MARINOVA AND OTHERS v. BULGARIA - 33502/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 636 (12 July 2016)

In the case of Marinova and Others v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Khanlar Hajiyev,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 21 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in four applications (nos. 33502/07, 30599/10, 8241/11 and 61863/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Bulgarian nationals. The first application was lodged by Mrs Rositsa Valkova Marinova on 26 June 2007. The second application was lodged by Mr Ventsislav Tsvetkov Zlatanov on 18 May 2010. The third application was lodged by Mr Petar Georgiev Findulov on 4 January 2011. The fourth application was lodged by Mr Ivan Petrov Dinchev and Mrs Margarita Radoeva Dincheva on 19 September 2011.

2. Mrs Marinova was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. Mr Zlatanov was represented by Mr Y. Mitev, a lawyer practising in Dobrich. Mr Findulov was represented by Mr S. Arnaudov, a lawyer practising in Plovdiv. Mr and Mrs Dinchevi were not legally represented. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva-Chinova, of the Ministry of Justice.

3. The applicants alleged, in particular, that their conviction and punishment for making complaints against public officials, coupled with the orders to pay damages to those officials, were in breach of their right to freedom of expression.

4. On 25 September 2012 the Government were given notice of the applications. After they submitted their observations, by letters of 4 March 2013 the applicants were invited to submit observations in reply and any claims for just satisfaction. Mr and Mrs Dinchevi did not do so within the time-limit fixed by the Court, or request an extension of time. Two months earlier, on 7 January 2013, they had informed the Court that the Chief Prosecutor had requested that criminal proceedings against them be reopened (see paragraph 39 below). Accordingly, by letter dated 15 May 2013, sent by registered mail with acknowledgement of receipt, the Court’s Registry reminded Mr and Mrs Dinchevi of their failure to submit observations and claims, and drew their attention to the terms of Article 37 § 1 (a) of the Convention. The acknowledgement of receipt has not arrived back at the Court. There have been no further communications from Mr and Mrs Dinchevi.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The case of Mrs Marinova

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.

B. The case of Mr Zlatanov

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 case-law 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).

C. The case of Mr Findulov

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 ill-founded.

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 non-pecuniary 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.

D. The case of Mr and Mrs Dinchevi

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 non-lawyers 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.

II. RELEVANT DOMESTIC LAW

A. Relevant constitutional provisions

41. Article 45 of the Constitution of 1991 provides that the citizens have the right to make complaints, proposals and petitions to the authorities.

42. Article 39 § 1 of the Constitution provides that everyone is entitled to express an opinion and publicise it through words, whether written or oral, sounds or images, or in any other way. By Article 39 § 2, that right cannot be exercised to the detriment of the rights or reputation of others.

43. Article 41 § 1 of the Constitution provides that everyone has the right to impart information, but that the exercise of that right may not be directed against the rights or the good name of others.

44. Article 56 of the Constitution provides that everyone has the right to defence in cases where his rights or legitimate interests have been infringed or threatened.

B. Case-law of the Supreme Court of Cassation under those provisions in relation to complaints against public officials

45. In a case in which a public prosecutor had brought a private criminal prosecution against an accused who had sought his recusal from a criminal case, the Supreme Court of Cassation, in upholding the acquittal of the defendant, said that the right under Article 45 of the Constitution (see paragraph 41 above) was separate from the right to freedom of expression under Article 39 of the Constitution (see paragraph 42 above) and Article 10 of the Convention, and that it outweighed the prosecutor’s right to protect his reputation by way of criminal law measures (see реш. № 421 от 14.11.2008 г. по н. д. № 446/2008 г., ВКС, III н. о.).

46. In civil cases, the Supreme Court of Cassation has held that a complaint to a State authority, even if eventually turning out to be based on untrue facts, is not tortious because it is based on the right under Article 45 of the Constitution to make complaints and petitions, and the right under Article 56 of the Constitution to conduct one’s defence without fear of retaliation (see paragraphs 41 and 44 above). The court has also said that making such a complaint would only be wrongful if the complainant was aware that his allegations were false and lodged the complaint to cause harm to the person of whom he complained (see реш. № 1347 от 18.12.2008 г. по гр. д. № 5006/2007 г., ВКС, II г. о.; реш. № 758 от 11.02.2011 г. по гр. д. № 1243/2009 г., ВКС, II г. о.; and реш. № 245 от 05.11.2014 г. по гр. д. № 1734/2014 г., ВКС, III г. о.).

C. Relevant provisions of the Code of Administrative Procedure

47. By Article 108 § 2 of the Code of Administrative Procedure 2006, no-one may be persecuted for notifying the authorities of unlawful or incorrect actions or omissions by public officials.

48. The courts have recently started to apply that provision in cases relating to allegedly defamatory allegations against public officials. In one such case, the Sofia City Court relied on it to uphold the acquittal of a person accused of defaming a notary in a complaint to Parliament (see реш. № 878 от 02.07.2013 г. по в. н. ч. х. д. № 1839/2013 г., СГС). In another case, the Sliven Regional Court likewise relied on it to uphold the acquittal of a person accused of defaming a mayor in complaints to the municipal council and the central authorities (see реш. № 127 от 10.10.2013 г. по в. н. ч. х. д. № 434/2013 г., ОС-Сливен). However, the Pernik Regional Court recently did not find it incompatible with that provision to uphold the conviction of a person who had alleged in a complaint lodged with the police that a traffic police officer had appeared drunk while on duty (see реш. № 33 от 24.04.2014 г. по в. н. ч. х. д. № 44/2014 г., ОС-Перник).

D. The criminal offence of defamation

49. Article 147 of the Criminal Code 1968 provides as follows:

“1. Any person who disseminates an injurious statement of fact about another or imputes an offence to him 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 proves the truth of the said statement or imputation.”

50. By Article 148 §§ 1 (3) and 2 of the Code, the defamation of a public official in the course of or in connection with the performance of his duties is punishable by a fine ranging from five to fifteen thousand levs and public reprimand.

