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You are here: BAILII >> Databases >> European Court of Human Rights >> RUMYANA IVANOVA v. BULGARIA - 36207/03 [2008] ECHR 150 (14 February 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/150.html Cite as: (2012) 55 EHRR 9, 55 EHRR 9, [2008] ECHR 150

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FIFTH SECTION

CASE OF RUMYANA IVANOVA v. BULGARIA

(Application no. 36207/03)

JUDGMENT

STRASBOURG

14 February 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Rumyana Ivanova v. Bulgaria,

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

Peer Lorenzen, President,
Snejana Botoucharova,
Volodymyr Butkevych,
Margarita Tsatsa-Nikolovska,
Rait Maruste,
Javier Borrego Borrego,
Renate Jaeger, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 22 January 2008,

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

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Background to the case

1.  The applicant and the newspaper

2.  The Information on Non Performing Credits Act of 1997

3.  Mr M. D.

4.  The previous publication alleging that Mr M. D. was a “credit millionaire” and his tort action against Media Holding AD

B.  The impugned article

“The King's men were intensely discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister. Simeon Saxe Coburggotski was concerned about the fact that [Mr M. D.]'s name is on the list of credit millionaires, confided sources close to him. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Three of his companies – Maxcom Holding, FBK Maxcom and Maxcom OOD –, had debts totalling 20,400,000 levs. The uncertainties about [Mr M. D.] have brought the name of [Mr E. D.] on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.”

“The King's men were discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister.

According to insiders, Simeon Saxe Coburggotski received reports that [Mr M. D.] is on the list of credit millionaires. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor.

Mr M. D. categorically denied this. He said 'I am not a debtor, but a creditor'.

According to former Members of Parliament, the allegations that he was a credit millionaire were being spread by people who wanted to smear his name. Ill wishers used the similarity between the names of [Mr M. D.]'s companies and the names of those companies featuring on the list of credit millionaires. This was done to foil his candidacy for the position of deputy Minister of Finance. In recent days the name of [Mr E. D.] has been brought on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.”

“In an article on page eight of issue 208 of this year, under the headline 'Foreign Company To Run Customs under Concession?', [the applicant] links my name to companies which feature on the list of credit millionaires.

This statement does not correspond to the truth.

I reiterate that I have never been a shareholder, member or manager in the companies Maxcom Holding, FBK Maxcom, or Maxcom OOD, nor can I be in any other way linked with debtor companies. Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation.

To my displeasure I notice that 24 Hours, a newspaper which I respect, has joined in the foul attack.

In my opinion, the publication of unauthentic, unverified and incorrect information does no honour to your newspaper and offends its readers.”

C.  The proceedings against the applicant

“...The actus reus of the offence of defamation is characterised by the divulging of vilifying – and untrue – circumstances relating to a specific individual. The expression used by [the applicant] – 'credit millionaire' – is derived from the Information About Non Performing Credits Act [of 1997], on the basis of whose section 3 the administration of the [Bulgarian National Bank] has published a list of all debtors, persons who have outstanding credits. Therefore the expression 'credit millionaire' has a negative connotation and presupposes intolerance and extremely negative public attitudes. These are people who have prospered financially due to credits from financial institutions which they have failed to repay. In this sense, from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest. The law bans these persons from holding certain official posts.

The above characterises the expression used by [the applicant] – 'credit millionaire' – as vilifying and damaging to the public reputation of the person [in respect of whom it is used] and the esteem of his personality. The vilifying circumstance has been divulged through the press to a large number of readers. The fact that the first version of the article had a smaller circulation than the second, which also contained [Mr M. D.'s] rebuttal, is of no consequence, because the circulation of the printed material has no impact on the criminality of the act.

The act has been committed wilfully, the form of mens rea being recklessness. [The applicant] realised the criminality of her act and its injurious consequences, and accepted that they would occur. [She] pursued another aim, which is not unlawful –informing the newspaper's readers of the latest news about the candidates for the post of deputy Minister of Finance in the Saxe Coburggotski cabinet –, but was aware that the information published was untrue and did not correspond to the actual facts. The court's findings in this respect are based on the fact that [the applicant] did not carry out a proper journalistic enquiry before publishing her story.

