CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 novembre 2010

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He is widely known in Bulgarian society, as a former officer of the national anti ‑ terrorist squad and as later being connected with a number of insurance and other companies. He was represented before the Court by Mr A. ‑ V. Lukanov and Ms R. Radkova, lawyers practising in Sofia. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case An outline of the background to the case may be found in paragraphs 6 ‑ 83 (more specifically, paragraphs 18, 51 and 75-80) of the Court’s recent judgment in the case of Kolevi v. Bulgaria (no. 1108/02, 5 November 2009), which concerns, among other things, the investigation of the assassination of a high ‑ ranking prosecutor, Mr Kolev, who had previously made a number of serious allegations against the Chief Prosecutor. Mr E.S. is a poet, literary critic, former member of Parliament, and prominent public figure widely known for his publications on crimes allegedly committed by high ‑ ranking officials. In 2002 he published an open letter to the Supreme Judicial Council and other institutions, stating that the Chief Prosecutor had committed crimes and had a mental disorder. 2.     The impugned interviews given by Mr E.S. (a)     The first interview On 4 December 2002 Mr E.S. called on the Minister of Justice and handed him one hundred and five documents allegedly incriminating the Chief Prosecutor, Mr N.F., in various misdeeds and offences. He asked the Minister to pass those documents to the Supreme Judicial Council. One of the documents was a photocopy of a document entitled “[Mr G.T.]’s explanations”. In it Mr G.T., the former branch manager of a private bank, described his curriculum vitae, his business ventures and his dealings with the applicant between 1997 and 2000, and alleged that the applicant had been blackmailing him and threatening him and his family with violence, and on one occasion had even assaulted him physically, all in order to force him to enter into transactions beneficial to the applicant or to companies with which he was connected. The next day, 5 December 2002, Mr E.S. gave an interview for Trud , a daily newspaper. He said that the documents that he had handed to the Minister concerned a number of cases. One of them was the case of Mr   G.T., which the prosecuting authorities had tried to conceal. The documents made it clear why. The interviewer asked “Why?” and Mr E.S. replied “Simply because this man has been racketeered and robbed by [the applicant]. Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention.” (b)     The second and third interviews In the evening of 28 December 2002 Mr Kolev (see above) was shot dead by an unknown assailant in front of his home in Sofia. In the morning of 29 December 2002 Mr E.S. went to the police to give a statement in connection with the assassination. In the afternoon he gave a similar statement to the investigator in charge of the case. The full content of that statement may be found in paragraphs 75 ‑ 80 of the Court’s judgment in the case of Kolevi (cited above). Between his interviews with the police and with the investigating authorities Mr E.S. was interviewed by Darik Radio, a radio broadcaster. The main topic was Mr Kolev’s assassination and the probable reasons for it. In the course of the show the host asked Mr E.S. about the content of his earlier statement to the police. Mr E.S. replied “Well, I shared my version that, first, this is a political assassination, in the sense that it concerns the interests of the Chief Prosecutor, and second, that persons probably behind it were Mr N.F., the Chief Prosecutor, and possibly [the applicant].” The host asked him whether that would be the content of his testimony, and Mr   E.S. replied “Yes, it would be, in connection with the cases at hand. Now, I made the acquaintance of [Mr] Kolev during the summer of this year, we have had at least fifteen meetings, and during the last of those he shared with me that he expected [the applicant] to snatch him.” In reply to a question about the content of the conversation during that last meeting, Mr   E.S. said “The meeting had to do, like all the other meetings, with issues relating to the Chief Prosecutor. It was about the murder of [Ms N.G.] in 2000. We were discussing the possibility of finding a witness who would be able to confirm that on the evening of the murder [Ms N.G.] had been expecting [the Chief Prosecutor]. The thing is, she was in fact an intermediary between the Chief Prosecutor’s Office and the criminal world. She was used for money transfers and she had compromising recordings of such meetings. She probably tried to use them preventively on that occasion. You know that she was working for [the applicant] and actually...” The host interrupted Mr E.S., saying that nothing was known about Ms N.G. Mr E.S. continued “In fact, strong dependence and the connection between the Chief Prosecutor and [the applicant] is linked with that murder”. After that the conversation moved on to the authorities’ reaction to Mr   E.S.’s statements, and then to the relations between Mr Kolev and the Chief Prosecutor and the reasons for Mr Kolev’s assassination. Mr E.S. said “[Mr] Kolev was trying to uncover the truth about a very bizarre case. I will tell you his version, but I must add that a very serious investigation will be necessary to dig out the truth about that version. The case concerns [Mr   S.J.], the Yugoslav national who was arrested in Bulgaria ... [Mr   Kolev]’s version was that the Serbian mafia had sought contacts in Bulgaria, people who would be able to arrange his escape. They