Communicated on 6 September 2017

FIFTH SECTION

Application no. 62585/09 Aleksandar Ivanov NIKOLOV against Bulgaria lodged on 22 October 2009

STATEMENT OF FACTS

1. The applicant, Mr Aleksandar Ivanov Nikolov, is a Bulgarian national who was born in 1953 and lives in Sofia. He is represented before the Court by Ms S. Razboynikova, a lawyer practising in Sofia.

A. The circumstances of the case

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

1. The applicant ’ s dismissal and reinstatement and the related criminal proceedings brought by him

3 . The applicant was the director of the National Statistical Institute ’ s publishing house and printing shop. In February 1999 the Institute ’ s head, Mr A.H ., disciplinarily dismissed him from his post.

4 . The applicant challenged his dismissal, and in July 2001 the Sofia District Court found it unlawful and reinstated him to his post.

5 . After that judgment bec ame final, on 2 June 2003 the applicant presented himself at the Institute to resume his duties. He was allowed onto the premises by the Institute ’ s secretary general, and applied to be reinstated to his post, as ordered by the court. After obtaining advice from the Institute ’ s legal department, the secretary general dismissed the applicant anew, on the basis that his post no longer existed as in 2000, by order of Mr A.H., the Institute ’ s publishing house and printing shop had been closed down and their work outsourced to a company owned by the Institute.

6 . Several weeks later, on 27 June 2003, the applicant brought a private criminal prosecution against Mr A.H., alleging that by legal manoeuvring the latter had deliberately prevented him from resuming his employment, and had thus committed the offence of not complying with a court order to reinstate an employee (see paragraphs 33 and 34 below). The Sofia District Court examined the case at four hearings. Mr A.H. only appeared at the third of those, which took place on 11 November 2004. On 10 March 2005 the court acquitted him, finding that at the time when the applicant had sought to be reinstated, Mr A.H. had been on sick leave, and that the applicant had not specified the exact time and place of commission of the alleged offence, thus preventing Mr A.H. from defending himself properly. The court also ordered the applicant to bear the costs of the proceedings, which amounted to 153 Bulgarian levs (BGN) (78 euros (EUR)). The applicant did not appeal, and on 26 March 2005 Mr A.H. ’ s acquittal became final.

2. The ensuing criminal and civil proceedings against the applicant

(a) The criminal proceedings

7 . A month later, on 26 April 2005, Mr A.H. complained to the prosecuting authorities, alleging that the applicant had falsely accused him, contrary to Article 286 of the Criminal Code (see paragraph 29 below). The applicant was not officially notified of those proceedings. In 2009 he asked the prosecuting authorities to inform him of their course, and in December 2009 was advised that on 13 March 2007 the prosecuting authorities had refused to open criminal proceedings against him on the basis that no offence had been committed. The applicant was unable to obtain a copy of that decision as it could only be provided to the person who had made the complaint to the prosecuting authorities.

(b) The proceedings for damages

8 . In the meantime, on an unspecified date in 2005 Mr A.H. brought a claim for damages against the applicant, alleging that the applicant had accused him of an offence in spite of being aware of his innocence, and that the charge, of which the whole staff of the Institute had learned, had damaged his reputation and authority as an employer. That, as well as the efforts which he had had to put in to defend himself against the charge, had caused him serious mental suffering. He sought BGN 11,000 (EUR 5,624), plus interest, in non-pecuniary damages.

9 . In his reply, the applicant argued, inter alia , that since Mr A.H. was seeking damages in respect of an act – false accusation – alleged to amount to a criminal offence, the court had to stay the proceedings pending the decision of the prosecuting authorities in relation to Mr A.H. ’ s criminal complaint (see paragraph 7 above). The applicant also pointed out that when bringing charges against Mr A.H. he had not known that the latter had been on sick leave. He had thus not been aware that the charges were unfounded. Lastly, he submitted that the amount claimed by Mr A.H. was exorbitant; in particular, far surpassing those usually awarded against the prosecuting authorities in favour of acquitted criminal defendants who had spent up to two years in pre-trial detention and had remained under criminal prosecution for ten or more years.

