CASE OF MARINOVA AND OTHERS v. BULGARIA
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
5. Mrs Marinova was born in 1972 and lives in Tervel. 6. In February 2006 she complained to the Child Protection Agency that the school teacher of her son, then aged fourteen, had on several occasions ill-treated and humiliated him. In particular, she alleged that the teacher had hit the child three years earlier and had since then often insulted him, had made remarks about his parents in front of other pupils, and had belittled his performance at school. Mrs Marinova argued that this had amounted to harassment, and said that her son had become demotivated. The Agency examined the complaint, heard the teacher, Mrs Marinova’s son and other witnesses, and concluded that the allegation of ill-treatment had not been made out. It found that relations between Mrs Marinova and the teacher had been strained since 2003, when the father of her son had threatened the teacher in front of other pupils. The teacher had brought a private criminal prosecution against the father in relation to that, and the proceedings were pending. 7. In April 2006 Mrs Marinova complained to the school’s headmaster and the police that the teacher had taken her son’s mobile telephone in class and had later refused to give it back. 8. The prosecuting authorities opened criminal proceedings against an unknown perpetrator in connection with this allegation and in August 2006 suspended them on the ground that the perpetrator had not been identified. 9. In July 2006 the teacher brought a private criminal prosecution against Mrs Marinova in connection with these three complaints. She submitted that she had not read them because the authorities dealing with them had not shown them to her. However, she had been asked to give explanations and from the questions put to her she had inferred that Mrs Marinova had accused her of having stolen a mobile telephone and described her as a biased and incompetent teacher using inappropriate disciplinary methods. At the first hearing of the case in September 2006, the teacher brought a civil claim against Mrs Marinova, seeking 5,000 Bulgarian levs (BGN) (2,556 euros (EUR)), plus interest, in non-pecuniary damages. 10. On 29 November 2006 the Tervel District Court found Mrs Marinova guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). The court replaced Mr Marinova’s criminal liability with an administrative fine of BGN 500 (EUR 256). It partly allowed the teacher’s claim for damages, ordering Mrs Marinova to pay her BGN 1,000 (EUR 511), plus interest. It also ordered Mrs Marinova to pay the teacher’s costs, amounting to BGN 164 (EUR 84), and part of the court fee paid by the teacher, amounting to BGN 40 (EUR 20). The court noted that relations between the teacher and Mrs Marinova had for a long time been bad. Having examined the findings of the Child Protection Agency and the prosecuting authorities in relation to Mrs Marinova’s complaints, the court concluded that her allegations, the first of which had become known to the school’s headmaster and a pedagogical counsellor in the school, had been false and therefore defamatory. The court also held, without specifying the basis for its conclusion on this point, that Mrs Marinova had acted with direct intent. In fixing the amount of the fine, the court noted, inter alia, her poor financial situation. 11. Mrs Marinova appealed, arguing, inter alia, that complaining about a public official to the authorities did not amount to “dissemination” within the meaning of Article 147 § 1 of the Criminal Code (see paragraph 49 below). Such complaints could, in some cases, be seen as false accusation contrary to Article 286 of the Code (see paragraph 54 below). Mrs Marinova also emphasised that she had not made her allegations publicly. 12. In a final judgment of 18 April 2007, the Dobrich Regional Court upheld the lower court’s judgment. It found that Mrs Marinova’s allegations that the teacher had ill-treated her son were not supported by the findings of the Child Protection Agency or her son’s or the headmaster’s testimony, and held that information was “disseminated” within the meaning of Article 147 § 1 of the Criminal Code even if only one person had become privy to it. The court found that the allegations in relation to the mobile telephone were false as well. It agreed that the statements in this respect in Mrs Marinova’s complaint to the police had amounted to a false accusation, and that the lower court had been wrong to characterise them as defamation. However, it stated that in the absence of an appeal by the teacher, it could not quash this part of the lower court’s judgment. It upheld, without giving any details, the lower court’s finding that Mrs Marinova had acted with direct intent. 13. To obtain payment of the award of damages and costs, the teacher brought enforcement proceedings against Mrs Marinova. It is unclear how these ended. 14. Mr Zlatanov was born in 1963 and lives in Sofia. 15. On 28 July 2008 he was stopped by two road traffic police officers. One of them recorded that Mr Zlatanov had failed to obey a stop sign. Mr Zlatanov objected, noting down in the record that the officer had refused to present himself, smelled of alcohol and staggered. In written explanations which he filed with the Shabla District Police Department on 5 August 2008, Mr Zlatanov reiterated his allegations and said that the officer had behaved aggressively. 