documents and poorly documenting its activities. It also said that there were indications that Dr N.P. had been forging documents. The report’s proposals included “imposing disciplinary punishments on the commission’s members, commensurate with the violations found and in line with the Labour Code”. On 25 September 2000 the Minister imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. the disciplinary punishment of a “warning of dismissal”, citing a number of violations and omissions in the school admissions procedures. 11. Some time after that the Burgas regional prosecutor’s office opened an inquiry concerning Ms T.K., Ms A.M., Mr R.E. and Mr G.D. On 12 December 2002 it instituted a formal investigation against “the implicated officials of the education inspectorate” on suspicion of bribetaking. In the course of this investigation the authorities interviewed the four officials, some parents who had complained to the Ministry of Education and Science and parents alleged to have given bribes to have their children admitted to “specialised” schools. In 28 October 2003 the prosecutor’s office decided to discontinue the investigation without bringing charges. It said that while the officials had indeed breached their duty and had been given a disciplinary punishment as a result, there was no evidence that they had done so as a result of bribetaking. 12. The applicant learned about the story and decided to cover it in an article, which appeared on pages one and two of the 11 September 2000 issue of Sega under the headline “Bribes scandal in Burgas secondary schools”. It bore the subheadline “[The Ministry of Education and Science] sacks four experts for taking money from sick children” and the applicant’s byline, and read, in so far as relevant, as follows: “Four employees of the Burgas inspectorate will be punished because they took bribes in relation to the admission of sick children to elite secondary schools, Sega has learned. The Education Minister [D.D.] will decide their fate today. [Mr R.E.], [Mr G.D.], [Ms T.K.] and [Ms A.M.] were hired to compile a list of pupils with congenital or acquired diseases who will continue their education in elite secondary schools. An investigation by inspectors from Sofia which took place between 10 and 15 June found that the four officials, together with [Dr N.P.], placed 40 people in secondary schools and vocational secondary schools on the basis of forged medical certificates. Under [Ministry] regulations, children with more serious illnesses should be placed higher on the list. However, the inspection showed that these places had been taken by children in whose medical records non-existent complications had been deliberately inserted. The documents were provided by [Dr N.P.] and the commission did not check their accuracy. The affair was exposed after angry parents of children whose applications had been rejected sent a letter to the [Ministry of Education and Science]. The commission of representatives from the Education and Health ministries proposes that the four experts be sacked as a disciplinary measure and that [Dr N.P.] be banned from practising medicine. Those concerned have declined to comment to the media and [Dr N.P.] has been unavailable for two weeks.” 13. In an additional article published on 16 September 2000 under the headline “Blue MP promises to hush up false medical records scandal in Burgas”, the applicant again reported on the story, quoting comments made by Dr N.P. and mentioning that the Minister of Education and Science had been supposed to decide a few days earlier whether to impose disciplinary punishments on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. 14. On 7 December 2000 Ms T.K., Ms A.M., Mr R.E. and Mr G.D. lodged a criminal complaint against the applicant and Sega’s editorinchief with the Burgas District Court (Бургаски районен съд). They alleged that by respectively writing and publishing the 11 September 2000 article the applicant had disseminated, and the editor had allowed to be disseminated, injurious statements of fact about them and had imputed an offence to them. In their view, by so doing the applicant and the editor had committed libel, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see paragraphs 28 and 29 below). They sought compensation in the amount of BGN 30,000. 15. At some point during the proceedings the complainants dropped the charges against Sega’s editorinchief. 16. The Burgas District Court held hearings on 19 April and 18 May 2002. The judge examining the case was also in charge of another case which the four complainants had brought against another journalist in relation to an article covering the same events. After convicting the other journalist on 11 May 2002, the judge withdrew from the case, citing negative comments made by the applicant about her judgment in the other case. On 12 July 2002 all the judges of the Burgas District Court stated that they did not wish to take part in the examination of the case, citing public protests by journalists and the airing of allegations that they were all biased against the applicant. Accordingly, on 25 July 2002 the Supreme Court of Cassation ordered that the case be transferred to the Pomorie District Court (Поморийски районен съд). 