PROCEDURE

1.  The case originated in an application (no. 3316/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Bozhidar Mihaylov Bozhkov (“the applicant”), on 22 January 2004.

2.  The applicant was represented by Mr Y. Grozev, a lawyer practising in . The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

3.  The applicant alleged that his conviction and punishment for writing a newspaper article had been in breach of his right to freedom of expression.

4.  On 24 June 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention), and to conduct the proceedings in the case simultaneously with those in Kasabova v. Bulgaria (no. 22385/03) (Rule 42 (former 43) § 2 of the Rules of Court).

5.  The application was later transferred to the Fourth Section of the Court, following the recomposition of the Court’s sections on 1 February 2011.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The applicant and the newspaper

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.

B.  Background to the case

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  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.

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.

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.

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.

C.  The impugned article

C.  The impugned article

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  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.”

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.

D.  The proceedings against the applicant

1.  The proceedings before the Pomorie District Court

1.  The proceedings before the Pomorie District Court

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.

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  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.”

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.

2.  The proceedings before the

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  (Бургаски окръжен съд) heard the appeal on 4 July 2003.

21.  The  (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  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. ...”

3.  The payment of the fine, damages and costs

3.  The payment of the fine, damages and costs

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.

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.

E.  Other developments

E.  Other developments

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.

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.

II.  RELEVANT DOMESTIC LAW

A.  The Constitution

A.  The Constitution

27.  The relevant provisions of the 1991 Constitution read as follows:

Article 32 § 1

“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.”

Article 39

“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.”

Article 40 § 1

“The press and the other mass media shall be free and not subject to censorship.”

Article 41

“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.”

Article 57 § 2

“Rights shall not be abused, nor shall they be exercised to the detriment of the rights or the legitimate interests of others.”

B.  The Criminal Code

B.  The Criminal Code

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.”

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  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.).

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  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).

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.

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).

III.  RELEVANT INTERNATIONAL MATERIALS

III.  RELEVANT INTERNATIONAL MATERIALS

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).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

34.  The applicant complained under Article 10 of the Convention about his conviction and punishment for having written the impugned article.

35.  Article 10, in so far as relevant, provides as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.  The parties’ submissions

36.  The Government submitted that the applicant had published his article without proper journalistic enquiry. They cited at length the reasons given by the Pomorie District Court and asserted that both levels of jurisdiction, having fully considered the arguments of the parties to the libel proceedings and their evidence, had determined the claim impartially, giving reasons that were fully consonant with this Court’s caselaw. The Government drew attention to the fact that the four officials had availed themselves of an avenue of redress accessible to any defamed individual. In their view, it was also telling that the courts had waived the applicant’s criminal liability and simply imposed an administrative penalty on him. The award of damages had also been in reasonable proportion to the injury to the claimants’ reputations. It was also worth noting that the prosecuting authorities had discontinued the criminal investigation against the officials owing to lack of evidence that they had asked for or taken bribes. The interference had therefore been proportionate and justified.

37.  The applicant disagreed. He pointed to several factors which made his conviction disproportionate. He had been reporting on a matter of great public concern, namely corruption. The authorities had acted secretively and had been reluctant to reveal information about the issue, which had made it necessary to engage in more assertive reporting. He had been convicted for a factual inaccuracy which he had been unable to avoid even after verifying his story in line with good journalistic practice. The allegation that bribes had been taken had a reliable basis, namely the high number of irregularities in the admissions procedure and the allegations of parents whose children had been denied admission. Those allegations had appeared credible and were quite specific. The focus of his short article had been more on reporting the parents’ protest and the inquiry by the Ministry of Education and Science. In writing the article, he had relied on interviews with parents and students, and information from colleagues and from the head of the education inspectorate.