10 . On 20 February 2006 the Sofia City Court allowed Mr A.H. ’ s claim in full. It held that the applicant ’ s request to stay the proceedings pending the decision of the prosecuting authorities in relation to Mr A.H. ’ s criminal complaint was unfounded (see paragraph 7 above), as Mr A.H. ’ s claim for damages had been made under the general law of tort. The court went on to say that the charges brought by the applicant had seriously damaged Mr A.H. ’ s reputation and had caused him stress and inconvenience. The sum which he sought – BGN 11,000 – could not fully remedy that damage, but the court could not award more than he had claimed. The court also ordered the applicant to pay the costs of the proceedings, which amounted to BGN 440 (EUR 225).

11. The applicant appealed, reiterating h is arguments (see paragraph 9 above) .

12 . On 24 October 2006 the Sofia Court of Appeal upheld the lower court ’ s judgment, save as regards the quantum of damages and costs, which it reduced respectively to BGN 2,000 (EUR 1,023) and BGN 93 (EUR 48). It held that, contrary to what was being argued on behalf of the applicant, Mr A.H. ’ s claim did not concern a false accusation within the meaning of Article 286 of the Criminal Code (see paragraph 29 below). The tortious conduct of which the applicant was being reproached was simply that he had brought charges against Mr A.H. of which the latter had been acquitted. That could be seen as defamation in the form of attributing an offence. It was therefore irrelevant whether criminal proceedings against the applicant under Article 286 were pending or had been concluded. It was true that he had brought the charges against Mr A.H. in an effort to obtain reinstatement to his post. But it could not be accepted that those proceedings had constituted a means to protect that right. In any event, one could not vindicate one ’ s rights by infringing those of others. The applicant had directed the charges against Mr A.H. personally even though he had known that the latter had been absent from work: it was clear that the applicant ’ s meetings in relation to his request to be reinstated had been with the Institute ’ s secretary general and that the ensuing order for his dismissal had been signed by her. He was thus liable in damages. However, the equitable amount to which Mr A.H. was ent itled was only BGN 2,000.

13 . Both the applicant and Mr A.H. appealed on points of law. The applicant argued that the Sofia Court of Appeal had impermissibly mixed up defamation and false accusation; that it had been wrong to hold that the mere bringing of criminal charges could be tortious; that its finding that the applicant had known that Mr A.H. had been absent from work had had no basis in the evidence; that the applicant ’ s lack of knowledge that Mr A.H. had been absent from work excluded any intent or negligence on his part, which meant that the presumption of fault in Bulgarian tort law had been rebutted; and that the quantum of damages had been excessive.

14 . In a judgment of 22 January 2008 ( реш. № 1480 от 22.01.2008 г. по гр. д. № 667/2007 г., ВКС, II г. о. ) the Supreme Court of Cassation quashed the Sofia Court of Appeal ’ s judgment and referred the case back to it. It held that that court had erred by not properly analysing the tortious conduct alleged against the applicant: that he had falsely c harged Mr A.H. with an offence while knowing that the latter was not guilty of it, and had maintained the charges throughout the criminal proceedings. The lower court had instead held th at the applicant had defamed Mr A.H. by attributing to him an offence which the latter had not committed. Its findings about the tortiousness of the applicant ’ s conduct had thus not been duly substantiated. That had been a serious breach of the rules of procedure, which required the remittal and re-examination of the case.

15 . On remittal, on 9 June 2008 the Sofia Court of Appeal fully upheld the Sofia City Court ’ s judgment, which had allowed Mr A.H. ’ s claim in its entirety (see paragraph 10 above). It held that the claim concerned a false accusation against Mr A.H. and was based on the general law of tort. Under that law, it was for the alleged tortfeasor to rebut the presumption of fault, whereas the applicant had not proved that he had not acted with fault when bringing the charges against Mr A.H. On the contrary, the unchallenged testimony of the Institute ’ s secretary general showed that when doing so, the a pplicant had been aware that Mr A.H. was not responsible for the failure to comply with the court order to reinstate him, but had nevertheless tendentiously maintained the charges. He had thus engaged in tortious conduct. The mental suffering endured by Mr A.H. and his position as head of the Institute called for an award of BGN 11,000.

