CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 5 décembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sB00DFE03 { width:22.87pt; display:inline-block } .s8ADCD53C { width:135.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     THIRD SECTION DECISION Application no. 34496/19 Lyubomir Ivanov AVDZHIYSKI against Bulgaria   The European Court of Human Rights (Third Section), sitting on 5   December 2023 as a Committee composed of:   Ioannis Ktistakis , President ,   Yonko Grozev,   Andreas Zünd , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   34496/19) 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”) on 21 June 2019 by a Bulgarian national, Mr Lyubomir Ivanov Avdzhiyski (“the applicant”), who was born in 1985, lives in Sofia and was represented by Mr   M. Ekimdzhiev, Ms K. Boncheva and Ms M. Dokova-Kostadinova, lawyers practising in Plovdiv; the decision to give notice of the complaint under Article 10 of the Convention to the Bulgarian Government (“the Government”), represented by their Agents, Ms B. Simeonova and Ms M. Ilcheva, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the applicant’s conviction for defamation. 2 .     On 13 April 2017 the applicant, as a representative of an opposition political party, attended a meeting of the Municipal Council of Dupnitsa dedicated to the election of a new director of a municipal hospital. He made a statement at the beginning, which concerned Dr P. – a local politician from the ruling political party, previously a doctor in a privately-owned hospital, who had between 2010 and 2014 served as the head of the local health authority. In particular, the applicant stated: “I don’t know if [Dr P.] is here. I want to ask him first. How was it that between 2010 and 2014 the management of the hospital deteriorated so much, the healthcare provided there was so bad that the fines during his term in the [local health authority] and [the other sanctions] reached 600,000 [Bulgarian levs, BGN, equivalent to approximately 308,000 euros, EUR]? ... Suddenly this [hospital], which up to 2008 was profitable ... starts plunging down. Is there any link with the fact that between 2010 and 2014 it was fined [BGN] 600,000 by a person ... who [then] headed the [local health authority], but before that had worked in the private hospital in Dupnitsa, which is its competitor? ... Have we asked this question? Why and what are the reasons for the hospital’s plummeting down? ... One of the main reasons is the hole of [BGN] 600,000 in the budget of the hospital. There is a clear reason for this hole.” 3 .     Following proceedings initiated upon a private criminal complaint by Dr   P., the applicant was convicted for defamation in a final judgment of the Kyustendil Regional Court of 21 December 2018. The domestic courts found that the fines and other sanctions decided upon by Dr P. as the head of the health authority had been significantly lower than what the applicant had stated (between BGN 5,800 and 24,960 (approximately EUR 2,970 and 12,770) each year, other sanctions had been imposed by other public bodies), that the applicant had implied abuse of office on the part of the claimant and had presented him in negative terms, making “groundless” claims, and that thus the impugned statement, made publicly, deliberately and with the aim to cause damage, was defamatory. The applicant was relieved of criminal liability (see, for a description of the relevant domestic provisions, Genov and Sarbinska v. Bulgaria , no. 52358/15, § 41, 30 November 2021) and an administrative fine was imposed of BGN 1,000 (about EUR 510). He was in addition ordered to pay Dr P. BGN 2,000 (about EUR 1,020) in damages. These amounts were paid by the applicant in full. THE COURT’S ASSESSMENT 4.     The applicant complained under Article 10 of the Convention. 5 .     The Government pointed out that the applicant had not been a journalist or a whistle-blower. Dr P., despite being a local politician and a “well-known doctor”, was not a public figure obliged to bear a higher level of criticism. In addition, the allegations made by the applicant were of a “very serious nature”. The applicant had made a statement of fact, and not a value judgment, and had been unable to prove its veracity, despite having been given a fair chance to do this in the domestic proceedings. He had requested official data prior to the meeting of the municipal council, but had spoken before having obtained it. His statement had been planned, and not spontaneous. The sanctions imposed were not disproportionate, and the domestic courts had given extensive and adequate reasons. Subsequently the applicant had left politics for other reasons, as can be seen from the correspondence between him and the leader of his political party. 6 .     The applicant, for his part, argued that he had not insulted or defamed Dr P. and had not made untrue statements, because he had only posed questions to the municipal council, aiming to initiate a debate. Dr P., a local politician, had been a public figure, and the case had had a political context which the domestic courts had failed to take into account. The applicant’s statements concerned a matter of public interest, namely the dire financial situation of the municipal hospital, and the manner in which Dr P. had performed his duties as a public official. The statement had been made at the municipal council, a “tribune for political debate at the local level”. The punishment imposed on the applicant had been “illogical and inadequate”. Even the relatively low sums he had been ordered to pay could have a “chilling effect” on the freedom of expression, and had in fact had such an effect on him, resulting in his withdrawal from politics. Information about the conviction had been published in the local press. 