CASE OF YORDANOVA AND TOSHEV v. BULGARIA

FOURTH SECTION

CASE OF YORDANOVA AND TOSHEV v. BULGARIA

(Application no. 5126/05)

JUDGMENT

STRASBOURG

2 October 2012

FINAL

02/01/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Yordanova and Toshev v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 11 September 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 5126/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Ms Svetlana Stoilkova Yordanova and Mr Toshko Nikolov Toshev (“the applicants”), on 25 January 2005.

2. The first applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The second applicant was represented by Ms I. Lulcheva, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Ms S. Atanasova and Ms M. Kotseva, of the Ministry of Justice.

3. The applicants alleged, in particular, that a judgment finding them civilly liable for libel and ordering them to pay damages and costs to a person who had brought a libel claim against them had been in breach of their right to freedom of expression.

4. On 12 May 2009 the Court (Fifth Section) decided to give the Government notice of the complaint concerning the interference with the applicants’ right to freedom of expression. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

5. Following the re‑composition of the Court’s sections on 1 February 2011, the application was transferred to the Fourth Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicants

6. The first applicant, who was born in 1970, is a journalist by profession. At the relevant time she was employed at Trud, a leading national daily newspaper, as a journalist and deputy editor in the newspaper’s criminal department. In 2007 or 2008 she started working for 24 Hours, another leading national daily newspaper.

7. The second applicant was born in 1942. At the relevant time he was Trud’s editor‑in‑chief.

B. The impugned articles and the criminal proceedings against N.T.

8. On 30 May 1996 the press service of the Ministry of Internal Affairs announced the arrest of N.T., a former employee of the Ministry and of the National Investigation Service. The press release specified that he had been detained and charged under Article 387 of the Criminal Code 1968 with abusing his office with a view to obtaining pecuniary gain, which had led to serious negative consequences. In particular, it stated that he had misappropriated, concealed and used secret official documents. The investigation against him was ongoing. The same day this information was relayed to many newspapers by the Bulgarian Telegraph Agency.

9. Shortly after receiving the news, the first applicant went to the premises of the Sofia Regional Military Prosecutor’s Office, where, along with journalists from other newspapers, she tried to obtain more information about the case. Around noon, in line with the established practice at that time, a military prosecutor showed up before the journalists to make a statement about the case and answer questions. In addition to the information in the press release, the prosecutor said that a bag with secret documents had been found during a search of N.T.’s home, that N.T.’s wife had also been implicated in the affair, and that by using those documents, which contained information about the State‑owned metallurgical plant “Kremikovtsi”, N.T.’s wife had engaged in lucrative business ventures involving metals.

10. The next day several national newspapers ran stories about the case. The applicant also covered it in an article which appeared in the 31 May 1996 issue of Trud. It bore the caption “Private company’s shady iron business discovered”, the headline “Former police officer arrested over bag with secret documents”, and the applicant’s byline, and read:

“A former officer was arrested after the metropolitan police found in his home a bag with secret documents, it became clear yesterday.

[N.T.], former officer of the Ministry of Internal Affairs and investigator in the National Investigation Service, was put behind bars for misappropriating, concealing and using secret documents, the [Ministry] announced yesterday. He has been charged under Article 387 § 3 of the Criminal Code with abusing his office with a view to enriching himself, which has led to serious negative consequences. The law provides for up to ten years’ imprisonment if the accused is found guilty.

The documents that [N.T.] took relate to the operations and the business of the ‘Kremikovtsi’ metallurgical plant, the law enforcement people said. He gave the secret information to his wife, who had a private iron‑trading company. Her business thus thrived and she amassed a substantial capital, the initial investigation found.

The arrest took place about ten days ago, the Palace of Justice specified. The handcuffs clicked on [N.T.]’s wrists three days before he was set to become a practising lawyer. Originals of secret documents, obtained by him probably while an operative of the former 8th district police department, were found during a search of his home.

The whole family of [N.T.] was implicated in the affair, say persons close to the investigation. The detainee’s father used to be the head of the 3rd district police department, but it is unclear whether he was aware of his son’s deeds.

[N.T.] formerly worked as an investigator in one of the district investigation services in Sofia for about a year. On paper he quit of his own free will last year. In reality, he was asked to go because he lacked the requisite qualities for the office he occupied, said people from the National Investigation Service yesterday.

The ‘National Security’ service of the [Sofia Regional Police Department] and the Military Prosecutor’s Office are making additional inquiries to uncover [N.T.]’s criminal activities, said the [Ministry]’s press service yesterday. The investigation has been entrusted to the Sofia Military Prosecutor’s Office.”

11. On 22 August 1996 Trud published another article entitled “The Prosecutor’s Office won’t let former officer out of arrest”. The article was authored by the first applicant but did not bear her byline. It read as follows:

“The former Ministry of Internal Affairs officer and investigator [N.T.], who was detained at the end of May this year on charges of misappropriating, concealing and using secret documents, will remain in detention, we learned yesterday. His [detention] was upheld in a prosecutor’s decision issued yesterday, said to the Bulgarian Telegraph Agency the lieutenant colonel [N.G.] of the Military Prosecutor’s Office.

