CASE OF ZDRAVKO STANEV v. BULGARIA (No. 2)

FIFTH SECTION

CASE OF ZDRAVKO STANEV v. BULGARIA (No. 2)

(Application no. 18312/08)

JUDGMENT

STRASBOURG

12 July 2016

FINAL

12/10/2016

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

In the case of Zdravko Stanev v. Bulgaria (no. 2),

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

Angelika Nußberger, President,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 21 June 2016,

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

PROCEDURE

1. The case originated in an application (no. 18312/08) 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 a Bulgarian national, Mr Zdravko Kostov Stanev (“the applicant”), on 25 March 2008.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.

3. The applicant alleged, in particular, that his conviction for defaming a judge was in breach of his right to freedom of expression.

4. On 23 September 2013 the Government were given notice of the complaint concerning the interference with the applicant’s right to freedom of expression. The remainder of the application was declared inadmissible under Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1951 and lives in Sofia.

A. The original criminal proceedings against the applicant

6. On 29 March 2006 the Kazanlak District Court convicted the applicant of wilfully using a forged document and falsely accusing another person of criminal conduct, and sentenced him to two years’ imprisonment. The court ordered that the applicant be detained pending any appeal against his conviction and sentence.

7. After his detention, the applicant appealed against his conviction and sentence to the Stara Zagora Regional Court. In his appeal, he included the following statement:

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

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

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

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

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

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

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

B. The defamation proceedings

11. On 4 June 2007 the judge-rapporteur in the criminal case against the applicant brought a private criminal prosecution against him in relation to the written and the oral statements made by the applicant in the appeal proceedings (see paragraphs 7 and 9 above). He submitted that those statements were untrue and defamatory: the first amounted to an allegation that he was vindictive and was using his office to settle personal scores, and the second amounted to an allegation that he had deliberately failed to comply with the rules on recusal, which was not true. He did not have any personal bias against the applicant, and had never been asked to recuse himself from the case.

12. In a judgment of 14 December 2007, the Stara Zagora District Court convicted the applicant of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 20 and 21 below), in relation to both statements. It sentenced him to a fine of 5,000 Bulgarian levs (BGN) (2,556 euros (EUR)) and a public reprimand, and ordered him to pay BGN 150 (EUR 77) in court costs. Without seeking to verify whether the applicant’s allegations could be borne out, it held that he had wilfully defamed the judge by making disparaging allegations in respect of him. The court did not accept the applicant’s argument that he had not acted with intent. It noted that he had repeated the allegations twice and that, as evident from a psychiatric expert report obtained in the course of the defamation proceedings, he had been fully aware of the meaning of the statements and capable of controlling himself in spite of his emotional state. The form of mens rea had been oblique intent (recklessness): the applicant had been aware that his allegations might not be true but had nonetheless chosen to make them. Taking into account that the applicant had no previous convictions, that he had expressed regret for making the statements, and that no pecuniary damage had ensued from them, the court opted for the minimum sentence: a fine of BGN 5,000 and public reprimand.

13. The applicant appealed to the Stara Zagora Regional Court. In his brief, he submitted that his first statement had been read out of context; that the lower court had not taken due account of his perturbed emotional state, resulting from his having to spend time in custody pursuant to an unlawful conviction and sentence; that his statements had only been addressed to the appellate court and not intended for publication; and that he had not acted wilfully or recklessly. In an additional brief, the applicant’s counsel submitted, inter alia, that the lower court had failed to explain why it had found that the applicant’s statements had been “disseminated”, given that the appellate judges to whom they had been addressed had been under the duty not to disclose professional secrets and that no third parties had access to the file containing the statements. Nor had the lower court given reasons as to why it had found the statements disparaging. Moreover, the statements were truthful – the judge had been a pupil of the applicant, and his bias against the applicant had been acknowledged in the appellate judgment. The applicant had not acted recklessly. He had made the statements while conducting his defence in a criminal case against him, and it was wrong to read them out of context. Lastly, his sentence, although set at the statutory minimum, was still unduly harsh.

