Communicated on 21 April 2016

FIFTH SECTION

Application no 60607/08 Slavcho Krastev KARZHEV against Bulgaria lodged on 17 November 2008

STATEMENT OF FACTS

The applicant, Mr Slavcho Krastev Karzhev , is a Bulgarian national who was born in 1945 and lives 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

The applicant is a former prosecutor. For several years, until 2005 or 2006, he served as district prosecutor for Sofia, heading what has been described as the largest prosecution office in Bulgaria. While in that post, he got into a conflict with several of his subordinates, including B.K. and G.C.

After the applicant left his post, a commission was appointed with the task of looking into the prosecution office ’ s work under his management. B.K. and G.C. were among the commission ’ s members.

2. The applicant ’ s interview

On 12 October 2006 the national daily Trud published an interview with the applicant. He strongly criticised B.K., G.C. and other former subordinates, considering it “shameful” that they were looking into his time in office, and hinting that his former colleagues had had links with organised crime and were corrupt. He stated that one of them was known as “Prosecutor Rushvetchiyski ” ( прокурора Рушветчийски ), meaning someone who takes bribes, derived from the colloquial word for bribe, rushvet ( рушвет ).

In addition, the applicant stated:

“All my life I have fought against crime. What is more, I have tried to defeat the mafia present in the prosecution services. I admit that I have failed. And now I am bearing the consequences of that. The commission which carried out the inquiry [at the district prosecutor ’ s office] includes exactly those prosecutors, [B.K., G.C. and a third person], who staged a revolt at the time against the working methods I introduced. The aim of those methods was to eliminate any grounds for corrupt arrangements related to cases. That did not suit those three prosecutors ....”

Questioned about a finding by the commission that a “bad psychological atmosphere” existed at the Sofia district prosecutor ’ s office while it was headed by him, the applicant stated further:

“The inspection might be right, if by ‘ bad psychological atmosphere ’ they mean my intolerance towards those prosecutors ..., who performed their duties in a sloppy manner, or attended meetings with the lawyers of criminals to decide on the outcome of cases. There were such prosecutors at the [Sofia district prosecutor ’ s office]. They became an organised group when the prosecutor [N.N.] came to work with us. ... The animosity between me and [N.N. ’ s] circle, comprising the unhealthiest elements in the prosecution service, is well known.”

In response to a question by the journalist interviewing him as to why he had not discussed the matter with the Chief Prosecutor, the applicant said:

“I don ’ t know if there is any point. In fact, what [he] is doing now in [his office] is what I tried to do at the time at the [Sofia district prosecutor ’ s office] – to sweep all the trash out of the house. I managed, to a certain extent, but at the end of the day many pieces of trash came to the surface. They are crushing me now. I hope sincerely that the same fate will not befall [the Chief Prosecutor].”

On 16 October 2006 Trud published B.K. and G.C. ’ s response to the applicant ’ s allegations. That article has not been submitted by the applicant.

3. Criminal proceedings against the applicant

On an unspecified date in 2007, B.K. and G.C. initiated a private prosecution of the applicant, alleging that he had insulted them and committed the offence under Articles 146 and 148 § 1 of the Criminal Code (see below, “Relevant domestic law”). They found the following statements particularly offensive: “I have tried to defeat the mafia present in the prosecution services”; “the unhealthiest elements in the prosecution service”; “many pieces of trash came to the surface ...crushing me now”; as well as his allegedly calling one of them “Prosecutor Rushvetchiyski ”. They claimed that the offence was aggravated because the insult had been made through the media and concerned them in their capacity as “public officials”.

In the context of the criminal proceedings, B.K. and G.C. also brought civil claims for damages against the applicant, each of them seeking 10,000 Bulgarian levs (BGN) in compensation.

The first-instance court, the Plovdiv District Court, heard a number of witnesses, who described the conflict between the applicant and B.K. and G.C. It also heard the applicant, who stated that when making the above statements he had not referred to either of the two complainants and pointed out that in the interview he had mentioned the names of two other prosecutors, in particular N.N.

In a judgment of 5 December 2007, the Plovdiv District Court acquitted the applicant and dismissed the civil claims against him. It considered that it had not been established that the expressions complained of had indeed referred to B.K. and G.C. It found that the complainants had seen the statements as being aimed at them, and had felt their reputation and dignity as being harmed, “owing to their strained relations” with the applicant. It said in particular that it did not observe:

“ any directly offensive statement or opinion clearly damaging to the complainants ’ honour and dignity, perceivable by an independent observer such as [this] court who is not and cannot be aware of the conflict [between the parties]”.

B.K. and G.C. lodged an appeal. In a final judgment of 22 May 2008 the Plovdiv Regional Court reversed the lower court ’ s ruling and convicted the applicant, finding that he was guilty of insult in an aggravated form. It set aside his criminal liability but imposed an administrative penalty on him – a fine of BGN 1,000 (equivalent to 510 euros (EUR)). Furthermore, it ordered him to pay each of the complainants BGN 5,000 (EUR 2,551) in damages, plus interest, and BGN 412 (EUR 210) for the fees and expenses incurred by the complainants.

The Regional Court reasoned as follows:

“It is a fact that the accused uttered the expressions indicated in the private criminal prosecution – “mafia in the prosecution services”, “ Rushvetchiyski ”, “the unhealthiest elements in the prosecution service” and “many pieces of trash came to the surface ...crushing me now”. It is also a fact that the expressions were uttered in an interview, which was published and disseminated through the mass media – the Trud newspaper ..., in its issue of 12 October 2006. It is a fact that the complainants ... were named in their capacity as public officials – being prosecutors at the Sofia district prosecutor ’ s office – and in relation to their official duties. ” ...

“It has been established that the complainants were aware of those statements, on the basis of the testimony [of the witnesses], as well as on the basis of the article in Trud published on 16 October 2006, and presented in the case, which contained ... their response to the interview of 12 October 2006 ....”

“It can be seen from the testimony [of the witnesses] that after reading the interview given by the accused ...the complainants felt that their honour and dignity had been harmed, which cause d a feeling of humiliation ...”

“The accused ’ s explanations show that he was aware that the incriminatory expressions were offensive and humiliating to those to whom they were addressed [and] the manner in which he disseminated them [shows] that he aimed to make them public and th at they reach the complainants ...”

“The accused ’ s claim in his defence, endorsed by the district court, that the incriminatory expressions were not directed specifically at the complainants ..., cannot be accepted by the appeal court.

The fact that [the statements] may have been directed against two other [prosecutors whose names were mentioned in the interview], and that those people may have decided not to prosecute the accused for harming their honour and dignity, does not alter the fact that the accused ’ s criminal liability in respect of the two complainants must be engaged.”

B. Relevant domestic law

The provisions of the 1991 Constitution proclaiming the right to private life and the right to freedom of expression have been cited in the Court ’ s judgment in the case of Kasabova v. Bulgaria (no. 22385/03 , § 34, 19 April 2011).

Under the 1968 Criminal Code it is a criminal offence to insult someone (Article 146). That becomes an aggravated offence if it is committed through the mass media and/or in respect of public officials carrying out their duties (Article 148 § 1 (2) and (3) of the Code). In all cases it is an offence that is prosecuted privately.

COMPLAINTS

Relying on Article 6 § 1, Article 10 and Article 13 of the Convention, the applicant complains of being found guilty of an offence following the interview he gave on 12 October 2006. He argues that he was punished for expressing his opinion, and that the applicable provisions of domestic law unnecessarily restricted the right to free speech.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression contrary to Article 10 of the Convention, in relation to his conviction and sentence following his interview published in the Trud daily on 12 October 2006?