EHRM, 20-04-2006, nr. 47579/99

Article 39 of the Constitution of 1991 provides:

Article 146 § 1 of the Criminal Code, as in force at the relevant time, provided:

If an insult has been made in public, or against an official in the performance of his duties, or by an official in the performance of his duties, it was punishable by up to two years' imprisonment or a fine of up to BGL 5,000 (Article 148 § 1(1), (3), and (4) of the Criminal Code, as in force at the relevant time).

At the relevant time insult was privately prosecutable in all cases, save when perpetrated in respect of or by an official, in which case it was publicly prosecutable (Article 161 of the Criminal Code, as in force at the relevant time, in conjunction with Article 146 § 1 and Article 148 § 1(1) and (2) thereof). At present insult is privately prosecutable in all cases without exception (Article 161 § 1 of the Code, as amended in March 2000 and presently in force).

By Article 60 § 1 of the Code of Criminal Procedure of 1974, the victim of a criminal offence may make a civil claim in the context of the criminal proceedings, and request compensation for the damage sustained as a result of the offence. He or she may also take part in the criminal proceedings as a private prosecuting party alongside the public prosecutor (Article 76 of the Code of Criminal Procedure of 1974).

It was not disputed that the applicant's conviction and sentence by the national courts following his remark about the deputy Prosecutor-General amounted to an interference with his right to freedom of expression. Such interference will be in breach of Article 10 if it does not meet the requirements of paragraph 2 thereof. It should therefore be determined whether it was prescribed by law, pursued one or more of the legitimate aims set out in that paragraph and was necessary in a democratic society in order to achieve those aims.

The interference was undoubtedly prescribed by law, namely by Articles 148 and 146 § 1 of the Criminal Code. It also appears that the law was formulated with sufficient precision (see the admissibility decision in the present case; Tammer v. Estonia, no. 41205/98, § 38, ECHR 2001-I; and, mutatis mutandis, Öztürk v. Turkey[GC], no. 22479/93, §§ 54–57, ECHR 1999-VI).

The Court further accepts that the interference pursued the legitimate aim of protecting Mr S.'s reputation. However, in view of the facts that the applicant's remark was uttered at a meeting of an administrative body held behind closed doors and that no form of publicity was involved, the Court is not persuaded that it also served to maintain the authority and impartiality of the judiciary.

It remains to be established whether the interference was necessary in a democratic society.

On this point, the Court starts by reiterating the relevant principles which emerge from its judgments:

Turning to the facts of the present case, the Court notes that the victim of the insult was a high-ranking official, the deputy Prosecutor-General, who also dealt with budgetary matters in the judicial system. Therefore, while not limitless, the bounds of acceptable criticism geared toward him were wider than in relation to a private individual. It is true that he did not lay himself open to public scrutiny and needed to enjoy confidence in conditions free of undue perturbation when on duty (see Janowski, cited above, § 33; and, mutatis mutandis, Steur v. the Netherlands, no. 39657/98, §§ 40 and 41, ECHR 2003-XI). However, the need to ensure that civil servants enjoy public confidence in such conditions can justify an interference with the freedom of expression only where there is a real threat in this respect. The applicant's remark obviously did not pose such a threat and did not hinder Mr S. in the performance of his official duties (see, mutatis mutandis, Yankov v. Bulgaria, no. 39084/97, § 142, ECHR 2003-XII). In this connection, it should also be borne in mind that, unlike the situation obtaining in Janowski, where two municipal guards had been insulted in the street, while performing their policing duties, in front of numerous bystanders (see Janowski, cited above, §§ 8 and 34), the applicant's remark was made in front of a limited audience, at a meeting held behind closed doors. Thus, no press or other form of publicity was involved (see, mutatis mutandis, Nikula v. Finland, no. 31611/96, § 52in limine, ECHR 2002-II; Yankov, cited above, §§ 139 and 141; and, as an example to the contrary, Pedersen and Baadsgaard v. Denmark[GC], no. 49017/99, § 79, ECHR 2004-XI). The negative impact, if any, of the applicant's words on Mr S.'s reputation was therefore quite limited.

Moreover, in view of the applicant's previous professional interactions with Mr S. (see paragraph 8 above), his opinion about the latter, expressed at a meeting at which the Supreme Judicial Council was dealing with budgetary issues, could be considered as forming, to a certain extent, part of a debate on a matter of general concern, which calls for enhanced protection under Article 10. It should also be noted that the applicant apparently uttered the remark formed on the basis of material which he offered to produce in corroboration (see paragraph 10 above).