16. Mr Zlatanov’s allegations triggered an internal inquiry which exonerated the officer of any wrongdoing. 17. In December 2008 the officer brought a private criminal prosecution against Mr Zlatanov in relation to these allegations. He also claimed BGN 5,000 (EUR 2,556) in non-pecuniary damages. 18. In a judgment of 6 March 2009, the Kavarna District Court found Mr Zlatanov guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). The court replaced his criminal liability with an administrative fine of BGN 500 (EUR 256). It partly allowed the officer’s claim for damages, ordering Mr Zlatanov to pay him BGN 1,500 (EUR 767), plus interest. It also ordered Mr Zlatanov to pay BGN 60 (EUR 30) in court fees. The court examined in detail the results of the internal inquiry carried out pursuant to Mr Zlatanov’s allegations, tests carried out several hours after the incident on 28 July 2008 and showing that the officer had not consumed alcohol, and the oral evidence of the other officer present at the scene and the officers’ superior. It concluded that Mr Zlatanov’s allegations did not correspond to the truth. It went on to find that Mr Zlatanov had not been certain of the truthfulness of his allegations, but had nevertheless chosen to make them, both in the record drawn up by the officer in the course of the incident on 28 July 2008 and in his subsequent written explanations. 19. Mr Zlatanov appealed. He argued, inter alia, that his statements, made in the exercise of his constitutional rights and only addressed to the officer’s superior, had not amounted to “dissemination” within the meaning of the Article 147 § 1 of the Criminal Code (see paragraph 49 below). He also relied, inter alia, on Article 10 of the Convention and this Court’s caselaw under this provision. 20. In a final judgment of 20 November 2009, the Dobrich Regional Court upheld the lower court’s judgment. It found it established that the officer had not displayed any signs of inebriation, which in the court’s view meant that Mr Zlatanov had been fully aware that the officer had not been drunk but had nevertheless chosen to make his allegations, thus acting with a direct intent to discredit the officer. Those allegations, whose purpose had been to smear the officer and at the same time exonerate Mr Zlatanov from liability for the road traffic offence recorded by the officer, could not be justified by the right to defend oneself against administrative-penal charges or the right to freedom of expression. The court ordered Mr Zlatanov to pay the officer’s costs for the appellate proceedings, amounting to BGN 512 (EUR 262). 21. Mr Findulov was born in 1955 and lives in Burgas. 22. On 12 July 2009 Mr Findulov, who was driving his lorry, was stopped by two road traffic police officers. One of them allegedly requested a bribe. Mr Findulov promised to bring him the money in ten minutes and left his identity card and the vehicle’s documents with the officers. He then called the police and informed the officer on duty of the incident. 23. On 23 July and 3 and 14 August 2009 Mr Findulov made complaints to the Inspectorate of the Ministry of Internal Affairs, the Ombudsman of the Republic and the Minister of Internal Affairs, alleging that one of the officers who had stopped him, whose identity was not known to him, had requested a bribe and had withheld his documents. 24. On 13 August 2009 the Burgas Regional Directorate of the Ministry of Internal Affairs replied to Mr Findulov that his complaint was illfounded. 25. According to Mr Findulov, on 14 September 2009 he found his identity card in his mail box. The vehicle’s documents were never recovered. 26. In a decision of 12 August 2009, the Road Traffic Police Department of the Burgas Regional Directorate of the Ministry of Internal Affairs found, on the basis of a report by the two traffic police officers issued in Mr Findulov’s absence, that he had not used a seatbelt, that one of the tyres of his lorry had been worn out, that he had refused a breathalyser test, and that he had driven away in an unknown direction. It gave Mr Findulov two administrative fines of BGN 50 and one administrative fine of BGN 500, stripped him of twenty-five control points from his driving licence, and barred him from driving a motor vehicle for twelve months. 27. Mr Findulov sought judicial review of that decision. On 30 November 2009 the Burgas District Court found that no appeal lay against the BGN 50 fines and discontinued the proceedings in that part. It quashed the remainder of the decision of 12 August 2009, finding that the report of the traffic police officers had not been communicated to Mr Findulov. In a final judgment of 25 March 2010 the Burgas Administrative Court upheld that judgment. 28. On an unspecified date in 2009, the officer accused by Mr Findulov of soliciting a bribe brought a private criminal prosecution against him in relation to that allegation. He also sought BGN 10,000 (EUR 5,113) in nonpecuniary damages. 