[N.T.] was charged under Article 387 § 3 of the Criminal Code with abuse of office. A bag with secret documents relating to the business of the ‘Kremikovtsi’ metallurgical plant was found during a search of his home. [N.T.] obtained them while an operative of the former 8th district police department. He gave the information to his wife, who had a private iron‑trading company. Before the investigation she said that she had carried out only one transaction.”

12. In the following years the prosecuting authorities brought N.T. to trial six times, but each time the Sofia Military Court referred the case back for rectification of procedural errors. Eventually, on 1 October 2003 the court discontinued the proceedings under a newly introduced rule of criminal procedure allowing accused persons to seek discontinuance of the proceedings against them if the case had not proceeded to trial for more than two years after the bringing of charges (for more details on that rule, see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, §§ 38‑41, 10 May 2011).

C. N.T.’s defamation claim against the applicants

13. On 27 May 1999 N.T. brought a civil claim against the two applicants and Trud’s publisher, Media Holding AD. He alleged that the two articles had defamed him by making injurious and untrue allegations which had not been based on a proper journalistic enquiry. They had affected gravely both him and his family. He sought compensation for non‑pecuniary damage in the sum of 5,000,000 old Bulgarian levs (BGL)[1], plus interest, in respect of the first article, and BGL 5,000,000, plus interest, in respect of the second article. He also claimed costs.

14. The Sofia City Court held four hearings, one of which was adjourned because the two applicants had not been properly summoned. In a judgment of 21 July 2000 it dismissed N.T.’s claim. It found that the first applicant, like many other journalists, had based her article on reliable official sources. This excluded any wrongful conduct on her part. The second applicant was therefore not liable either.

15. N.T. appealed. The Sofia Court of Appeal held a hearing on 26 January 2001. On 13 February 2001 it upheld the lower court’s judgment. It found that at the time when the two articles had been published there had not existed any statutory rules governing journalistic enquiries. Journalists, including the first applicant, had been bound to adhere to the de facto rules of the profession. The first applicant had not breached those rules in researching the two articles. She had used many independent sources to elucidate the facts covered in both articles. She had based her allegations on information from the Ministry of Internal Affairs and the Bulgarian Telegraph Agency, and a statement made by a public prosecutor. Both she and the second applicant had thus fulfilled their professional duties, which excluded any negligence on their part. Strict liability in tort did not exist under Bulgarian law.

16. N.T. appealed on points of law. The Supreme Court of Cassation heard the appeal at a hearing held on 28 May 2002. On 14 August 2002 it quashed the Sofia Court of Appeal’s judgment and remitted the case. It found that that court, whose task had not simply been to review the first‑instance court’s judgment but to decide the case de novo, had not gathered all available evidence – in particular evidence relating to the identity of the public prosecutor cited in the first article and any evidence concerning the truthfulness of the second article – and had not properly analysed it. Its findings that the allegations in the articles were true did not correspond to the material in the case. The cassation court went on to say that in order to determine whether or not the applicants were liable in tort the court of appeal should have ascertained the truth or the falsity of the assertions made in the two articles, because the right to freedom of expression could not be used to infringe the reputation of others.

17. On remittal, the Sofia Court of Appeal held three hearings. At the second of those, which took place on 19 May 2003, the court decided to stay the proceedings pending the outcome of the criminal proceedings against N.T. None of the parties appealed against that decision. After criminal proceedings against N.T. came to an end in October 2003 (see paragraph 12 above), the court decided to resume the examination of the case, and held a hearing on 19 April 2004.

18. In a judgment of 27 July 2004 the Sofia Court of Appeal allowed N.T.’s claim. It ordered the two applicants and Media Holding AD to pay him 2,500 new Bulgarian levs (BGN), plus interest, in non‑pecuniary damages in respect of the first article. The court also ordered the second applicant and Media Holding AD to pay N.T. BGN 2,500, plus interest, in non‑pecuniary damages in respect of the second article. Lastly, the court ordered the two applicants and Media Holding AD to pay N.T. BGN 700 in respect of costs. It specified that they were jointly liable to pay those amounts.

19. The court held that in preparing the articles the first applicant had acted tortiously because she had not followed the customary rules governing journalistic enquiries. Those rules required that any information, even that coming from official sources, be checked against at least two independent sources. The first applicant had not done that with regard to the information received from a public prosecutor whose identity she had been unable to establish. The resulting articles had contained defamatory and injurious statements about N.T. and his family which went beyond the information in the press release issued by the authorities: that the “business of [the applicant’s wife had] thrived and she [had] amassed a substantial capital”, that the “whole family [had been] implicated in the affair”, and that the authorities had found “a bag with secret documents relating to the business of the ‘Kremikovtsi’ metallurgical plant”. By writing and publishing unverified defamatory allegations about N.T. the applicants had acted in breach of the general duty under section 45 of the Obligations and Contracts Act 1951 (see paragraph 24 below) not to infringe the rights of others. They could have anticipated the damaging result of their actions and could have averted it by taking additional steps to verify the accuracy of the statements in the articles. They had not done so, and had therefore acted negligently. The second applicant had been under a duty to do so by virtue of his position as the newspaper’s editor‑in‑chief, especially with regard to an article that did not bear a byline. As for the first applicant, she had made untrue and uncorroborated injurious remarks and allegations about N.T.’s personal and professional life, without taking into account the negative consequences that could flow from them. Media Holding AD was vicariously liable for the applicants’ actions.