17. The trial before the Pomorie District Court took place on 6 November and 18 December 2002 and on 29 January and 14 February 2003. The court heard evidence from the applicant, the complainants and a number of witnesses called by both parties, including the supervisor of the four complainants and the deputy regional governor of Burgas. 18. In a judgment of 14 February 2003 the Pomorie District Court found the applicant guilty of having, in the printed press, disseminated injurious statements of fact about Ms T.K., Ms A.M., Mr R.E. and Mr G.D., officials carrying out their duties, contrary to Article 148 §§ 1 (2) and (3) and 2 taken in conjunction with Article 147 § 1 of the Criminal Code. The court acquitted the applicant of the charges of having imputed offences to them and of having committed the offence in public, contrary to Article 148 §§ 1 (1) and 2 of the Code. It applied Article 78a of the Code (see paragraph 32 below) and replaced the applicant’s criminal liability with four administrative fines of BGN 500 each. The court further ordered the applicant to pay each of the complainants compensation for nonpecuniary damage amounting to BGN 100, plus interest from 11 September 2000 until settlement, and dismissed the remainder of their claims. Finally, it ordered the applicant to pay BGN 16 in court fees. The court described the facts set out above and continued as follows: “To gather the information necessary for his article, [the applicant] had conversations with parents protesting in front of the [Burgas education inspectorate]... From them he learned about the alert which had triggered the appointment of the [inspection commission]. He talked to the head of [the inspectorate], [Ms P.], and [other journalists] from Sofia (whose names he did not disclose), from whom he learned that the inspection had revealed a number of violations and that it was expected that there would be a proposal to the Minister to impose stiff disciplinary punishments on the complainants. [The applicant] asserts that he [also] talked to the deputy regional governor in charge of education, [Mr G.S.]. [However], at trial [Mr G.S.] testified that his conversation with the applicant had taken place after, not before, the article’s publication. Another witness, ... a colleague of the complainants, [testified that] the article’s publication had had a severe negative impact on [them], leaving them very depressed, worried and unable to do their work with their usual confidence. On the basis of these findings of fact the court makes the following findings of law: According to Article 147 § 1 of the [Criminal Code], the offence of defamation consists in disseminating injurious statements of fact about someone or imputing an offence to him or her. ... The complainants accuse [the applicant] of committing both forms of the offence – disseminating untrue injurious statements of fact and imputing an offence to them. The complainants and their counsel maintain that the imputed offence was the taking of bribes from children, [contrary to] Article 301 [of the Criminal Code]. Having read the article carefully, the court finds that [the applicant] did not impute an offence to the complainants. The article does not contain any allegation that the complainants took bribes. Its first part (including the headings) stated that the complainants would be punished with disciplinary dismissal for having taken bribes. [The applicant] did not comment on the appropriateness of the purportedly impending punishment, and in the second part of the article described in a relatively detailed manner what he considered to be the facts of the matter, which would form the grounds for the punishments. These facts did not include bribetaking. It is averred that the unlawful admission of pupils was made possible by Dr [N.P.]’s fabrication of false medical documents and that the complainants relied on these documents without checking their accuracy. Taken together these parts of the article lead to the conclusion that [the applicant] did not allege that the complainants had taken bribes. The court accordingly finds [him] not guilty of the charge of imputing an offence. It is therefore not necessary to discuss the evidence and the facts suggesting the commission of such an offence, or [the applicant’s] certainty ... that it had taken place. [The applicant] did, however, commit the other form of [defamation]. In his article [he] disseminated an injurious statement of fact, namely that the complainants would be punished with disciplinary dismissal for having taken bribes for having children admitted to elite secondary schools in Burgas. The injurious character of this statement is a metalegal characteristic. The law does not spell out the content of this notion. For this reason, whether or not a circumstance is injurious must be determined on the basis of [public opinion]. The dismissal of an individual from an official post for taking bribes is generally seen as a sign of that individual’s poor morals. The court accordingly accepts that the disseminated statement is injurious. According to Article 147 § 2 [of the Criminal Code], [those making allegedly defamatory assertions] are not to be punished if the assertions are found to be true. This means that defamation has been committed only if the injurious