FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45963/99
by Anguel Tsonev ANGUELOV
against Bulgaria
The European Court of Human Rights (First Section), sitting on 14 December 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 10 September 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anguel Tsonev Anguelov, is a Bulgarian national who was born in 1958 and lives in Sofia. In 1990 he founded and became chairperson of the Bulgarian Revolutionary Youth Party. He ran for parliament in 1990 and at several later elections but was not elected. Apparently he was also a presidential candidate. The applicant is represented before the Court by Mr I. Vasilev, a lawyer practising in Varna. The respondent Government are represented by Ms M. Kotzeva, co‑agent, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The refusal to register the applicant's political party
At a meeting held on 10 November 1996 the applicant and forty‑nine other persons founded a party named “Communist Party of Bulgaria”. They adopted its constitution and elected its management bodies. The applicant was elected as chairperson. The party's aims, set out in the preamble to its constitution, were as follows:
“...
The main aim of the Communist Party shall be the revolutionary change of Bulgarian society – democratisation of the society as a road to true power of the people. The primary goal of the party shall be the practical improvement of socialist democracy – broadening of the direct participation of the people in the government of the state; economic freedom of the enterprises within the framework of an economy changed and armed with the new philosophy of central planning; active shift towards self‑government of municipalities and economic units as a transition towards self‑governing communities within a society of social homogeneity.
...
The Communist Party is convinced of the need for the union of the political parties, movements and eminent personalities into a political coalition – 'Union for National Cooperation 'Civic Forum'', as the most proper way out of the societal antagonisms and divisions.
...
The Party shall advocate a policy of rapprochement between peoples which are in differing socio‑political stages of development; of deepening of the economic, political and cultural ties between them. The Communist Party's ultimate aim is the 'constant improvement of society'.
The Communist Party is a party of a new type. It shall struggle for political power and shall work dedicatedly for the triumph of the communist ideal – construction of a civil society with the economic nature of a society subordinated to the principles of scientific socialism and the political nature of a society freed of class divisions, political parties and movements: a society in which the vehicle of development shall be the Man – a universally developed and harmonious personality.”
Articles 1 – 8 of the party's constitution dealt with the membership in the party and the members' rights and obligations. In particular, Article 8 set out, inter alia, the grounds for expelling members.
Articles 9 – 26 of the constitution set out the organisational structure of the party and the powers of its various bodies.
Article 28 of the constitution, which described the party's symbols, stated, inter alia, that they stood for the “idea of a revolutionary socio‑political order”.
On 3 December 1996 the applicant, in his capacity of chairperson, applied to the Sofia City Court to have the party entered in the relevant register.
The court held a hearing on 18 December 1996. The court noted that the manner of liquidation of the party had not been provided for in its constitution, that the declarations submitted by the founders were incomplete, and that there were certain other irregularities. The Court adjourned the case to 26 February 1997 with a view to allowing the party to remedy the deficiencies noted by it.
In order to rectify the deficiencies noted by the court the applicant and the other founders held another meeting on 26 January 1997 and decided to amend the party's constitution. On 17 February 1997 they submitted the amendments and fresh declarations to the court, which admitted them in evidence.
The court held another hearing on 26 February 1997.
In a decision of 6 March 1997 the Sofia City Court refused to register the party. It held as follows:
“[The case-file contains] minutes from the general meeting of the [party] held on 26 January 1997, which are not duly signed. The introduction to the party's constitution contains aims which are identical to the aims of other, already registered parties. The party's structure is not fully and clearly set out [in its constitution]; the powers of its different bodies are not clearly described, are repeated in the different provisions of the party's constitution and thus the powers [of the party's bodies] are not clearly specified. The party's constitution does not specify the manner of termination of the membership in the party.”
On 14 March 1997 the applicant appealed to a three‑member panel of the Supreme Court.
The court held a hearing on 4 June 1997.
By a decision of 9 June 1997 the three‑member panel upheld the lower court's decision. It held as follows:
“The name of the Communist Party of Bulgaria formally does not already figure on the register [of political parties], but it does not set it apart from an already registered party – [the Bulgarian Communist Party], as required by section 8(1) of the [Political Parties Act of 1990], because in fact it contains the same words; their rearranging does not change the purport and the essence of the political party. This name does not individualise it and does not clearly set it apart from another, already registered party.