29. In a judgment of 11 May 2010, the Burgas District Court found Mr Findulov guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). It sentenced him to a fine of BGN 5,000 (EUR 2,556) and a public reprimand. It partly allowed the officer’s claim for damages, ordering Mr Findulov to pay him BGN 3,000 (EUR 1,534). It also ordered Mr Findulov to pay BGN 120 (EUR 61) in court fees. The court noted that in his complaints Mr Findulov had not named the officer, but found that he had been identifiable from the complaints, which clearly alleged that he had requested a bribe, thus accusing him of an offence before third parties. The offence of defamation did not require that those third parties – the officer’s hierarchy – had actually believed the allegations or taken any action in relation to them. Mr Findulov, who under Article 147 § 2 of the Criminal Code (see paragraph 49 above) bore the burden of proof in this respect, had failed to establish that the officer had in fact solicited a bribe. The court went on to say, without explaining the reasons for this conclusion, that Mr Findulov had acted with direct intent. When fixing the sentence, the court noted that it could not replace Mr Findulov’s criminal liability with an administrative punishment as this was a one-off possibility and Mr Findulov had previously benefited from a waiver of his criminal liability in relation to a road traffic offence. In fixing the award of non-pecuniary damages to the officer, the court noted that Mr Findulov’s allegations had been particularly damning. 30. Mr Findulov appealed. 31. In a final judgment of 14 July 2010, the Burgas Regional Court upheld the lower court’s judgment. It entirely agreed with the reasons given by that court, adding that Mr Findulov had been fully aware that his allegations against the officer were false but had nevertheless chosen to defame him. The court also ordered Mr Findulov to pay BGN 250 (EUR 128) incurred by the officer in costs for the appeal proceedings. 32. The public reprimand was executed, as ordered by the court, by announcing Mr Findulov’s conviction and sentence on the local radio station. To obtain payment of the award of damages and costs, the officer brought enforcement proceedings against Mr Findulov. It is unclear how these ended. 33. Mr Dinchev was born in 1943. Mrs Dincheva was born in 1947. Both of them live in Lovech. 34. The two of them had a long-running conflict with neighbours of theirs. On 14 November 2009 tensions escalated and Mr and Mrs Dinchevi called the police, complaining that they had been assaulted by the neighbours. Two officers came and warned one of the neighbours not to harass the applicants. 35. On 17 November 2009 Mr and Mrs Dinchevi complained to the head of the Lovech District Police Directorate against the officers, alleging that they had shown no interest in the incident and had failed to protect them, instead inviting the aggressors in the patrol car and “muttering with them”. Mr and Mrs Dinchevi sent copies of the complaint to the Lovech District Prosecutor’s Office, the head of the Lovech Fire Brigade, and the Minister of Internal Affairs. On 4 December 2009 the head of the Lovech District Police Directorate informed Mr and Mrs Dinchevi that an internal inquiry had established that their complaint was ill-founded. 36. On an unspecified date in 2010 the officers brought a private criminal prosecution and claims for damages against Mr and Mrs Dinchevi. 37. In a judgment of 20 October 2010, the Lovech District Court found Mr and Mrs Dinchevi guilty of defaming public officials, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). It sentenced each of them to a fine of BGN 2,500 (EUR 1,278) and a public reprimand. The reprimand was to be executed by announcing the conviction and sentence on the local radio station. The court also partly allowed the officers’ claims for damages, ordering the applicants to pay each of them BGN 400 (EUR 205). 38. On appeal, in a final judgment of 18 April 2011 the Lovech Regional Court upheld the conviction with similar reasoning but reduced the fine imposed on each applicant to BGN 1,500 (EUR 764). 39. After the Government were given notice of the application (see paragraph 4 above), they brought Mr and Mrs Dinchevi’s case to the attention of the Chief Prosecutor. In December 2012 the Chief Prosecutor ad interim asked the Supreme Court of Cassation to reopen the proceedings, set aside the judgments against Mr and Mrs Dinchevi, and acquit them. He submitted that the statements in their complaint against the officers had not been defamatory but simply an expression of their disapproval of the way in which the officers had carried out their duties. Under the case-law of this Court and the case-law of the Supreme Court of Cassation, public officials could legitimately be subjected to heightened criticism. Accepting, as the Lovech courts had, that critical statements in complaints against such officials were defamatory would mean that the vast majority of claims and complaints filed with the courts and the prosecuting authorities by nonlawyers could lead to penal sanctions. 40. In a final judgment of 7 March 2013 (реш. № 104 от 07.03.2013 г. по н. д. № 178/2013 г., ВКС, III н. о.), the Supreme Court of Cassation allowed the request, reopened the proceedings, set the two judgments aside, acquitted Mr and Mrs Dinchevi, and dismissed the claims for damages against them. It held that their actions had not amounted to an offence. The statements in their complaints had been an expression of their disapproval of the way in which the officers had carried out their duties, and an exercise of their constitutional rights to make complaints to the authorities, express their opinion, and defend their rights. The statements had been value judgments which could not be proved or disproved, and could not be regarded as defamatory. Defamation could only consist in the imputation of concrete negative facts. The statements did not give rise to liability in damages either.