FOURTH SECTION

Application no. 18312/08 Zdravko Kostov STANEV against Bulgaria lodged on 25 March 2008

STATEMENT OF FACTS

1. The applicant, Mr Zdravko Kostov Stanev, is a Bulgarian national who was born in 1951 and lives in Kazanlak.

A. The circumstances of the case

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

1. The original criminal proceedings against the applicant

3 . On 29 March 2007 the Kazanlak District Court convicted the applicant of wilfully using a forged document and falsely accusing another of criminal conduct, and sentenced him to two years ’ imprisonment.

4 . The applicant appealed to the Stara Zagora Regional Court. In his appeal he included the following statement:

“The [ judge -rapporteur] is a pupil of mine and is seek ing revenge, using his functional immunity. Everything is being decided on the basis of power and connections, not on the basis of laws . ”

5 . The judge ‑ rapporteur at the Kazanlak District Court became aware of that statement when processing the appeal, which, in accordance with the applicable rules of procedure, had been filed with that court with a view to being sent to the higher court for examination.

6 . In the course of the appeal hearing before the Stara Zagora Regional Court the applicant said, inter alia , the following:

“The [judgment against me] was given by a judge who is a former pupil of mine. When I asked him which subject I had taught him, the reply was that it had been ‘ electrical materials ’ and that I had given him an average grade ... I believe that there exist grounds for the recusal of the judge - rapporteur ... I have personal relations with [him]. My request was however turned down and my fate was left in the hands of the court . ”

7 . On 16 May 2007 the Stara Zagora Regional Court quashed the lower court ’ s judgment and remitted the case for re-examination, citing a number of breaches of the rules of procedure in the course of the pre ‑ trial investigation and the first ‑ instance proceedings. In particular, it found that the lower court had not given reasons why it had accepted that the applicant had committed the offences and had in effect reversed the burden of proof, placing it on the applicant. Concerning the grounds for recusal of the judge ‑ rapporteur, the court noted as follows:

“In relation to the arguments that there existed grounds for the [judge ‑ rapporteur] to recuse himself, it is well-established case-law that the refusal of the court to accept a recusal request is reviewable on appeal. In the instant case, the recusal request was based on personal relations between the [applicant] and the [judge-rapporteur] that predated the opening of the criminal proceedings against the [applicant].

Bearing in mind the effective sentence – which corresponds neither to the gravity of the offence nor to the dangerousness of the offender –, the reasons given for its imposition – to protect the other members of society and the judicial authorities from future civil cases brought by the [applicant] –, and the unwarranted emotionality of the [lower court ’ s] reasoning, this court finds that the judgment under appeal does not demonstrate the requisite subjective or objective impartiality. The bias displayed by the judge ‑ rapporteur constituted grounds for him to recuse himself. ”

2. The defamation proceedings

8 . On 4 June 2007 the judge -rapporteur in the criminal case against the applicant brought a criminal complaint against him in relation to the two statements made by the applicant in the appeal proceedings (see paragraphs 4 and 6 above) . He submitted that those statements were untrue and defamatory : the first one amounted to an allegation that he was vindic t ive and was using his immunity and powers to settle personal scores, and the second one amounted to an allegation that he had deliberately failed to comply with the rules on recusal, which was not true. He did not have a personal bias against the applicant, and had never been asked to recuse himself from the case. He requested that the applicant be convicted of aggravated defamation (see paragraphs 12 and 13 below).

9 . In a judgment of 14 December 2007 the Stara Zagora District Court found the applicant guilty of aggravated defamation in relation to both statements, and sentenced him to a fine of 5,000 Bulgarian levs (BGN) ( 2 , 556 . 4 6 euros (EUR)) and public reprimand. It held that by making the two statements the applicant had wilfully defamed the judge-rapporteur by making disparaging allegations in respect of him. The court did not accept the applicant ’ s argument that he had not acted with intent. It noted that the applicant had repeated the defamatory allegations twice, that he did not contest that he had made them, and that, as evident from a psychiatric expert report obtained in the course of the defamation proceedings, he had been fully aware of the import of the statements and capable of controlling himself in spite of his emotional state. The form of mens rea had been oblique intent (recklessness): the applicant had been aware that his allegations might not be true but had nonetheless made them. Taking into account that the applicant had no previous convictions, that he had expressed regret for making the statements, and that no pecuniary damage had ensued from his statements, the court opted for the minimum sentence: a fine of BGN 5,000 and public reprimand (see paragraph 13 below).