came across [the applicant] who told them ‘I am close to the Chief Prosecutor, I can arrange that’. The Serbian mafia paid about three million dollars...” Asked by the host to whom the money had been paid, Mr E.S. replied “To [the applicant], who gave one million to [Colonel] F.S. [, head of the special anti ‑ terrorism squad] and one million to [Mr] N.F. [, the Chief Prosecutor]” Then Mr E.S. described how an attempt to get Mr S.J. out of prison had been foiled and that this, coupled with the failure to return the money, had been the probable reason for an assassination attempt on the applicant in the summer of 2003. The host interrupted him, saying that he was raising serious allegations against the Chief Prosecutor. Mr E.S. replied “I am not making allegations, I am saying what I know about the case. I am not maintaining that this is the truth, I am saying what I have heard from [Mr]   Kolev. I would like that to be well understood ...” The same day Mr E.S. gave an interview for BTV, a television network, in which he repeated the story about the alleged attempt to arrange Mr S.J.’s escape. In reply to a question, he said “I am saying that this is the version that I have learned from [Mr] Kolev and in respect of which he was seeking proof. ...” Later that day and the following day Trud and another daily newspaper, 24 Hours , printed articles summarising and commenting on Mr E.S.’s interviews with Darik Radio and BTV. 3.     The first set of proceedings against Mr E.S. (a)     The proceedings at Sofia District Court On 16 December 2002 the applicant lodged a criminal complaint with Sofia District Court ( Софийски районен съд ) against Mr E.S.. He alleged that in his interview for Trud Mr E.S. had disseminated injurious statements about him and had imputed an offence to him. More specifically, he took issue with the phrases “Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]” and “Instead of acting on [Mr   G.T.’s] complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention”. In the applicant’s view, by making those statements Mr E.S. had defamed him, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see Relevant domestic law below) and had injured his reputation as a well ‑ known public figure. He sought compensation in the amount of 30,000 Bulgarian levs (BGN), plus interest. The Sofia District Court examined the case at three hearings. The first, due to take place on 24 February 2003, was adjourned because Mr E.S. was absent. The other hearings were held on 21 April and 16 June 2003. The applicant did not appear in person at either of those. On both occasions his counsel expressly stated that the applicant was prevented from attending on account of illness, but did not insist on his attendance and wished the case to proceed despite his absence. Having regard to those declarations, on both occasions the court decided to proceed with the case. On 21 April 2003 it heard Mr G.T., who had been called as a witness by the applicant. At the request of counsel for the applicant, the court admitted in evidence “Mr   G.T.’s explanations” (see above), which Mr E.S. had produced as an attachment to his reply to the applicant’s complaint, and presented them to Mr G.T. In a judgment of 16 June 2003 (reported on p. 153 of an unofficial collection of the Sofia District Court and Sofia City Court case ‑ law in defamation cases, Обида и клевета в практиката на Софийския районен съд , Сиби, 2005 г.) the Sofia District Court acquitted Mr E.S. and rejected the applicant’s claim for compensation. The court described its findings of fact and the manner in which it has assessed the evidence, and held as follows: “The accused [Mr E.S.] has not committed [the offence of defamation] of which he has been accused. [He] is the author of the two impugned statements in the interview that he gave for Trud on 5 December 2002. However, by [making those statements] he did not carry out the actus reus of the offence of defamation. The court reached this conclusion in view of the following. A literal reading of the publication shows that the impugned statements were an answer by the accused to a question as to how the documents which he had handed to the Minister of Justice made it clear that there had been [the prosecuting authorities’] attempt to ‘conceal’ the case with [Mr   G.T.]. In reply to the journalist’s question, the accused summarised the contents of one of the documents and explained his reasons for handing the documents to the Minister of Justice. Indeed, the reason for the publication was that the accused had handed one hundred and five documents to the Supreme Judicial Council through the Minister of Justice. As can be seen from the initial exposé made by the journalist, this was simply because of the existing public interest in the allegations made by the accused against the Chief Prosecutor Mr N.F., which the publication characterised as ‘scandalous allegations’. For the court, those facts are essential for the proper resolution of the case. Firstly, they indicate that the accused’s interview concerned an issue which, in as much as it relates to the prosecuting authorities in their capacity as a public authority empowered under the Constitution to bring offenders to justice and to prosecute publicly prosecutable offences, is part of the considerable public interest in combating crime. This is undoubtedly sufficient to accept that the publication of information concerning that issue was in the public interest. The documents which the accused handed to the Supreme Judicial Council contain, according to him, information about the prosecuting authorities’ failure to investigate offences. The court is therefore