20. The court determined the quantum of the award in equity, as required under section 52 of the Obligations and Contracts Act 1951 (see paragraph 24 below). It took into account Trud’s circulation, the number of potential readers and the degree of moral suffering sustained by N.T.

21. The applicants appealed on points of law, arguing, among other things, that the court of appeal’s judgment was in breach of Article 10 of the Convention. On 11 November 2004 a three‑member panel of the Supreme Court of Cassation refused to hear their appeal. It observed that N.T. had brought two claims of BGN 5,000 each. Those claims had been triable at first instance not by the Sofia City Court, but by the Sofia District Court. By accepting to hear the case, the Sofia City Court, which had the rank of a regional court, had in effect exercised its powers under Article 80 § 2 of the Code of Civil Procedure 1952 to take up and examine at first instance a case falling within the jurisdiction of one of the district courts in its region (see paragraph 25 below). That had in turn led to an appellate judgment by the Sofia Court of Appeal. Had the procedure ran its normal course, the case would have been examined at first instance by the Sofia District Court and on appeal by the Sofia City Court. The case thus fell within the ambit of Article 218a § 1 (a) of the Code (see paragraph 26 below), with the result that no appeal lay against the Sofia Court of Appeal’s judgment.

22. On an appeal by the applicants, in a final decision of 12 January 2005 a five‑member panel of the Supreme Court of Cassation upheld the three‑member panel’s decision. It fully agreed with its reasoning and went on to say that the examination of the case at second instance by the Sofia Court of Appeal due to the irregular manner in which the proceedings had unfolded in terms of which court had jurisdiction could not render a judgment concerning claims of up to BGN 5,000 amenable to appeal on points of law. The threshold for lodging such an appeal was primarily a function of the amount in dispute. It could not be circumvented through the application of Article 80 § 2 of the above‑mentioned Code and the resulting examination of the case at first instance by the Sofia City Court.

II. RELEVANT DOMESTIC LAW

A. The Constitution

23. The relevant provisions of the 1991 Constitution read as follows:

Article 32 § 1

“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.”

Article 39

“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, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or enmity or violence against anyone.”

Article 40 § 1

“The press and the other mass media shall be free and not subject to censorship.”

Article 41

“1. 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 other citizens or against national security, public order, public health or morals.

2. Citizens shall have the right to information from State bodies or agencies on any matter of legitimate interest to them, unless the information is a State secret or a secret protected by law or it affects the rights of others.”

Article 57 § 2

“Rights shall not be abused, nor shall they be exercised to the detriment of the rights or the legitimate interests of others.”

B. The Obligations and Contracts Act 1951

24. The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (“the 1951 Act”). 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 49 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Section 52 provides that the amount of compensation in respect of non‑pecuniary damage is to be determined by the court in equity. If a tort has been committed by several persons, they are jointly liable for the resulting damage (section 53).

C. The Code of Civil Procedure 1952

25. Article 80 § 1 (b) of the Code of Civil Procedure 1952 (superseded on 1 March 2008 by the Code of Civil Procedure 2007), as in force between 1 April 1998 and July 1999, provided that money claims of up to BGN 5,000 were triable by the district courts and those exceeding BGN 5,000 by the regional courts. Under Article 80 § 2, a regional court could take up and examine at first instance a case falling within the jurisdiction of one of the district courts in its region.

26. Article 218a § 1 (a) of the 1952 Code, as in force between April 1998 and November 2002, provided that regional court judgments concerning money claims of up to BGN 1,000 were not subject to appeal on points of law. An amendment which came into force in November 2002 increased that threshold to BGN 5,000.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

27. The applicants complained that they had been found liable for defaming N.T. and ordered to pay him damages and costs. They relied on Article 10 of the Convention, which provides, in so far as relevant:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. The parties’ submissions

1. The Government

28. The Government did not dispute that Article 10 of the Convention was applicable and that there had been an interference with the applicants’ rights under that provision. In their view, that interference had been “prescribed by law” – sections 45 and 49 of the Obligations and Contracts Act 1951 –, and had been intended to protect the reputation and rights of others.

29. The interference had also been necessary in a democratic society. The case presented a conflict between two fundamental rights: the right to freedom of expression and the right to protection against attacks on a person’s honour and reputation (the latter being enshrined in Article 17 of the International Covenant on Civil and Political Rights, ratified by and in force in respect of Bulgaria). Striking a balance between those rights always required an assessment of the specific facts. The difficulty of doing so was evident in the differing conclusions to which the Bulgarian courts had arrived. On the one hand, society had the right to be informed of criminal charges against civil servants. On the other, journalists had to act in good faith and provide accurate information.