51. By Article 161 § 1 of the Code, as in force since March 2000, charges under any of those provisions may only be brought by the alleged victim of the offence.

52. According to the case-law of the former Supreme Court and the current Supreme Court of Cassation (see реш. № 209 от 18.05.1982 г. по н. д. № 209/1982 г. ВС, І н. о.; реш. № 347 от 25.09.2009 г. по н. д. № 372/2009 г. ВКС, І н. о.; реш. № 418 от 12.11.2009 г. по н. д. № 458/2009 г., ВКС, III н. о.; and реш. № 452 от 12.10.2010 г. по н. д. № 411/2010 г., ВКС, III н. о.), statements made in letters, complaints or depositions to the authorities cannot be considered as “dissemination” within the meaning of Article 147 § 1 of the Code because their authors do not intend to harm the reputation of the persons to whom they refer but to exercise their right to make complaints, report irregularities, or seek the authorities’ assistance.

53. Many lower courts have adhered to that position (see прис. от 02.07.2009 г. по н. ч. х. д. № 111/2009 г., РС-Берковица; прис. № 696 от 30.11.2009 г. по н. ч. х. д. № 3103/2009 г., РС-Варна; реш. № 584 от 16.12.2009 г. по в. гр. д. № 909/2009 г., ОС-Добрич; реш. № 60 от 18.05.2010 г. по в. н. ч. х. д. № 209/2009 г., ОС-Габрово; реш. № 41 от 30.06.2010 г. по н. д. № 154/2010 г., ОС-Кърджали; реш. № 187 от 13.05.2011 г. по в. н. ч. х. д. № 179/2011 г., ОС-Плевен; and реш. № 878 от 02.07.2013 г. по в. н. ч. х. д. № 1839/2013 г., СГС).

E. The criminal offence of making a false accusation

54. By Article 286 § 1 of the Criminal Code 1968, it is an offence falsely to allege before a competent authority that a person has committed a criminal offence when knowing that this is not the case. By Article 286 § 2, the offence carries a higher penalty if the person so accused has incurred criminal liability as a result of the accusation.

55. Charges under this Article may only be brought by the prosecuting authorities, not by the alleged victim of the offence.

56. The former Supreme Court and the current Supreme Court of Cassation have explained that the defining characteristic of this offence is that the offender addresses his statement to an authority competent to bring criminal charges against the person mentioned in the statement, and the offender seeks that result (see реш. № 277 от 07.05.1975 г. по н. д. № 244/1975 г., ВС, I н. о.; реш. № 17 от 05.07.1978 г. по н. д. № 15/ 1978 г., ВС, ОСНК; реш. № 601 от 04.01.1988 г. по н. д. № 675/1987 г., ВС, II н. о.; реш. № 184 от 26.05.2009 г. по н. д. № 133/2009 г., ВКС, I н. о.; and реш. № 100 от 22.03.2013 г. по н. д. № 74/2013 г., ВКС, II н. о.). The chief difference between the offences of defamation and false accusation is that the aim of a defamatory statement is to disparage a person’s reputation, whereas the aim - and possible result - of a false accusation is to see the criminal liability of that person engaged; the former is an offence against the personality rights of the statement’s target and the latter is an offence against the course of justice (see реш. № 1145 от 20.06.1955 г. по н. д. № 1839/1955 г., ВС, I н. о., and реш. № 209 от 18.05.1982 г. по н. д. № 209/1982 г., ВС, I н. о.). In practical terms, the difference can normally be drawn on the basis of whether or not the complaint has been addressed to an authority competent to bring criminal charges against the person against whom it is directed (see реш. № 327 от 15.07.2009 г. по н. д. № 336/ 2009 г., ВКС, I н. о.).

57. According to the settled case-law of the former Supreme Court and the current Supreme Court of Cassation, a person can only commit the offence of false accusation if he is not acting in good faith, realises that the person that he is accusing has not committed an offence or is indifferent to that fact, but nevertheless alleges the opposite before the competent authority. The courts have explained that to hold otherwise would mean penalising any communication to the competent authorities in relation to potentially criminal actions that on examination turns out to be untrue, which would be contrary to the citizens’ civic duty to notify those authorities when they witness an offence (see реш. № 435 от 27.06.1955 г. по н. д. № 415/ 1955 г., ВС, в. о.; реш. № 441 от 10.08.1970 г. по н. д. № 397/1970 г., ВС, I н. о.; реш. № 108 от 26.02.2009 г. по н. д. № 41/2009 г., ВКС, II н. о.; реш. № 500 от 04.12.2009 г. по н. д. № 458/2009 г., ВКС, II н. о.; реш. № 453 от 12.10.2010 г. по н. д. № 431/2010 г., ВКС, III н. о.; реш. № 326 от 11.11.2010 г. по н. д. № 258/2010 г., ВКС, II н. о.; реш. № 505 от 24.11.2010 г. по н. д. № 517/2010 г., ВКС, III н. о.; реш. № 212 от 20.04.2011 г. по н. д. № 1235/2011 г., ВКС, III н. о.; реш. № 110 от 24.04.2015 г. по н. д. № 175/2015 г., ВКС, III н. о.; and реш. № 87 от 26.05.2015 г. по н. д. № 1902/2014 г., ВКС, III н. о.).

F. Possibility to appeal on points of law or seek revision in criminal defamation cases

58. By Article 346 § 2 of the Code of Criminal Procedure 2005, an appellate judgment of a regional court is only subject to appeal on points of law before the Supreme Court of Cassation if the regional court itself convicts or acquits the accused. By Article 336 § 1, this is the case when the regional court applies a harsher criminal law rule than that applied by the district court, or convicts, respectively acquits, an accused who has been acquitted, respectively convicted, by the district court. In any event, regional court judgments in cases in which the convicted person has had his criminal liability replaced with administrative punishment are not subject to appeal on points of law (Article 346 § 2 in fine). In application of these rules, the Supreme Court of Cassation has refused to examine an appeal on points of law against the part of a regional court judgment which had upheld a district court judgment in a defamation case (see реш. № 452 от 12.10.2010 г. по н. д. № 411/2010 г., ВКС, III н. о.).