satisfied that the stated goal of allowing those documents to be studied by the public is in the public interest. The first impugned statement – ‘Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ – sheds plenty of light on the accused’s position. That phrase does not contain any information which could, directly or even indirectly, in the context of the whole interview, injure the [applicant]. Therefore, it cannot harm his honour or dignity. The accused actually criticises the authorities competent to verify the information about an offence featuring in ‘[Mr G.T.]’s explanations’ for failing to do so. The court therefore finds that by saying ‘Instead of acting on [Mr   G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ the accused did not carry out the actus reus of the offence of defamation. Secondly, the court accepts that the accused [Mr E.S.], in his capacity as a public figure engaged in politics, has certain obligations and duties towards the public and the proper functioning of the State authorities. Therefore, when he discovered documents showing that the prosecuting authorities were not functioning properly due to misconduct by some of their officials, the accused was under a duty greater than that of the ordinary citizen to hand those documents to the competent authorities. In its judgment in the case of Thorgeir Thorgeirson v. Iceland [25 June 1992, Series   A no. 239] the European Court of Human Rights reiterated a principle established in its case ‑ law   – that ‘freedom of expression constitutes one of the essential foundations of a democratic society ... and 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. Freedom of expression, as enshrined in Article 10 [of the Convention], is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established’. In the same judgment the European Court of Human Rights emphasised the pre ‑ eminent role of the press in a State governed by the rule of law, and noted that while that press must not overstep the bounds set, inter alia , for ‘the protection of the reputation of ... others’, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’. In the case at hand the information published by the accused in the press was important for maintaining the rule of law and for exercising democratic control over the judicial power. It should therefore enjoy heightened protection. The Constitutional Court ... has emphasised that a distinction needs to be made between, on the one hand, information relating to political matters and other matters in the public interest, and, on the other, information satisfying curiosity about a person’s private life, which should be protected by barriers reflecting the morals and the mentality of reasonable people. Following this line of reasoning, the Constitutional Court, in interpreting Articles 39 ‑ 41 of the Constitution, has said that ‘information falling into the first category clearly enjoys heightened protection. Therefore, critical opinions and statements of fact which could harm the reputation of a given person should not be ruled out ... they can be regarded differently on account of their object and direction, and may be treated differently.’ Next, the court finds it unequivocally established that one of the documents to which the accused refers in his interview contains statements of fact about criminal offences [allegedly] committed by the [applicant]. The statement in ‘[Mr G.T.]’s explanations’ that the [applicant] racketeered and robbed him undoubtedly amounts to the imputation of an offence. The content of those ‘explanations’ shows that they impute to the [applicant] specific acts, sufficiently individualised as to their time, place and manner of execution. The unidentified author of the document has used the word ‘robbery’ (on p. 3), which does not refer to the offence of robbery, as defined in Article 198 of the Criminal Code, but has been used in the colloquial and not strictly legal sense of the term. It refers to coercing someone through force or threats to transfer assets or to incur a pecuniary obligation. Those acts constitute the actus reus of the offence of extortion, as defined in Article 213a of the Criminal Code. Descriptions of offences of the same kind (threats of violence with a view to coercing [Mr G.T.] to contribute assets to the capital of [an insurance company]) feature on p.   4; on p. 5 (the same threats, this time in relation to the transferring of shares in [a   company]); on p. 6 (use of force to lift impediments to the licensing of [that company]). Therefore, by saying ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ [Mr E.S.] correctly summarised the contents of the document entitled ‘[Mr G.T.]’s explanations’. The photocopy which the accused had is a document in the general meaning of that term – an object manifesting a statement through written signs. The question to be answered is therefore whether – in addition to announcing in public, before the media, that he has performed his civic duty to inform the authorities about offences which had come to his knowledge – the accused could have committed defamation by relating the information about those crimes contained in his sources. In principle, the actus reus of defamation ... consists in the dissemination of untrue and injurious statements of fact about another person or in the imputation of an offence that the other person has not committed, something [the accused] has not done. The narrow interpretation of the penal law – the only one permissible – makes it clear that the act is criminal only when the injurious statements of fact emanate from the offender, or when the offender, in order to present his statement as the mere