CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 septembre 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF5C1637F { margin-top:24pt; margin-bottom:0pt }       FOURTH SECTION Application no. 33502/07 Rositsa Valkova MARINOVA against Bulgaria lodged on 26 June 2007 and 3 other applications STATEMENT OF FACTS   The applicant in application no. 33502/07, Ms   Rositsa   Valkova   Marinova, is a Bulgarian national who was born in 1972 and lives in Tervel. She is represented before the Court by Mr   M.   Ekimdzhiev and Ms   K.   Boncheva, lawyers practising in Plovdiv. The applicant in application no. 30599/10, Mr   Ventsislav   Tsvetanov   Zlatanov, is a Bulgarian national who was born in 1963 and lives in Sofia. He is represented before the Court by Mr Y. Mitev, a lawyer practising in Dobrich. The applicant in application no. 8241/11, Mr Petar Georgiev Findulov, is a Bulgarian national who was born in 1955 and lives in Burgas. He is not legally represented. The applicants in application no. 61863/11, Ms   Margarita   Radoeva   Dincheva and Mr Ivan Petrov Dinchev, are Bulgarian nationals who were born in 1947 and 1943 respectively and live in Lovech. They are not legally represented. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     The facts in the case of Ms Marinova (application no. 33502/07) In February 2006 the applicant filed a complaint with the Child Protection Agency, alleging that the school teacher of her son, then aged fourteen, had on several occasions maltreated and humiliated him. In particular, she stated that the teacher had hit the child three years earlier and since then had often insulted him, had made remarks about his parents in front of other pupils, and had underestimated his performance at school. She argued that this treatment amounted to harassment, and complained that her son was demotivated. She asked the authorities’ assistance for solving the conflict. The authorities examined the complaint, heard the teacher, the applicant’s son and other witnesses, and concluded that no ill-treatment was proven. They found that there had been a personal conflict between the applicant and the teacher since 2003, when the father of the applicant’s son had threatened the teacher in front of other pupils. The teacher had brought a private criminal prosecution against the father and the proceedings were pending. In April 2006 the applicant filed two complaints with the school headmaster and the police against the teacher. She alleged that the teacher had seized at class her son’s mobile phone and had later refused to return it to him, and requested the authorities to order the teacher to return the phone. She alleged that according to a schoolmate of her son, the teacher had taken the phone when leaving the classroom. However, when the applicant had asked her to give it back, she had answered that she had left it on her desk. The prosecuting authorities opened criminal proceedings against an unknown perpetrator in connection with the missing phone and in August   2006 suspended them on the ground that the perpetrator had not been identified. They noted that witnesses’ statements had established that the phone had remained on the teacher’s desk after the teacher had left the classroom. On 14 July 2006 the teacher brought a private criminal prosecution for defamation against the applicant in connection with her statements in the above three complaints. She submitted that she had not read those statements because the authorities dealing with the complaints had refused to show them to her. However, she stated that she had been requested to give explanations in connection with her work as a teacher and from the questions put to her she could infer that the applicant had accused her of having stolen a mobile phone and had described her as a biased and incompetent teacher using inappropriate disciplinary methods. On 29 November 2006 the Tervel District Court found the applicant guilty of defamation and, applying Article 78a of the Criminal Code, replaced her criminal liability with an administrative fine of 500   Bulgarian   levs (BGN) (equivalent to 255.65 euros (EUR)). It also granted the teacher’s civil claim for damages for the amount of BGN   1,000   (equivalent to EUR 511.29). The court, relying on the documents gathered in the course of the inquiry by the Child Protection Agency, the investigation into the missing mobile phone, and witness evidence heard by it, found that there was no evidence that the teacher had taken the phone with her upon leaving the classroom. It went to say that the teacher had not harassed the applicant’s son. It therefore concluded that the applicant had disseminated defamatory statements of ill-treatment against the teacher and had falsely accused her of committing an offence. The applicant appealed, saying, among other things, that Article 147 of the Criminal Code was not applicable to complaints to competent public bodies, because such complaints did not amount to “dissemination of information” within the meaning of that provision and because false accusations before a competent body amounted to a different offence. She went on to emphasise that she had never made her statements public. In a final judgment of 18 April 2007, the Dobrich Regional Court upheld the lower court’s judgment with similar reasoning. It observed that the applicant’s statements before the police could amount to a different offence, prosecutable by the public prosecutor and not by the victim, but went on to say that since no appeal had been filed by the private prosecuting party against the first-instance judgment, it could not vary it in that respect. 2.     