38.  The applicant further submitted that the penalties imposed on him had been excessive; indeed, the very fact of his conviction had been disproportionate. The reasons adduced by the national courts had been partly irrelevant and insufficient. Those courts had focused entirely on the internal inquiry by the Ministry of Education and Science and fully disregarded the information from parents. Such an approach neglected the role of the press and the context in which the article had been published. Despite the public protests by parents the authorities had not been very active in investigating the irregularities in the admissions process, which made them a less reliable source in that respect. It had therefore been fully justifiable for the applicant to rely on the information from parents. This, coupled with the high number of irregularities, could reasonably be interpreted as an indication of corruption. Moreover, the article had specified that at the time of writing no final decision had been taken on how to punish the four officials. It had been written under pressure of time, but with reasonable care and on the basis of sound factfinding.

B.  The Court’s assessment

39.  The Court considers that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

1.  Whether there was interference, and whether it was “prescribed by law” and pursued a legitimate aim

40.  It was not disputed that the applicant’s conviction, coupled with the order to pay damages, constituted interference – in the form of a “penalty” – with his right to freedom of expression. Nor was it contested that this interference was “prescribed by law”, namely Articles 147 and 148 of the Criminal Code (see paragraphs 28 and 29 above), and was aimed at protecting the “reputation or rights of others” within the meaning of Article 10 § 2 of the Convention.

2.  “Necessary in a democratic society”

(a)  General considerations

41.  The arguments adduced before the Court concentrated on the question whether the interference had been “necessary in a democratic society” to achieve that aim. The determination whether this was so must be based on the following general principles emerging from the Court’s caselaw (see, among other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 8891, ECHR 2004XI, with further references):

(a)  The test of “necessity in a democratic society” requires the Court to determine whether the interference corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.

(b)  The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the statements held against the applicant and the context in which he or she has made them.

(c)  In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10.

(d)  The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.

42.  An additional factor of particular importance in the present case is the vital role of “public watchdog” which the press performs in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on political issues and on other matters of general interest (ibid., § 93, with further references). The Court must apply the most careful scrutiny when, as here, the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, among other authorities, Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 88, ECHR 2007III).

43.  The Court further notes that the article in respect of which the applicant was convicted and penalised was reporting facts relating to alleged irregularities and corrupt practices in the admission of students to secondary schools (see paragraph 12 above). There can be no doubt that this was a question of considerable public interest, even sparking parliamentary debates and a hearing before a parliamentary committee (see paragraphs 25 and 26 above), and that the publication of information about it formed an integral part of the task of the media in a democratic society.

44.  It should also be observed that the individuals mentioned in the article were public officials, whom the Court has found as a rule to be subject to wider limits of acceptable criticism than private individuals (see Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001III; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 80, ECHR 2004XI; Mamère v. France, no. 12697/03, § 27, ECHR 2006XIII; and Dyundin v. Russia, no. 37406/03, § 26, 14 October 2008). However, the national courts were unable to take that into account and were instead bound to punish the applicant more severely (see paragraphs 18 and 22 above), because Article 148 §§ 1 (3) and 2 of the Criminal Code treats the official capacity of the victim of an alleged defamation as an automatic aggravating circumstance (see paragraph 29 above). The Court will revert to this matter below.

(b)  As to the assessment of whether the applicant acted as a responsible journalist

45.  The Court notes, firstly, that the applicant was acquitted of imputing the offence of bribe-taking to the four officials concerned and, secondly, that he conceded that the statement in respect of which he had been convicted – to the effect that the officials were to be dismissed because of corruption – was a statement of fact which ultimately proved to be untrue. In those circumstances, the Court sees no reason to engage in a detailed analysis of the manner in which the national courts approached the questions of burden and standard of proof (contrast Kasabova v. Bulgaria, no. 22385/03, §§ 5862, 19 April 2011). Its inquiry will instead focus on whether those courts made an acceptable assessment of whether the applicant had acted fairly and responsibly in gathering and publishing the impugned information.

46.  In that connection the Court observes that Article 10 does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and relating to politicians or public officials. Under the terms of its second paragraph the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when, as in the present case, there is a question of attacking the reputation of named individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III). Indeed, in situations where on the one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and  in good faith becomes paramount (see Flux v. Moldova (no. 7), no. 25367/05, § 41, 24 November 2009).