recitation of somebody else’s statement before third parties, ostensibly relies on sources of information which in fact do not exist. The correctness of this interpretation is confirmed by the legislature’s difference of approach in formulating the right to information under Article 41 § 1 of the [Constitution] and its permissible restrictions, and the wider communication right under Article 39 § 1 of the Constitution to express one’s opinion. Article 41 § 1 of the Constitution provides that everyone has the right to seek, receive and impart information, but that the exercise of that right may not be directed against the rights and the good name of other citizens or against national security, public order, public health or morals. The limitations on the communication rights (the expression used by the Constitutional Court ... to describe the rights under Articles 39 ‑ 41 of the Constitution) consist in statutory penalties. The criminalisation of defamation is one of the legal devices protecting personal dignity against abuse of the constitutional rights to information and to express one’s opinion, in those cases where the statement amounts not to a qualification or a value judgment but to a statement presented as fact. However, the right to information, as defined in Article 41 § 1 of the Constitution, is wider than the one whose exercise in breach of the envisaged limitations is contrary to Articles 147 and 148 § 2 of the Criminal Code. The criminalisation of defamation is an interference by the State, provided for by law, with a person’s right to communicate specific statements about another person when they are injurious or impute an offence to that other person, and are not true that is, when they unlawfully impinge on someone’s reputation. Therefore, the criminalisation of defamation protects a person’s right to honour and dignity against the unscrupulous exercise of the right to freedom of expression, when the viewpoint and the statement emanate from the alleged defamer. The actus reus of defamation as an unlawful personal conduct does not include seeking, receiving or disseminating information ... already created by someone else. The salient point in the case at hand is that the accused is not the author of the statement that [Mr G.T.] has been racketeered and robbed by the [applicant]. The accused is not the source of the statement about the offences allegedly committed by the [applicant]. By making that statement in front of the journalist – and thus before the readers of Trud – the accused actually correctly relayed the contents of the document, which is the material source of the information. The accused thus took part in the dissemination of [that] source of information. In fact, in as much as by interviewing Mr E.S. for the newspaper the [journalist] gave him the opportunity to describe the contents of the source, she for her part was also party to the dissemination of the impugned statement. However, neither the accused [Mr E.S.] nor the [journalist] has carried out the actus reus of defamation. To hold otherwise would unduly limit the right to information and thus endanger the free flow of information and journalism in general, and would discourage people from discussing matters of public interest. Such an interpretation, apart from being contrary to the law, would not be necessary in a democratic society, as required under Article 10 of [the Convention]. No evidence has been put forward, and it has not been alleged in the criminal complaint, that the accused is the author of the document entitled ‘[Mr G.T.]’s explanations’. On the contrary, those ‘explanations’ and the testimony of [Mr G.T.] before this court show that the accused [Mr E.S.] is not the author of the document. The accused is not personally acquainted with [Mr G.T.] and could not be aware of his personal and biographical background at the level of detail set out in the ‘explanations’. No evidence has been put forward to prove that the accused would be interested or able to obtain such information. In its case ‑ law the European Court of Human Rights always carefully distinguishes between cases in which [applicants] have been punished in respect of their own statements and those in which they have disseminated statements made by others. For instance, in its judgment in the case of Jersild v. Denmark [23 September 1994, Series   A no. 298] the European Court [of Human Rights] found that a central feature of the case was the fact that the applicant had not made the impugned statements himself, but had merely facilitated their dissemination in his capacity as a television journalist. In that connection, the judgment lays down another essential principle of present ‑ day regulation of the right to information disseminated though the press or [other] media: ‘The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’. In conclusion, the European Court [of Human Rights] held that the applicant’s criminal conviction had amounted to a breach of his right to freedom of expression, enshrined in Article 10 of [the Convention]. The European Court [of Human Rights] made a similar distinction in its judgment in the case of Thorgeir Thorgeirson [cited above], where it again held that there had been a breach of the applicant’s right to freedom of expression resulting from his conviction for defamation by the national courts for having, in his capacity of author of a press publication, disseminated information received from others about brutality in the Reykjavik police. The European Court [of Human Rights] thus, on the one hand, clarified the difference between liability for one’s own statements of fact and for statements of fact emanating