No regulations for conducting a journalistic enquiry were in existence at the time when the article was published. Accordingly, in his or her work each journalist had to abide by and comply with the settled customary rules in the branch, which are in line with Articles 39 to 41 of the [Constitution of 1991 – see paragraph 31 below], which contain requirements and restrictions in the exercise of the rights proclaimed thereby. In the instant case, it was established that [the applicant] had not carried out the required comprehensive and thorough journalistic enquiry, as required by the rules of investigative journalism, that is, to receive confirmation from two independent sources.

The first of [the applicant]'s sources was a Member of the majority in Parliament, who conveyed the information relating to [Mr M. D.] off the record, citing no sources, that is, it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels. He should have therefore, according to best journalistic practice, been considered an unreliable source. This fact obliged [the applicant] to duly check the information she had received through other, public and reliable, sources and not trust completely what she had heard in Parliament. The information received from [Mr N.] did not in fact constitute another dependable source of information. The latter relied on the publication of the Trud publishing house The Full List of Credit Millionaires, in whose preface [Mr M. D.] had been identified as a debtor through three of his companies – FBK Maxcom, Maxcom Holding and Maxcom OOD. [The applicant] was therefore under the obligation to check whether [Mr M. D.] indeed owned shares in these companies, because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic. This conclusion is reinforced by the fact that the publication in issue gave the names of the companies, not of their shareholders, for which reason the statement in its preface was not confirmed by its contents. However, [the applicant] did not take the requisite steps to verify the facts alleged by [Mr N.] and the publication's preface. She merely established, after a check in the APIS information system, that [Mr M. D.] was a shareholder in the company Vitaplant [OOD], which also featured on the list of persons with outstanding credits. The company Vitaplant [OOD] was not, however, among the companies connected to [Mr M. D.]'s name in the publication's preface, and that should have prompted [the applicant] to double check her assumptions. However, [the applicant] assumed that the link uncovered by her was sufficient to corroborate the statement that [Mr M. D.] was a credit millionaire. She thus failed to comply with her duty of thoroughly verifying the information through reliable, independent sources. [The applicant] did not check whether the statement in the [publication's] preface that [Mr M. D.] was connected to three debtor companies corresponded to the truth, which was mandatory. The fact that she works at a daily newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries. She had access to information in the register of companies, which is public, in order to check the veracity of the information she had gathered. Not only did [the applicant] not do that, but in her article she relied on a document with which she had not been duly acquainted – the official list of borrowers compiled by the [Bulgarian National Bank]. The statement in her article that the three companies – Maxcom Holding, Maxcom OOD and FBK Maxcom – were companies of [Mr M. D.] was not supported by due journalistic enquiry. Her source, [Mr N.], relied on the publication of Trud, which in fact means that [the applicant]'s information was solely based on the preface of the list, which was not enough, considering that this information had not been verified either.

The readers' right to be informed of so called 'hot news' does not absolve the article's author from checking carefully the accuracy of her publication. The fact that [the applicant] did not take the necessary steps in this direction confirms the court's conclusion that her act was wilful. There must be a balance between the reader's right to information and the rights of the persons affected by journalistic materials. The one responsible for this balance is the author, who must abide by the rules of investigative journalism. It is beyond doubt that the time and means available to a journalist on a daily newspaper for a proper enquiry concerning a current issue are greatly limited, but [the applicant] was bound to do what was possible to verify the information she had gathered. In the case at hand [the applicant] had enough time to consult the register of companies, so as to report on the rumours heard in the lobby of the Parliament building and at the same time to present the actual facts. It is precisely [the applicant]'s passivity in respect of this second element which makes her act criminal. The lack of a full enquiry into the facts, performed with due journalistic care, and the applicant's own statement that she did not carry out a full enquiry into Mr M. D.'s involvement in the companies mentioned in the article, allow [the court to conclude] that she was not confident that her allegations were true. On the contrary, the fact that [the applicant] is an experienced journalist, maintains contacts with colleagues of hers from other media, with whom she exchanges information concerning such news, allows [the court to conclude] that she knew that information about outstanding credits of [Mr M. D.] had been published before. She was therefore aware that the two newspapers which had published similar articles had also published refutations, and had apologised to [Mr M. D.] for the untruthfulness of their allegations. [The applicant] did not do all she was professionally bound to do in respect of the specific enquiry, which points to intent. She allowed herself to rely on sources which she had not checked, but which made her article look persuasive and objective.