statements disseminated are untrue. In the instant case this is so. It has been established that the complainants were not dismissed but [only] warned that they could face dismissal and that this did not happen on 11 September 2000. It is, however, rather more important to point out that the grounds for the disciplinary punishments were not the taking of bribes but the violations described in the report of the inspecting commission and in the reasons for the orders imposing disciplinary punishments. The untrue injurious statement was disseminated through the publication of the article in Sega. It is well known and not disputed [by the parties] that this newspaper is circulated on the territory of [the entire country]. The court therefore accepts that the aggravating element of Article 148 §§ 1 (2) and 2 [of the Criminal Code] is present. The untrue injurious statement disseminated was connected with the performance of the complainants’ duties. As members of the admissions commission for pupils with chronic medical conditions and special educational needs they were ‘public officials’ within the meaning [of the Criminal Code]. The court therefore accepts that the aggravating element of Article 148 §§ 1 (3) and 2 [of the Code] is [also] present. The untrue injurious statement was not disseminated in public. The fact that the offence was characterised [as having been committed through the printed press makes it impossible for it to have been committed in public]. An injurious statement is considered to have been disseminated in public if this was done in the presence of several persons, whereas the dissemination of information in the printed press ... involves no direct contact between the person imparting the information and those receiving it. The court therefore finds [the applicant] not guilty of [disseminating the injurious statement in public] contrary to Article 148 §§ 1 (1) and 2 in conjunction with Article 147 § 1 [of the Criminal Code]. The defence disputes the existence of mens rea. It asserts that [the applicant] was not aware that the statements he made were untrue. What is more, according to the defence [the applicant] believed that the complainants had been taking bribes in performing their duties as members of the commission. This belief was based on objective facts. These arguments are inapposite and should not be addressed by the court, as in the impugned article [the applicant] did not allege that the complainants had been taking bribes. Seen from this perspective, whether or not [the applicant] believed that bribes had been taken is irrelevant. What matters is whether [the applicant] was aware of the untruthfulness of [the assertion] that on the day of publication of the article the Minister of Education and Science ... would impose on the complainants the disciplinary punishment of ‘dismissal’ on the grounds that they had taken bribes from sick children. This is so because, [according to the Supreme Court of Cassation’s caselaw,] ‘when [a journalist] has properly verified the truthfulness of the information in line with established journalistic practice [and] the internal nonbinding rules of the relevant newspaper or publishing house’, by using the sources available in practice, [he or she can be said to have acted] in a professional manner and in good faith, which excludes criminal and civil liability for defamation ([citation]). It has not been established that [the applicant acted] in a professional manner and in good faith. None of the sources used by [him] provided information to that effect. The information which [he] received from the head of the inspectorate, [Ms P.], and [other journalists] from Sofia indicated that at the close of the inspection the commission appointed by the Minister was to propose that the complainants be subjected to stiff disciplinary punishments (on unspecified grounds). Before the publication of the article [the applicant] did not talk to the deputy regional governor, [Mr G.S.]. The conversations conducted with parents of children [not admitted] could not give [the applicant] reliable information either about the internal control measures envisaged by the Minister or about the grounds for taking them. At the time of publication there was not a single source indicating to [the applicant] that the complainants would be dismissed as a disciplinary measure or that the grounds given by the Minister for that would be bribetaking. The court therefore finds that [the applicant] realised the untruthfulness of the injurious statements he disseminated and that the offence was therefore intentional. [The offence of defamation] does not require the defamed persons to sustain damage. The antisocial consequences of such an act arise simply from the dissemination of the injurious statements. By publishing his article [the applicant] intended just that – to bring the untrue injurious statements to the knowledge of an unlimited number of people. The offence was committed with direct intent because [the applicant] was aware of the antisocial character of his act and wished its adverse consequences to occur... In sum, the court finds that [the applicant] has committed with respect to each of the complainants an offence under Article 148 §§ 1 (2) and (3) and 2 in conjunction with Article 147 § 