AS TO THE ADMISSIBILITY OF
Application no. 47092/99
by Mihail Tiholov EKIMDJIEV
The European Court of Human Rights (First Section), sitting on 3 March 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 10 September 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Mihail Tiholov Ekimdjiev, is a Bulgarian national who was born in 1964 and lives in Plovdiv. He is represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government are represented by Ms M. Kotzeva, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a lawyer. His practice includes, inter alia, defending criminal cases at the Plovdiv District Court and dealing with applications before European Court of Human Rights. Before becoming a lawyer he worked as a prosecutor at the Plovdiv District Prosecutor's Office.
In 1997 the applicant was acting as defence counsel for a Mr Borislav Nikolov who had been charged with theft and was being kept in detention. Later Mr Nikolov lodged an application with the European Court of Human Rights, which resulted in a judgment in which violations of Article 5 §§ 1, 3 and 4 were found (see Nikolov v. Bulgaria, no. 38884/97, 30 January 2003).
In early September 1997 the applicant filed with the Plovdiv District Court a habeas corpus petition on behalf of his client, Mr Nikolov. A hearing on the petition was listed for 16 September 1997 before the 4th criminal panel of the court. The panel consisted of a presiding judge, Ms S., and two lay judges.
The applicant submits that on 15 September 1997 he requested to be given access to the case file of the investigation against his client in order to be able to prepare for the hearing. The presiding judge, Ms S., refused to give the applicant access, giving oral instructions to that effect to the court clerk in charge of the file.
At the hearing on 16 September 1997 the applicant requested an adjournment, stating that he had not been given access to the investigation file by personal order of the presiding judge. The applicant submits that an argument ensued between him and the presiding judge as to whether he should have had access to the file.
The next day the applicant read the minutes of the hearing. He submits that he discovered that they did not accurately reflect what had been said at the hearing. They read that his request for an adjournment had been based only on his assertion that he had not read the investigation file and no mention was made of the reasons of him not having read the file. The applicant apparently considered that the wording of the minutes gave the impression that it was his own fault not having read the file.
On 18 September 1997 the applicant filed an application with the Plovdiv District Court, requesting rectification of the minutes. The application read:
“The Plovdiv District Court
4th criminal panel
At the insistence of the presiding judge, Ms S., incorrect and untrue facts, which do not correctly reflect my statements in my capacity of defence counsel, were recorded in the minutes of the hearing ... held on 16 September 1997:
1. Despite my express request the minutes do not reflect my statement that on 15 September 1997 judge S. personally, by oral order, did not allow me to acquaint myself with the investigation file and that for this reason I consider that the interests of my client were prejudiced.
Instead, my statement was recorded, under the dictation of the judge, as: “I have not acquainted myself with the investigation file”.
2. The minutes do not reflect my statement that my request of 15 September 1997 ... in which I ask the presiding judge ... to allow me to acquaint myself with the investigation file has not been put in the case file.
3. The minutes do not reflect the numerous attempts of the presiding judge to prevent me from adducing arguments in support of my position as to whether the court should proceed with the hearing.
For the above reasons and pursuant to Article 311 § 1 of the [Code of Criminal Procedure] I request that the minutes be rectified as necessary so that they reflect the actual statements of the parties.
Only this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents.”
On 23 September 1997 the applicant complained to the chairperson of the Plovdiv District Court that he was not allowed to consult the investigation file and that he could not have this fact entered in the minutes of the proceedings.
The applicant submits that on a date before 24 September 1997 the minutes were corrected to reflect his statement as it actually was. He submits, however, that this was not done in keeping with the proper procedure for the rectification of minutes. On 26 September 1997 the applicant withdrew his request for rectification of the minutes as having become moot.
Meanwhile, on 19 September 1997, judge S. complained to the Plovdiv District Prosecutor's Office, requesting the opening of criminal proceedings against the applicant for having defamed her by stating that in recording in the minutes of the hearing of 16 September 1997 incorrect and untrue facts, which did not correctly reflect his statements, she had committed a “serious procedural violation which bordered on the criminal offence of falsifying documents“.
On 10 December 1997 the Plovdiv District Prosecutor's Office opened criminal proceedings against the applicant for having committed the offence of defamation, contrary to Article 148 § 2 in conjunction with § 1 (3) of the Criminal Code (“the CC”).