59. By Article 422 § 1 (5) read in conjunction with Articles 348 § 1, 420 § 2 and 421 § 3 of the same Code, a person convicted of an offence prosecutable by the prosecuting authorities who has not had his criminal liability replaced with an administrative punishment can, provided that he has not appealed on points of law, himself seek reopening of the proceedings within six months of the final judgment on the basis that the courts have seriously misapplied the substantive law or the rules of procedure, or have imposed a clearly disproportionate sentence.

THE LAW

I. APPLICATION OF ARTICLE 37 § 1 OF THE CONVENTION TO THE APPLICATION OF MR AND MRS DINCHEVI

60. The Government submitted that the application of Mr and Mrs Dinchevi was inadmissible. They pointed out that after receiving notice of the application they had asked the Supreme Cassation Prosecutor’s Office to seek reopening of the proceedings against the two applicants. The Supreme Court of Cassation had allowed the request, fully acquitting Mr and Mrs Dinchevi and dismissing the claims for damages against them.

61. Mr and Mrs Dinchevi did not submit observations in reply.

62. The Government’s submission must be regarded as a request under Article 37 § 1 of the Convention that the application be struck out of the Court’s list (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 39, 24 October 2002).

63. Article 37 § 1 of the Convention provides, in so far as relevant:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; ...

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

64. In this case, it is not necessary to decide whether the reopening of the proceedings against Mr and Mrs Dinchevi, which led to their acquittal and the dismissal of the claims for damages against them, has resolved the matter within the meaning of sub-paragraph (b) of that provision, as these applicants can in any event be regarded as not intending to pursue that application within the meaning of its sub-paragraph (a).

65. Mr and Mrs Dinchevi did not submit observations in reply to those of the Government or claims for just satisfaction, as invited in a letter from the Registry dated 4 March 2013, or request an extension of time do so. Nor did they respond to the Registry’s further letter of 15 May 2013, sent by registered mail with acknowledgement of receipt, that reminded them of this failure and drew their attention to the terms of Article 37 § 1 (a) (see paragraph 4 above). It is true that the acknowledgement of receipt of that letter has not arrived back at the Court (ibid.), so as to confirm that the letter has reached the applicants and that their failure to reply to it, or the Registry’s previous letter, is due to their having lost interest in the case. The Court is nevertheless satisfied that this is so. On 7 January 2013, just two months before they were invited to submit their observations and claims, Mr and Mrs Dinchevi had informed it of the Chief Prosecutor’s request that the criminal proceedings against them be reopened (ibid., as well as paragraph 39 above). There is no indication that they have attempted to contact the Court since then. This, coupled with the fact that the Supreme Court of Cassation allowed the reopening request, acquitted Mr andMrs Dinchevi, and dismissed the claims for damages against them on 7 March 2013 (see paragraph 40 above), just three days after they were invited to submit their observations and claims for just satisfaction, compels the conclusion that they regarded this as sufficient redress for their grievance and lost interest in pursuing their application to the Court.

66. There is no reason relating to respect for human rights as defined in the Convention that requires the continued examination of the application under Article 37 § 1 in fine, especially bearing in mind that almost identical issues will be considered in the cases of the other three applicants (see Shesti Mai Engineering OOD and Others v. Bulgaria, no. 17854/04, § 62, 20 September 2011, with further references).

67. It follows that Mr and Mrs Dinchevi’s application must be struck out of the Court’s list under Article 37 § 1 (a) of the Convention.

II. JOINDER OF THE REMAINING THREE APPLICATIONS

68. The cases of Mrs Marinova, Mr Zlatanov and Mr Findulov and their complaints are very similar. Their applications should therefore be joined under Rule 42 § 1 of the Rules of Court.

III. ALLEGED VIOLATIONS OF ARTICLE 10 OF THE CONVENTION

69. All three applicants complained that they had been convicted, fined and ordered to pay damages in relation to the complaints that they had made against public officials. Mrs Marinova relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, whereas Mr Zlatanov and Mr Findulov relied on Article 10 of the Convention.

70. The Court, as master of the characterisation to be given in law to the facts of the case, finds that these complaints are to be examined solely under Article 10 of the Convention, which provides, in so far as relevant:

“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

1. The Government

71. The Government submitted that the interferences with the applicants’ right to freedom of expression had been based on clear legal provisions and had sought to protect the reputation and rights of others. These interferences had moreover been proportionate, in particular because of the need to protect public officials against unjustified attacks.

72. In the case of Mrs Marinova, the complaints against the teacher had to be seen in the context of the long-running acrimony between the two. The investigation of those complaints, addressed to three different authorities, had caused considerable damage to the teacher’s reputation, especially among her colleagues. Tervel, where the events had taken place, was a town with a population of less than seven thousand people that only had one school - that in which the teacher was employed. The teacher had had more than twenty-five years of service in that school, and Mrs Marinova’s allegations had seriously damaged her standing there. As evident from the findings of the criminal courts in the case against Mrs Marinova, she had been fully aware of that, and of the lack of any basis for her allegations, but had nevertheless chosen to make them and thus discredit the teacher. Even so, Mrs Marinova had been given the minimum administrative fine possible and ordered to pay the teacher a relatively low amount of damages.

73. In the case of Mr Zlatanov, the allegations that the police officer had acted rudely and had been drunk while on duty could have led to his dismissal. The inquiry into those allegations, which had included submitting the officer to blood tests, had shown them to be entirely baseless. The courts hearing the case against Mr Zlatanov had found that he had made the allegations deliberately in an attempt to escape liability for a road traffic offence. In spite of that, he had been given the minimum administrative fine possible and ordered to pay the officer a reasonable amount of damages.