1 [of the Criminal Code]. (The four offences were committed [in a single act].) The penalty for such an offence is a fine ranging from five to fifteen thousand levs and public reprimand. [The applicant] has not been convicted of a publicly prosecutable offence ... and the offences have not engendered pecuniary damage. [The case thus comes under] Article 78a [of the Code], and [the applicant]’s criminal liability should be replaced with an administrative fine of BGN 500 to BGN 1,000. To determine the amount of the fine, the court ... took into account the mitigating and aggravating circumstances. [The applicant] was not found to have committed other transgressions, i.e. he does not exhibit criminal tendencies and the level of risk he presents to society is low. Despite the existence of two additional qualifying elements (which is of itself an aggravating factor), the nonpecuniary damage sustained by the complainants as a result of the offence is negligible (see below for more on this point). [The applicant] denies any wrongdoing, which is his right, but at the same time has provided detailed explanations about the case and practical cooperation in ascertaining the truth. For these reasons, the court finds that there is a preponderance of mitigating circumstances, and fixes the punishment for each offence at the minimum amount, namely BGN 500. The complainants’ claims for damages are wellfounded, because in all cases the dissemination of untrue injurious statements tarnishes the good name of the persons associated with the alleged facts. Under sections 45 and 52 [of the 1951 Obligations and Contracts Act] the compensation [for nonpecuniary damage] must be determined by the court in equity. The court finds that the sum of BGN 5,000 claimed by each of [the complainants] would amount to just compensation for the nonpecuniary damage suffered by them as a result of the slur on their reputations. However, [the applicant] is not liable to pay the entirety of that sum. Apart from the untrue injurious statements, in his article [he] also reported true injurious facts, in respect of which he does not bear any criminal or civil liability. The article points out that the complainants committed violations which led to the unlawful admission of children to the abovementioned secondary schools. These facts were true. Their publication by [the applicant] was legal, because in publishing them he was exercising his constitutional right to seek and impart information, and helping other citizens to exercise their constitutional right to receive information (Article 41 § 1 ... of the Constitution). The evidence gathered in the case leads to the conclusion that the reputations of [the complainants] have suffered chiefly as a result of the true injurious facts reported by [the applicant]. [The relevant regulations] lay down a procedure whereby the State [in line with its constitutional obligations] encourages education, creating conditions for the vocational training of children with special needs or medical conditions. Since this activity is a constitutional obligation of the State, its performance in strict compliance with the relevant rules is of paramount importance. Seen from a different perspective, when the performance of this activity has been marred by a series of serious violations and this has led to the unlawful admission of pupils to the detriment of other pupils who have recognised medical conditions or needs, these violations inevitably lead to the loss of the good names of the officials concerned. For these reasons, the court finds that the reputations of [the complainants] suffered as a result of their own illicit behaviour. When imparting information about this [the applicant] went too far – alongside the true injurious statement he made an untrue statement about the impending punishments and the grounds for them. As a result, [the complainants’] reputations suffered additionally, but not materially, because even if [the applicant] had not said what punishments would be imposed by the Minister, [the complainants’] reputations would have been greatly impaired anyway. [The applicant] is liable only for the nonpecuniary damage arising out of the dissemination of the untrue injurious statements. In view of the foregoing, the court finds that the equitable amount of compensation is BGN 100 for each of [the complainants]. The remainder of the civil claims are groundless and are to be dismissed.” 19. In a decision of 13 March 2003 the Pomorie District Court ordered the applicant to pay the complainants’ costs, amounting to BGN 300. 20. Both the applicant and the complainants appealed. The applicant argued, among other things, that the institution of criminal proceedings against the complainants on charges of bribery meant that there were grounds to suspect that they had committed such offences and that he had been justified in mentioning that fact in the article. 21. The Burgas Regional Court (Бургаски окръжен съд) heard the appeal on 4 July 2003. 