Another factor on which the Court places particular reliance is that the applicant was not subjected to a civil or disciplinary sanction, but instead to a criminal one (see, as examples to the contrary, P. v. the United Kingdom, no. 11456/85, Commission decision of 13 March 1986, Decisions and Reports 46, p. 222; Meister v. Germany, no. 30549/96, Commission decision of 10 April 1997, unreported; Fuentes Bobo, cited above; De Diego Nafría, cited above; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, 27 May 2004; and Steel and Morris v. the United Kingdom, no. 68416/01, ECHR 2005–…). It is true that the possibility of recurring to criminal proceedings in order to protect a person's reputation or pursue another legitimate aim under paragraph 2 of Article 10 cannot be seen as automatically contravening that provision, as in certain grave cases — for instance in the case of speech inciting to violence — that may prove to be a proportionate response. However, the assessment of the proportionality of an interference with the rights protected thereby will in many cases depend on whether the authorities could have resorted to means other than a criminal penalty, such as civil and disciplinary remedies (see Lehideux and Isorni v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2886, § 51 in fine and p. 2887, § 57; and, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania[GC], no. 33348/96, § 115, ECHR 2004-XI). The Court further notes that the criminal proceedings against the applicant were instituted on the insistence of Mr S.'s superior, the Prosecutor-General, who reacted on the spot, characterising the applicant's remark as a ‘crime’ immediately after it had been uttered, and shortly after that instructing the Sofia City Prosecutor's Office to open a preliminary inquiry against the applicant (see paragraphs 10 and 11 above). Mr S. did not participate as a party to them and did not make a claim for non-pecuniary damages against the applicant, as he could have done (see paragraphs 30 and 31 above; and also Fuentes Bobo, cited above, § 48in fine). In this connection, the Court notes that later the relevant provisions of the Bulgarian Criminal Code were amended and at present provide that insult is privately prosecutable in all cases without exception (see paragraph 30 above and, mutatis mutandis, Cumpǎnǎ and Mazǎre, cited above, § 115in fine).

It should also be observed that the applicant's remark, while liable to be construed as a serious moral reproach, was apparently made in the course of an oral exchange and not in writing, after careful consideration (see Fuentes Bobo v. Spain, no. 39293/98, § 48, 29 February 2000; and, as an example to the contrary, De Diego Nafría v. Spain, no. 46833/99, § 41, 14 March 2002). Against this background, the reaction of the Prosecutor-General — who was Mr S.'s hierarchical superior —, the resulting criminal proceedings against the applicant, and his conviction seem as a disproportionate response to the incident in issue. In this connection, the Court reiterates that the dominant position which those in power occupy makes it necessary for them to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified criticisms of their adversaries (see, mutatis mutandis, Castells v. Spain, judgment of 23 April 1992, Series A no. 236, pp. 23–24, § 46; and Ceylan v. Turkey[GC], no. 23556/94, § 34, ECHR 1999-IV). The applicant's resulting sentence — a fine and a public reprimand —, while being in the lower range of the possible penalties, was still a sentence under criminal law, registered in the applicant's criminal record (see Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 32, ECHR 2003-XI).

On the basis of the foregoing considerations the Court concludes that no sufficient reasons have been shown to exist for the interference in question. The restriction on the applicant's right to freedom of expression therefore fails to answer any pressing social need (see Steur, cited above, § 45) and could not be considered necessary in a democratic society.

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

The applicant claimed 30,000 euros (EUR) in non-pecuniary damages for the distress he had suffered as a result of the violation of his freedom of expression. He submitted that the criminal proceedings against him and his conviction had injured his reputation among his relatives, friends and colleagues in the legal community, and had had a negative impact on his health. Furthermore, he had had to suffer the humiliation of a public reprimand, which had been read before his colleagues. Finally, his conviction had resulted in his having been reduced in rank and salary for six months at the Ministry of Justice.

The applicant further claimed 27 United States dollars (USD) in pecuniary damages, which represented the value of the fine which he had been ordered to pay.

The Government submitted that no causal link had been established between the criminal proceedings against the applicant and the worsening of his state of health. Nor could it be considered abnormal that he had been publicly reprimanded following his conviction by a competent court. Finally, it had not been conclusively established that the applicant's rank and salary had been reduced as a result of his conviction. In sum, the Government were of the view the sum claimed as non-pecuniary damages was grossly exorbitant.

The applicant replied that while he had suffered from certain illnesses before, they had doubtless aggravated as a result of the stress brought on him by the criminal proceedings. Furthermore, the public reprimand, administered in front of his colleagues, had come on top of the publicity of his conviction, which had been delivered in open court. Finally, the reason why the reducing of his rank and salary could not be proved was that the relevant archives had been destroyed.

Noting that the applicant's claim resulted from the fine imposed on him by the Bulgarian courts, the Court awards EUR 23 in respect of pecuniary damage, plus any tax that may be chargeable on this amount (see Scharsach and News Verlagsgesellschaft, cited above, § 50; and Hrico v. Slovakia, no. 49418/99, § 55, 20 July 2004).

The Court further considers that the applicant must have suffered non-pecuniary damage as a result of the violation of his freedom of expression. Having regard to the nature of the violation found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 2,000 in compensation for non-pecuniary damage, plus any tax that may be chargeable on this amount.

The applicant sought the reimbursement of USD 10,000 of legal fees incurred in the proceedings before the Court, set as a lump sum in a fees' agreement with his lawyer. He also claimed EUR 760 for translation costs, copying, mailing, and overhead expenses. The applicant submitted a fees' agreement between him and his lawyers, and invoices for translation and editing services and for postage.

The Government submitted that the amount claimed was excessive and way beyond the usual fees paid to lawyers in Bulgaria. They requested the Court to have regard to the fact that such large amounts would pose a heavy burden on the taxpayers in the country.

The applicant replied that his lawyer's fees had been set in line with the specifics of the case and in particular his bad state of health, which required the lawyers to visit him in his home every time they had to discuss questions relating to the conduct of the case.

According to the Court's case-law, costs and expenses are reimbursable only in so far as it has been shown that they have been actually and necessarily incurred and were reasonable as to quantum. In the instant case, having regard to all relevant factors and noting that the applicant was paid EUR 685 in legal aid by the Council of Europe, the Court awards him EUR 1,500, plus any tax that may be chargeable on this amount.

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.