[The party's] aims, as indicated in part I of its constitution ... are contrary to section 3(2) of the [Political Parties Act of 1990].
The manner of termination of membership in the party is not set out [in its constitution], contrary to section 8(1) of the [Political Parties Act of 1990].”
On 1 August 1997 the applicant lodged a petition for review with a five‑member panel of the Supreme Court.
A hearing was held on 4 March 1998.
On 19 March 1998 the five‑member panel dismissed the petition in the following terms:
“The impugned decisions should not be quashed first and foremost because the name of the party – Communist Party of Bulgaria – does not set it apart from other parties, in violation of section 8(1) of the [Political Parties Act of 1990], as correctly found by the two courts below. The name is an individualising feature of the party and for that reason it should not duplicate [the names of] other parties, organisations and movements, which may ... engage in political activities. The rule of section 8(1) of the [Political Parties Act of 1990] concerning the party's name sets the bounds of the founders' autonomy and initiative in choosing the name. [The founders] must see to it that from a grammatical and a logical point of view there is no duplication of the purport and the essence [of the name] with the name of another party.
In the case at hand the separate words that constitute the party's name, on the one hand, and the particular wording used, on the other, although not identical to these used in other existing parties' names, convey a similar meaning. The name “Communist Party of Bulgaria” uses the ideological term “communist”, which term, viewed in a historical context, resembles a party from the not so distant past – the Bulgarian Communist Party – and also resembles the Bulgarian Communist Party ... even though there is a rearrangement of the words...
Regarding the contents of the party's constitution, as required by section 8(1) of the [Political Parties Act of 1990], the courts [below] have correctly found that the constitution does not indicate the manner of termination of the membership in the party. [The constitution sets forth] rules about the admission [of new members], about the members' rights and the obligations and the [penalties which may be imposed on them], but there are no rules regarding the termination of the membership. Likewise, the powers of the [party's] bodies and the organisational structure of the party are chaotically scattered in its constitution.
The [courts below] have correctly found that the aims of the party are contrary to section 3(2) of the [Political Parties Act of 1990]. Part I of the constitution indicates that the main aim of the party [is] the 'revolutionary change of Bulgarian society' and the 'support for the idea of a revolutionary socio‑political order' – part V of the constitution .”
In Bulgaria there exist at least eight parties whose name contains the word “communist”. According to the applicant, none of them has been denied registration on account of this fact.
In the beginning of 1997 the Sofia City Court registered a party named “Communist Party”. In 2000 changed its name into “Communist Party of Bulgaria”, which fact was likewise registered by the Sofia City Court by a decision of 16 November 2000.
2. The intrusion into the applicant's apartment and his ensuing attempts to open criminal proceedings against the intruder
Shortly after 9 p.m. on 3 October 1997 a relative of the applicant broke into the applicant's apartment. The applicant and his mother unsuccessfully tried to push him out. Some of their neighbours, hearing the disturbance, called the police. The police arrived and took the intruder out of the apartment shortly after 10 p.m.
On 6 October 1997 the applicant requested the District Prosecutor's Office to open criminal proceedings against the intruder. On 7 November 1997 the District Prosecutor's Office refused. The applicant appealed. By a decree of 5 March 1998 the Regional Prosecutor's Office upheld the refusal, holding that, since the alleged offence – intruding into an apartment – had occurred at about 9 p.m., i.e. before nightfall, it was privately prosecutable. The applicant further appealed to the Chief Prosecutor's Office, arguing that the offence had occurred after nightfall. In his view, the legal definition of nightfall was the time after sunset, which during this time of the year was before 9 p.m. On 15 April 1998 the Chief Prosecutor's Office also upheld the refusal, holding that the term “nightfall”, as defined in the Labour Code – which definition was relevant for criminal law purposes –, meant the time after 10 p.m.