22. In a final judgment of 23 July 2003 it upheld the applicant’s conviction and sentence, but increased the award of damages, ordering the applicant to pay BGN 1,000 to each of the complainants. The Regional Court also upheld the lower court’s ancillary costs order. It held, in so far as relevant, as follows: “... Concerning the arguments ... that the [lower court’s] judgment is illfounded and in breach of substantive law: The appeal states that criminal proceedings were instituted against the complainants on charges of bribery in breach of Article 302 § 1 [of the Criminal Code], and that for this reason [the applicant] cannot be deemed to have intentionally made untrue and injurious assertions. It can however be seen from the reasoning of [the lower court] that [the applicant] was acquitted of the charge of imputing to the complainants the offence of bribery. The [lower court’s] reasoning on that point is fully shared by this court and, accordingly, the objections that the [lower court’s] judgment was unfounded or in breach of substantive law do not call for further discussion. The court finds that the punishments imposed on [the applicant] were properly fixed. [The lower court] correctly replaced [the applicant’s] criminal liability [under] Article 78a of [the Criminal Code] with fines in the minimum amount allowed by the law, namely BGN 500 for each of the offences, taking into account [the applicant’s] lack of a criminal record or other antisocial acts, [the] lower level of risk [he poses] to society, [and] his detailed explanations about the facts of the case. In its reasoning the court said that the nonpecuniary damage sustained by the complainants was not significant. That view cannot be shared by [this court]. Unlike pecuniary damage, the non-pecuniary damage caused through a criminal act should not be taken into account for the purpose of fixing the punishment. The nonpecuniary damage suffered by the victims of crime is strictly individual and should be taken into account solely for the purpose of fixing the amount of compensation, not the quantum and type of the punishment. Nevertheless, [this court] considers that the minimum penalties imposed on [the applicant] will [be sufficient to] further the aims of the punishment, as envisaged by [the Criminal Code]. The court therefore finds that this part of the [lower court’s judgment] should be upheld. As regards the civil claims for compensation for nonpecuniary damage: The court finds unfounded the complainants’ requests to increase the amount of compensation to BGN 5,000 for each of them. It is true that the complainants sustained non-pecuniary damage – a blemish on their reputations, concerned as they are about their professional standing and good names – as a result of the offences against them. [The lower court], however, correctly stated in its reasoning that [the applicant’s] article had reported injurious facts which were true, namely that the complainants had committed violations in their work, which led to the unlawful admission of children to secondary schools, and which were more significant than the fact that the complainants would be dismissed. For this reason, the court considers that [the lower court] was right not to allow the civil claims in full. However, in [this court’s] view, the awards [it] made are too small. The amount of BGN 100 for each of [the complainants] cannot make good their suffering resulting from the affront to their dignity. Regard being had to the way in which the offence was committed – circulation of the injurious assertions in a publication which is sold nationwide, thus bringing them to the attention of large number of people –, [as well as] the negative impact this had on the complainants’ mental state, health and capacity for work ..., this court finds that it would be just to award the complainants BGN 1,000 each. This part of [the lower court’s] judgment should therefore be modified, by increasing the amount which [the applicant] has to pay to the complainants to BGN 1,000 for each of them in respect of nonpecuniary damage. Concerning the costs of the proceedings: In a decision of 13 March 2003 [the lower court] ordered [the applicant] to pay the complainants the amount of BGN 300 for costs. [The applicant] was found not guilty of the charge of imputing an offence and of the charge under Article 148 §[§] 1 (1) [and 2] of [the Criminal Code]. Under [the relevant provisions of the Code of Criminal Procedure], he must accordingly bear the full cost related to the charges of which he was found guilty... However, in this court’s view, [the lower court] correctly ordered the applicant to pay the entirety of the costs in the case, because the complainants are also a private prosecuting party and it is the court’s practice in such cases to award the costs in full. ...” 23. In 2003 the authorities issued enforcement proceedings against the applicant to recover the fine. Those proceedings were closed on 2 April 2008 following the payment of the fine, plus interest, in its entirety. The total amount paid by the applicant was BGN 2,229.71. 24. In 2003 the four complainants also issued enforcement proceedings against the applicant to recover the damages and the costs awarded to them. The amounts due were paid by Sega between February 2004 and April 2005. The newspaper recovered the sums paid by deducting them from the applicant’s salary. The total amount paid in this way was BGN 7,621.04. 