47.  In the recent case of Rumyana Ivanova, the Court found that, in view of the nature of the applicant’s allegation (that an individual featured on an official list via certain companies owned by him), the task of researching and demonstrating it was not unreasonable or impossible (see Rumyana Ivanova v. , no. 36207/03, §§ 6365, 14 February 2008). By contrast, the nature of the allegation in the present case (that the four complainants would be dismissed for bribetaking) made it very difficult, if not impossible, for the applicant to provide direct corroboration of it (compare with Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 65 in fine, Series A no. 239). That difficulty stemmed from two sources.

48.  First, the event to which the article was referring lay in the future. It was therefore inherently impossible for the applicant to know for certain what disciplinary sanctions would be imposed on the four complainants, and on what specific grounds. Of course, he could have overcome that difficulty simply by delaying publication. However, it is not for the Court to substitute its own views for those of the press as to the appropriate timing of publication of a news story. News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216, and Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 51, Series A no. 217). In as much as the story related to the school admission process, it was not unreasonable to publish it before the beginning of the school year four days later; the Minister imposed the punishments another ten days after that (see paragraph 10 in fine above).

49.  Secondly, at the time of publication the authorities had not yet released any official information on the results of the internal inspection carried out by the Ministry (see paragraph 10 above). The lack of such information, coupled with the uncontested existence of numerous irregularities in the admission of students, could reasonably have prompted the applicant to report on anything that was available, including uncorroborated information (see, mutatis mutandis, Flux (no. 7), cited above, § 44). It should be reiterated in that connection that the situation must be examined as it presented itself to the journalist at the material time, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, §§ 66 in fine and 72).

50.  It is true that the national courts, in assessing whether or not the applicant had acted with mens rea, examined the steps which he had taken to ensure the accuracy of the published information and found them insufficient (see paragraphs 18 and 22 above). However, the courts did not take the abovementioned matters into account, and disregarded other factors which were equally relevant for determining whether or not the applicant had acted in good faith. For instance, they paid no heed to the overall thrust of the article and the fact that it also included accurate allegations about a number of breaches of the school admissions regulations committed by the four officials. While they treated that matter merely as a circumstance justifying a lower award of damages, the Court considers that, in view of the overall thrust of the article (see Castells v. Spain, 23 April 1992, § 48 in limine, Series A no. 236; Perna v. Italy [GC], no. 48898/99, § 47 in limine, ECHR 2003V; and Timpul InfoMagazin and Anghel v. Moldova, no. 42864/05, § 35, 27 November 2007), that element was equally relevant for the assessment of whether or not the applicant had acted as a responsible journalist. The criterion of responsible journalism should recognise the fact that it is the article as a whole that the journalist presents to the public. It is true that the applicant could have phrased the impugned statement in a more careful manner, so as to highlight the fact that the actual disciplinary penalties to be imposed on the officials and the exact grounds for them were still uncertain. However, it cannot be overlooked that he did point out that “the Minister [would] decide their fate [that day]” (see paragraph 12 above) and that the article was a short news flash which called for concise wording. The Court therefore sees no reason to find that the applicant acted out of a desire to publish information with reckless disregard for its accuracy. Indeed, the allegations made by the protesting parents, coupled with the high number of irregularities in the school admission procedure (see paragraphs 9 and 10 above), made it at least plausible that the inspection relating to the four officials’ professional conduct might touch upon the issue of corruption and lead to disciplinary sanctions on such grounds. It is noteworthy in that connection that the prosecuting authorities later opened an investigation concerning the officials on suspicion of bribetaking (see paragraph 11 above).

51.  Having regard to the above factors, the overall context of the case and the important public interest involved, the Court is satisfied that the applicant acted as a responsible journalist. It would emphasise in that connection that if the national courts apply an overly rigorous approach to the assessment of journalists’ professional conduct, the latter could be unduly deterred from discharging their function of keeping the public informed. The courts must therefore take into account the likely impact of their rulings not only on the individual cases before them but also on the media in general. In the instant case, the four officials’ interest in protecting their reputation was not sufficient to outweigh the vital public interest in ensuring an informed debate on a matter of considerable public interest. It is significant in that connection that, as pointed out by the national courts (see paragraphs 18 and 22 above), the bulk of the harm to the officials’ reputation stemmed not from the untrue allegation made by the applicant in respect of the disciplinary sanctions imposed on them, but from his accurate reporting of their unlawful behaviour in the school admission process.