10 . The applicant appealed to the Stara Zagora Regional Court. In a memorial filed on 13 February 2008 he submitted that his first statement had been read out of context, that the lower court had not taken due account of his perturbed emotional state, resulting from his having to spend time in custody pursuant to an unlawful judgment, that his statements had been addressed to the appellate court and not intended for publication, and that he had not acted wilfully or recklessly. In an additional memorial filed on 25 February 2008 the applicant ’ s counsel submitted, inter alia , that the lower court had failed to explain why it had found that the applicant ’ s statements had been published, given that the appellate judges to whom they had been addressed had been under the duty to not to divulge professional secrets and that no third parties had had access to the case file containing the statements. Nor had the lower court given reasons as to why it had found the statements disparaging. Moreover, the statements were truthful – the judge ‑ rapporteur had been a pupil of the applicant, and his bias against the applicant had been acknowledged in the appellate judgment. The applicant had not acted with oblique intent (recklessness): he had made the statements while conducting his defence in a criminal case against him, and it was wrong to read them out of their context. He had made them when exercising in good faith his right of appeal against a conviction, which rendered them devoid of intent under the former Supreme Court ’ s case ‑ law. Lastly, the applicant ’ s sentence, although set at the statutory minimum, was still unduly harsh. In view of the exceptional circumstances of the case, the court, even if convicting the applicant, should have opted for a sentence below the minimum.

11 . The Stara Zagora Regional Court heard the appeal on 27 February 2008. In a final judgment of 17 March 2008 it upheld the applicant ’ s conviction in relation to the first statement, but acquitted him in relation to the second statement, and accordingly reduced his sentence to a fine of BGN 2,500 (EUR 1 , 278 . 2 3) and public reprimand. It held that the applicant had published the first statement by including it in his appeal. The fact that he had been in a fragile emotional state when making it was irrelevant; as evident from the psychiatric expert report obtained in the course of the defamation proceedings, he had been able to understand the nature of his actions and to appreciate their consequences and control them. The statement, which amounted to an allegation that the judge ‑ rapporteur was vindictive and sought revenge using his office, had been disparaging for the judge in his professional capacity and had impinged on his office. By contrast, the second statement was not disparaging and did not amount to the imputation of an offence. There was nothing disparaging in the fact that the judge had been a pupil of the applicant, and the applicant ’ s view that the judge should have therefore recused himself was a personal opinion, which could not give rise to criminal liability because it could not be proved. In view of the court ’ s ruling in relation to the second statement, it was necessary to reduce the applicant ’ s sentence. Bearing in mind the applicant ’ s clean criminal record and the fact that he was experiencing financial difficulties because he was unemployed, the court found that it had to opt for a sentence below the statutory minimum and reduce the applicant ’ s fine to BGN 2,500.

B. Relevant domestic law

12 . Article 147 of the Criminal Code 1968 , as in force since March 2000, provides as follows:

“1. Any person who disseminates a disparaging 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 statement or the imputation.”

13 . If the defamed party is a public official carrying out his or her duties, the offence is punishable by a fine ranging from BGN 5,000 to BGN 15,000, as well as by public reprimand (Article 148 §§ 1 (2) and (3) and 2, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161, as in force since March 2000).

14 . In a judgment of 27 June 1955 ( реш . № 435 от 27 юни 1955 г., по н. д. № 415/1955 г., ВО на ВС ) the former Supreme Court held that the citizens ’ constitutional right to petition and appeal to the authorities would be infringed if they could be held criminally liable for defamation in case the allegations featuring in their petitions or appeals turned out to be untrue. For that reason, citizens did not bear criminal liability for defamation if they acted in good faith, that is, genuinely believed that their allegations were true.

COMPLAINTS

15 . The applicant complain s under Article 6 § 1 of the Convention that when hearing the defamation case against him the criminal courts did not duly examine all arguments raised by him and his counsel, and that their rulings were incorrect in terms of Bulgarian law.

16 . The applicant also complain s under Article 10 of the Convention that his criminal conviction and punishment were in breach of his right to freedom of expression.

17 . Lastly, the applicant complain s under Article 13 of the Convention that the judgment of the Stara Zagora Regional Court in the defamation proceedings against him was not subject to appeal.

QUESTION TO THE PARTIES

Did the applicant ’ s criminal conviction and punishment for defaming a judge give rise to a breach of his right to freedom of expression, contrary to Article 10 of the Convention? In particular, were those conviction and punishment “necessary in a democratic society” (see, mutatis mutandis , Nikula v. Finland , no. 31611/96 , §§ 47-55, ECHR 2002 - II ; Steur v. the Netherlands , no. 39657/98 , §§ 36-45, ECHR 2003 - XI ; Skałka v. Poland , no. 43425/98 , § § 32-42, 27 May 2003 ; Kyprianou v. Cyprus [GC], no. 73797/01 , §§ 170-82, ECHR 2005 - XIII ; Saday v. Turkey , no. 32458/96, §§ 33-36 , 30 March 2006 ; and Łopuch v. Poland , no. 43587/09 , §§ 59-69, 24 July 2012 )?