The applicant appealed to the Plovdiv Regional Prosecutor's Office, arguing that in the circumstances there was no indication of him having committed an offence.
On 10 February 1998 the Plovdiv Regional Prosecutor's Office dismissed the appeal. It reasoned that, contrary to the applicant's allegations in his application of 18 September 1997, his statement that he could not have access to the investigation file because of judge S.'s instructions had been entered in the minutes. It went on to state that the mere false imputation of conduct to the judge, without more, was defamatory.
On 13 March 1998 the chairperson of the Plovdiv Regional Court wrote to the Bar, informing them that, after considering the issue of granting defence counsels in habeas corpus proceedings access to the investigation files of their clients, the judges of the court had decided that there were no legal grounds for refusing such access and that henceforth counsels would be allowed to consult the files.
On 23 March 1998 the applicant was charged under Article 148 § 1 (3) in conjunction with Article 147 § 1 of the CC with having imputed a crime –falsification of documents – to judge S., by having written “[o]nly this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents”. As a measure to secure appearance at the envisaged trial the applicant was placed under an obligation to not leave the town.
The same day the applicant appealed to the Chief Prosecutor's Office. He objected against the charges, arguing that the facts alleged against him did not constitute a crime, but constituted merely the lawful exercise of his procedural rights as a defence counsel.
On 30 March 1998 the head of the Supreme Bar Council of Bulgaria wrote to the Chief Prosecutor, requesting the discontinuation of the proceedings against the applicant. He stated that the actions of the Plovdiv District and Regional Prosecutor's Offices were in breach of the law and that the applicant had only exercised his procedural rights. He further stated that the court was a collective body and could not be defamed or insulted within the meaning of the CC. He also expressed the Supreme Bar Council's concern that he prosecution had incriminated a routine procedural act performed in pursuance of a counsel's professional duties. The prosecution had thus infringed a lawyer's freedom to act in defence of his clients' rights.
On 17 April 1998 the investigator in charge of the case concluded that the applicant should be committed for trial.
On 7 May 1998 the Chief Prosecutor's Office ordered that the proceedings be transferred to the Pazardjik District Prosecutor's Office, as the applicant had formerly been a prosecutor at the Plovdiv District Prosecutor's Office and the defamation's alleged victim, judge S., was a judge at the Plovdiv District Court.
On 7 September 1998 the Pazardjik District Prosecutor's Office discontinued the proceedings against the applicant. It stated that it would not examine whether the applicant had been properly charged, but reasoned that he had neither committed the actus reus of the crime of defamation, nor had the mens rea to commit defamation. In his application of 18 September 1997 the applicant had used the form of address “dear judges”. Therefore, the application had not been addressed personally to judge S. The judge had to acquaint herself with the application, which was addressed to the 4th criminal panel of the court, in her professional capacity. By making this application for rectification of the minutes the applicant had merely sought to defend the interests of his client, which was, indeed, within his professional obligations. It was also beyond doubt that the words “borders on a crime” featuring in the applicant's text could not be considered as amounting to the imputation of a specific crime.
B. Relevant domestic law
Article 147 of the CC, as in force at the relevant time, provided:
“1. Whoever divulges a vilifying fact about another or imputes to him a crime shall be punished for defamation by up to one year imprisonment or a fine of up to five levs, as well as by public reprimand.
2. The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed crimes.”
Article 148 §§ 1 (3) and 2 of the CC, as in force at the material time, provided that if the defamed person was an official and the defamation was committed against him during or in connection with the performance of his or her duties, the punishment was up to three years' imprisonment and a public reprimand. Offences under Article 148 §§ 1 (3) and 2 of the CC were publicly prosecutable (Article 161 of the CC, as in force at the relevant time).
According to the doctrine, the actus reus of defamation consists of imputing to someone the commission of a crime, i.e. the defamer must state before a third party that the defamed has committed a specific crime, which the defamed has not in fact committed (Александър Стойнов, Наказателно право, Особена част, Престъпления против правата на човека, София, 1997, стр. 138). Defamation is completed when at least one third party has learned about the defamer's statement (id., стр. 139).
2. Opening of criminal proceedings and charging
Criminal proceedings for a publicly prosecutable crime must be opened whenever the prosecution authorities receive a notification, supported by sufficient information, that a crime might have been committed (Articles 187 and 190 of the Code of Criminal Procedure (“the CCP”)). If the notification to the prosecuting authorities was not supported by sufficient information, they had to order a preliminary inquiry in order to determine whether the opening of criminal proceedings was warranted (Article 191 of the CCP, as in force at the material time).