(c)  As to the severity of the sanction

52.  Although in the light of the abovementioned reasons the Court is of the opinion that the applicant’s conviction was in itself disproportionate, it considers it necessary to also examine the severity of the sanction imposed on him and the proportionality of the damages and costs which he was ordered to pay.

53.  It begins by noting that while the use of criminallaw sanctions in defamation cases is not in itself disproportionate (see Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004II; Lindon, OtchakovskyLaurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007XI; Długołęcki v. Poland, no. 23806/03, § 47, 24 February 2009; and Saaristo and Others v. Finland, no. 184/06, § 69 in limine, 12 October 2010), the nature and severity of the penalties imposed are factors to be taken into account, because they must not be such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Cumpǎnǎ and Mazǎre, cited above, § 111). In addition, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49, Series A no. 316B, and Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005II). Indeed, those points were made by the Parliamentary Assembly in its Resolution 1577 (2007) (see paragraph 33 above).

54.  In the instant case, although the proceedings started as criminal, the trial court, in application of Article 78a of the Criminal Code, waived the applicant’s criminal liability and imposed only an administrative punishment (see paragraphs 18 and 32 above). In Rumyana Ivanova the Court attached particular weight to that factor (see Rumyana Ivanova, cited above, § 69). However, it cannot overlook the fact that the possibility offered by Article 78a is apparently available only once, which means that, if convicted a second time of defamation, the applicant is likely to face criminal penalties.

55.  In any event, the Court finds that the overall sum which the applicant was required to pay was a far more important factor in terms of the potential chilling effect of the proceedings on him and other journalists. The four fines imposed on him came to a total of BGN 2,000. However, that amount must not be seen in isolation, but together with the damages – which were substantially increased by the  (see paragraph 22 above) – and the costs awarded to the complainants. Those came to BGN 4,000 and BGN 300 respectively, making the total sum payable BGN 6,300 (EUR 3,221.14). That sum, which was the equivalent of more than fiftyseven minimum monthly salaries (BGN 110 (EUR 56.24) at the relevant time), was payable by the applicant alone (contrast with Worm v. , 29 August 1997, §§ 15 and 57, Reports of Judgments and Decisions 1997V). Unlike Rumyana Ivanova, where the Court was satisfied that BGN 3,050 was reasonable in the circumstances (see Rumyana Ivanova, cited above, § 69), in the case at hand it finds that BGN 6,300 was an excessive sum. The evidence submitted by the applicant shows that he struggled for years to pay it in full (see paragraphs 23 and 24 above and contrast with Stângu and Scutelnicu v. Romania, no. 53899/00, § 56, 31 January 2006, and Mihaiu v. Romania, no. 42512/02, § 71 in fine, 4 November 2008).

(e)  Conclusion

56.  In conclusion, the Court finds that the national authorities did not adduce sufficient reasons for the interference with his right to freedom of expression and subjected him to disproportionate sanctions. It follows that the interference in question was not “necessary in a democratic society”.

57.  There has therefore been a violation of Article 10 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

58.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

59.  The applicant claimed repayment of the amounts which he had been ordered to pay in fines, damages to the civil claimants, costs and interest. According to him, those came to 10,250 Bulgarian levs (BGN). He further claimed 5,000 euros (EUR) in respect of nonpecuniary damage.

60.  The Government submitted that the claims were exorbitant. In their view, the finding of a violation was sufficient compensation for any damage suffered by the applicant.

61.  The Court considers that in view of the nature of the violation of Article 10 of the Convention, the applicant is entitled to recover the sums that he was ordered to pay in fines, damages and costs, plus interest (see Lingens v. Austria, 8 July 1986, § 50, Series A no. 103, and Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 50, ECHR 2003XI). However, the Court notes that, according to the evidence submitted by the applicant, the total amount paid by him came to BGN 9,850.75 and not BGN 10,250 (see paragraphs 23 and 24 above). The Court therefore awards the applicant BGN 9,850.75, plus any tax that may be chargeable.