In the meantime the applicant filed with the District Court a private criminal complaint, alleging that the intruder had broken into his apartment “during the night”, and requesting the opening of criminal proceedings against him. By a decision of 6 April 1998 the District Court refused to institute criminal proceedings pursuant to the applicant's complaint, holding that the facts of the alleged offence, as set out by the applicant, showed that it had been committed after nightfall and that it was hence publicly prosecutable. The applicant did not appeal.
3. The criminal proceedings against the applicant
In January 2000 criminal proceedings were opened against the applicant on charges that he had used a forged document. It was alleged that on 5 January 2000 he had presented to the ticket collector in the train going from Rouse to Varna a forged professional identification card. The applicant submits that the entire story was a set-up made in order to discredit him politically and that he had not been on the train at the specified time.
The Varna District Court held four hearings. It examined, inter alia, two ticket collectors and four defence witnesses who were in close relations with the applicant and whose testimony was supposed to prove the applicant's alibi. The court refused to hear some other witnesses called by the applicant and commissioned an expert report to verify whether the card had been indeed forged.
At the hearing on 20 September 2000 the prosecution requested the court to order a psychiatric examination of the applicant in view of his allegations – expressed in numerous letters to the Chief Prosecutor – that the criminal proceedings against him were part of his persecution by the “political police” since 1981. The court refused.
The Varna District Court gave judgment on 8 November 2000. It found the applicant guilty and sentenced him to three months' imprisonment, suspended. The court held that the testimony of the defence witnesses was unreliable, because it was inconsistent and because they had close relations with the applicant. On the other hand, the testimony of the two ticket collectors was coherent and corresponded to the conclusions of the expert report. The applicant's allegation that the case was a conspiracy designed to hamper his political career sounded implausible.
In the morning of 8 November 2000 the press ran articles about the applicant's trial. Some of the articles' titles read “Party leader on trial”, “Presidential candidate goes on trial over forged train card”. Many newspapers also published pictures of the applicant.
The applicant appealed against his conviction and sentence to the Varna Regional Court. He argued that the court below had refused to admit in evidence relevant material and that it had erred in establishing the facts. In his appeal he requested that some of the witnesses be re‑questioned, arguing that this would help reveal serious discrepancies between their versions of the events.
The Varna Regional Court refused to rehear witnesses or collect new evidence. On 20 March 2001 it upheld the lower court's judgment, holding that it had properly established the facts. In particular, the applicant's alibi was dubious, as the witnesses providing it were in close relations with him, while the evidence given by the ticket collectors was convincing and uncontroverted.
The applicant appealed to the Supreme Court of Cassation. He argued that the Varna Regional Court had not given sufficient reasons and had misinterpreted the evidence. He argued that the accusation was a set‑up meant to discredit him politically.
The Supreme Court of Cassation dismissed the appeal in a judgment of 28 June 2001. It found, inter alia, that the courts below had properly established the facts and that it was their right to accept as true or not testimony and other evidence.
4. The taking of the applicant's picture by a reporter and the ensuing criminal proceedings against the reporter
At 4.15 p.m. on 8 November 2000, during the last hearing in the applicant's trial before the Varna District Court (see above), a newspaper reporter entered the courtroom and took a picture of the applicant despite his and his lawyer's objections. The following day, 9 November 2000, a newspaper published the picture alongside an article about the applicant's trial.
On 15 November 2000 the applicant filed with the Varna District Court a private criminal complaint, claiming that by taking his picture and publishing it with an article about the trial against him, the reporter had insulted him and had injured his reputation. Together with the criminal complaint the applicant presented a civil claim for damages.
In a judgment of 30 May 2001 the Varna Regional Court found the reporter not guilty of having insulted the applicant and also rejected his related claim for damages. While finding that the facts pleaded by the applicant were true, the court nevertheless held that as a matter of law the reporter had not committed a crime. It noted that the issue to be decided was the proper balance between the applicant's right to privacy and the reporter's right to acquire and disseminate information. Weighing these respective interests, the court concluded that the taking and the publishing of the picture were not in themselves insulting to the applicant, as they had merely reflected his position as an accused in a criminal case. The picture was not distorted or vilifying. While its taking could have been annoying and provocative, it could not be characterised as insulting per se. In the court's view, the applicant had perceived as insulting not the taking of the picture itself, but his position of an accused in a criminal trial. The applicant's right not to have his picture taken and published, guaranteed by the Constitution, was qualified by his position of a participant in a public judicial proceeding, even if he had expressly objected to that.