Article 207 of the CCP provides that when sufficient evidence is gathered that a person has committed an offence, he or she must be charged.
3. Undertaking to not leave town without authorisation
Under Article 146 the CCP, a measure to secure appearance before the competent authority must be imposed in respect of every person charged with having committed a publicly prosecutable crime.
The most lenient such measure is a written undertaking by the accused that he or she would not leave his town without authorisation by the respective authority – the prosecutor or the court, depending on the stage of the proceedings (Article 149 of the CCP).
4. The State Responsibility for Damage Act
Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:
2. accusation of a crime, if the accused is acquitted or if the criminal proceedings are discontinued because ... the act committed by the accused is not a crime...;
The State is liable for all pecuniary and non-pecuniary damages which are the direct and proximate result of the unlawful act (section 4). The State's liability is strict, i.e. no proof of fault is required (section 4 in fine). An action under the Act is exempt from the initial payment of court fees (section 10(2)).
5. Minutes of court hearings
Minutes must be kept of all court hearings (Article 310 of the CCP). They must set out, inter alia, all motions, remarks and objections of the parties (Article 101 § 1 in conjunction with Article 310 of the CCP). They must be signed by the presiding judge and the secretary of the court (Article 310 § 2 of the CCP).
If one of the parties considers that the minutes are not complete or are erroneous, it may, within three days after their drafting, make a written request for their rectification or amendment. The request is first examined by the presiding judge, and if he or she denies it, it is examined in private by the entire court panel (Article 311 of the CCP).
1. In his initial application the applicant complained under Article 10 of the Convention about the opening of criminal proceedings for defamation against him. He submitted that this interference with his freedom of expression had not been “prescribed by law”, because the facts alleged against him could not reasonably be interpreted as constituting defamation within the meaning of Article 147 § 1 of the CC. The applicant further submitted that the interference had not had a legitimate aim, as it had in fact been intended to intimidate him and discourage him from voicing his concerns about the lack of access to the investigation files of persons filing habeas corpus petitions. Finally, the applicant submitted that the interference had not been necessary in a democratic society.
2. In his observations in reply to those of the respondent Government, dated 3 February 2004, the applicant raised an additional complaint. He submitted that the criminal proceedings against him had been intended to restrict him in submitting an application to the Court on behalf of his client, Mr Nikolov, and referred to Article 17 of the Convention.
1. In respect of his complaint about the opening of criminal proceedings for defamation against him the applicant relied on Article 10 of the Convention, which provides, 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.”
Even though the respondent Government did not raise an objection in this respect, the Court, having regard to the particular circumstances of the case, finds it necessary to first examine whether the applicant can claim to be a victim within the meaning of Article 34 of the Convention (see Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000-XI).
Article 34 provides:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The applicant submitted that the question whether he was a “victim” should be decided with reference to the negative consequences which he had suffered as a result of the opening of criminal proceedings against him. He acknowledged that most cases examined by the Court under Article 10 involved final criminal convictions or civil judgments against the persons or entities concerned. However, he pointed out that paragraph 2 of Article 10 did not speak of “interference”, but used the terms “formalities, conditions, restrictions or penalties”, which indicated that it contemplated a wide variety of possible limitations on the freedom of expression. What also mattered was the severity of the actions taken by the authorities and the context, namely that his remark had been made in the course of proceedings in which he was seeking to vindicate the Convention rights of his client.
The applicant further submitted that the criminal proceedings against him had been instituted in bad faith, because they had been intended to prevent him from exercising his rights as a criminal defence counsel. That could be inferred from the facts that the authorities had not had sufficient evidence for the opening of such proceedings and that he had been charged before any investigative actions had been carried out. All he had said was that the failure of the court to properly record his statement, made during the hearing of 16 September 1997, had been a serious breach of the rules of procedure. Moreover, he had addressed his request to the fourth criminal panel of the Plovdiv District Court. Under Bulgarian law a legal entity could not be defamed; only an individual could. Furthermore, the charges against the applicant, with all their negative consequences – notably, the prohibition imposed on him to leave his town –, had been levelled immediately after judge S.'s complaint, without any prior investigation being carried out.