74. In the case of Mr Findulov, his allegation that the police officer had solicited a bribe had become known to a very wide circle of people, not just the officer’s superiors or the authorities competent to investigate him. The allegation was very serious and could have led to grave consequences for the officer, including a criminal sanction and the loss of his job - something Mr Findulov could not have been unaware of. Even so, he had been given the minimum criminal fine possible - it had not been open to the courts to waive his criminal liability, which was a one-off possibility, because he had already profited from such a waiver - and ordered to pay the officer a reasonable amount of damages.

2. The applicants

75. Mrs Marinova submitted that her conviction of defamation had not been sufficiently foreseeable in view of the lack of clarity in the Bulgarian courts’ case-law as to what could amount to “dissemination” within the meaning of Article 147 § 1 of the Criminal Code, in particular when it came to complaints to the authorities, made in the exercise of the right to make such complaints under Article 45 of the Constitution. By Article 108 § 2 of the Code of Administrative Procedure 2006, no-one could be prosecuted for making allegations against public officials. The conviction had not been proportionate either, since the allegations against the teacher, which had not directly accused her of an offence, had been made by Mrs Marinova personally rather than by a lawyer acting on her behalf, had been addressed to the authorities rather than the media, and had been phrased in neutral terms. The Government’s assertion of a long-running acrimony between Mrs Marinova and the teacher was not supported by enough evidence. Neither was their claim that the allegations against the teacher had become known to the whole town of Tervel.

76. Mr Zlatanov submitted that he had not insulted the officer or abused him verbally. He had simply exercised his right to defend himself and his right to freedom of expression. His statements had been made in writing and before a limited number of people. He expressed doubts about the accuracy of the results of the blood tests carried out on the officer. Since under Bulgarian law the offence of defamation could not be committed by negligence and since under the prevailing case-law of the Bulgarian courts allegations made in complaints to the authorities did not amount to “dissemination” within the meaning of Article 147 § 1 of the Criminal Code, he could not have expected that he would incur liability for making his statements.

77. Mr Findulov submitted that he had been extremely upset by the solicitation of a bribe by the officer, and even more so by the officer’s retaining his documents pending the payment of that bribe. His complaints had been made entirely in reaction to that, and had amounted to an exercise of his right under Article 45 of the Constitution. Such complaints were intended to safeguard not only the personal interest of those who made them, but also the public interest in good administration. Retaliating against such complaints by way of criminal law measures was pernicious for the possibility for citizens in a democratic society to scrutinise the authorities. These measures had been entirely disproportionate in his case, in particular because he had not made his allegations publicly but only before the competent authorities.

B. The Court’s assessment

1. Admissibility

78. The complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. They must therefore be declared admissible.

2. Merits

79. The judgments against Mrs Marinova, Mr Zlatanov and Mr Findulov, finding them guilty of defamation, subjecting them to fines - and in the case of Mr Findulov also to a public reprimand - and ordering them to pay damages (see paragraphs 10, 18 and 29 above), constituted an “interference”, in the form of a “penalty”, with their right to freedom of expression under Article 10 of the Convention. Such interference will only be compatible with that Article if it was “prescribed by law” and was “necessary in a democratic society” for one of the aims set out in its second paragraph.

80. The Court finds, and it is not in dispute between the parties, that the interference in each of the three cases had a legal basis - Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 above) - and that the law was accessible. The only contentious point was whether the applicants could foresee, to a degree that was reasonable in the circumstances, that they could be found guilty of defamation in relation to the statements made by them.

81. In a previous case relating to statements made by a journalist in a newspaper article, the Court accepted that Article 147 § 1 of the Criminal Code was sufficiently precise (see Kasabova v. Bulgaria, no. 22385/03, § 52, 19 April 2011). But the situations at hand are quite different. That provision makes it an offence to “disseminate” injurious statements (see paragraph 49 above). It appears that under the case-law of the former Supreme Court and the current Supreme Court of Cassation, statements made in complaints or depositions to the authorities cannot be considered as such “dissemination” because their authors do not intend to harm the reputation of the persons to whom they refer but to exercise their right to make complaints, report irregularities, or seek the authorities’ assistance (see paragraph 52 above). Such statements can apparently rather be characterised, in appropriate cases, as false accusations contrary to Article 286 of the Code (see paragraph 56 above). It is therefore open to doubt whether the applicants could reasonably foresee that by making their complaints they were breaking Article 147 § 1 of the Criminal Code (see, mutatis mutandis, Siryk v. Ukraine, no. 6428/07, §§ 36-38, 31 March 2011).

82. The applicable rules of procedure did not make it possible for the applicants’ convictions to reach the Supreme Court of Cassation so that it could authoritatively rule on the manner of application of Article 147 § 1 of the Criminal Code in their circumstances (see paragraphs 58 and 59 above). For its part, this Court does not consider that it has to pronounce on this point, as it finds that the interferences were in any event not “necessary in a democratic society”, for the reasons that follow.

83. The judgments against the applicants could be regarded as pursuing a legitimate aim: the protection of the reputation of the public officials targeted by the applicants’ complaints.

84. The salient question is whether the interferences were “necessary in a democratic society” in order to achieve this aim. To answer this question, the Court must determine whether the interferences were proportionate, due regard being had to the national authorities’ margin of appreciation in this domain (see, among many other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004-XI).

85. The general principles guiding this assessment were recently restated in Morice v. France ([GC], no. 29369/10, § 124, 23 April 2015) as follows:

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of 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 given by an independent court. 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.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered 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 and 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 and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”

86. In the light of its case-law relating to disparaging statements against public officials made in written complaints to the authorities (see Zakharov v. Russia, no. 14881/03, 5 October 2006; Kazakov v. Russia, no. 1758/02, 18 December 2008; Sofranschi v. Moldova, no. 34690/05, 21 December 2010; Siryk, cited above; and Marin Kostov v. Bulgaria, no. 13801/07, 24 July 2012), the Court will examine the proportionality of the interferences by looking at the nature and exact manner of communication of the statements, the contexts in which they were made, the extent to which they affected the officials concerned, and the severity of the sanctions imposed on the applicants.