30. Apart from information based on the press release of the Ministry of Internal Affairs, the article written by the first applicant contained an allegation that N.T. had given secret information to his spouse, and that as a result her business had “thrived” and that she had “amassed a substantial capital”. Those allegations, based on a mere supposition, had been presented as established truth, with the explanation that an unnamed public prosecutor had given such information to reporters during a briefing in the Palace of Justice. However, it was clear that the investigation against N.T. had been at an early stage and that such allegations – which involved not only N.T. but also his spouse, who had not been charged with any offence – were frivolous and could not be made with any degree of certainty. The first applicant had no doubt been aware of that, but had presented the allegations as entirely true. She was an experienced journalist, who was surely well aware of the presumption of innocence and of the possibility that allegations might fail at trial. She should have therefore relayed with utmost care the information received from the prosecuting authorities. Instead, she had chosen to interpret that information loosely and to present it as unchallenged fact. Given her considerable experience, it was obvious that she had done that in order to introduce an element of sensation in the official information received from the Ministry of Internal Affairs. This was shown from the considerably more objective and nuanced way in which the story had been reported in other newspapers.

31. The article’s caption had also been manipulative and misleading, hyperbolising the information given by the prosecuting authorities to the point of creating the impression that N.T.’s spouse had taken part in the commission of an offence. The prosecutor’s conjectures had been presented as unchallengeable facts. The entire article had tried to convey the idea that N.T.’s family had engaged in shady dealings. The main point was therefore not that the first applicant had failed to verify the accuracy of the information that she had obtained from the public prosecutor, but that she had consciously misused that information to give a sensational spin to otherwise unsensational news. By doing so, the first applicant had paid no heed to the feelings of those concerned or to her duties and responsibilities. That could not be regarded as good faith presentation of information.

32. The next point was the degree of defamation. If the applicants had not conveyed the information obtained from the prosecuting authorities as unchallengeable facts but as the untested allegations that they had been, N.T. and his family would have been affected to a much lesser degree. Those issues had been elucidated well in the judgment of the Sofia Court of Appeal. The award of compensation made by that court had been proportionate to the non‑pecuniary damage suffered by N.T.

2. The applicants

33. The first applicant started by making two points in relation to the lawfulness of the interference. She firstly argued that the interference had not been lawful because the Sofia Court of Appeal’s ruling that she had acted tortiously and in breach of section 45 of the 1951 Act had been erroneous and even arbitrary. She had not broken any legal or ethical rules and had not acted negligently, both of which were essential elements of the tort under section 45. The Sofia Court of Appeal had failed to deal with those points. Secondly, there had existed another procedural avenue for N.T. to vindicate his rights – a claim for damages against the authorities following the discontinuance of the criminal proceedings against him.

34. The first applicant went on to argue that the interference had not pursued a legitimate aim and had not been necessary in a democratic society. To punish a journalist acting in good faith for having accurately quoted information obtained from a trustworthy source was obviously not in the public interest. The alleged falsity of the information concerning N.T. had been established solely on the basis of the discontinuance of the criminal proceedings against him six years after the events due to the failure of the prosecuting authorities to make out the charges against him in court. At the material time the first applicant had had no reason to doubt that the statements made by a public prosecutor in that respect could be untrue. Under the Court’s case‑law, she had been entitled to rely on such statements without verifying them. She had suffered serious financial consequences and a blow to her professional reputation as a result of the ruling against her. That ruling had had a chilling effect on her freedom of expression and on freedom of expression in Bulgaria as a whole.

35. Lastly, the first applicant protested against the fact that in their observations the Government had raised fresh arguments as to why she had not acted as a responsible journalist. That had been an impermissible attempt to render the Court a court of first instance. The first applicant could not condone it, and for that reason chose not to comment on the arguments raised by the Government. She simply pointed to the reasons given by the Sofia Court of Appeal for holding her liable in damages to N.T.

36. The second applicant submitted that the Government’s observations did not call for any observations in reply on his part, because the Government had in effect not addressed the grievances that he had raised.

B. The Court’s assessment

1. Admissibility

37. The Court finds that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) Existence of an interference

38. It was common ground between the parties that the judgment against applicants, coupled with the order to pay damages and costs, constituted interference – in the form of a “penalty” – by a public authority with their right to freedom of expression. The Court sees no reason to hold otherwise.

39. Such interference will be in breach of Article 10 of the Convention if it fails to satisfy the criteria set out in its second paragraph. The Court must therefore determine whether it was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” to achieve that aim or aims.

(b) “Prescribed by law”

40. The Court finds that the interference was “prescribed by law” – section 45 of the 1951 Act (see paragraphs 19 and 24 above).

41. The first applicant asserted that the Sofia Court of Appeal had applied that provision erroneously and arbitrarily. Her actions could not be regarded as tortious, given that she had in fact not breached any legal or ethical rules and had not acted negligently. The Court is not persuaded by that argument. It is primarily for the national courts to interpret and apply domestic law (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 58, Series A no. 239, and Casado Coca v. Spain, 24 February 1994, § 43, Series A no. 285‑A). Although the Court can and should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 10, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law except in cases of flagrant non‑observance or arbitrariness (see, mutatis mutandis, Weber and Saravia v. Germany (dec.), no. 54934/00, § 90, ECHR 2006‑XI, and Goranova‑Karaeneva v. Bulgaria, no. 12739/05, § 46, 8 March 2011). Seen from the angle of the Article 6 § 1 of the Convention fairness requirements, the Court does not consider that the Sofia Court of Appeal’s judgment was arbitrary. Contrary to the first applicant’s averment, that court explained, albeit briefly, why it was of the view that she had failed to follow the customary rules governing journalistic enquiries and had acted negligently and therefore tortiously (see paragraph 19 above).