The Court notes at the outset that almost all cases examined by it under Article 10 have involved final criminal convictions or civil judgments against the persons complaining of an infringement of their freedom of expression. Such final convictions or civil judgments undoubtedly represent interferences with freedom of expression. By contrast, in a case against Switzerland concerning pending criminal proceedings for defamation, the former Commission held that “the institution of criminal proceedings as a result of complaints by individuals cannot, as such, constitute an interference with a person's exercise of his right to freedom of expression” (see Ziegler v. Switzerland, no. 19890/92, Commission decision of 3 May 1993, Decisions and Reports 74, p. 234, at p. 240). However, even assuming that the institution of criminal proceedings against the applicant may be characterised as a formality or a restriction within the meaning of Article 10, the Court is of the view that the applicant can no longer claim to be a victim of a violation of that provision, for the following reasons.
The Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Constantinescu v. Romania, no. 28871/95, § 40, ECHR 2000-VIII). While it is true that after being charged the applicant was left for some time in uncertainty about the possibility of being found guilty of defamation and convicted, the Court recalls that the proceedings were eventually discontinued prior to trial, on the ground that the act committed by the applicant did not constitute the criminal offence of defamation. The decision of the Pazardjik District Prosecutor's Office of 7 September 1998 to discontinue the proceedings could thus be seen as an acknowledgment, in substance, that the applicant's right to freedom of expression had been unjustifiably restricted (see, mutatis mutandis, Dalban, cited above, ibid.). The situation obtaining in the present case was therefore different from that in the case of Bowman v. the United Kingdom (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I), where the applicant had been acquitted solely for the technical reason that the summons had not been issued within the statutory time-limit (see p. 185, § 29 of that judgment). Contrary to the Court's findings in the Bowman case, it cannot be established in the circumstances of the present case that the opening of the proceedings against the applicant was an indication to him that, unless he modified his behaviour, he would run the risk of being prosecuted again and possibly convicted and punished. The decision of 7 September 1998 stated clearly that the applicant's behaviour did not violate any provision of national law.
As regards redress for the alleged breach, the Court furthermore notes that section 2(2) of the State Responsibility for Damage Act provides for compensation in circumstances like these pertaining to the applicant's case: discontinuation of criminal proceedings because the act alleged against the accused does not constitute a criminal offence. An action under this provision is premised on the State's strict liability, i.e. the applicant would not be required to prove fault on the part of the prosecuting and the investigating authorities and, moreover, he would be exempt from the initial payment of court fees (see, as an example to the contrary, Dalban, cited above, ibid.). The applicant did not invoke any reasons which had prevented him from lodging such an action, nor is there any indication that it would have been devoid of any chances of success.
In conclusion, the Court considers that the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. In his observations in reply to those of the respondent Government, dated 3 February 2004, the applicant complained that the criminal proceedings against him had breached his right to lodge an application on behalf of Mr Nikolov. The Court notes that the applicant, apparently by mistake, referred to Article 17 of the Convention, while in fact wishing to raise a complaint under Article 34 of the Convention. It will therefore examine the complaint under that provision.
However, before entering into the substance of this complaint, the Court recalls that the running of the six months' time-limit imposed by Article 35 § 1 of the Convention is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made. As regards complaints not included in the initial application, the running of the six-months' time-limit is not interrupted until the date when the complaint is first submitted to the Court (see Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001).
The Court notes that in his first letter, postmarked 8 September 1998, the applicant, who was legally represented, complained solely under Article 10 of the Convention about an infringement of his freedom of expression. He did not aver that the criminal proceedings against him had been intended to hinder Mr Nikolov's right to lodge an application with the former Commission and made no reference to former Article 25 of the Convention. In his application form, dated 23 February 1999 and postmarked 25 February 1999, the applicant relied solely on Article 10 of the Convention and developed detailed arguments as to whether the different requirements of paragraph 2 of that Article had been complied with. No reference, express or implied, was made to Article 34 (former Article 25) of the Convention or to Mr Nikolov's right to lodge an application with the Convention organs.
In these circumstances, the Court finds it established that the applicant did not raise the above complaint until 3 February 2004, whereas the domestic proceedings came to an end on 7 September 1998, which is more than six months prior to the introduction of the complaint.
It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
EKIMDJIEV v. BULGARIA DECISION
EKIMDJIEV v. BULGARIA DECISION