The applicant appealed to the Varna Regional Court.
As the panel to which the appeal was assigned included two judges who had participated in the criminal case against the applicant, at the hearing which took place on 6 December 2001 the applicant requested their withdrawal, arguing that they were biased. The court rejected the applicant's request, holding that the mere fact that the two judges had participated in the criminal proceedings against the applicant did not mean that they were not impartial, as there was no connection between the two cases. It seems that in the meantime, on 28 August 2001, the applicant had complained about these two judges to the Supreme Judicial Council and had requested the lifting of their immunity and the opening of criminal proceedings against them, arguing that they had committed a crime during the criminal case against him, which was in fact a set-up organised by the political police.
The Varna Regional Court dismissed the appeal in a final judgment of 16 January 2002. It held that while it could be argued that the taking of the picture of an accused in the courtroom was proscribed by Article 32 § 2 the Constitution, this did not automatically make it a crime. It could constitute an insult, i.e. a crime under Article 146 of the Criminal Code (“the CC”), only if the taking of the picture per se was insulting. The taking of the picture of an accused in the courtroom alone was not insulting. The court further held that the claim for damages, which was linked with the criminal accusation, was dependent on the finding of criminal culpability and had been properly rejected. Insofar as the applicant argued that the taking of the picture, without being an insult, constituted a tort because it contravened the proscription of Article 32 § 2 of the Constitution, it was open to him to file an independent civil action.
On 11 February and 8 May 2002 the applicant requested reopening of the proceedings. The Supreme Cassation Prosecutor's Office refused by decisions of 11 March and 29 May 2002.
B. Relevant domestic law
1. Freedom of association and the formation of political parties
The relevant provisions of the Constitution of 1991 read as follows:
Article 44
“1. Citizens may freely associate.
2. Organisations whose activity is directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited.
3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.”
The relevant provisions of the Political Parties Act of 1990, as in force at the relevant time, read:
Section 3(2)
“No political party shall be founded:
1. [which is] aimed against the sovereignty and the territorial integrity of the country, [or] the rights and freedoms of its citizens;
2. whose aims are contrary to the Constitution and the laws of the country;
3. [which is based] on ethnicity or religion or [aims] to spur racial, national, ethnical or religious hatred;
4. which advocates a fascist ideology or tries to achieve its goals through violence or other unlawful means.”
Section 8(1)
“The constitution of the political party shall set forth: its name, which shall set it apart from other parties; its seat; its aims and objectives; the manner of becoming a member and terminating the membership; the rights and obligations of the members; the managing bodies; the party's symbols; the sources of financing, as well as the manner and conditions for the party's liquidation.”
2. Protection of the home
Article 170 § 1 of the CC provides:
“Whoever enters into another's dwelling by using force, threats, malice, dexterity, abuse of office or special technical devices shall be imprisoned not more than three years or sentenced to six months' rehabilitative labour.”
Paragraph 2 of the same Article provides for up to five years' imprisonment in case the entering into the dwelling has occurred after nightfall.
By Article 175 § 1 of the CC, offences under paragraph 1 of Article 170 are privately prosecutable, whereas offences under paragraph 2 of Article 170 are publicly prosecutable.
3. Insult and taking a person's picture without that person's consent
Article 32 of the Constitution provides, as relevant:
“1. The citizens' private life shall be inviolable. Everyone shall have the right to be protected from illegal interference in his private and family life and from encroachments upon his honour, dignity and good name.
2. No one may be ... photographed ... without his consent or despite his express disagreement, except as provided by law.”
Article 41 § 1 of the Constitution provides, as relevant:
“Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of the other citizens, nor against the national security, the public order, the public health or the morals.”
Article 146 of the CC defines an insult as “say[ing] or do[ing] something degrading to the honour or the dignity of another”. If an insult has been committed through publication, it is punishable by a fine ranging from 3,000 Bulgarian levs (BGN) to BGN 10,000 (Article 148 § 1 (2) of the CC).