42. Nor is the Court persuaded that the possibility for N.T. to vindicate his reputation by way of a claim for damages against the authorities had an impact on the lawfulness, or otherwise, of the interference with the applicants’ rights. That argument falls to be considered in the context of the question whether the interference was necessary in a democratic society. The Court will revert to it below.

43. The Court concludes that the interference was lawful in terms of Bulgarian law. The applicants have not sought to argue that that law was not sufficiently accessible or foreseeable.

(c) Legitimate aim

44. The Court accepts that the interference pursued the legitimate aim of protecting N.T.’s reputation.

(d) “Necessary in a democratic society”

45. It remains to be established whether the interference was “necessary in a democratic society”. This determination must be based on the following general principles emerging from the Court’s case‑law (see, among other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88‑91, ECHR 2004‑XI, with further references):

(a) The test of “necessity in a democratic society” requires the Court to determine whether the interference corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.

(b) The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the statements held against the applicant and the context in which he or she has made them.

(c) In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10.

(d) The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.

46. An additional factor of particular importance in the present case is the vital role of “public watchdog” which the press performs 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 political issues and on other matters of general interest (ibid., § 93, with further references). The Court must apply the most careful scrutiny when, as here, the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, among other authorities, Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 88, ECHR 2007‑III).

47. The Court notes that the articles in respect of which the applicants were found liable were reporting facts reflected in statements of the police and the prosecuting authorities and concerning allegations of serious misconduct on the part of a former investigator and police officer in relation to the business of a State‑owned enterprise (see paragraphs 10 and 11 above). There can be no doubt that they were of high public interest – especially in view of the transition from a wholly State-owned and centrally planned economy to private property and a market economy that was taking place in Bulgaria at that time (see Credit Bank and Others v. Bulgaria (dec.), no. 40064/98, 30 April 2002) – and that the publication of information about them formed an integral part of the task of the media in a democratic society.

48. However, Article 10 does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of its second paragraph, the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when, as in the present case, there is a question of attacking the reputation of named individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999‑III, and Aquilina and Others v. Malta, no. 28040/08, § 44, 14 June 2011). Indeed, in situations where on the one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and in good faith becomes paramount (see Flux v. Moldova (no. 7), no. 25367/05, § 41, 24 November 2009).

49. There are a number of factors bearing on that assessment. The Court must firstly have regard to whether the publication has made a contribution to a debate of general interest. It must also take into account other factors, such as the nature of the activities that were the subject of the publication, the way in which the information was obtained, the way in which the report was published, and the way in which the person concerned was depicted in it (see, mutatis mutandis, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90‑94, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 109‑12, ECHR 2012‑...). Other factors – and the list is not exhaustive – may include the source of the information (see, for instance, Bladet Tromsø and Stensaas, cited above, §§ 68 and 72), the steps taken to verify it (see, for instance, Rumyana Ivanova v. Bulgaria, no. 36207/03, §§ 64‑65, 14 February 2008; Kasabova v. Bulgaria, no. 22385/03, §§ 64‑65, 19 April 2011, and Bozhkov v. Bulgaria, no. 3316/04, §§ 47‑50, 19 April 2011), and the urgency of the matter (see Bozhkov, cited above, § 48). In relation to the last point, it should be borne in mind that news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216, and Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 51, Series A no. 217).

50. It is also important to emphasise that the above factors must be examined as they presented themselves to the journalist at the material time rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, §§ 66 in fine and 72).

51. In the instant case, the Sofia Court of Appeal considered that the first applicant had not acted professionally and in good faith because some of her allegations had not been sufficiently researched. The court was in particular of the view that although those allegations had been based on information obtained from a public prosecutor, the first applicant had been under a duty to check the story against other sources (see paragraph 19 above). The Court is unable to agree with that reasoning. It has in the past held that the press should normally be entitled to rely on the content of official reports without having to undertake independent research (see Bladet Tromsø and Stensaas, cited above, §§ 68 and 72, and Colombani and Others v. France, no. 51279/99, § 65, ECHR 2002‑V). It later expanded the scope of application of that principle, saying that journalists must be free to report on events based on information gathered from official sources without further verification (see Selistö v. Finland, no. 56767/00, § 60, 16 November 2004). More recently, it applied that approach to information given orally by a public prosecutor in charge of the prosecuting authorities’ relations with the press (see Axel Springer AG, cited above, § 105). The situation in the present case presents no material difference. In view of the practice of the Bulgarian prosecuting authorities to give routine informal press conferences in which prosecutors would talk to journalists about cases (see paragraph 9 above), the military prosecutor’s statement made on 30 May 1996 is to be similarly considered an official source of information obviating the need for further verification. The fact that the applicant was unable to establish the identity of that prosecutor does not detract from that position. Moreover, information about the case was published also by the press service of the Ministry of Internal Affairs and was later on disseminated by the Bulgarian Telegraph Agency. The national courts did not express doubts as to whether the prosecutor had indeed made the statement in issue, and the Court sees no reason to doubt that the first applicant acted in good faith in connection with that. A perusal of the text of the two articles (see paragraphs 10 and 11 above) shows that she did not adopt the allegations as her own (contrast Rumyana Ivanova, cited above, § 62).