The facts in the case of Mr Zlatanov (application no. 30599/10) On 28 July 2008 Mr Zlatanov was stopped by two road traffic police officers. One of them, Mr Sh., wrote a record that the applicant had failed to obey a stop sign. The applicant objected by writing in the record that Mr Sh. had refused to present himself, smelled of alcohol and staggered. On 5   August 2008 the applicant submitted a letter to the head of the Shabla District Police Department in which he confirmed his statements and explained that Mr Sh. had behaved aggressively. On an unspecified date in 2008 Mr Sh. brought a private criminal prosecution for defamation against the applicant in connection with his statements. The applicant pleaded that he was innocent because he had not intended to discredit Mr Sh. but to draw his superiors’ attention to his conduct. In a judgment of 6 March 2009, the Kavarna District Court found the applicant guilty of defamation and, applying Article 78a of the Criminal Code, replaced his criminal liability with an administrative fine of BGN 500 (equivalent to EUR 255.65). It also granted Mr Sh.’s civil claim for damages for the amount of BGN 1,500 (equivalent to EUR 764). The court, relying on the results from the internal inquiry carried out by Mr Sh.’s superior, and notably, on a negative alcohol test of Mr Sh., carried out a few hours after the events of 28 July 2008, found that by writing the complaint the applicant had disseminated defamatory statements against Mr Sh. while he had not been sure whether the latter had been intoxicated. The applicant appealed, arguing that his statements, made in the exercise of his constitutional rights and addressed to Mr Sh.’s superior, did not amount to “dissemination of information” within the meaning of the Criminal Code. In a final judgment of 20 November 2009, the Dobrich Regional Court upheld the judgment of 6 March 2009. It rejected the applicant’s arguments that his statements had been made in the exercise of his right to defence and his freedom to express his opinion. It found that the applicant had not requested an alcohol test for Mr Sh. but had preferred to make defamatory statements to Mr Sh.’s superior in order to discredit him and escape a fine in respect of the road traffic violation that he had committed. 3.     The facts in the case of Mr Findulov (application no. 8241/11) On 12 July 2009 Mr Findulov was stopped by two road traffic police officers. One of them allegedly demanded a bribe of BGN 20   (EUR 10,22). The applicant promised to bring the money in ten minutes and left his identity card, the vehicle purchase contract and the civil liability insurance policy with the officers. He then called the police and informed the officer on duty of these circumstances. On 23 July, 3 and 14 August 2009 the applicant submitted official complaints to the Inspectorate of the Ministry of the Interior, the Ombudsman and the Minister of the Interior, respectively, claiming that one of the officers, whose identity was not known to him, had demanded a bribe from him and had withheld his documents. On 13 August 2009 the Burgas Regional Directorate of the Ministry of the Interior replied to the applicant that his complaint was ill-founded and unsubstantiated. According to the applicant, on 14 September 2009 he found his identity card in his mail box. The vehicle purchase contract and the civil liability insurance policy were never found. In a decision of 12 August 2009, the head of the Road Traffic Police Department at the Burgas Regional Directorate of the Ministry of the Interior established, on the basis of a report by the road traffic police officers issued in the applicant’s absence, that during the routine traffic control on 12 July 2009 the applicant had not used a seatbelt, that one of the tyres of his vehicle had been worn out, that he had refused a breath alcohol test, and that he had driven away in an unknown direction. The applicant was given two fines of BGN 50 and one fine of BGN 500, he lost twenty ‑ five control points from his driving licence and was prohibited from driving a car for twelve months. The applicant appealed. In a judgment of 30 November 2009, the Burgas District Court found that no appeal lay against the fines of BGN 50 and discontinued the proceedings in that part. It quashed the remainder of the decision of 12   August 2009, reasoning that the report of the road traffic police officers concerning the routine control on 12 July 2009 had never been communicated to the applicant although it had been issued in his absence. On appeal, in a final judgment of 25 March 2010 the Burgas Administrative Court upheld that judgment. On an unspecified date in 2009 one of the road traffic police officers, Mr   I., brought a private criminal prosecution for defamation against the applicant. The applicant pleaded that he was innocent because he had exercised his constitutional right to seek protection from the authorities and had had no intention to discredit the complainant. In a judgment of 11 May 2010, the Burgas District Court found the applicant guilty of defamation and sentenced him to a fine of BGN 3,000 (equivalent to EUR 1,534) and public reprimand. It also granted Mr I.’s civil claim for damages for the amount of BGN 10,000 (equivalent to EUR 5,112). The court, relying essentially on the testimony of Mr I.’s colleagues, found that the applicant had failed to establish that Mr I. had demanded a bribe, and that by lodging complaints to that effect, the applicant had disseminated defamatory statements against Mr I. According to the court, the fact that the applicant had not mentioned the complainant’s name was irrelevant as the latter had been identifiable from the circumstances described in the complaints. On appeal, in a final judgment of 14 July 2010 the Burgas Regional Court upheld the lower court’s judgment with similar reasoning. The public reprimand was executed, as ordered by the judge, by announcing the conviction and sentence on the local radio station. 4.     