Communicated on 27 August 2019

FIFTH SECTION

Application no. 79709/13 Yordan Atanasov YORDANOV against Bulgaria lodged on 13 December 2013

STATEMENT OF FACTS

1. The applicant, Mr Yordan Atanasov Yordanov, is a Bulgarian national who was born in 1952 and lives in Bogomilovo .

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. In early 2009 the applicant fell out with two people, Ms M.D. and Mr H.N., who had earlier retained him to carry out work in connection with real property development projects undertaken by them and their company.

4. In April 2009 both the applicant and Ms M.D. and Mr H.N. made complaints against each other to the prosecuting authorities. In May 2009 those authorities refused to open criminal proceedings against the applicant in relation to Ms M.D. ’ s and Mr H.N. ’ s allegations of abuse of trust, embezzlement, blackmailing and harassment, and in January 2011 they discontinued criminal proceedings relating to alleged tax avoidance by Ms M.D. ’ s and Mr H.N. ’ s company that they had opened in March 2010.

5. Between April and October 2009 the applicant published a number of strongly-worded allegations about the business practices of the company and Ms M.D. and Mr H.N. on a website run by him, in emails sent to a number of recipients, and in messages posted on internet forums.

6. In 2011 Ms M.D. and Mr H.N. brought a private criminal prosecution coupled with claims for damages against the applicant in relation to those statements. They alleged that he had insulted and defamed them, and sought, each, 3,000 Bulgarian levs (BGN) (equivalent to 1,534 euros (EUR)) in non-pecuniary damages.

7 . On 15 December 2011 the Stara Zagora District Court acquitted the applicant and dismissed the claims for damages against him. It held that, when seen in their proper context, the applicant ’ s statements had amounted to a justifiable exercise of his right to freedom of expression, guaranteed by the 1991 Constitution and Article 10 of the Convention, and that a criminal conviction for insult or defamation would amount to a disproportionate interference with that right. In particular, he had justifiably expressed his indignation about the conduct of Ms M.D. ’ s and Mr H.N. ’ s company, which had directly affected him, and had directed most of his statements against the company rather than against the claimants themselves ( прис . № 253 от 20.12.2011 г. по н. ч. х. д. № 1762/2009 г., РС-Стара Загора).

8. Ms M.D. and Mr H.N. appealed.

9 . On 7 December 2012 the Stara Zagora Regional Court discontinued the private criminal prosecution against the applicant owing to the intervening expiry of the relevant limitation period, but went on to examine and partly to allow the claims for damages against him. It held that many of the statements published by him had not been shown to be defamatory, but that some of them, published on 24 April and 10 and 11 May 2009, had been defamatory of Ms M.D. and Mr H.N. and thus tortious.

10 . The court referred to the following statements of the applicant:

“At the moment the antichrists M.D. and H.N. are negotiating ...”

“They hire hundreds of employees and, with false promises, make them work without remuneration for a few months, and then for a few months give them a few [Bulgarian] levs, so that they would not die of hunger ...”

“Thousands of unemployed ... lured with false promises of work”

“Thousands of [Bulgarian] levs in avoided taxes”

“Thousands of [Bulgarian] levs from defrauded buyers”

“The latest complaint by Mrs D. devotes a lot of space to praises of the great municipal councillor M.D. I am fifty-seven years old, and have worked with and interacted with hundreds of people, but I have never met such a narcissistic, arrogant and evil, hypocritical, deceitful, vile, thieving and robbing creature – as I say ‘ marvel ’ – and that is the only definition I can come up with.”

“The main purpose of the complaints of ... against me is to lay, if possible, their hands on the proof of their criminal activities and destroy or manipulate them ...”

“... have been insolvent since the beginning of October 2008, which makes them offenders under Article 227b of the [Criminal Code] ...”

11 . The court found the applicant liable with respect to the expressions “marvel”, “arrogant and evil”, “hypocritical”, “deceitful”, “vile” and “thieving and robbing”, which had been directed personally against Ms M.D., and with respect to “antichrists”, which had been directed against both Ms M.D. and Mr H.N. The court further found that with the above statements the applicant had imputed to Ms M.D. and Mr H.N. the offences of fraud and tax avoidance. It went on to say that the applicant had not sufficiently established the truth of his allegations. It was true that he had submitted numerous documents ostensibly for that purpose, but had failed to make any statements in relation to that. Nor had he rebutted the presumption of fault laid down in section 45(2) of the Obligations and Contracts Act 1950 (see paragraph 16 below). In fixing the quantum of damages in equity, as required under section 52 of the 1950 Act (ibid.), the court had regard to the facts that the applicant ’ s statements had been published on the internet, thus becoming available to a potentially unlimited audience, and that Ms M.D. and Mr H.N. were both public figures (it noted that Ms M.D. was a municipal councillor and Mr H.N. was a delegate of the Bulgarian Football Union). The court ordered the applicant to pay BGN 2,000 (equivalent to EUR 1,023) to Ms M.D. and BGN 1,500 (equivalent to EUR 767) to Mr H.N. (see реш . № 282 от 07.12.2012 г. по в. н. ч. х. д. № 1277/2012 г., ОС-Стара Загора ).

12 . The applicant appealed on points of law. He argued, in particular, that the judgment against him had impermissibly interfered with his right to freedom of expression.

13 . On 21 June 2013 the Supreme Court of Cassation upheld the lower court ’ s judgment. It found that the applicant ’ s words and allegations of criminal conduct had been disparaging towards Ms M.D. and Mr H.N. This could not be justified by the exercise of his right to freedom of expression, because under Article 39 § 2 of the Constitution (see paragraph 15 below) this right could not be used to the detriment of the rights and reputation of others. Regardless of the context in which they could be placed, the applicant ’ s words had been demeaning, and had impinged on the dignity of Ms M.D. and Mr H.N., who were according to the materials in the case file well-known public figures. An examination of the impugned statements, which had been personal and deliberate, did not give the impression that they amounted to a value judgment about the business of Ms M.D. ’ s and Mr H.N. ’ s company. The lower court had pointed out that the applicant had not made out the truth of his allegations or rebutted the presumption of fault. It had also correctly fixed the quantum of the awards of damages (see реш . № 143 от 21.06.2013 г. по н. д. № 144/2013 г., ВКС, III н. о. ).

14 . Article 32 § 1 of the 1991 Constitution provides:

“The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour, dignity and reputation.”

15 . Article 39 of the Constitution provides, so far as relevant:

“1. Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way.

2. That right shall not be exercised to the detriment of the rights and reputation of others ...”

16 . The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1950. Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Under section 45(2), fault is presumed until proved otherwise. Section 52 provides that the amount of compensation in respect of non ‑ pecuniary damage is to be determined by the court in equity.

COMPLAINT

17. The applicant complains under Article 10 of the Convention that the Stara Zagora Regional Court, whose judgment was upheld by the Supreme Court of Cassation, found him liable in damages for insulting and defaming Ms M.D. and Mr H.N.

QUESTIONS TO THE PARTIES

Was the judgment finding the applicant liable in damages with respect to his statements about his former employers/business partners in breach of his right to freedom of expression, enshrined in Article 10 of the Convention? In particular, was it “necessary in a democratic society” within the meaning of Article 10 § 2?