52. As regards the Government’s arguments that the applicant’s articles – especially the first one – had needlessly adopted a sensationalist tone and had presented the story in a skewed way, the Court observes that it is not for it, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see, as a recent authority, Axel Springer AG, cited above, § 81, with further references). Moreover, journalists cannot be expected to act with total objectivity and must be allowed some degree of exaggeration or even provocation (see Selistö, cited above, § 56). The fact that the text of the articles and their captions contained expressions designed to attract the public’s attention does not in itself present a problem (see Axel Springer AG, cited above, § 108). The first applicant did not use gratuitously offensive language (contrast Tammer v. Estonia, no. 41205/98, §§ 65 and 67, ECHR 2001‑I).

53. The Court does not consider that the way in which the articles presented the allegations against N.T. raises an issue either. It is true that the first applicant could have phrased the impugned statements more carefully, so as to highlight the fact that they were reflecting statements made by law enforcement officials at the early stages of a criminal investigation. However, the question is, again, not how the Court or a national court would have worded those statements, but whether they went beyond the limits of responsible journalism. The Court does not consider that they did. The first applicant made it clear that she was quoting law enforcement officials and that the statements were based on the results of the investigation thus far. Moreover, the overall thrust of the first article made it clear that that investigation had just started. Nor was it unreasonable for the first applicant to include in her story statements concerning N.T.’s wife and father. She did not mention any irrelevant or private details (see Flinkkilä and Others v. Finland, no. 25576/04, § 84, 6 April 2010, and contrast Tammer, cited above, §§ 66 and 68), whereas the business of N.T.’s wife and the fact that his father had held public office were clearly relevant to the story, and therefore had a direct bearing on a matter of public interest. In a democratic society, the authorities are entitled to inform the public about criminal investigations in progress, provided they choose their words carefully (see Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000‑X), and do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont v. France, 10 February 1995, § 38, Series A no. 308). By disseminating such information, the authorities keep the public abreast of their efforts to combat crime, which is no doubt a matter of public interest.

54. In so far as N.T. had a legitimate interest to protect himself against frivolous and damaging allegations about him on the part of the prosecuting authorities, he could have sought to vindicate that interest by bringing proceedings against those authorities (see, mutatis mutandis, Babjak and Others v. Slovakia (dec.), no. 73693/01, 30 March 2004, concerning the possibility of remedying the consequences of allegations of criminal conduct made by the authorities by way of a claim for damages against the authorities).

55. Having regard to the above factors, the Court is unable to agree with the Sofia Court of Appeal’s conclusion that the first applicant did not act as a responsible journalist. It notes in this connection that when it first heard the case that same court found that the applicant had not failed to fulfil her professional duty (see paragraph 15 above); the Sofia City Court had earlier come to the same conclusion (see paragraph 14 above). The Court would also emphasise that if the national courts apply an overly rigorous approach to the assessment of journalists’ professional conduct, the latter could be unduly deterred from discharging their function of keeping the public informed. The courts must therefore take into account the likely impact of their rulings not only on the individual cases before them but also on the media in general (see Kasabova, § 55, and Bozhkov, § 51, both cited above).

56. It follows that the reasons relied on by the respondent State to justify the interference with the first applicant’s right to freedom of expression, although relevant, are not sufficient to show that that interference was “necessary in a democratic society”. In view of this conclusion, the Court finds no need to delve into the proportionality of the award of damages and costs against the first applicant (see, mutatis mutandis, Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; Lopes Gomes da Silva v. Portugal, no. 37698/97, § 36, ECHR 2000‑X; and Selistö v. Finland, no. 56767/00, § 69, 16 November 2004).

57. The ruling and the consequent order for damages and costs against the second applicant, who was the newspaper’s editor‑in‑chief, were entirely premised on his purported failure to exercise adequate control over the manner in which the first applicant had researched and drawn up the articles (see paragraph 19 above). As the Court found that the first applicant could not be regarded as having acted irresponsibly in those regards, it concludes that the reasons relied on by the respondent State to justify the interference with the second applicant’s right to freedom of expression were likewise not sufficient to show that that interference was “necessary in a democratic society”.

58. There has therefore been a violation of Article 10 of the Convention in respect of both applicants.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

A. Complaints under Article 6 § 1 and Article 14 of the Convention concerning the refusal to hear the applicants’ appeal on points of law

59. The applicants complained under Article 6 § 1 of the Convention that the Supreme Court of Cassation had refused to examine their appeal on points of law.

60. The first applicant additionally complained under Article 14 of the Convention that the Supreme Court of Cassation had examined N.T.’s appeal on points of law but had later refused to examine hers.