CONCERNING THE PENALTY:

In determining the type and quantum of punishment the court had regard to the following:

The court is of the view that all necessary prerequisites for replacing [the applicant]'s criminal liability and imposing an administrative punishment on her are in place. The offence committed by her is punishable by a fine. [The applicant] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability... For this reason, the court is of the view that [the applicant] should be exonerated of criminal liability and punished administratively by a fine.

In determining the amount of the fine the court had regard to [the applicant]'s means, earned as a journalist, as well as to certain mitigating circumstances, such as a critical attitude to her act, cooperation in establishing the facts, [and] good character. All of these favour a lower fine, that is [BGN] 500.

The court contemplated the possibility ... of imposing an additional punishment, but accepted that this is not necessary as the fine is sufficient to reform and deter [the applicant] and the general public.

CONCERNING THE CIVIL CLAIM:

The existence of damage resulting from the offence under Article 147 § 1 of the [Criminal Code of 1968] is an unrebuttable presumption and, in view of the court's finding that the applicant acted with mens rea, the only outstanding issue is the quantum of damage. It is beyond doubt that the publication authored by [the applicant] damaged [Mr M.D.]'s reputation and public esteem. He should therefore be compensated for that damage. At the same time it has not been proved beyond doubt that the article has affected [Mr M. D.]'s business relations with his partners, [or] has hindered his prospective career in the executive, that is, has prevented him from being appointed to a high ranking position. [His] allegations in this respect remained a mere conjecture, lacking clear distinction between reality and possibility. All averments in a criminal complaint are subject to proof at trial, including the quantum of the damage. For this reason, the lack of evidence leads to the conclusion that [Mr M. D.]'s claim for BGN 10,000 is unproven. [The claimant] is not relieved of the burden of proving the exact quantum of the sustained damage, irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes.

The court ruled in equity, as required by [the law] and the established case law, accepting that [the applicant] should be ordered to pay [Mr M. D.] the amount of BGN 2,000 as compensation for the non pecuniary damage suffered as a result of the offence. [The applicant] is to pay interest on this amount at the legal rate from 4 August 2001 until settlement. ...”

“... The parties are not in dispute about the facts [established by the court]. There is also no dispute about the [lower court]'s finding that the statement that a given person is a 'credit millionaire' because companies owned by him appear on the [Bulgarian National Bank]'s list of debtors with 'bad credits' is objectively vilifying for him or her. [The applicant's] defence raises legal arguments, which outline two disputed questions. The first is whether there is defamation where the facts set out in the publication are untrue, but the conclusion made on their basis is true on other grounds. The defence argues that [Mr M. D.] is in fact a 'credit millionaire', not on account of the companies cited in the publication, but because of [his involvement in] another company – Vitaplant OOD. The second is whether an individual who owns a share in a company with outstanding credits can be deemed a 'credit millionaire'. The view of [the court] on these questions is as follows:

The expression 'credit millionaire' is not legally defined. It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use, by them personally or by physical or legal persons connected with them, of unsecured bank credits, which have remained unpaid and have been listed by the [Bulgarian National Bank] as unrecoverable. The expression is pejorative, because it implies that the people in question are supposedly responsible for the crisis in the banking system and the so called 'draining' of the banks – generally persons who have become rich in a criminal way. A list of 'credit millionaires' as an official document emanating from the [Bulgarian National Bank] has never existed. There exists a list of the persons with outstanding credits as of 1997, which has been compiled pursuant to the Information on Non Performing Credits Act [of 1997]. This Act requires the [reportable] credits to exceed 5,000 German marks – it does not concern only credits with seven or more figures. According to [the Act], the list is published in a special bulletin, which is not covered by bank secrecy and is sent to the Chief Prosecutor's Office, the Ministry of Internal Affairs, the tax and customs authorities and the National Assembly. After its receipt at the National Assembly on 21 January 1998 the list was made available to journalists and was published in full or in part as a list of the “credit millionaires”. In fact, the vilifying circumstance is not to own specific companies, but to be a 'credit millionaire'. In the view of the [court], however, such a dissection of the statement in [the applicant]'s publication and the application of paragraph 2 of Article 147 of the [Criminal Code of 1968] to one of the resulting parts cannot be made, for the following reasons. Readers are not bound to accept journalistic statements uncritically. An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful. Such facts in the case at hand are the citing of an official document featuring [Mr M. D.]'s name (untrue) and the citing of specific companies owned by [Mr M. D.] with specific debts (also untrue). There is no doubt that without these untrue allegations the statement that [Mr M. D.] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him. It would be wrong to divide an averment containing a vilifying circumstance into two parts for a second reason: the damage to the reputation and the public esteem of a defamed person is not a constant value. The degree of that damage may vary significantly. In the instant case, where there is a statement that an individual is a 'credit millionaire' because of his involvement in companies which have received credits, the [court] considers that the greater the amount of the outstanding credits, the more numerous the companies having received them, the more direct the connection of the individual with these debtor companies, and, last but not least, the noisier the public scandal, the more vilifying is the statement. [Mr M. D.] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not twenty million levs, if the article had cited one unknown company instead of three companies which had become notorious because of their link with criminal investigations, and if [Mr M. D.] had not been indicated as [their] sole owner instead of merely a shareholder [in them].

Because of the meaning implied in the expression 'credit millionaire' the [court] considers that in the event of a credit taken by a company, an individual could be deemed as having profited therefrom, in the range of millions of levs, only if [his or her] connection with that company is direct, and not through the intermediary of participation in companies which in turn participate in other companies, and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him. The link may likewise exist through participation in the management [of these companies]. At the time when the credit was received [Mr M. D.] did not participate directly in Vitaplant [OOD]. He was neither a manager of that company, nor a substantial shareholder. The credit itself was not in an amount which would make him a 'millionaire'.

The arguments relating to the existence of a civil judgment dismissing a tort action by Mr M. D. against Media Holding AD are irrelevant, as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the non pecuniary damage sustained, whereas the civil courts are under no obligation to gather such evidence. This judgment is not binding on the criminal court.

The arguments relating to the lack of mens rea are unfounded. The court considers that the [lower court] has correctly accepted as true [the applicant]'s statements that she had verified the information from two independent sources – the Members of Parliament and [Mr N.], after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers. In spite of that, the defamation was committed recklessly. [The applicant] has disregarded her duty to check the information she imparts with the only reliable source – the public register of companies – to which she had access. The opinion of the MPs was unofficial, as established by the testimony of [the applicant]'s colleagues, whereas [Mr N.], not having his own information, referred [the applicant] to the publication of Trud. This leads to the conclusion that [the applicant] was aware of the possibility that the vilifying information might not be accurate, but disregarded this concern in order to get her story to print as soon as possible.”

II.  RELEVANT DOMESTIC LAW

A.  The Constitution of 1991

Article 39

“1.  Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.

2.  This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of 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, nor 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.”

B.  The Criminal Code of 1968

“1.  Whoever divulges a vilifying fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by a public reprimand.

2.  The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed offence.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

A.  The parties' submissions

B.  The Court's assessment

1.  Admissibility

2.  Merits

II.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

“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

B.  The Court's assessment

1.  Admissibility

2.  Merits

(a)  The necessary in a democratic society test requires the Court to determine whether the interference complained of 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 given 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 in accordance with their margin 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 comments held against the applicants and the context in which they 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)  In assessing the proportionality of an interference, the Court has to make a distinction between statements of fact and value judgments in that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The classification of a statement as one of fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Done in English, and notified in writing on 14 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President