25. On 3 April 2001 a member of Parliament officially questioned the Minister of Education and Science about the affair. On 9 April 2001 the Minister replied, saying, inter alia, that the officials found guilty of committing violations of the admissions procedure had been disciplined and that the Ministry did not have competence to institute criminal proceedings, which was a matter for the prosecuting authorities. 26. On 3 July 2002 another journalist who had covered the story, Ms K. Kasabova, together with three officials of the Ministry of Education and Science, testified about the “sick children” affair before the National Assembly’s Standing Committee on Complaints and Petitions. At the end of the hearing the Committee unanimously resolved to send the material to the Burgas prosecuting authorities with a view to the possible initiation of criminal proceedings against Ms T.K., Ms A.M., Mr R.E. and Mr G.D., asking the Minister of Health whether the medical doctors responsible had been punished, and asking the Minister of Education and Science whether penalties had been imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. and whether the penalties had corresponded to the posts they occupied. 27. The relevant provisions of the 1991 Constitution read as follows: “The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour, dignity and reputation.” “1. Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way. 2. This right shall not be exercised to the detriment of the rights and reputation of others, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or 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 or 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.” “Rights shall not be abused, nor shall they be exercised to the detriment of the rights or the legitimate interests of others.” 28. Article 147 of the 1968 Criminal Code, as in force since March 2000, provides as follows: “1. Any person who disseminates an injurious statement of 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 public reprimand. 2. The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation.” 29. If the defamation is committed through the printed press, or if the defamed parties are public officials carrying out their duties, it is punishable by a fine ranging from BGN 5,000 to BGN 15,000, as well as by public reprimand (Article 148 §§ 1 (2) and (3) and 2, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161, as in force since March 2000). In 1998 Article 148 survived a challenge of unconstitutionality, with the Constitutional Court ruling that increased penalties where the defamed parties were public officials did not disproportionately restrict freedom of expression (реш. № 20 от 14 юли 1998 г. по к. д. № 16 от 1998 г., обн., ДВ, бр. 83 от 21 юли 1998 г.). 30. The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4)). Mens rea, in the form of intent or negligence, is an essential element of any criminal offence (Article 9 § 1 and Article 11 §§ 1, 2 and 3). 31. In a judgment of 26 May 2000 (реш. № 111 от 26 май 2000 г. по н. д. № 23/2000 г., ВКС, II н. о.) the Supreme Court of Cassation held that provided that, prior to publication, journalists checked their information in line with the practice established in the profession or with the internal rules of the relevant medium, by using the sources available in practice, they could not be held to have acted wilfully or even negligently and were not guilty of defamation. It went on to say that, owing to the accessory nature of a civilparty claim, the general rule of tort law that fault was presumed was not applicable to the examination of tort claims in criminal defamation proceedings. In such proceedings, the rules governing fault as an element of the tort of defamation were those of the criminal law. The court also held that under Bulgarian law strict liability could not be applied in respect of defamation, and referred to the constitutional principle that public officials were subject to wider limits of acceptable criticism than private individuals. 32. Article 78a § 1, as in force at the relevant time, mandated the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from 500 to 1,000 levs – 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 previously been convicted of a publicly prosecutable offence and their criminal liability had not previously been replaced by an administrative punishment, and (iii) the pecuniary damage caused by the criminal act had been made good. The administrative fine could not be higher than the criminal fine envisaged for the offence (Article 78a § 5). Along with the fine the court could impose occupational disqualification of up to three years, if such a punishment was envisaged for the offence (Article 78a § 4). 33. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it called on the Member States to, inter alia, guarantee that there is no misuse of criminal prosecutions for defamation (point 17.2); remove from their defamation legislation any increased protection for public figures (point 17.6); ensure that under their legislation persons pursued for defamation have appropriate means of defending themselves, in particular means based on establishing the truth of their assertions and on the general interest (point 17.7); set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk (point 17.8); and provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury (point 17.9).