61. The Court considers that the Supreme Court of Cassation’s refusal to hear the applicants’ appeal on points of law does not raise an issue under Article 6 § 1 of the Convention taken alone. That refusal was a result of a legislative amendment that came into force in November 2002 and increased the threshold for appealing on points of law from BGN 1,000 to BGN 5,000 (see paragraph 26 above). The right of access to a court by its very nature calls for regulation by the State and may be subject to limitations; that applies with even greater force to access to a cassation court. Increasing the financial threshold for appeals on points of law with a view to preventing the Supreme Court of Cassation from being overloaded with cases of lesser importance pursued a legitimate aim and could not be regarded as disproportionate (see Brualla Gómez de la Torre v. Spain, 19 December 1997, §§ 34‑39, Reports of Judgments and Decisions 1997‑VIII; Kozlica v. Croatia, no. 29182/03, §§ 32‑34, 2 November 2006; and Alkış v. Turkey (dec.) [Committee], no. 17016/06, 10 January 2012). That court explained in detail why the unusual procedural course taken by the case did not constitute grounds to disapply the normal rules governing the admissibility of appeals on points of law (see paragraphs 21 and 22 above).

62. Examined under Article 14 of the Convention read in conjunction with Article 6 § 1, the refusal does not appear problematic either. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23; Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 61 and 70, ECHR 2010‑...; and Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 111, 25 October 2011). The difference in treatment to which the applicants were subjected – their appeal on points of law not being examined, in contrast to the one lodged by N.T. about three years earlier – was not based on an identifiable personal characteristic of theirs. It was exclusively due to an intervening change in the rules governing the admissibility of appeals on points of law. It could not therefore be regarded as discriminatory (see, mutatis mutandis, Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000‑VI, and Hristozov and Others v. Bulgaria (dec.), nos. 47039/11 and 358/12, 21 February 2012).

63. It follows that these complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 6 § 1 of the Convention of the reasoning of the Supreme Court of Cassation in its judgment of 14 August 2002

64. The first applicant further complained under Article 6 § 1 of the Convention of the manner in which the Supreme Court of Cassation had construed the law in its judgment of 14 August 2002. In particular, she found fault with that court’s ruling as to the manner in which journalists’ assertions had to be proved.

65. The Court observes that the first applicant’s complaint concerns the manner in which the Supreme Court of Cassation construed Bulgarian law. The Court is not a court of appeal from the national courts, and it is not its function to deal with errors of fact or law allegedly committed by those courts (see Rumyana Ivanova, cited above, § 39). The Court does not consider that the Supreme Court of Cassation’s judgment was arbitrary, and reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (ibid., § 43).

66. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaint under Article 6 § 1 of the Convention of the length of the proceedings

67. The first applicant complained under Article 6 § 1 of the Convention of the length of the defamation proceedings.

68. The Court observes that those proceedings lasted in total about five years and eight months, for three levels of jurisdiction. During that time the case was examined on the merits four times. After that, the question whether the applicants’ appeal on points of law was admissible was examined by two levels of court. The only serious delays attributable to the authorities during that period were a pause of about a year during the second examination of the case by the Sofia Court of Appeal, when the proceedings were stayed to await the outcome of the criminal proceedings against N.T., and a period of about a year and a half during which the case was waiting to be heard by the Supreme Court of Cassation pursuant to N.T.’s appeal on points of law (see paragraphs 13‑22 above). With regard to the former, the Court does not consider that the stay was arbitrary or unreasonable (see Djangozov v. Bulgaria, no. 45950/99, § 38, 8 July 2004, and Todorov v. Bulgaria, no. 39832/98, § 48, 18 January 2005), or that it lasted so long as to prejudice irretrievably the reasonableness of the length of the proceedings as whole. With regard to the latter, the Court observes that recently, in Nikolov and Others v. Bulgaria (nos. 44184/05, 22250/06 and 37182/07, §§ 37‑42, 21 February 2012), it found a breach of Article 6 § 1 on account of delays of about two years in the examination of appeals on points of law by the Bulgarian Supreme Court of Cassation. However, the Court’s ruling in that case was based entirely on the very high stakes involved for the applicants, who had been challenging their dismissals from work. It is true that the stakes in the present case, which concerned the first applicant’s professional reputation, were also higher than normal (see, mutatis mutandis, Kalpachka v. Bulgaria, no. 49163/99, § 71, 2 November 2006). However, this is a question of degree. The situation here cannot be compared with those obtaining in cases, such as Nikolov and Others, where the outcome of the proceedings directly concerns a person’s employment. Delay in such cases may have serious negative repercussions on the litigants’ livelihood. For that reason, a very high level of diligence is required of the authorities (see Nikolov and Others, cited above, § 41). It follows that the delay in the present case, while regrettable, cannot be regarded as having rendered the length of the proceedings as a whole unreasonable.

69. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

D. Alleged violation of Article 13 of the Convention

70. Lastly, the first applicant complained under Article 13 of the Convention that she did not have effective remedies in respect of the violations alleged above.

71. In so far as the first applicant relied on Article 13 in relation to the complaints that were declared inadmissible, the Court does not consider that she had an arguable claim. It follows that Article 13 is not applicable to this part of the complaint, and that it is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a).