87. The statements amounted to allegations of misconduct on the part of the officials in the performance of their duties: harassment of a pupil by his teacher in the case of Mrs Marinova, rudeness and drunkenness of a road traffic police officer in the case of Mr Zlatanov, and the solicitation of a bribe by such an officer in the case of Mr Findulov (see paragraphs 6, 7, 15 and 23 above).

88. It is true that these allegations were, especially in the case of Mr Findulov, quite serious. But they were not insulting or derogatory. The Court’s case-law draws a clear distinction between criticism and insult in terms of whether sanctions may be justified for such statements (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003; Uj v. Hungary, no. 23954/10, § 20, 19 July 2011; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 67, ECHR 2011). Moreover, the limits of acceptable criticism with regard to public officials may in some circumstances be wider than in relation to private individuals (see Nikula v. Finland, no. 31611/96, § 47, ECHR 2002-II; Steur v. the Netherlands, no. 39657/98, § 40, ECHR 2003-XI; and Mariapori v. Finland, no. 37751/07, § 56, 6 July 2010).

89. It is also true that these allegations were capable of having an effect on the professional standing of the officials concerned, of undermining their authority, of taking up their time and resources, and of leading to disciplinary or perhaps even criminal sanctions against them. But they were made by the applicants in the exercise of the possibility in a democratic society governed by the rule of law for a private person to report an alleged irregularity in the conduct of a public official to an authority competent to deal with such an issue. This possibility is one of the precepts of the rule of law (see Zakharov, § 26; Kazakov, § 28; and Siryk, § 42, all cited above), and serves to maintain confidence in public administration. Indeed, in Bulgaria it has been enshrined as a fundamental right in Article 45 of the Constitution (see paragraph 41 above). Naturally, it is then for the authority concerned to decide what procedural steps may be required in response to such complaints. However, the mere fact that the applicants’ complaints led to inquiries cannot be seen as unduly impinging on the officials’ reputation. It was precisely the purpose of those inquiries to confirm or lay to rest the applicants’ allegations.

90. It should further be noted in this context that the applicants were not military servicemen, civil servants, journalists or lawyers, who have special “duties and responsibilities” in the exercise of their right to freedom of expression in their respective professional contexts (see Grigoriades v. Greece, 25 November 1997, § 45, Reports of Judgments and Decisions 1997-VII, as regards military servicemen; Vogt v. Germany, 26 September 1995, § 53, Series A no. 323; Guja v. Moldova [GC], no. 14277/04, §§ 70-71, ECHR 2008; and Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, as regards civil servants; Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015, as regards journalists; and Fuchs v. Germany (dec.), no. 29222/11, § 39, 27 January 2015, and Morice v. France [GC], no. 29369/10, §§ 132-39, 23 April 2015, as regards lawyers). Nor did the applicants have a special connection with the targets of their allegations, such as to impose on them a duty of discretion and loyalty vis-à-vis those persons (contrast Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts), and Palomo Sánchez and Others, cited above, §§ 70-76, where such connection was found to exist between employees and the private companies by which they were employed). All three applicants were private persons confronted with public officials whom they suspected, correctly or incorrectly, of wrongdoing. As noted in the Chief Prosecutor’s request for reopening of the case against Mr and Mrs Dinchevi, reacting to complaints by non-lawyers against public officials by way of criminal law measures would mean that any such person would run the risk to be sanctioned for doing so (see paragraph 39 above). Private citizens must in principle be able to make complaints against public officials to their hierarchical superiors without the risk of criminal sanctions, even where such complaints amount to allegations of a criminal offence and even if their allegations prove on examination to be groundless.

91. Moreover, the aim sought to be achieved by the applicants’ convictions was not the maintenance of the authority of the judiciary, which may supply greater justification for such measures, but the reputation of the public officials concerned (contrast Lešník v. Slovakia, no. 35640/97, § 54, ECHR 2003-IV; Skałka, cited above, §§ 40-41; Saday v. Turkey, no. 32458/96, §§ 33 and 35, 30 March 2006; Bezymyannyy v. Russia, no. 10941/03, § 38, 8 April 2010; and Łopuch v. Poland, no. 43587/09, §§ 61 and 63, 24 July 2012).

92. Also, the applicants’ statements were not made publicly (see Bezymyannyy, § 39, Siryk, § 45, and Marin Kostov, § 46, all cited above), for instance verbally in front of members of the public (contrast Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999-I), or in letters addressed or made available to the media (contrast Coutant v. France (dec.), no. 17155/03, 24 January 2008, and Morice, cited above, § 140). Their negative impact, if any, on the officials’ reputation was thus quite limited (see, mutatis mutandis, Raichinov v. Bulgaria, no. 47579/99, § 48, 20 April 2006).

93. The applicants nevertheless had to bear serious consequences for making those complaints. Mr Findulov was subjected to a criminal sanction, which included a public reprimand, and both he and the other two applicants, Mrs Marinova and Mr Zlatanov, were ordered to pay substantial sums in fines and damages (see paragraphs 10, 12, 18 and 29 above). The Court finds that these constituted measures having the effect of stifling the making of complaints against the public officials who instigated the proceedings that led to them.

94. Such measures could only be regarded as necessary in exceptional circumstances, when it has been convincingly demonstrated that the persons concerned deliberately sought to harm the officials whose conduct they criticised while being aware that their allegations against those officials were false, and when the measures are proportionate. For the above reasons, the Court is not satisfied that this was so in these three cases.

95. Accordingly, there has been a violation of Article 10 of the Convention in relation to each of the three applicants.

IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

96. Mrs Marinova complained under Article 6 §§ 1 and 2 of the Convention that the courts had found her guilty simply because her allegations against the teacher had not been confirmed by a final conviction, and that the Dobrich Regional Court had refused to quash her conviction, in so far as it concerned the complaint filed with the police, even though it had found that this complaint could not be regarded as defamation but as a false accusation, which was only prosecutable by the prosecuting authorities.