COMPLAINTS
1. The applicant complained under Article 11 of the Convention about the refusal of the courts to register the political party of which he is chairperson. He submitted that the courts had misconstrued the meaning of the term “revolutionary” as used in the party's constitution and had thus impermissibly infringed his freedom of association. The applicant also complained under Article 6 of the Convention that the courts in the registration proceedings had ignored relevant evidence and arguments.
2. The applicant complained under Article 8 of the Convention about the refusal of the authorities to open criminal proceedings against the person who had broken into his apartment.
3. The applicant complained under Article 6 that the criminal proceedings against him for using a forged document had been unfair. In his view, they were a ploy designed to discredit him politically. He also submitted that the press coverage of his trial had influenced the judges.
4. The applicant complained under Article 6 that in the criminal proceedings instituted by him against a reporter, the courts, while correctly establishing the facts, had misconstrued the law and had acquitted the reporter. The applicant also submitted that the appellate court in these proceedings had been biased. In addition, the applicant complained that by not convicting the reporter the authorities had not conformed to their duty to protect his private life.
THE LAW
1. The Court considers that the applicant's complaint about the refusal of the courts to register the political party whose chairman he is falls to be examined under Article 11 of the Convention, which provides, as relevant:
“1. Everyone has the right ... to freedom of association with others...
2. No restrictions shall be placed on the exercise of [this right] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”
The Government submitted that the interference with the applicants' freedom of association had been prescribed by law, namely Article 44 of the Constitution and sections 6 to 11 of the Political Parties Act of 1990.
They further submitted that the legitimate aim sought to be achieved had been the national security and public safety and the protection of the rights and freedoms of others.
Concerning the necessity of the interference, the Government were of the view that the refusal to register the party had corresponded to a pressing social need and had been proportionate to the aim sought to be achieved. The interference had not consisted in an absolute ban on the party, but merely in the refusal to register it. This refusal had been made necessary because the party's founders had failed to comply with the formal requirements for its formation, as found by all three levels of court.
Firstly, by section 8(1) of the Political Parties Act of 1990 the name of a political party had to set it apart from other parties. The name of the applicant's party – Communist Party of Bulgaria – was identical to that of the already registered Bulgarian Communist Party, only the word order had been changed. Secondly, the party's constitution did not indicate the manner of terminating membership in the party, contrary to section 8(1) of the Political Parties Act. Thirdly, the powers of the party's bodies were scattered throughout its constitution and were not clearly defined. It was precisely because of these formal omissions, which the courts had pointed out and had allowed the party's founders to rectify, that registration had been refused.
Aside from these formal omissions, the courts had had regard to the contents of the party's constitution and programme. More specifically, the courts had found the aims of the party – the revolutionary change of Bulgarian society and the support for the idea of a revolutionary socio‑political order – problematic and contrary to section 3(2) of the Political Parties Act of 1990. These aims indicated that the party would not seek to come to power through peaceful means, but in a revolutionary manner.
The proceedings in which the party sought registration were intended to safeguard a number of public interests: to control the legality of political parties, to bring clarity in their relations with third persons, etc. On the other hand, the rulings of the courts in these proceedings did not have res judicata, i.e. did not prevent the applicant and the other founders to reapply for registration of the party after having remedied the deficiencies noted by the courts.
In sum, the Government argued that the interference with the applicant's freedom of association was the result of his having failed to conform with the formal requirements which the law prescribed for the registration of political parties. There had therefore been no violation of his rights under Article 11 of the Convention.
The applicant submitted that the right to associate and form political parties was guaranteed by the Constitution and the Political Parties Act of 1990. The only precondition to that was the observance of the formalities set out in the Act.
The applicant disagreed with the Government's averment that he could reapply for registration after rectifying the alleged formal deficiencies in the party's documents. The refusal to register the party was in fact a complete ban on the existence of a party of persons with communist ideas and progressive aims.