72. In so far as the first applicant relied on Article 13 in relation to her complaint under Article 10 of the Convention, which was declared admissible, the Court observes that the first applicant did not specify in what way Article 13 had, in her view, been breached. The complaint is therefore unsubstantiated (see Jechev v. Bulgaria (dec.), no. 57045/00, 2 May 2006, and Tonchev v. Bulgaria (dec.), no. 18527/02, 14 October 2008). If the complaint is to be understood to be directed against the Supreme Court of Cassation’s refusal to hear the applicants’ appeal on points of law, the Court observes that it already dealt with that point by reference to Article 6 § 1 of the Convention. The requirements of Article 13 are less strict than, and are here absorbed by, those of Article 6 § 1 (see, among many other authorities, British‑American Tobacco Company Ltd v. the Netherlands, 20 November 1995, § 89, Series A no. 331).

73. It follows that this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

75. The first applicant claimed repayment of the amounts that she had been ordered to pay in damages and costs to N.T. – 2,500 and 700 new Bulgarian levs (BGN), respectively. She also claimed 10,000 euros (EUR) in respect of non‑pecuniary damage. She submitted, inter alia, that the judgment against her had had negative repercussions on her professional image and a chilling effect on her. She went on to say that a judgment against an investigative journalist in a post‑totalitarian country with weak democratic traditions hampered the establishment of the rule of law. The effect of the judgment had been to cause journalists to engage in self‑censorship and to stick to reproducing the official information fed to them by the authorities.

76. The second applicant did not make a claim under this head, saying that the finding of a breach would be sufficient just satisfaction for him.

77. The Government likewise submitted that a finding of a violation would amount to sufficient just satisfaction. In their view, the first applicant’s claim was exorbitant. There did not exist a sufficient causal link between the breach of the Convention and the pecuniary damage alleged by her. The Government suggested that any award should be in line with the awards made in similar cases and consistent with the standard of living in Bulgaria.

78. The Court considers that the first applicant is in principle entitled to recover any sums that she has paid in damages and costs to N.T., by reason of their direct link with the judgment which the Court found to be in breach of her right to freedom of expression (see Lingens v. Austria, 8 July 1986, § 50, Series A no. 103, and Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 50, ECHR 2003‑XI). However, she has not produced any evidence showing that she has actually paid those sums (contrast Kasabova, § 31, and Bozhkov, §§ 23‑24, both cited above). It cannot be overlooked in this connection that the two applicants and their employer, Media Holding AD, were jointly liable to pay those sums (see paragraphs 18 and 24 in fine above). It is therefore possible that the sums were not in fact paid by the first applicant. In those circumstances, the Court makes no award in respect of pecuniary damage (see Godlevskiy v. Russia, no. 14888/03, § 52, 23 October 2008).

79. By contrast, the Court considers that the first applicant must have suffered non‑pecuniary damage, in the form of distress and frustration, as a result of the breach of her right to freedom of expression. That damage cannot be adequately compensated by the finding of a violation. Having regard to the nature of the breach and deciding on an equitable basis, the Court awards the first applicant EUR 4,500, plus any tax that may be chargeable.

80. The Court sees no reason to award of its own motion any compensation to the second applicant.

B. Costs and expenses

81. The first applicant sought reimbursement of EUR 2,514 incurred in fees for thirty‑five hours and fifty‑five minutes of work by her lawyers on the proceedings before the Court, at the rate of EUR 70 per hour. She submitted a fee agreement, a time sheet and a declaration that she agreed that any costs and expenses awarded by the Court be paid directly to her lawyers. She also sought reimbursement of EUR 18 spent by her lawyers on postage, EUR 21 on office supplies and EUR 4 on telephone charges. In support of her claims she presented three postal receipts. She requested that any sums awarded by the Court under this head be made directly payable to her legal representatives.

82. The second applicant did not make a claim under this head.

83. The Government contested the number of hours spent by the applicant’s lawyers on the case, as well as the hourly rate charged by them, pointing out that that rate was several times higher than the ones usual in Bulgaria.

84. The Court observes that when considering a claim in respect of costs and expenses for the proceedings before it, it is not bound by domestic scales or standards (see, as a recent authority, Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 125, 25 November 2010). According to its case‑law, costs and expenses claimed under Article 41 of the Convention must have been actually and necessarily incurred and reasonable as to quantum.

85. Having regard to the materials in its possession, the above considerations, and the fact that part of the application was declared inadmissible, the Court finds it reasonable to award the first applicant EUR 1,500, plus any tax that may be chargeable to her, in respect of her legal costs. This sum is to be paid directly to her legal representatives.

86. Concerning the claim for other expenses, the Court observes that the applicant has not submitted supporting documents other than postal receipts. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court awards her EUR 18 in respect of those expenses. This sum is likewise to be paid directly to the first applicant’s legal representatives.

C. Default interest

87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the interference with the applicants’ right to freedom of expression admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 10 of the Convention in respect of both the first and the second applicants;

3. Holds

(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii) EUR 1,518 (one thousand five hundred and eighteen euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, to be paid directly to the first applicant’s legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva;

(b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the first applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı,Lech Garlicki
              Deputy RegistrarPresident

[1]. On 5 July 1999 the Bulgarian lev was re‑valued. One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL).

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