97. Mr Zlatanov complained under Articles 6 § 1 and 13 of the Convention that the courts had been biased in favour of the police officer, and that he had been unable to verify or contest the results of the blood test carried out on the officer.

98. Mr Findulov complained under Articles 6 § 1 and 13 of the Convention that the courts had not allowed some of his evidentiary requests and had disregarded the evidence of the witnesses called by him.

99. When it comes to the fairness of criminal proceedings, the requirements of Article 13 of the Convention, being less strict than those of Article 6, are absorbed by them (see Kamasinski v. Austria, 19 December 1989, § 110, Series A no. 168, and C.G. v. the United Kingdom, no. 43373/98, § 53, 19 December 2001). The Court therefore finds that these complaints fall to be examined solely under Article 6 §§ 1 and 2 of the Convention, which provides, in so far as relevant:

“1. In the determination of his civil ... obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

...”

A. The parties’ submissions

100. The Government submitted that the proceedings against the applicants had been fair, public, and carried out before impartial courts. The applicants had had the possibility to take part in them, and had fully benefited from the presumption of innocence. Mrs Marinova had not been required to prove that she was innocent; the burden of making out all elements of the offence had been on the private prosecuting party. Mr Zlatanov had not sought the recusal of any judges. In any event, the courts could not automatically be regarded as biased in favour of a police officer. No issue arose in relation to the evidence gathered in the course of the proceedings. Since they had been brought by the officer in his private capacity, he, rather than by the authorities, had been the one leading all the evidence against the applicant.

101. Mrs Marinova submitted that, by expecting her to show that her allegations against the teacher were true, the courts had rendered the proceedings against her unfair. She went on to reiterate her complaint in relation to the failure of the Dobrich Regional Court to quash the part of her conviction relating to her complaint to the police.

102. Mr Zlatanov reiterated his complaint.

103. In his observations, Mr Findulov did not comment on this complaint.

104. In their supplementary observations, made in reply to those of Mrs Marinova, the Government submitted that she could have sought reopening under Article 422 § 1 (5) of the Code of Criminal Procedure 2005.

B. The Court’s assessment

105. Only persons whose criminal liability has not been replaced by an administrative punishment can themselves seek reopening under Article 422 § 1 (5) of the Code of Criminal Procedure 2005 (see paragraph 59 above). Mrs Marinova did not fall in that category (see paragraph 10 above). That remedy, although found to be effective with respect to persons who can resort directly to it (see Paraskeva Todorova v. Bulgaria, no. 37193/07, §§ 25-28, 25 March 2010), was thus not available to her. In the case of Mr and Mrs Dinchevi, it was put in motion at the discretion of the Chief Prosecutor (see paragraph 39 above). It follows that Mrs Marinova has not failed to exhaust domestic remedies by not using it.

106. The complaints are furthermore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. They must therefore be declared admissible.

107. However, having regard to its conclusion that the applicants’ convictions amounted to a violation of Article 10 of the Convention (see paragraphs 93-95 above), the Court does not consider it necessary to examine whether the proceedings leading up to those convictions were in breach of Article 6 §§ 1 or 2 of the Convention (see Kasabova, cited above, § 80, with further references).

V. OTHER ALLEGED VIOLATIONS

108. Mrs Marinova complained under Article 13 of the Convention that it had not been possible to appeal against the final judgment of the Dobrich Regional Court.

109. Article 13 of the Convention does not guarantee, as such, a right to a further level of jurisdiction (see Dorado Baúlde v. Spain (dec.), no. 23486/12, § 18, 1 September 2015). Where a breach of the Convention is alleged to have been committed by the highest level of court in a given case, the application of that Article is thus subject to an implied limitation (see Stoyanova-Tsakova v. Bulgaria, no. 17967/03, § 32, 25 June 2009, with further references).

110. Mr Zlatanov complained under Article 14 of the Convention that the courts had treated the police officer who had brought criminal charges against him more favourably on account of his professional status.

111. It is open to doubt whether Mr Zlatanov, who was a respondent in those proceedings, was in an analogous position with the police officer, who was the complainant and claimant (see Gouveia Gomes Fernandes and Freitas e Costa v. Portugal (dec.), no. 1529/08, 26 May 2009). In any event, there is no evidence that the courts treated the police officer more favourably on account of his professional status. The mere fact that they found in his favour does not show that this was the case.

112. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

113. 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. Pecuniary damage

1. The applicants’ claims and the Government’s comments on them

114. Mrs Marinova claimed repayment of 3,792.02 Bulgarian levs (BGN)[1] that she had been ordered to pay the teacher in damages and costs and of BGN 540 that she had been ordered to pay the State in fines and costs. In support of her claim, Mrs Marinova submitted a record drawn up by the bailiff in charge of the enforcement proceedings brought by the teacher against her (see paragraph 13 above). According to that record, she had paid BGN 1,157.57 out of the total of BGN 3,792.02 that she owed in damages and costs for the judicial and the enforcement proceedings (the teacher had waived the claim in respect of interest). The partial payments made by Mrs Marinova up to that point had been fully applied towards the costs of the enforcement proceedings. BGN 2,634.45 remained outstanding: BGN 1,874, which corresponded to the award of damages (BGN 1,000) and costs (BGN 164) for the judicial proceedings, plus the lawyer’s fee paid by the teacher in the enforcement proceedings (BGN 300) and the fees paid by the teacher for the enforcement proceedings (BGN 410), were due to the teacher, and BGN 760.45 were still due in costs for the enforcement proceedings.

115. Mr Zlatanov claimed repayment of (a) BGN 1,500 and BGN 512 that he had had to pay the police officer respectively in damages and costs, of (b) BGN 500 that he had had to pay to the State in fines, and of (c) BGN 65 that he had had to pay in fees for the writ of execution issued in favour of the State in relation to the fine. In support of his claim, Mr Zlatanov submitted bank documents showing that he had paid the sums under points (a) and (b).