In the applicant's submission, the courts which refused to register his party were biased and conducted the proceedings unfairly, as evidenced by the varying reasons on which they relied to do so and by the fact that in 2000 they registered another party with the same name. According to the applicant, the courts were in fact politically motivated. Their finding that the party's constitution had certain formal deficiencies was not supported by the facts of the case. Quite the contrary, the party's constitution had clearly set out the party's bodies, their powers and the manner of terminating the membership in the party.
The applicant maintained that the real reason why the courts had refused registration had been the party's name – Communist Party of Bulgaria. That name did not coincide with that of any other party. There were a number of parties whose name included the word “communist” and, moreover, in 2000 the Sofia City Court registered a party's name which was exactly the same as the one chosen by the applicant's party. It was therefore unnecessary to put forward any arguments indicating that that name did not in fact coincide with that of the Bulgarian Communist Party.
The applicant further maintained that the Sofia City Court's holding that the party's aims had been an impediment to registration because they had coincided with those of other parties had been indicative of the lack of political pluralism in Bulgaria. The Supreme Court's holding that the aims – “revolutionary change of Bulgarian society” and “support for the idea of a revolutionary socio‑political order” – were contrary to the Constitution and the law was unfounded. The mere fact that the party wished to be registered was indicative of its desire to participate in the democratic political process and use democratic and non-violent means. The word “revolutionary” did not mean that the party wished to resort to violence to achieve its goals. If interpreted properly and in context, it rather had a historical connotation, meaning “progressive”. The order towards which the applicant's party strived was one in which “the vehicle of development [was to] be the Man – a universally developed and harmonious personality”. It was illogical to consider that a revolutionary socio‑political order would be an order of political violence. In the applicant's submission, the Government failed to differentiate between aims and means to achieve those aims. There was not even a hint at violence in the party's constitution. The other party of which the applicant was a chairperson – the Bulgarian Revolutionary Youth Party – also used the word “revolutionary” both in its name and in its manifesto. Yet it was registered without any hindrances, had participated in all elections since 1990, had never had recourse to violence to achieve its aims and had never been considered as unlawful or having aims which were contrary to the Constitution.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. In respect of his complaint that the authorities refused to open criminal proceedings against the person who had broken into his apartment the applicant relied on Article 8 of the Convention, which provides, as relevant:
“1. Everyone has the right to respect for ... his home ...”
The Government did not comment on this complaint.
The applicant submitted that the Constitution and the Criminal Code contained rules protecting a person's dwelling. Indeed, it was a criminal offence to break into another's home. In the case at hand it was beyond doubt that there had been a breaking into the applicant's apartment and that the intruder had been removed by the police. The only issue was whether the criminal proceedings against the intruder should have been instituted by the applicant or by the prosecution authorities. However, the prosecution authorities, following a flawed reasoning – that the offence had been committed before “nightfall” –, had refused to fulfil their duties. Their refusal had in fact been motivated by the strained relations that they had with applicant.
The Court considers that the question which needs to be decided in the present case is whether the respondent State has complied with its positive duty to take reasonable and appropriate measures to secure the applicant's right to respect for his home, as guaranteed by Article 8 of the Convention. In particular, the issue arises whether, in the specific circumstances of the case, the authorities' refusal to open criminal proceedings against the person who broke into the applicant's apartment was contrary to Article 8.
The Court notes that the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State's margin of appreciation. Article 8 does not require a criminal‑law remedy against infringements of the rights set out therein in every case, but only in certain limited circumstances, such as rape or other grave encroachments on the physical integrity of the person, where fundamental values and essential aspects of private life are at stake (see M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003‑XII). In other, less serious cases civil‑law remedies may be sufficient (see Benedek v. Slovakia (dec.), no. 46115/99, 8 October 2002).
The Court notes that in the present case the police intervened and removed the intruder from the applicant's apartment. It thus cannot be said that the authorities remained completely inactive. It is true that when after that the applicant requested the prosecution authorities and the criminal court to open criminal proceedings against the intruder they refused. However, it does not seem that the applicant has ever attempted to institute civil proceedings in tort against the intruder. Such proceedings could have led to an order against the intruder for the payment of damages covering the pain and suffering sustained by the applicant. In the Court's view, such a remedy was capable of providing adequate redress for the applicant's grievance (see Benedek, cited above).