14. In a final judgment of 17 March 2008, the Stara Zagora Regional Court upheld the applicant’s conviction in relation to the first statement (see paragraph 7 above), but acquitted him with respect to the second statement (see paragraph 9 above), and accordingly reduced the fine to BGN 2,500 (EUR 1,278). It held that the applicant had “disseminated” the first statement by including it in his appeal. The fact that he had been in a fragile emotional state when doing so was irrelevant. As evident from the psychiatric expert report obtained in the course of the defamation proceedings, he had been able to understand the nature of his actions, appreciate their consequences, and control them. Without attempting to verify whether the first statement had a factual basis, the court found that it had amounted to an allegation that the judge was vindictive and had used his office to seek revenge, had been disparaging for the judge in his professional capacity, and had impinged on his office. By contrast, the court went on to hold that the second statement was not disparaging and did not amount to the imputation of an offence. There was nothing discrediting in the fact that the judge had been a pupil of the applicant, and the applicant’s view that the judge should have therefore recused himself was a personal opinion, which could not give rise to criminal liability because it could not be proved. In view of the court’s ruling in relation to the second statement, it was necessary to reduce the applicant’s sentence. Bearing in mind the applicant’s clean criminal record and the fact that he was experiencing financial difficulties because he was unemployed, the court found that it had to opt for a sentence below the statutory minimum and reduce the applicant’s fine to BGN 2,500.

II. RELEVANT DOMESTIC LAW

A. Relevant constitutional provisions

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

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

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

18. Article 56 of the Constitution provides that everyone has the right to defence in cases where his rights or legitimate interests have been infringed or threatened.

19. In a case in which a public prosecutor had brought a private criminal prosecution against an accused who had sought his recusal from a criminal case, the Supreme Court of Cassation, in upholding the acquittal of the defendant, said that the right under Article 45 of the Constitution (see paragraph 15 above) was autonomous from the right to freedom of expression under Article 39 of the Constitution (see paragraph 16 above) and Article 10 of the Convention, and that it outweighed the prosecutor’s right to protect his reputation by way of criminal law measures (see реш. № 421 от 14.11.2008 г. по н. д. № 446/2008 г., ВКС, III н. о.).

B. The criminal offence of defamation

20. Article 147 of the Criminal Code 1968 provides as follows:

“1. Any person who disseminates an injurious statement of fact about another or imputes an offence to him shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by public reprimand.

2. The perpetrator shall not be punished if he proves the truth of the said statement or imputation.”

21. By Article 148 §§ 1 (3) and 2 of the Code, the defamation of a public official in the course of or in connection with the performance of his duties is punishable by a fine ranging from five to fifteen thousand levs and public reprimand.

22. By Article 161 § 1 of the Code, as in force since March 2000, charges under any of those provisions may only be brought by the alleged victim of the offence.

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

24. Many lower courts have adhered to that position (see прис. от 02.07.2009 г. по н. ч. х. д. № 111/2009 г., РС-Берковица; прис. № 696 от 30.11.2009 г. по н. ч. х. д. № 3103/2009 г., РС-Варна; реш. № 584 от 16.12.2009 г. по в. гр. д. № 909/2009 г., ОС-Добрич; реш. № 60 от 18.05.2010 г. по в. н. ч. х. д. № 209/2009 г., ОС-Габрово; реш. № 41 от 30.06.2010 г. по н. д. № 154/2010 г., ОС-Кърджали; реш. № 187 от 13.05.2011 г. по в. н. ч. х. д. № 179/2011 г., ОС-Плевен; and реш. № 878 от 02.07.2013 г. по в. н. ч. х. д. № 1839/2013 г., СГС).

C. Possibility to appeal on points of law or seek revision in criminal defamation cases

25. By Article 346 § 2 of the Code of Criminal Procedure 2005, an appellate judgment of a regional court is only subject to appeal on points of law before the Supreme Court of Cassation if the regional court itself convicts or acquits the accused. By Article 336 § 1, this is the case when the regional court applies a harsher criminal law rule than that applied by the district court, or convicts, respectively acquits, an accused who has been acquitted, respectively convicted, by the district court. In any event, regional court judgments in cases in which the convicted person has had his criminal liability replaced with administrative punishment are not subject to appeal on points of law (Article 346 § 2 in fine). In application of these rules, the Supreme Court of Cassation has refused to examine an appeal on points of law against the part of a regional court judgment which had upheld a district court judgment in a defamation case (see реш. № 452 от 12.10.2010 г. по н. д. № 411/2010 г., ВКС, III н. о.).

26. By Article 422 § 1 (5) read in conjunction with Articles 348 § 1, 420 § 2 and 421 § 3 of the same Code, a person convicted of an offence prosecutable by the prosecuting authorities who has not had his criminal liability replaced with an administrative punishment can, provided that he has not appealed on points of law, himself seek reopening of the proceedings within six months of the final judgment on the basis that the courts have seriously misapplied the substantive law or the rules of procedure, or have imposed a clearly disproportionate sentence.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

27. The applicant complained that his conviction and punishment had been in breach of his right to freedom of expression. He 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

28. The Government submitted that the defamation proceedings against the applicant had been opened at the instance of the victim of the offence, not by the prosecuting authorities. The applicant’s ensuing conviction had been intended to protect the reputation and rights of the judge affected by his remarks. It had been based on a law which was sufficiently precise, and had not been disproportionate. The applicant was a serial litigant, and his abusive remarks vis-à-vis the judge in charge of his case had affected not only the judge’s personal reputation but the judiciary as a whole. The applicant had made those remarks wilfully and without a sufficient factual basis. The national courts had taken all that into account and imposed a proportionate sanction, reducing the amount of the fine on appeal. The applicant could have protected his defence rights in the original criminal proceedings against him without making abusive remarks.