16. The applicant appealed on points of law. He submitted that the Sofia Court of Appeal had, in disregard of the Supreme Court of Cassation ’ s instructions, again failed to determine the exact nature of the tortious conduct of which it had found him liable: defamation or false accusation. The court ’ s finding that the mere lodging of a criminal complaint was tortious was wrong – on the contrary, that was a possibility open to the victim of any privately prosecutable offence. All that had vitiated the court ’ s analysis of the evidence and the way in which it had applied the substantive law, and had caused it impermissibly to mix up the questions of wrongfulness and fault. The court of appeal had also failed to address the arguments made in the applicant ’ s initial appeal against the Sofia City Court ’ s judgment (see paragraph 13 above). Nor had it duly analysed the testimony of the Institute ’ s secretary general, or the prosecuting authorities ’ refusal to open criminal proceedings again st the applicant (see paragraph 7 above). Lastly, the court had erred in awarding exorbitant damages.

17 . In a decision of 23 April 2009 ( опр. № 302 от 23.04.2009 г. по гр. д. № 4499/2008 г., ВКС, II г. о. ) the Supreme Court of Cassation refused to examine the appeal, holding that none of the points raised by the applicant fit within the admission criteria set out in Article 280 § 1 of the 2007 Code of Civil Procedure, which had come into force on 1 March 2008 (see Valchev and Others v. Bulgaria ( dec. ), nos. 47450/11 and 2 others, §§ 27-29, 21 January 2014).

(c) Payment of the damages and costs awarded against the applicant

18 . After the Sofia Court of Appeal ’ s first judgment (see paragraph 12 above) and following the institution of enforcement proceedings by Mr A.H., in February 2007 the applicant paid him BGN 2,911.09 (EUR 1,488), which represented the full amoun t of damages (BGN 2,000; EUR 1,023) and interest (BGN 490.83; EUR 250.96) du e under that judgment, plus BGN 420.26 (EUR 214.88) in costs for the enforcement proceedings.

19 . After the Sofia Court of Appeal ’ s second judgment (see paragraph 15 above) became final, Mr A.H. again brought enforcement proceedings against the applicant and attached his flat. As a result, on 17 July 2009 the appli cant paid him an additional BGN 16,255.86 (EUR 8,311), which represented the additional BGN 9,000 (EUR 4,602) awarded in non-pecuniary damages, plus BGN 5,295.35 (EUR 2,70 7.47) in interest, BGN 440 (EUR 225) in costs for th e judicial proceedings, and BGN 1,402.87 (EUR 717.28) in costs for the enforcement proceedings.

B. Relevant domestic law and practice

1. Relevant constitutional provisions

20 . Article 45 of the Constitution of 1991 provides that the citizens have the right to make complaints, proposals and petitions to the authorities.

21 . Article 39 § 1 of the Constitution provides that everyone is entitled to express an opinion and publicise it through words, whether written or oral, sounds or images, or in any other way. By Article 39 § 2, that right cannot be exercised to the detriment of the rights or reputation of others.

22 . Article 41 § 1 of the Constitution provides that everyone has the right to impart information, but that the exercise of that right may not be directed against the rights or the good name of others.

23 . Article 56 of the Constitution provides that everyone has the right to a remedy if his or her rights or legitimate interests have been breached or threatened.

24 . The Supreme Court of Cassation ha s held, by reference to Article 56, that all should be able to vindicate their rights by freely addressing the courts, including by way of private criminal prosecutions, without fearing negative consequences other than liability for the other party ’ s costs. That was why the bringing of an unfounded private criminal prosecution could not result in liability in tort under section 45 of the Obligations and Co ntracts Act 1950 (see paragraph 25 below). Seeking protection for infringed rights was lawful, whereas liability in tort presupposed unlawful conduct. The position with respect to the prosecuting authorities, which were liable for bringing charges if these resulted in a discontinuance or an acquittal, was different, because they had a duty not to bring unfounded charges; private persons did not. Otherwise, their constitutional right to a remedy would be infringed, as they could not know whether the charges were well-founded before these had been determined by a court (see реш. № 1347 от 18.12.2008 г. по гр. д. № 5006/2007 г., ВКС, II г. о. ).