62.  The Court further finds that an award of compensation in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, as required under Article 41, the Court awards the applicant the full amount claimed by him under that head (EUR 5,000), plus any tax that may be chargeable.

B.  Costs and expenses

63.  The applicant sought the reimbursement of EUR 3,040 incurred in fees for fifty hours’ work by his lawyer on the proceedings before the Court, at BGN 100 per hour. He submitted a fee agreement between him and his legal representative and a timesheet. He requested that any sum awarded under this head be made payable directly to his legal representative.

64.  The Government disputed both the number of hours claimed and the hourly rate charged by the applicant’s lawyer.

65.  According to the Court’s caselaw, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500, plus any tax that may be chargeable to the applicant. This amount is to be paid directly into the bank account of the applicant’s legal representative, Mr Y. Grozev.

C.  Default interest

66.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 10 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(b)  that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 April 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 24247/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Inna Nikolayevna Prisyazhnikova and Mr Nikolay Nikolayevich Dolgopolov (“the applicants”), on 28 May 2004.

2.  The second applicant was represented before the Court by the first applicant, Ms I. Prisyazhnikova. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the  at the European Court of Human Rights.

3.  On 27 September 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. On 30 August 2005 the Court put additional questions to the parties.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born 1966 and 1934 respectively, and live in Neryungri in the Sakha (Yakutiya) Republic of the .

5.  The applicants brought a civil action against the Government, seeking to enforce State promissory notes for purchase of a Russian-made car or to recover the monetary value thereof.

6.  On 17 March 2003 the Ust-Yanskiy District Court of the Sakha (Yakutiya) Republic found for the applicants and awarded 112,441.80 Russian roubles (“RUR”) to the first applicant and RUR 107,327.82 to the second applicant against the Ministry of Finance.

7.  On 23 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic (hereinafter – “the Supreme Court”) rejected an appeal by the Ministry of Finance and upheld the judgment.

8.  The enforcement proceedings were opened on 15 May 2003, but the judgment was not enforced.

9.  By interim decision of 11 August 2003, Judge R. of the Supreme Court of the Sakha (Yakutiya) Republic refused a request by the Ministry of Finance for obtaining the case file for the purpose of initiating supervisory-review proceedings. The Ministry had claimed that the courts had incorrectly applied the substantive law.

10.  By letter of 20 October 2003, the Supreme Court's President rejected a renewed request by the Ministry of Finance for launching the supervisory-review proceedings.

11.  On 9 June 2004 the Ministry of Finance introduced a new application for supervisory review of the judgments in the applicants' favour, founded on the same grounds as before.

12.  On 30 September 2004 the Supreme Court's President issued an interim decision on remitting the applicants' cases for examination on the merits to the Supreme Court's Presidium by way of supervisory review. In the procedural part, the interim decision of 11 August 2003, but not the letter of 20 October 2003, was mentioned.

13.  On 14 October 2004 the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic, in a five-judge formation presided over by the Supreme Court's President, found that the lower courts had not taken into account certain provisions relating to reimbursement of State promissory notes. On that ground, relying on Articles 388 and 390 of the Code of Civil Procedure, the Presidium quashed the judgments in the applicants' favour and dismissed their claim as having no basis in the domestic law.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Code of Civil Procedure of the

A.  Code of Civil Procedure of the

15.  The relevant provisions governing the supervisory-review proceedings read as follows:

Article 13. Binding force of judicial decisions

“1.  Courts may issue judicial decisions in the form of judicial orders, judgments and interim decisions...”

Article 376. Right to apply to a court exercising supervisory review

“1.  Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.

2.  Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”

Article 378.  Contents of an application for supervisory review

“An application for supervisory review must contain:

(1)  the name of the court to which it is addressed;

...

(4)  a reference to the first-instance, appeal or cassation courts that examined the case and a summary of their decisions;

(5)  a reference to the judgment or decision which is being appealed against...”