116. Mr Findulov claimed repayment of BGN 5,000 that he had had to pay in fines, and BGN 3,000 that he had had to pay the police officer in damages. He also sought reimbursement of BGN 637.46 that he had had to pay in fees and costs for the proceedings for enforcement of the award of damages. In support of his claim, Mr Findulov submitted a note dawn up by the bailiff in charge of the enforcement proceedings issued against him (see paragraph 32 above), according to which he owed BGN 637.46 in fees and costs for those proceedings.

117. The Government disputed the claims. They pointed out that Mrs Marinova had been ordered to pay a total of BGN 1,664. The remaining BGN 2,668 claimed by her were enforcement costs which had only accrued because she had failed to pay the fine and the award of damages and court costs voluntarily. The documents submitted by her showed that she had only paid BGN 1,157.57. As for Mr Findulov, there was no evidence that he had paid the fine or the damages awarded to the officer, or the fees and costs for the enforcement proceedings. In any event, those fees and costs had only accrued because Mr Findulov had failed to pay the award of damages voluntarily.

2. The Court’s assessment

118. In the cases of all three applicants, the finding of a breach of Article 10 of the Convention was based on the mere fact that they were found criminally and civilly liable for making complaints against public officials. They are therefore - in principle - entitled to the repayment of the sums that they paid in fines, damages and costs as a result of the judgments against them (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 75 and 77, ECHR 1999-III).

119. However, Mrs Marinova has provided no evidence that she has actually paid the damages and costs awarded to the teacher, or the fine and the costs awarded in favour of the State. There is therefore no reason to award her anything in that respect. As for the costs for the enforcement proceedings, they were not a direct result of the breach of Article 10 of the Convention (see Kwiecień v. Poland, no. 51744/99, §§ 64-66, 9 January 2007, and, mutatis mutandis, Standard Verlags GmbH v. Austria, no. 13071/03, §§ 63-65, 2 November 2006). They only became due because Mrs Marinova failed to comply with the court order to pay damages and costs to the teacher; if she had done so of her own accord, there would have been no need to resort to enforcement proceedings against her. Holding that she is entitled to recover those costs would be tantamount to giving applications to the Court suspensive effect, which they do not have. The Court therefore makes no award under this head to Mrs Marinova.

120. By contrast, there is evidence that Mr Zlatanov paid the fine, the damages and court costs whose repayment he claims. He is therefore entitled to obtain their reimbursement. There is, however, no evidence that Mr Zlatanov has paid the fees for the writ of execution, which in any event are, for the same reasons as in the case of Mrs Marinova (see paragraph 119 above), not a direct result of the breach of Article 10 of the Convention. The Court therefore awards him BGN 2,512 (EUR 1,284), plus any tax that may be chargeable.

121. There is, likewise, no evidence that Mr Findulov has paid the fine or the damages whose repayment he claims. Nor has he provided evidence that he has paid the costs and fees for the enforcement proceedings, which in any event are, for the same reasons as in the case of Mrs Marinova (see paragraph 119 above), not a direct result of the breach of Article 10 of the Convention. The Court therefore makes no award under this head to Mr Findulov.

122. However, it cannot be overlooked that Mrs Marinova and Mr Findulov remain liable to pay various sums as a direct consequence of the judgments found by the Court to be in breach of their rights under Article 10 of the Convention. It should be pointed out in this connection that the most appropriate way of remedying the consequences of such a breach is to reopen the proceedings whose outcome gave rise to it (see Stojanović v. Croatia, no. 23160/09, § 80, 19 September 2013).

B. Non-pecuniary damage

123. Mrs Marinova claimed EUR 10,000 in respect of non-pecuniary damage. Mr Zlatanov and Mr Findulov claimed EUR 7,500 each.

124. The Government submitted that the claims were exorbitant and considerably higher than the awards made in previous similar cases against Bulgaria.

125. The applicants must have sustained non-pecuniary damage on account of the judgments finding them criminally and civilly liable for exercising their right to freedom of expression. Ruling on an equitable basis, as required under Article 41 of the Convention, the Court awards EUR 4,000 to Mrs Marinova, EUR 3,500 to Mr Zlatanov, and EUR 3,500 to Mr Findulov, plus any tax that may be chargeable.

C. Costs and expenses

1. The applicants’ claims and the Government’s comments on them

126. Mrs Marinova sought reimbursement of EUR 3,040 incurred in lawyers’ fees for thirty-eight hours of work on the proceedings before the Court, at EUR 80 per hour. She said that she had already paid her legal representatives EUR 537, and remained liable for the remainder, up to the amount awarded by the Court. She further sought reimbursement of EUR 39 spent by her legal representatives for postage, office supplies, photocopying and telephone charges, and of EUR 122.62 spent on the translation of the observations made on her behalf into French. She requested that any award under this head, save for the EUR 537 that she had already paid to her legal representatives, be made directly payable to her legal representatives. In support of her claim, she submitted a fee agreement with her legal representatives, a time-sheet, a postal receipt for her original application, and a contract for translation services.

127. The Government submitted that the hourly rate charged by Mrs Marinova’s legal representatives was exorbitant and out of tune with the usual lawyers’ fees and economic realities in Bulgaria. They also noted that the remainder of the claim was not supported by documents.

128. Mr Zlatanov sought reimbursement of (a) BGN 12 that he had had to pay in court fees for appealing to the Dobrich Regional Court; (b) BGN 450 incurred in lawyers’ fees for the proceedings before the Kavarna District Court; (c) BGN 1,500 incurred in lawyers’ fees for unspecified services; (d) BGN 280 incurred in lawyers’ fees, again for unspecified services; (e) BGN 158 incurred in fees for obtaining documents and postage; and (f) BGN 2,500 incurred in lawyers’ fees for the Strasbourg proceedings. Mr Zlatanov requested that any award in respect of lawyers’ fees be made payable to his legal representative. In support of his claim, he submitted documents showing that he had paid the sums under points (a)-(e), a retainer between him and the lawyer who had represented him before the Kavarna District Court, and a retainer between him and his legal representative in the Strasbourg proceedings.