from another source of information, and, on the other, emphasised that the necessity for any restrictions must be convincingly established. Even though those principles were formulated chiefly in respect of the press and the audiovisual media, the court finds that they are fully applicable in respect of information of public interest disseminated by public figures and politicians. In view of the foregoing reasons, the court finds that only the author of the document called ‘[Mr G.T.]’s explanations’ can be held liable for defamation. The court therefore finds that by saying ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ the accused [Mr E.S.] has not carried out the actus reus of the offence ... under Article 147 of the Criminal Code, or, a fortiori , of the aggravated offence under Article 148 [§§ 1 (1) and 2] in conjunction with Article 147 § 1 of [the Code]. Even though the accused’s act is objectively unable to constitute defamation, because it amounts to the correct reproduction of text written by another person, the court finds it necessary, for the sake of completeness ... to give additional reasons in respect of the veracity of the statements contained in the ‘explanations’. The accused acted in good faith in respect of the well ‑ foundedness of his statements. He made them in pursuit of his democratic aims: to expose weaknesses in the work of the prosecuting authorities with a view to achieving greater transparency in their functioning and to eliminating any irregularities. The court accepts that his actions could actually contribute to the achievement of those aims because they allowed the competent authorities to check the documents presented carefully and to determine whether they contained information about official misconduct or offences committed by representatives of the prosecuting authorities or others. The accused was not able to carry out such checks himself because he did not have the authority to conduct an independent and comprehensive investigation. Even if he had had a conversation with [Mr G.T.] and the latter had denied being the author of the ‘explanations’, that would not have been sufficient to accept that the allegations in those ‘explanations’ were false. This is because, if there is any truth in the allegations in the ‘explanations’ about links between certain departments of the Ministry of Internal Affairs and the prosecuting authorities and criminal organisations, [Mr G.T.], if he is indeed the ‘explanations’’s author, could justifiably fear for his life and limb because the threat against him stems from the State itself. A comprehensive, objective and complete check on the truthfulness of the ‘explanations’ would entail tracking down individuals and taking a number of measures in the context of a preliminary inquiry: interviewing all those mentioned in the ‘explanations’, checking the register of companies for information about companies mentioned in the ‘explanations’ and changes in their capital, identifying the officials of the National Service for Combating Organised Crime and of the Ministry of Internal Affairs with whom [Mr G.T.] has discussed his relations with the [applicant], checking whether [Mr G.T.] has complained to the Ministry of Internal Affairs, and so on. The court finds that it does not have to elucidate those matters in the present proceedings, because they would not alter its final conclusion that the offence [of which Mr E.S. has been accused] has not been committed. It should however be mentioned that the statements of the accused in his interview for Trud about the existence of such documents should prompt the investigating and the prosecuting authorities to check whether offences have been committed on the occasions mentioned in the interview. The testimony of [Mr G.T.] shows that he had thus far not been interviewed about those matters. In the above ‑ mentioned case of [ Thorgeir Thorgeirson ] the Reykjavik police had accused the applicant of an offence partly because of his failure to justify what it considered to be his own allegations. In its judgment the European Court [of Human Rights] emphasised that in so far as the applicant had been required to establish the truth of his statements, he had been faced with an unreasonable, if not impossible task. ‘[Mr G.T.]’s explanations’ in addition contain comprehensive and accurate personal and biographical information, a detailed description of the companies in which [Mr   G.T.] has been a shareholder, descriptions of specific events, and details about other individuals identified with their personal and family names. [Mr G.T.] also points out that the assertions about his relations with the [applicant] are accurate, except for the allegations of physical violence. His testimony shows that the ‘explanations’ are signed in a manner that is at least similar to his signature. The court therefore finds that the accused had at his disposal enough objective elements to form the belief that those explanations emanated purported to be their author. In [its case ‑ law] the Supreme Court of Cassation points out that when a publication mentions matters based on objective facts, the person concerned is acting in good faith, and this precludes criminal or civil liability for defamation. The court finds that the accused’s failure to establish the manner in which he obtained ‘[Mr G.T.]’s explanations’ is irrelevant to the proper resolution of the case. In its judgment in the case of Goodwin v. the United Kingdom [27 March 1996, Reports of Judgments and Decisions 1996 ‑ II] the European Court of Human Rights held that the protection of journalistic sources is one of the basic conditions for press freedom