Article 381. Examination of an application for supervisory review

“2. Having examined an application for supervisory review, the judge issues an interim decision on –

(1)  obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;

(2)  refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.

...

6.  The President of the regional Supreme Court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”

Article 382. Examination of case files obtained by the supervisory-review court

“2.  Having examined the case file obtained by the supervisory-review court, the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory-review court;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory-review court.”

Article 383.  Interim decision refusing to remit the case for examination on the merits by the supervisory-review court

“2.  The President of the regional Supreme Court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory-review court.”

Article 384. Decision on remitting the case for examination on the merits
by a supervisory-review court

“1.  A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain:

(7)  a reasoned description of the grounds for remitting the case for examination on the merits...”

Article 390. Competence of the supervisory-review court

“1.  Having examined the case by way of supervisory review, the court may

...

(5)  quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”

B.  Enforcement Proceedings Act (Law of 21 July 1997)

B.  Enforcement Proceedings Act (Law of 21 July 1997)

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF QUASHING OF THE JUDGMENTS IN THE APPLICANTS' FAVOUR

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a]... tribunal...”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”

A.  Admissibility

B.  Merits

1.  Alleged violation of Article 6 of the Convention

(a)  Arguments by the parties

(b)  The Court's assessment

26.  The Court further observes that the Ministry's applications for supervisory review were founded on substantially similar arguments. The first was rejected by a Supreme Court judge, the second was dismissed by the Supreme Court President but the third was granted by the same President. It transpires from Articles 381 § 6 and 383 § 2 of the CCP that the President of a regional Supreme Court may overrule the decision of any other judge of the court, whereby that judge refused institution of supervisory-review proceedings. As the Court has already observed, the President's power to do so was not subject to any time-limit (see Denisov v. Russia (dec.), no. 33408/03, 6 May 2004).

27.  Furthermore, the Court notes that under the Russian Code of Civil Procedure the President's power to overrule decisions of other judges is not circumscribed in any way. The President has an unfettered discretion to initiate supervisory-review proceedings, a mere “disagreement” with the ordinary judge's decision being a sufficient ground for doing so (see Articles 381 § 6 and 383 § 2 of the CCP). The President needs no application by a party to exercise that discretion and may take such initiative at any time.

2.  Alleged violation of Article 1 of Protocol No. 1

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF LENGTHY NON-ENFORCEMENT OF THE JUDGMENTS

A.  Admissibility

35.  It follows that at least from 23 April 2003 to 14 October 2004 the judgments in the applicants' favour were “enforceable” and it was incumbent on the State agency to abide by their terms. In any event, the Court reiterates that the quashing of a judgment in a manner which has been found to have been incompatible with the principle of legal certainty and the applicant's “right to a court” cannot be accepted as justification for the failure to enforce that judgment (see Sukhobokov v. , no. 75470/01, § 26, 13 April 2006). Accordingly, the Government's objection must be dismissed.

B.  Merits

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

42.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

A.  Damage

45.  The Court recalls that in the instant case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the judgments in the applicants' favour had remained unenforced for a long period of time and had been subsequently quashed. The applicants were thereby prevented from receiving the money they had legitimately expected to receive. There has been therefore a causal link between the violations found and the applicants' claim for the pecuniary damage in so far as it covered the original awards. The applicants' right to receive bigger amounts was not upheld in the domestic proceedings and they did not claim any interest for the period that lapsed between the original award and the Court's judgment. Accordingly, the Court awards RUR 112,442 to Ms Prisyazhnikova and RUR 107,328 to Mr Dolgopolov in respect of the pecuniary damage, plus any tax that may be chargeable on those amounts, and dismisses the remainder of their claim for the pecuniary damage.

B.  Costs and expenses

47.  The applicants did not claim costs or expenses and there is accordingly no call to make an award under this head.

C.  Default interest

48.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgments of of 17 March 2003, as upheld on appeal on 23 April 2003, by way of supervisory review;

3.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of prolonged non-enforcement of the judgments of 17 March 2003, as upheld on appeal on 23 April 2003;

4.  Holds

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 28 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.