29. The applicant submitted that the courts were trying to “liquidate him psychologically and physically”, in particular by ruling in favour of the judge who had brought the defamation proceedings against him.

B. The Court’s assessment

1. Admissibility

30. The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.

2. Merits

31. The applicant’s conviction and sentence (see paragraphs 12 and 14 above) constituted an “interference”, in the form of a “penalty”, with his right to freedom of expression under Article 10 of the Convention. Such interference will only be compatible with that Article if it was “prescribed by law” and was “necessary in a democratic society” for one of the aims set out in its second paragraph.

32. The Court notes that the interference had a legal basis – Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 20 and 21 above) – and that the law was accessible. The only point giving rise to difficulties is whether the applicant could foresee, to a degree that was reasonable in the circumstances, that he could be found guilty of defamation in relation to the written statement made by him in his appeal against conviction.

33. In a previous case relating to statements made by a journalist in a newspaper article, the Court accepted that Article 147 § 1 of the Criminal Code was sufficiently precise (see Kasabova v. Bulgaria, no. 22385/03, § 52, 19 April 2011). But the situation at hand is quite different. That provision makes it an offence to “disseminate” injurious statements (see paragraph 20 above). It appears that under the case-law of the former Supreme Court and the current Supreme Court of Cassation, statements made in complaints or depositions to the authorities cannot be considered as such “dissemination” because their authors do not intend to harm the reputation of the persons to whom they refer but to exercise their right to make complaints, report irregularities, or seek the authorities’ assistance (see paragraph 23 above). It is therefore open to doubt whether the applicant could reasonably foresee that by including the impugned statement in an appeal against his conviction and sentence he was breaking Article 147 § 1 of the Criminal Code (see, mutatis mutandis, Siryk v. Ukraine, no. 6428/07, §§ 36-38, 31 March 2011).

34. The applicable rules of procedure did not make it possible for the applicant’s conviction to reach the Supreme Court of Cassation so that it could authoritatively rule on the manner of application of Article 147 § 1 of the Criminal Code in his circumstances (see paragraphs 25 and 26 above). For its part, this Court does not consider that it has to pronounce on this point, as it finds that the interference was in any event not “necessary in a democratic society”, for the reasons that follow.

35. The interference could be regarded as seeking to protect the reputation of the judge targeted by the applicant’s statement and to maintain the authority of the judiciary, and therefore as pursuing legitimate aims.

36. The salient question is whether the interference was “necessary in a democratic society” in order to achieve these aims. To answer this question, the Court must determine whether the interference was proportionate, due regard being had to the national authorities’ margin of appreciation in this domain (see, among many other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004-XI).

37. The general principles guiding this assessment were recently restated in Morice v. France ([GC], no. 29369/10, § 124, 23 April 2015) as follows:

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of 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 given by an independent court. 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.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered 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 and 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 and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”

38. The Court has examined cases relating to disparaging statements against judges or public prosecutors made by unrepresented litigants in the course of or in connection with judicial proceedings (see Lešník v. Slovakia, no. 35640/97, ECHR 2003-IV (public prosecutor); Skałka v. Poland, no. 43425/98, 27 May 2003 (judge); Saday v. Turkey, no. 32458/96, 30 March 2006 (judges); Bezymyannyy v. Russia, no. 10941/03, 8 April 2010 (judge); and Łopuch v. Poland, no. 43587/09, 24 July 2012 (judge)). It has also dealt with cases concerning disparaging statements against judges, public prosecutors, expert witnesses or police officers made by defence counsel in the course of judicial proceedings (see Nikula v. Finland, no. 31611/96, ECHR 2002-II (public prosecutor); Steur v. the Netherlands, no. 39657/98, ECHR 2003-XI (police officer); Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005-XIII (judges); Schmidt v. Austria, no. 513/05, 17 July 2008 (public prosecutor); and Fuchs v. Germany (dec.), no. 29222/11, 27 January 2015 (expert witness)), As in those cases, the Court will examine the proportionality of the interference with the applicant’s rights by looking at the nature and exact manner of communication of the statement, the context in which it was made, the extent to which it affected the judge, and the severity of the sanction imposed on the applicant.