and of freedom of speech. It is true that as a result of the publication the public learned that there exists a document accusing the [applicant] of committing an offence. However, that assertion is true, such a document exists, and there is therefore no room for the assertion to be rebutted. At the same time the [applicant], protesting his innocence, is the one who should be most interested in the carrying out of a detailed investigation into the matter by an independent commission of the Supreme Judicial Council and the public announcement of its results. Indeed, that is the proper forum where he can vindicate his reputation. Given that the actus reus of the offence of defamation with which the accused is charged is lacking, there is no point in discussing mens rea . In view of the foregoing, the court finds that ... the accused [Mr E.S.] has not imputed to the [applicant] publicly prosecutable offences under Articles 198 ‑ 99 and   213a ‑ 14 of the Criminal Code ... The court finds that the claim for compensation brought by the [applicant] against the accused [Mr E.S.] is ill ‑ founded. The accused has not committed an unlawful act, which is one of the necessary preconditions for [a tort to exist]. It is therefore pointless to discuss the questions of damage, causal connection and fault. For these reasons, the court rejects the claim ...” (b)     The proceedings before Sofia City Court On 27 June 2003 the applicant appealed to Sofia City Court ( Софийски градски съд ). The appeal was assigned to a three-judge panel which comprised two judges who earlier had taken part in the examination of an interlocutory appeal which the applicant had lodged in the second case (see below). In an additional pleading dated 12 October 2003 the applicant argued that Sofia District Court had erred by relying on “Mr G.T.’s explanations” to acquit Mr E.S., because of the dubious value of that document and because Mr G.T., called as a witness, denied the statements made in it. The applicant also argued that the lower court had erred in interpreting the substantive law and the case ‑ law of the Supreme Court of Cassation, thus rendering nugatory the presumption of falsity under Article 147 § 2 of the Criminal Code. On 3 November 2003 the court set the appeal down for hearing. It found no need to hear witnesses. In an additional submission of 27 November 2003 newly retained counsel for the applicant argued that (a) the case should have been examined in the first instance by Sofia City Court and not Sofia District Court; (b) by hearing Mr G.T. as a witness and questioning him about irrelevant matters, Sofia District Court had breached the rules of procedure and had shown bias in favour of Mr E.S.; (c) by proceeding with the case on 21 April and 16 June 2003 in the applicant’s absence, the lower court had breached the rules of procedure and had infringed his right to take part in the proceedings; (d) by admitting in evidence a photocopy of “Mr G.T.’s explanations” and by refusing to admit evidence adduced by the applicant the lower court had breached the rules of evidence; (e) the lower court had incorrectly identified the allegedly defamatory statements; (f) the lower court had erroneously failed to analyse evidence establishing his good reputation; (g) the lower court had analysed erroneously a number of points of fact and law. He requested the court to oblige Mr E.S. to answer a number of questions, to appoint a psychiatric expert to assess his mental capacity, to appoint an expert with a view to determining the exact tenor of Mr E.S.’s interview, to call as a witness the journalist who had taken the interview, and to request a copy of a prosecutorial case file. At the hearing on 8 December 2003 counsel for the applicant reiterated his evidentiary requests. The court refused to call the journalist as a witness, finding that the facts had been sufficiently established and that her testimony would not add anything. It refused to appoint experts, finding that it did not need expert knowledge to assess the relevant facts. It held that it did not need to obtain a copy of the prosecutorial case file because it would be irrelevant. It went on to say that there was no problem in admitting “Mr   G.T.’s explanations” in evidence. Lastly, the court noted that, in view of the criminal character of the proceedings, it could not compel Mr E.S. to answer questions, because that would infringe his protection against self ‑ incrimination. After that the court heard the parties’ closing statements and reserved judgment. On 9 December 2003 counsel for the applicant requested that the case be assigned to a different bench, citing his suspicion that the judges hearing the appeal were not impartial in view of their participation in the examination of the interlocutory appeal in the other case (see below) and in view of unofficial pressure to decide in favour of Mr E.S. It seems that he did not receive a reply. In a final judgment of 29 January 2004 Sofia City Court upheld the Sofia District Court judgment in the following terms: “[This court] fully shares the first ‑ instance court’s findings of fact and law. Firstly, Sofia District Court has correctly established the facts of the case. This court also finds that the accused [Mr E.S.] made the impugned statements in the course of his interview with the journalist from Trud given on 5 December 2002. It is not in dispute that his replies, as printed in the newspaper, were identical to those made to the [journalist]. The [lower] court also correctly found that the occasion for the interview had been the fact that [Mr E.S.] had handed the Minister of Justice one hundred and five documents supporting his earlier allegations relating to the Chief Prosecutor [Mr N.F.]