7.     The Court notes, first, that it is not in dispute between the parties that the interference with the applicant’s rights under Article 10 of the Convention, namely his conviction for defamation, had a basis in domestic law and was aimed at protecting the reputation of Dr P. The salient question therefore is whether the interference was proportionate to the legitimate aim pursued. The general principles developed by the Court in that regard have been summarised, among others, in Monica Macovei v. Romania (no.   53028/14, §§ 72-81, 28 July 2020). 8.     In making an assessment on proportionality, the Court is to rely on the facts of the case as established at the domestic level (see Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal , no. 4035/08, § 33, 11   January 2011). It thus finds, as did the domestic courts (see paragraph 3 above), that the applicant made an untruthful statement, namely that Dr P., as the head of the local health authority, had abusively imposed excessive financial sanctions, thus creating a “hole” of BGN 600,00 in the municipal hospital’s budget. The Court does not accept the applicant’s argument (see paragraph 6 above) that he had only posed questions; despite the specific form of expression chosen, a reading of his impugned statement taken in its entirety (see paragraph 2 above) shows that he did make the allegations above in a sufficiently clear manner. In addition, and as noted by the Government (see paragraph 5 above), while the applicant had sought official information from the health authorities, he did not await to receive it and made his statement without the opportunity to support his allegations with reliable facts. 9.     The Court thus accepts that the applicant made a statement of fact concerning Dr P., which was not based on any facts established in a convincing manner, and was found by the domestic courts to be untruthful. It has not been claimed that the applicant was not given a fair chance in the domestic proceedings to prove the veracity of his allegations; in particular, the Court observes that the defence of truth is provided for under Article   147   §   2 of the Criminal Code (see Bozhkov v. Bulgaria , no. 3316/04, § 28, 19   April 2011). 10.     As to the applicant’s argument that the impugned statement had been made in the context of a political debate, it should be noted that, indeed, it was made before the Municipal Council of Dupnitsa – a political body at the local level. However, the statement was not directly relevant for the agenda of the meeting, namely the election of a new director of the municipal hospital. The applicant did not discuss any of the candidates, nor did he respond to an argument raised by another person. His statement, prepared in advance and read at the beginning of the meeting, seems to have had the sole purpose to attack a political adversary, imputing to him grave misconduct (contrast De Lesquen du Plessis-Casso v. France , no. 54216/09, § 46, 12   April 2012). The Court has held that, while representatives of political parties must be allowed to discuss their opponents and the manner in which the latter perform public duties, they are equally required to exercise some restraint when encroaching upon the reputation and the rights of others (see Barata Monteiro da Costa Nogueira and Patrício Pereira , cited above, § 37, and De Lesquen du Plessis-Casso v. France (no. 2) , no. 34400/10, § 33, 30   January 2014). 11.     As to the sanction imposed on the applicant, it is significant that he was relieved of criminal liability, meaning that his conviction was not to be registered in a criminal record (contrast Raichinov v. Bulgaria , no. 47579/99, § 51, 20 April 2006). The fine imposed on him amounted to BGN 1,000 and he was ordered to pay Dr P. BGN 2,000 in damages (see paragraph 3 above), which does not appear excessive in the circumstances. While information about the conviction was published in the local press, the applicant has not shown that his own reputation suffered any undue damage, nor that he suffered any further negative impact. In particular, his withdrawal from politics seems to have been due to other reasons (see paragraph 5 above in fine ). 12.     Lastly, the Court observes that the domestic courts examined the relevant aspects of the applicant’s case and reached reasonable and adequate conclusions (see paragraph 3 above). Accordingly, the grounds for the applicant’s conviction for defamation were relevant and sufficient (see, for comparison, Peruzzi v. Italy , no. 39294/09, 30 June 2015; Vitrenko and Others v. Ukraine (dec.), no. 23510/02, 16 December 2008; and Béchis v.   France (dec.) [Committee], no. 10611/18, 18 March 2021). 13.     In view of the above, the Court finds that the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 14.     This means that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 January 2024.     Olga Chernishova   Ioannis Ktistakis   Deputy Registrar   President