The facts in the case of Ms and Mr Dinchevi (application no.   61863/11) The applicants had a long-running conflict with their neighbours. On 14   November 2009 the tension escalated and the applicants called the police, complaining that they had been assaulted by the neighbours. Two police officers came and warned one of the neighbours not to physically harass the applicants. On 17 November 2009 the applicants made a complaint to the head of the Lovech District Police Directorate against the two police officers. They stated, in particular, that the officers had shown no interest in the incident and had failed to protect them but instead had invited the aggressors in the patrol car and had “muttered with them”. In a letter of 4 December 2009, the head of the Lovech District Police Directorate informed the applicants that following an inquiry it had been established that their complaint was manifestly ill-founded. On an unspecified date in 2010 the two officers brought a private criminal prosecution for defamation against the applicants. The applicants pleaded that they were innocent because they had exercised their constitutional right to express their opinion. In a judgment of 20 October 2010, the Lovech District Court found the applicants guilty of defamation and sentenced each of them to a fine of BGN 2,500 (equivalent to EUR   1,278) and public reprimand. The latter was to be executed by announcing the conviction and sentence on the local radio station. It also granted the complainants’ civil claims for damages for the total amount of BGN 800 (equivalent to EUR 409). 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 (equivalent to EUR 764) in view of the applicants’ age. B.     Relevant domestic law and practice Article 147 of the Criminal Code 1968, as in force since March 2000, provides as follows: “1.     Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by public reprimand. 2.     The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation.” The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4) of the Code). According to the prevailing case-law of the Bulgarian courts (решение   №   128 от 10 март 1973 г. по н. д. № 37/1973 г. на ІІ н. о. на ВС; решение № 209 от 18 май 1982 г. по н. д. № 209/1982 г. на І н. о. на ВС; решение № 347 от 25 септември 2009 г. по н. д. № 372/2009 г. на І   н. о. на ВКС; решение от 13 май 2011 г. по в. н. ч. х. д. № 179/2011 г. на Плевенския ОС; решение от 18 май 2010 г. по в. н. ч. х. д. №   209/2009 г. на Габровския ОС; решение № 41 от 30 юни 2010 г. по н.   д. №   154/2010 г. на Кърджалийския ОС; решение от 16 декември 2009 г. по н. д. № 909/2009 г. на Добричкия ОС; присъда № 696 от 30   ноември 2009 г. по н. ч. х. д. № 3103/2009 г. на Варненския РС), statements made in letters, petitions or complaints to State bodies containing allegations of wrongdoings or offences committed by other individuals cannot be considered as “dissemination of information” within the meaning of Article 147 of the Code because their authors do not intend to degrade the honour or reputation of such individuals but simply to exercise their right to petition, to report irregularities or to request the authorities’ assistance. Furthermore, in order to “impute an offence” to an individual, the author of the statement must be aware that that individual is innocent. Article 78a § 1 of the Criminal Code, as in force at the relevant time, mandated the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from 500 to 1,000 levs – if (i)   the offence of which they had been convicted was punishable by up to two years’ imprisonment or a lesser penalty, in respect of an intentional offence, (ii) they had not previously been convicted of a publicly prosecutable offence and their criminal liability had not previously been replaced by an administrative punishment, and (iii) the pecuniary damage caused by the criminal act had been made good. In April 2009 Article 78a §   6 of the Criminal Code was amended to the effect that Article 78a § 1 did not apply if the victim of the offence was a State servant acting in pursuance of their duties. COMPLAINTS 1.     All the applicants complain under Articles 6 § 1 and 10 of the Convention that the domestic courts convicted them for having expressed their opinion and sought protection from the authorities. Ms Marinova further complains under Article 6 § 1 that the courts were wrong to conclude that her statements were defamatory or amounting to a false accusation of an offence, and argues that she could not have foreseen that her complaints would be interpreted in this manner. She also complains that the courts acted in breach of the presumption of innocence, enshrined in Article 6 § 2 of the Convention, because they accepted that her statements concerning the missing mobile phone were untrue on the basis of an investigation which had failed to identify the person responsible for the presumed theft, thus imposing an insurmountable presumption of falsity on her. Mr Zlatanov further complains under Article 14 of the Convention that in the criminal proceedings against him the domestic courts took the side of the plaintiff, a police officer, which put the applicant in a less favourable position. 2.     Ms Marinova also complains that her punishment amounted to a breach of Article 1 of Protocol No. 1. 3.     Ms Marinova, Mr Zlatanov and Mr Findulov also complain under Article 13 of the Convention that they did not have an effective domestic remedy in respect of the alleged breaches of the Convention in their cases. QUESTIONS TO THE PARTIES   1.     Has there been an interference with the applicants’ right to freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article   10   § 2? In particular, in view of the domestic case-law under Article   147 of the Criminal Code, could the applicants foresee, to a degree that was reasonable in the circumstances, the consequences of submitting a complaint against a public servant to officials competent to investigate his or her behaviour (see Siryk v. Ukraine, no. 6428/07, § 39, 31 March 2011)?   2.     Did the applicants have a fair hearing in the determination of the criminal charges against them, as required by Article 6 § 1 of the Convention?