. This can be seen both from the tenor of the questions put to [Mr   E.S.] and from the introductory part of the publication, where these matters are described. Sofia District Court correctly found that the accused was in possession of a photocopy of a document whose introductory part named the witness [Mr   G.T.] as its author. It also correctly found that this piece of evidence must be admitted and analysed, even though it was a photocopy whose author was not identified in the course of the proceedings. One has to bear in mind that this evidence contains printed text which contains objective information. Neither the fact that the document is not an original nor the fact that, being a photocopy, it cannot be graphologically tested with a view to identifying its author, can serve as grounds not to admit it in evidence. Moreover, its existence directly relates to the question whether the impugned act is criminal or not. That photocopy contains text which can lead to the conclusion that [Mr G.T.] had been forced by the [applicant] to enter into transactions, sign documents, convey and contribute assets for the benefit of [an insurance company] connected with the [applicant]. The [lower] court correctly found that the document’s text reflects statements made by its author and sets out statements which can lead to the conclusion that [Mr G.T.] has been the victim of a criminal offence. It also correctly found that that offence (if what is said in the document is true) should be characterised as extortion, contrary to Article 213a of the Criminal Code. This court is likewise certain that the impugned statement ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ constitutes a correct reproduction of the allegations made in that document. The charges [against Mr E.S.] are under Article 148 § 2 read in conjunction with § 1 and with Article 147 § 1 of the Criminal Code, the actus reus of the offence consisting in the imputation of a criminal offence to [the applicant]. It is indisputable that one of the impugned statements made by [Mr E.S.] (and later printed in the newspaper) amounts to an allegation that [the applicant] has committed an offence. However, the proper interpretation of Article 147 § 1 of the Criminal Code and more specifically of the second actus reus envisaged by that provision shows that, for an allegation to be defamatory, it must originate from the accused. This court firmly believes that it is absolutely inadmissible to engage the criminal liability of a person who quotes (in the event correctly) information or statements made by another. This conclusion finds support in the text of the [Code], where the legislature, when characterising the offence, used the word ‘impute’ to define the actus reus . The grammatical interpretation of that word also leads to the categorical conclusion that, for there to exist an imputation of an offence, it must originate from the accused, not from a third party. A different construction would, firstly, run counter to the Criminal Code and, secondly, lead to a complete impossibility of exchanging information (characteristic of a democratic society). In as much as there is no evidence showing that the accused is the author of the impugned statement, but on the contrary – it has been established that he discovered that information (a document which contained it), this court likewise finds that the accused [Mr E.S.] has not carried out the actus reus of the offence [of which he is accused]. The court fully shares the conclusions of the Sofia District Court concerning the nature of the information which the accused laid out before the media and the nature of his actions. The [lower] court correctly found that the occasion for the interview had not been [the applicant]. During the course of the entire interview [Mr E.S.] answered questions relating to his handing over of documents concerning the prosecuting authorities as an organ of the State. The accused shared his view about certain actions or omissions of representatives of the prosecuting authorities. He gave an assessment of the functioning of that institution and revealed the information which he knew (contained, in his view, in documents that he had handed to the Minister of Justice) and which corroborated his assertions. The two impugned phrases were part of one such example. It should here be pointed out that matters touching upon the functioning of the prosecuting authorities, as a body authorised under the Constitution to perform certain functions in a democratic State, are not and cannot be matters which are personal or which touch upon the individual’s private life. On the contrary, those are matters relating to an essential institution which is of great public importance and enjoys heightened public interest. The [lower] court correctly found that the case ‑ law under the [Convention] and the Constitutional Court’s [case ‑ law] show that such information concerns a matter of public interest and not the individual’s private life. It is absolutely impermissible to prevent any person from disseminating and making public information which he or she knows and which relates to the functioning of a State institution. To hold otherwise would unduly circumscribe the right freely to express opinions, and would in turn hamper the functioning of a democratic society. It is precisely the opportunity to disseminate and discuss such information that allows society to exercise control over the authorities. Even if the court were to refrain from holding that the actus reus of the offence has not been carried out because the accused is not the author