129. The Government submitted that Mr Zlatanov’s claim was exorbitant and out of tune with economic realities in Bulgaria and the domestic regulations on lawyers’ fees. They pointed out that he had not submitted fee agreements for the work carried out by his lawyers in the domestic proceedings, whereas there was nothing in the payment documents submitted by him to show that the sums that he had paid related to work on the relevant proceedings; these payments could have concerned unrelated services by the same lawyers. The Government also noted that Mr Zlatanov had already paid the sums under points (c)-(e) to his lawyers, and expressed surprise that in these circumstances he would request that any award made in relation to them be made payable to his legal representative. Furthermore, the sum under point (b) concerned services provided not by his legal representative in the Strasbourg proceedings but by another lawyer.

130. Mr Findulov sought reimbursement of (a) BGN 600 that he had had to pay for his legal representation at domestic level; (b) BGN 24 that he had had to pay in fees for obtaining copies of documents; (c) BGN 62.40 that he had had to pay for postage; and (d) BGN 415 that he had had to pay for travelling from Burgas to Strasbourg in connection with his case before the Court. In support of his claim, he submitted receipts for obtaining copies of court documents; postal receipts; retainers between him and his lawyers in the defamation proceedings and in the proceedings in which he had sought judicial review of the road traffic fines, showing that he had incurred BGN 300 for the former and BGN 150 for the latter; and a Burgas-Strasbourg-Burgas bus ticket.

131. The Government submitted that the claim under point (a) comprised legal fees incurred by Mr Findulov in proceedings which had nothing to do with the breach of Article 10 of the Convention. They also disputed the necessity of the travel expenses claimed by Mr Findulov.

2. The Court’s assessment

132. According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum. The Court is not bound by domestic scales or standards in the assessment of the latter point (see Yordanova and Toshev, cited above, § 84).

133. In the case of Mrs Marinova, part of the application was declared inadmissible, which calls for a certain reduction in the award of costs (ibid., § 85). Having regard to this and the materials in its possession, the Court finds it reasonable to award her EUR 1,500, plus any tax that may be chargeable to her, in respect of her legal costs. EUR 537 of this sum is to be paid to Mrs Marinova, and the remainder to her legal representatives. As regards the claim for other expenses, Mrs Marinova did not submit supporting documents other than a contract for translation services and a postal receipt, which does not however show the sum spent on postage. In those circumstances, the Court awards Mrs Marinova EUR 132.62 in respect of those expenses. This sum is likewise to be paid to her legal representatives.

134. In the case of Mr Zlatanov, the Court is satisfied that the sums claimed under points (a) and (b) were incurred for preventing and redressing the breach of Article 10 of the Convention at domestic level. However, there is no evidence that this was the case for sums claimed under points (c), (d) and (e). The Court therefore awards Mr Zlatanov EUR 236, plus any tax that may be chargeable to him, under this head. To this is to be added EUR 1,500 in respect of the lawyers’ fees incurred by Mr Zlatanov for his representation in the Strasbourg proceedings; this latter sum, plus any tax chargeable to Mr Zlatanov, is to be paid to his legal representative.

135. In the case of Mr Findulov, the Court is satisfied that the lawyers’ and other fees claimed in relation to his defence in the defamation proceedings - the sums under points (a) and (b) of his claim - were necessarily incurred. However, there is only evidence that Mr Findulov incurred BGN 324 in such fees. By contrast, the lawyers’ fees referable to the proceedings for judicial review of the road traffic fines imposed on Mr Findulov do not constitute expenses incurred in seeking redress for the breaches of the Convention found in this case. As for the travel expenses, they cannot be regarded as necessary, since the proceedings before the Court did not require Mr Findulov’s presence in Strasbourg. On the other hand, the postal expenses were necessary and reasonable. In view of these various points, the Court awards Mr Findulov a total of EUR 196.90, plus any tax that may be chargeable to him.

D. Default interest

136. The Court considers it appropriate that the default interest rate 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. Decides to strike application no. 61863/11 out of the list of cases;

2. Joins applications nos. 33502/07, 30599/10 and 8241/11;

3. Declares the complaints under Articles 6 and 10 of the Convention admissible and the complaints under Articles 13 and 14 of the Convention inadmissible;

4. Holds that there has been a violation of Article 10 of the Convention with respect to Mrs Marinova, Mr Zlatanov and Mr Findulov;

5. Holds that there is no need to examine the complaints under Article 6 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicants, 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) to Mrs Marinova, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 1,632.62 (one thousand six hundred thirty-two euros and sixty-two cents), plus any tax that may be chargeable to Mrs Marinova, in respect of costs and expenses; EUR 537 (five hundred thirty-seven euros) of the latter sum is to be paid to Mrs Marinova, and the remainder to her legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva;

(ii) to Mr Zlatanov, EUR 1,284 (one thousand two hundred eighty-four euros), plus any tax that may be chargeable, in respect of pecuniary damage; EUR 3,500 (three thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and EUR 1,736 (one thousand seven hundred thirty-six euros), plus any tax that may be chargeable to Mr Zlatanov, in respect of costs and expenses; EUR 1,500 (one thousand five hundred euros) of the latter sum is to be paid to Mr Zlatanov’s legal representative, Mr Y. Mitev, and the remainder to Mr Zlatanov;

(iii) to Mr Findulov, EUR 3,500 (three thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 196.90 (one hundred ninety-six euros and ninety cents), plus any tax that may be chargeable to Mr Findulov, in respect of costs and expenses;

(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;

7. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

[1]. Under the fixed exchange rate calculated in the manner laid down in section 29 of the Bulgarian National Bank Act 1997, one Bulgarian lev is equal to 0.511292 euros.

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You are here: BAILII >> Databases >> European Court of Human Rights >> MARINOVA AND OTHERS v. BULGARIA - 33502/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 636 (12 July 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/636.html Cite as: [2016] ECHR 636