39. In so doing, the Court will in particular bear in mind that the work of the courts, which are the guarantors of justice and have a fundamental role in a State governed by the rule of law, requires public confidence, and should therefore be protected against unfounded attacks. While the courts are not immune from criticism and scrutiny, and while parties are entitled to comment on the administration of justice to protect their rights, their criticism must not overstep certain bounds. In particular, a clear distinction must be made between criticism and insult (see Łopuch, cited above, § 61, with further references).

40. Since the remarks in respect of which the applicant was convicted featured in an appeal against his conviction and sentence in a previous case (see paragraph 7 above), a factor which must carry particular weight in this assessment is that sanctions imposed in relation to statements made by the accused in a criminal case or his counsel can also affect the right to a fair trial, by dissuading them from mounting a vigorous defence. While the right to freedom of expression of an accused or his counsel in relation to such statements is not unlimited, equality of arms and fairness more generally militate in favour of a free and even forceful exchange of argument between the parties (see Nikula, § 49; Steur, § 44; and Kyprianou, § 175, all cited above).

41. In the applicant’s case, it can hardly be said that the wording chosen by him was more akin to an insult than to a criticism (see paragraph 7 above). Moreover, the applicant’s reproach, rather than being general, was focused on the judge’s performance in the case against him. The applicant pointed to the factual basis for his misgivings about the judge’s impartiality. Indeed, those misgivings were later fully upheld by the appellate court, which held that the judge had displayed impermissible bias and should have recused himself (see paragraph 10 above). The courts dealing with the defamation case against the applicant did not say anything about that (see paragraphs 12 and 14 above).

42. The applicant’s statement – which was set out in a written appeal against his conviction and sentence – was not given any form of publicity. It did not therefore pose a serious threat to the judge’s authority and reputation. Nor can it be maintained that it was capable of having a serious effect on the professional standing of the judge, of taking up his time and resources, or of leading to disciplinary or other sanctions against him.

43. It should further be noted in this context that the applicant was not a lawyer. Lawyers have special “duties and responsibilities” in the exercise of their right to freedom of expression (see Nikula, § 45; Steur, § 37; Fuchs, § 39; and Morice, §§ 132-39, all cited above). Unrepresented litigants cannot be expected to abide by the same standard of conduct and must in principle be able to plead their case without the risk of criminal sanctions, even where their allegations prove on examination to be groundless. Criminal courts normally have other tools to react to patently false or abusive statements in written pleadings or deal with disruptive conduct by the accused in the courtroom (see, mutatis mutandis, Nikula, cited above, § 53).

44. The applicant nevertheless had to bear serious consequences for making his allegations. He was subjected to a criminal conviction and a substantial fine, amounting, even after its reduction by the appellate court, to BGN 2,500 (EUR 1,278) (see paragraph 14 above). The Court finds that these constituted measures having the effect of restraining the applicant from impugning his conviction by challenging the impartiality of the judge who had imposed it.

45. In view of the above considerations, the Court concludes that the applicant’s conviction for defamation was a disproportionate interference with his right to freedom of expression and was therefore not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

46. 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

47. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.

48. The Government submitted the claims were exorbitant and out of line with the awards made by the Court in previous similar cases. In their view, the finding of a violation would amount to sufficient just satisfaction for any damage suffered by the applicant.

49. The finding of a breach of Article 10 of the Convention was based on the mere fact that the applicant was found criminally liable for making his statement. He is therefore – in principle – entitled to the repayment of the sums that he paid in fines and costs as a result of the judgments against him (see, among other authorities, Lingens v. Austria, 8 July 1986, § 50, Series A no. 103; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 75 and 77, ECHR 1999-III; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 113 and 115, 7 February 2012). However, the applicant provided no evidence that he has actually paid those sums. There is therefore no reason to award him anything in that respect (see Erdoğdu and İnce v. Turkey [GC], nos. 25067/94 and 25068/94, § 64, ECHR 1999-IV; Yordanova and Toshev v. Bulgaria, no. 5126/05, § 78, 2 October 2012; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 157, 10 November 2015).

50. The applicant must, however, have sustained non-pecuniary damage on account of the judgments finding him criminally liable for exercising his right to freedom of expression. Ruling on an equitable basis, as required under Article 41 of the Convention, the Court awards him EUR 3,500, plus any tax that may be chargeable.

B. Costs and expenses

51. The applicant did not originally make a claim under this head. At the end of unsolicited observations submitted on 28 April 2014 that the President of the Section refused to admit to the file, the applicant said that he claimed EUR 1,500 in respect of costs and expenses. He did not submit any documents in support of this claim.

52. In this case, it is not necessary to decide whether the applicant’s claim, even though set out in observations which were not admitted to the file, was validly made. Even assuming that this was the case, the claim was not supported by any documents, and must be rejected.

C. Default interest

53. 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 remainder of the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

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