2. General law of tort

25 . The general rules of the law o f torts are set out in sections 45 to 54 of the Obligations and Contracts Act 1950. Section 45(1) provides that all are obliged to make good the damage which they have, through their fault , caused to another. By section 45(2), fault is presumed in all cases, until proven otherwise.

3. The offence of defamation

26 . By Article 147 § 1 of the 1968 Criminal Code, it is an offence to disseminate injurious statements of fact about others or to impute an offence to them.

27 . By Article 161 § 1 of the same Code, as in force since March 2000, charges under that provision may only be brought by the alleged victim of the offence.

28 . According to the case-law of the former Supreme Court and the Supreme Court of Cassation (see реш. № 209 от 18.05.1982 г. по н. д. № 209/1982 г. ВС, І н. о.; реш. № 347 от 25.09.2009 г. по н. д. № 372/2009 г. ВКС, І н. о.; реш. № 418 от 12.11.2009 г. по н. д. № 458/2009 г., ВКС, III н. о.; and реш. № 452 от 12.10.2010 г. по н. д. № 411/2010 г., ВКС, III н. о. ), statements made in letters, complaints or depositions to the authorities cannot be seen as “dissemination ” within the meaning of Article 147 § 1 because their authors do not intend to harm the reputation of the persons to whom they refer but to exercise their right to make complaints, report irregularities, or seek the authorities ’ assistance.

4. The offence of making a false accusation

29 . By Article 286 § 1 of the Criminal Code, it is an offence falsely to allege before a competent authority that a person has committed an offence when knowing that this is not the case. By Article 286 § 2, the offence carries a higher penalty if the person so accused has incurred criminal liability as a result of the accusation.

30 . Charges under that provision can only be brought by the prosecuting authorities, not by the alleged victim of the offence.

31 . The former Supreme Court and the Supreme Court of Cassation have explained that the defining characteristic of that offence is that the perpetrator addresses the statement to an authority competent to bring charges against the person mentioned in it, and seeks that result (see реш. № 277 от 07.05.1975 г. по н. д. № 244/1975 г., ВС, I н. о.; реш. № 17 от 05.07.1978 г. по н. д. № 15/1978 г., ВС, ОСНК; реш . № 601 от 04.01.1988 г. по н. д. № 675/1987 г., ВС, II н. о.; реш. № 184 от 26.05.2009 г. по н. д. № 133/2009 г., ВКС, I н. о.; and реш. № 100 от 22.03.2013 г. по н. д. № 74/2013 г., ВКС, II н. о. ). The chief difference between the offences of defamation and false accusation is that the aim of a defamatory statement is to damage someone ’ s reputation, whereas the aim and possible result of a false accusation is to see the criminal liability of that person engaged; the former is an offence against the personality rights of the statement ’ s target whereas the latter is an offence against the course of justice (see реш. № 1145 от 20.06.1955 г. по н. д. № 1839/1955 г., ВС, I н. о., and реш. № 209 от 18.05.1982 г. по н. д. № 209/1982 г., ВС, I н. о. ). In practical terms, the difference can be drawn on the basis of whether the statement has been addressed to an authority competent to bring charges against the person to whom is refers (see реш. № 421 от 14.11.2008 г. по н. д. № 446/2008 г., ВКС, III н. о., and реш. № 327 от 15.07.2009 г. по н. д. № 336/2009 г., ВКС, I н. о. ).

