site.btaUPDATED ECHR: Bulgarian Court’s Lack of Impartiality Infringed Rights of Journalist Convicted of Defamation

The case of Bosev v. Bulgaria (application no. 62199/19) concerned the conviction of a journalist for defamation of a senior Government official and, more specifically, doubts as to the impartiality of one of the judges having ruled on the charges laid against him on appeal, the European Court of Human Rights (ECHR) reported in a press release on Tuesday.

The Bulgarian Helsinki Committee (BHC) said that the ECHR has ruled that Bulgaria has violated journalist Rosen Bosev’s freedom of expression by allowing him to be convicted of defamation by judge Petya Kruncheva in violation of the right to a fair trial.

The journalist approached the ECHR because of doubts over judge Petya Kruncheva’s impartiality in connection to the Bulgarian court’s ruling and the charges pressed against him, the BHC said.

In Tuesday’s Chamber judgment in this case, the ECHR said it held, unanimously, that there had been two violations of the European Convention on Human Rights, namely pertaining to the right to a fair trial and freedom of expression.

The Court observed that several years prior to the present case Mr Bosev, in his capacity as a journalist, had written and published articles in which he had questioned the professionalism and integrity of a judge who was a member of the bench that had subsequently ruled on his conviction on appeal. It took the view that Mr Bosev might accordingly have harboured objective and reasonable doubts as to the impartiality of the judge in question, whom he had asked to withdraw from the case. However, his request had been permanently dismissed by the bench of which the judge in question was a member and the decision had been dictated to the clerk by that judge herself during the hearing. The Court notes, lastly, that no appeal on points of law lay against a conviction handed down on appeal.

Consequently, the Court held that the appellate court had not constituted an “impartial tribunal” and that the manner in which the sanction had been imposed on Mr Bosev in the present case had fallen short of securing one of the essential guarantees of a fair trial. It further held that the restriction on the applicant’s right to freedom of expression had not been accompanied by effective and adequate safeguards against arbitrariness.

At the relevant time, Mr Bosev, who is a journalist specialised in legal reporting, worked for the weekly newspaper Capital, which was owned by the publisher Ikonomedia.

In 2013 the Dnevnik news site, which was owned by Ikonomedia, reported that the then Director of the Financial Supervisory Commission (FSC) had been summoned to appear as a witness in a money-laundering trial on the grounds that he had allegedly signed documents facilitating the transfer of proceeds from drug-trafficking. 

Mr Bosev explained that, following the publication of that report, the FSC had on various dates from 2013 to 2015 imposed several fines on Ikonomedia’s majority shareholder and on other companies it owned, which he claimed the Bulgarian courts had subsequently set aside. Then, in 2015, the FSC had imposed two fines on Ikonomedia for publishing two articles in Capital which the FSC had seen as attempts to manipulate financial markets. The fines came to roughly 76,000 euros (EUR) in total.

It was in this context that Mr Bosev appeared on two television programmes on 15 and 16 January 2015, where he discussed the imposition of those fines and the FSC Director’s potential involvement in the events in question. Several months later, the Director of the FSC lodged a criminal complaint for defamation against Mr Bosev with the Sofia District Court because of statements the latter had made about him on the two programmes.

In 2017 the Sofia District Court found Mr Bosev guilty of defamation on the basis of the statement “Mr [S.]M. ... decided to use the institution he directs to punish Capital and Dnevnik”, which Mr Bosev had made during the 15 January 2015 broadcast. The court sentenced him to pay a fine of roughly EUR 511, plus costs and expenses in the amount of EUR 320.

Mr Bosev lodged an appeal. During the subsequent proceedings in the Sofia City Court, he filed two requests for the recusal of Ms P.K., who was the judge rapporteur and president of the bench. He argued that P.K. should be disqualified from taking part in the case because he had, in the past, published several articles in the press criticising her work and calling into question her integrity as a judge. Both recusal requests were dismissed, the ECHR said.

In 2019 the Sofia City Court upheld Mr Bosev’s defamation conviction, reiterating the reasons given by the Sofia District Court. It also found the applicant guilty on an additional count of defamation for another statement he had made during the same broadcast: “Mr [S.]M. was connected to the money-laundering scheme of which E.B. was accused. Through his acts, he facilitated the laundering of proceeds from drug-trafficking”. As to the penalty to be imposed on Mr Bosev, the appellate court found that a more severe penalty than the maximum provided for by law would have seemed more appropriate, but in the absence of an express request to that effect on the part of S.M. it imposed the same fine on the applicant as at first instance. No appeal on points of law lay against that decision.

Relying on Article 6 (right to a fair trial) of the Convention, Mr Bosev alleged that the judge rapporteur and president of the bench that had convicted him on appeal had lacked impartiality.

Relying on Article 10 (freedom of expression), Mr Bosev submitted that his conviction for defamation had infringed his right to freedom of expression, the ECHR said.

The application was lodged with the ECHR on 19 November 2019.

The Association of European Journalists – Bulgaria quotes lawyer Alexander Kashumov as saying that this decision is very important for Bulgaria because first of all it confirms a problem with the so-called 'SLAPP' cases against journalists who exercise freedom of speech in the public interest and are left without the necessary level of judicial protection in these cases. The second part of the decision is also interesting because it relates to Rosen (Bosev) being denied a fair trial.  

Very rarely does the ECHR, in any case, from any country, find a violation of both rights - the right to free expression and the right to a fair trial. “Here, in my view, it is deliberately highlighted that there is a violation of the right to a fair trial, which includes the right to be tried by an impartial judge. The Strasbourg-based Court thus brings together two major problems facing Bulgarian society - the protection of freedom of expression and the judiciary as it is and the court as it is," said Kashumov.