In view of the above considerations, it cannot be said that in the particular circumstances of the case there is any appearance of a breach by the respondent State of its positive obligations under Article 8 of the Convention.
It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. In respect of his complaint that that the criminal proceedings against him had been unfair the applicant relied on Article 6 of the Convention, which provides, as relevant:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...”
The Government did not comment on this complaint.
The applicant submitted that the proceedings had been unfair. The Varna District Court had interpreted the witness testimony one‑sidedly, had ignored the evidence presented by the defence and had made erroneous findings of fact. It had refused to admit relevant evidence and hear certain witnesses called by the applicant. On appeal the Varna Regional Court had refused to rehear the witnesses and hear a new witness and had, without making an independent verification of the applicant's version of the events, fully confirmed the lower court's findings, thus condoning its errors. The Supreme Court of Cassation had failed to exercise its supervisory powers and rectify the deficiencies in the judgments below. The proceedings had also been unfair on account of the stance adopted by the prosecution authorities: instead of trying to establish the true facts of the case, they had exhibited hostility towards the applicant, requesting that he be subjected to a psychiatric examination. Finally, the press coverage of his trial had influenced the judges.
Insofar as the applicant's complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).
In the case at hand the domestic courts delivered reasoned judgments in which they explained why they had reached their findings of fact, why they considered that the testimony of the witnesses called by the applicant was unreliable and why they gave more weight to the testimony of the witnesses called by the prosecution. The Court does not find any indication of arbitrariness in the domestic courts' judgments. In particular, as regards the Varna District Court's refusal to admit certain pieces of evidence requested by the applicant, the Court, noting that only exceptional circumstances would prompt it to conclude that a decision not to admit evidence was incompatible with Article 6 of the Convention, finds that no such circumstances existed in the present case.
Concerning the applicant's assertion that the proceedings were unfair in that the prosecution authorities requested that he be subjected to a psychiatric examination, the Court notes that the competent court refused to do so. The Court fails to see how a mere procedural request, which was denied and had no practical consequences, could impinge on the fairness of the proceedings.
Finally, as regards the applicant's allegation that the proceedings were unfair on account of the fact that the press ran articles about them in the morning of 8 November 2000, the Court accepts that, in certain cases, a virulent press campaign can adversely affect the fairness of the trial and involve the State's responsibility (see Jespers v. Belgium, no. 8403/78, Commission decision of 15 October 1980, Decisions and Reports (DR) 22, p. 100). This is so with regard to the impartiality of the Court under Article 6 § 1 as well as with regard to the presumption of innocence embodied in Article 6 § 2 (see Ninn-Hansen v. Denmark (dec.), no. 28972/95, ECHR 1999‑V). However, it does not seem that the newspapers' interest in the applicant's trial amounted to a virulent press campaign aimed at hampering the fairness of the trial (see Ensslin, Baader and Raspe v. the Federal Republic of Germany, nos. 7572/76, 7586/76 and 7587/76, Commission decision of 8 July 1978, DR 14, p. 64, at pp. 112‑13). Rather, the newspapers' interest was sparked by the trial of a public figure. The Court, having examined the case, has not found any evidence that could lead to the conclusion that the judge examining the case in the Varna District Court was influenced by this publicity in reaching her judgment, or that the applicant was prejudiced by this publicity in any other way.
Thus, the Court cannot find that the proceedings, taken as a whole, were unfair.
It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. In respect of his complaint that the criminal proceedings instituted by him against a reporter were unfair, that the reporter had not been convicted and that the authorities had therefore failed in their positive obligation to protect the applicant's private life the applicant relied on Articles 6 and 8 of the Convention, which provide, as relevant:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”
Article 8
“1. Everyone has the right to respect for his private ... life...”
The Government did not comment on this complaint.