32 . According to the case-law of the former Supreme Court and the Supreme Court of Cassation, the offence of false accusation can only be committed if the perpetrator is not acting in good faith: he or she realises that, or is indifferent as to whether, the person being accused has not committed the offence, and yet alleges the opposite before the authorities. The courts have explained that to hold otherwise would mean penalising any communication to the competent authorities in relation to potentially criminal acts which on examination turns out to be untrue, which would be contrary to the citizens ’ civic duty to inform those authorities when they witness an offence (see реш. № 435 от 27.06.1955 г. по н. д. № 415/ 1955 г., ВС, в. о.; реш. № 441 от 10.08.1970 г. по н. д. № 397/1970 г., ВС, I н. о.; реш. № 108 от 26.02.2009 г. по н. д. № 41/2009 г., ВКС, II н. о.; реш. № 500 от 04.12.2009 г. по н. д. № 458/2009 г., ВКС, II н. о.; реш. № 453 от 12.10.2010 г. по н. д. № 431/2010 г., ВКС, III н. о.; реш. № 326 от 11. 11 .2010 г. по н. д. № 258/2010 г., ВКС, II н. о.; реш. № 505 от 24.11.2010 г. по н. д. № 517/2010 г., ВКС, III н. о.; реш. № 212 от 20.04.2011 г. по н. д. № 1235/2011 г., ВКС, III н. о.; реш. № 110 от 24.04.2015 г. по н. д. № 175/2015 г., ВКС, III н. о.; and реш. № 87 от 26.05.2015 г. по н. д. № 1902/2014 г., ВКС, III н. о. ).

5. The offence of not complying with a court order to reinstate a wrongfully dismissed employee

33 . By Article 172 § 2 of the Criminal Code, it is an offence for a manager not to comply with a final court order to reinstate a wrongfully dismissed employee. The courts have noted that that offence seeks to protect the right to work and to ensure compliance with judicial decisions in the employment sphere (see реш. № 4 от 05.01.2016 г. по в. н. ч. х. д. № 5303 /2014 г., СГС , and реш. № 519 от 20.04.2016 г. по в. н. ч. х. д. № 92 /2016 г., СГС ).

34 . According to the courts ’ case-law, the actus reus of the offence consists in a failure to issue an order for the employee ’ s reinstatement; there is no need for any further elements, such as damage resulting from that (see реш. № 235 от 07.05.1998 г. по н. д. № 447/1997 г., ВКС, III н. о. ). The actus reus can consist in any actions or omissions preventing the employee from resuming his employment, and lasts until the obstructive conduct persists (see реш. № 438 от 30.11.1999 г. по н. д. № 412/1999 г., ВКС, I н. о. ), or until compliance with the court order to reinstate becomes impossible, for instance because the employee has died or has given up resuming his employment (see реш. № 1114 от 03.11.2011 г. по в. н. ч. х. д. № 3345/2011 г., СГС ). The mens rea can only be direct intent (see реш. № 432 от 01.11.1994 г. по н. д. № 307/ 19 94 г., ВС, II н. о. ).

35 . By Article 175 § 1 of the Criminal Code, as in force since 2002, the offence can only be prosecuted by the victim (before that, it was publicly prosecutable). Proceedings in such cases are initiated by lodging a criminal complaint with the competent first-instance criminal court (Articles 80 and 81 § 1 of the Code of Criminal Procedure). Claims for damages cannot be jointed to the complaint since the offence does not presuppose the existence of damage (see реш. № 235 от 07.05.1998 г. по н. д. № 447 /1997 г., ВКС, ІІІ н. о. ) and since the employee can claim compensation under Article 225 § 3 of the Labour Code (see paragraph 36 below) (see реш. от 03.11.2010 г. по в. н. о. х. д. № 337/2010 г., ОС-Благоевград ).

6. Compensation for non-compliance with a court order to reinstate a wrongfully dismissed employee

36 . By Article 225 § 3 of the 1986 Labour Code, employers and managers are jointly liable to compensate wrongfully dismissed employees who have been reinstated and have shown up to resume their employment but are not allowed to do so. The compensation must be equivalent to the employees ’ gross remuneration and covers the whole period during which they are prevented from resuming their employment.

COMPLAINT

37. The applicant compla ins under Article 10 of the Convention that the interference with his right to freedom of expression resulting from the judgments against him was neither “prescribed by law” nor “necessary in a democratic society” to attain a legitimate aim.

QUESTION TO THE PARTIES

Has there been a breach of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the interference with that right “prescribed by law” and “necessary in a democratic society”, as required under Article 10 § 2?