of the impugned statement but has merely disseminated it during the course of a public appearance, the accused should still not be held criminally liable, because of the absence of mens rea . It is not in dispute that the offence of defamation can be committed only with intent (direct or oblique). The act is criminal if the accused realises the criminal character of the act that he imputes to the victim and also realises that that act has not been perpetrated. In the case at hand, [Mr E.S.] was in possession of a detailed document containing information which unequivocally showed that more than one criminal offence had been committed. On its face, the document contained all the necessary features. It was entitled ‘explanation’, which is typical of criminal proceedings, its author (a real person) was named, the document was comprehensive, dated and signed. It is true that it was a photocopy, but this is completely normal in view of the fact that it looked like a document that naturally belonged in a criminal case file. There is no evidence whatsoever that [Mr E.S.] was aware that the document might be false or that it might not have been drawn up by the person purporting to be its author, or that the information in it was false. It would therefore be completely unwarranted to find that the accused has committed in intentional offence. It should be observed that the evidence gathered in criminal proceedings should establish ... unequivocally and categorically both the actus reus and the mens rea . [The latter] has not been so established; indeed, it was not proven by any of the available evidence. On the contrary, in as much as it was found that [Mr E.S.] was in possession of the document (it was produced by him in the course of the proceedings) and that its contents were correctly reproduced, there is no reason to assume that that he had the intention of imputing an offence to [the applicant] while knowing for certain or believing that he had not committed one. This court finds that it should examine whether the accused disseminated the information contained in the document after having tried to verify its veracity. It is true that there is no evidence that [Mr E.S.] checked the information that he had received, but in view of the nature of the document whose photocopy he had obtained he could not have checked it. As already mentioned, that document bore all the marks of a document produced within the framework of a criminal investigation. Since the accused is [merely] a social figure, he could not have checked whether that document was genuine or what it contained. He did not have official powers, nor did he have the opportunity of acquainting himself with the materials in a potential criminal case. He did not therefore have any opportunity to check the document’s contents. It is not disputed that it was the responsibility of the authorities to check whether the allegations in that document were true (that is, the prosecuting authorities), not of a private individual. That is also an argument in support of the proposition that the accused had good reason to reveal and make public the information that he had received, not hide it. Even if it is accepted that he should have checked (which he did not do), it is beyond doubt that the failure to do so cannot lead to the conclusion that his act was intentional. As regards the second impugned statement (which was in fact made first) – ‘Instead of acting on [Mr   G.T.’s] complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ –, this court also finds that it does not contain any information concerning [the applicant]. Therefore, by saying those words [Mr E.S.] carried out neither the actus reus nor the mens rea of the offence under Article 147 [§ 1] of the Criminal Code. The arguments given by Sofia District Court on this point are entirely correct and do not need to be repeated here. The court cannot accept the argument made by counsel for [the applicant] that the Supreme Court of Cassation’s constant case ‑ law in similar cases clearly shows that the accused did commit the offence. Firstly, the case does not concern the spreading of rumours, because rumours are what are generated when the information which is being disseminated does not have a source. Here, the source was clearly identified; the case concerns the reproduction of an independently existing document. It is immaterial that the case ‑ law relied on by [the applicant] runs counter to the constant case-law on the application of [the Convention] (which has priority over the case ‑ law applying our domestic law), which says that the normal exchange of information in a democratic society does not oblige those who disseminate information to reveal their sources. Secondly, the court cannot agree with [the applicant]’s argument that the accused was expressing his own opinion. On the contrary, he reproduced – correctly – the contents of a document which was in his possession. His statement does not contain a personal assessment of the facts and does not reflect an opinion. The impugned phrases support his assertions concerning the actions of a State authority and not [the applicant] personally. Those assertions are outside the ambit of the present case. The court does not accept that the accused sought to achieve the unlawful and noxious result proscribed by Article 147 § 1 of the Criminal Code. There is not a single piece of evidence to support that proposition, and, as explained in detail above, the aim of [his] media appearance was not connected with [the applicant]’s personality or activities. As regards the argument ... that the case ‑ law cited by the [lower] court relates to the activities of