The applicant submitted that the Bulgarian Constitution guaranteed the right not be photographed without assenting to that. He argued that the domestic courts' holding that the taking of his picture was not contrary to the Constitution was erroneous, because the right to gather and impart information, enshrined in Article 41 of the Constitution, could not be used to infringe the rights and freedoms of others. The courts had also erred in holding that the right not to be photographed was limited by the fact that the applicant was a participant in a public judicial proceeding. The Code of Criminal Procedure or the Constitution did not provide for such a limitation of the right not to be photographed. Nor had the taking of the picture served the ends of justice.
The applicant further submitted that the fact that two of the judges in the Varna Regional Court, who he considered prejudiced against him and against whom he had filed a complaint with the Supreme Judicial Council, had refused to withdraw from the case had infringed the fairness of the proceedings, in breach of Article 6 of the Convention. Finally, the applicant submitted that the unfairness of the proceedings had become impossible to cure because of the refusal of the Supreme Cassation Prosecutor's Office to request their reopening before the expiry of the limitation period for prosecuting the reporter.
The Court will first examine this part of the application under Article 8 of the Convention.
It recalls at the outset that the concept of private life extends to aspects relating to personal identity, such as a person's picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover v. Germany, no. 59320/00, §§ 50, 52 and 53, ECHR 2004‑VI). The Court further recalls that Article 8, taken in conjunction with the obligation to secure the effective exercise of Convention rights imposed by Article 1 of the Convention, may involve a positive obligation on the State to provide a measure of protection for an individual's private life in relation to the exercise by third parties of their right to freedom of expression, which extends to the taking and publication of photographs (see Schüssel and Von Hannover, §§ 57 and 59, both cited above).
However, that protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that connection, the Court notes that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Von Hannover, § 58, cited above).
In the present case, the interference with the applicant's private life consisted of a single picture taken of him in the courtroom as an accused in a criminal trial. This picture did not disclose any details of his private life (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002, and, as an example to the contrary, Von Hannover, cited above, § 61). Nor did it reveal any personal or intimate information about him (see Von Hannover, cited above, § 59). The Court must also have regard to the facts that there was no intrusion into the “inner circle” of the applicant's private life in the sense that the picture was not taken in the applicant's home and that it related to a public judicial proceeding, the participation of the press in which is, barring certain special circumstances, guaranteed by Article 6 § 1 of the Convention.
On the other hand, it must be observed that the applicant claims to be a public figure and to have been involved in Bulgarian politics at least since 1990. Indeed, this seams to be the main reason why the press showed interest in covering the criminal trial against him and the ensuing proceedings against the reporter. In this connection, the Court recalls that the public has a right to be informed, which is an essential right in a democratic society that extends to the public appearances of politicians and even can, in certain special circumstances, extend to aspects of their private life.
When delivering their judgments, the domestic courts adopted a similar balancing approach and found that on the facts of the case it was not warranted to convict the reporter of insult and to award the applicant damages pursuant to his related civil claim. They further noted that if the applicant considered that his right under Article 32 § 2 of the Constitution had been infringed, it was open to him to file a separate civil action.
Having regard to the above considerations, the Court concludes that the authorities did not fail in their positive duties under Article 8 of the Convention.
The Court will now examine the applicant's complaints under Article 6 of the Convention.
Insofar as the applicant may be understood to complain about the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates it is not its function to deal with errors of fact or law allegedly committed by a national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz, § 28 and Schüssel, both cited above).
As regards the applicant's allegation that two of the judges in the Varna Regional Court were not impartial because they had previously participated in the criminal case against the applicant, the Court recalls that a judge is not necessarily biased just because he has been involved in other proceedings concerning the same person (see Schmidt v. Austria, no. 11831/85, Commission decision of 9 December 1987, DR 54, p. 144). The mere fact that the same judges had in the past taken part in the criminal case against the applicant does not objectively justify any fears as to a lack of impartiality on their part.
Finally, concerning the complaint that the Supreme Cassation Prosecutor's Office refused to request reopening of the proceedings, the Court reiterates that Article 6 of the Convention does not guarantee reopening of proceedings which have ended by means of a final judgment and does not apply to proceedings for reopening (see, as a recent authority, Fischer v. Austria (dec.), no. 27569/02, 6 May 2003).
In sum, the Court considers that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant's complaint concerning the refusal of the courts to register the political party of which he is a chairperson;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy