YORDANOV proti Bulharsku

FOURTH SECTION

DECISION

Application no. 79709/13
Yordan Atanasov YORDANOV
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 14 December 2021 as a Committee composed of:

Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 79709/13) against Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 13 December 2013 by a Bulgarian national, Mr Yordan Atanasov Yordanov, born in 1952 and living in Bogomilovo (“the applicant”) who was represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms D. Kmetova-Mehmed, lawyers practising in Plovdiv;

the decision to give the Bulgarian Government (“the Government”), represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice, notice of the complaint under Article 10 of the Convention relating to a judgment holding the applicant liable in damages for defamation, and to declare the remainder of the application inadmissible; and

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The main issue in the case is whether it was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention to hold the applicant liable in damages with respect to strongly-worded allegations about two former employers/business partners of his and their company which he had made on the Internet.

2. In early 2009 the applicant fell out with those two people, who in 2008 had retained him to work on real-property development projects of their company. Between April and October 2009 he published various allegations about them on the Internet. His former employers/business partners (the exact nature of the relations between them and the applicant remains disputed) brought a private criminal prosecution coupled with claims for damages against him in relation to these published allegations, asserting that he had defamed them. The first-instance court acquitted the applicant and dismissed the claims for damages against him. The second-instance court discontinued the criminal prosecution owing to the expiry of the relevant limitation period but went on to examine and partly to allow the claims for damages against the applicant. The Supreme Court of Cassation upheld that judgment.

3. The applicant complained that the second-instance judgment holding him liable in damages for defamation was in breach of Article 10 of the Convention.

THE COURT’S ASSESSMENT

1. Statements with respect to which the applicant was found liable for defamation

4. The second-instance court found the applicant liable in damages for defamation with respect to the following statements which he had made on a website run by him, in emails sent to a number of recipients, and in messages posted on Internet forums:

“At the moment the antichrists M.D. and H.N. are negotiating ...”

“They hire hundreds of employees and, with false promises, make them work without remuneration for a few months, and then for a few months give them a few [Bulgarian] levs, so that they would not die of hunger ...”

“Thousands of unemployed ... lured with false promises of work”

“Hundreds of thousands of [Bulgarian] levs in avoided taxes”

“Hundreds of thousands of [Bulgarian] levs from defrauded buyers”

“The latest complaint by Mrs D. devotes a lot of space to praises of the great municipal councillor M.D. I am fifty-seven years old, and have worked with and interacted with hundreds of people, but I have never met such a narcissistic, arrogant and spiteful, hypocritical, deceitful, vile, thieving and robbing creature – as I say ‘marvel’ – and that is the only definition I can come up with.”

“The main purpose of the complaints of ... against me is to lay, if possible, their hands on the evidence of their criminal activities and destroy or manipulate it ...”

“... have been insolvent since the beginning of October 2008, which makes them offenders under Article 227b of the [Criminal Code] ...”

2. Existence of an interference

5. This judgment interfered with the applicant’s right to freedom of expression under Article 10 of the Convention (see Vesselinov v. Bulgaria, no. 3157/16, § 28, 2 May 2019).

6. By contrast, the judgment did not concern the applicant’s earlier complaints to the prosecuting authorities against his former employers/ business partners and their company.

3. Lawfulness and legitimate aim of the interference

7. The interference had a sufficient basis in section 45 of the Obligations and Contracts Act 1950 (see Yordanova and Toshev v. Bulgaria, no. 5126/05, § 40, 2 October 2012, and Vesselinov, cited above, § 30). It is not for this Court to gainsay the Bulgarian courts’ assessment – which does not appear arbitrary – that the applicant’s statements had amounted to tortious conduct contrary to that provision (see Yordanova and Toshev, cited above, § 41). The interference was hence “prescribed by law”.

8. It plainly sought to protect the reputation and rights of the applicant’s former employers/business partners.

4. Necessity of the interference

9. The interference was also “necessary in a democratic society”.

10. Some of the statements which the second-instance court found defamatory – “antichrists”, “narcissistic”, “arrogant and spiteful”, “hypocritical”, “deceitful”, “vile”, “thieving and robbing” and “marvel” – were value judgments, whereas the remainder, in which the applicant had essentially accused his former business partners/employers of dishonesty, fraud, and tax and bankruptcy offences, were statements of fact. In the circumstances, however, there is no need to distinguish between the two, since according to the Court’s case-law even value judgments must have some factual basis (see, among other authorities, Morice v. France [GC], no. 29369/10, § 126, ECHR 2015).

11. The applicant was thus under a duty to show that his statements, taken as a whole, had some factual basis. Such serious allegations normally require a solid factual basis (see Rumyana Ivanova v. Bulgaria, no. 36207/03, § 64, 14 February 2008), especially when they have been made on the Internet and could thus potentially reach an unlimited number of people (see, mutatis mutandis, Cicad v. Switzerland, no. 17676/09, §§ 59-60, 7 June 2016). But although he took part in all stages of the defamation proceedings against him and was represented by counsel throughout, the applicant apparently did not duly argue that his allegations of dishonest and criminal conduct by his former employers/business partners were in fact true. When summarising his submissions in their judgments, neither the second-instance court nor the Supreme Court of Cassation mentioned that he had made such assertions (see реш. № 282 от 07.12.2012 г. по в. н. ч. х. д. № 1277/2012 г., ОС-Стара Загора, and реш. № 143 от 21.06.2013 г. по н. д. № 144/2013 г., ВКС, III н. о.). More importantly, the second-instance court expressly noted that although the applicant had produced many documents ostensibly for the purpose of showing wrongdoing by his former business partners/employers, he had not made any submissions in relation to this allegation, and that it was hence not necessary to engage with that evidence. Contrary to what the applicant contended, that ruling cannot be seen as lacking a factual basis or as being arbitrary. In the present proceedings, he also did not produce any evidence about the tenor of his written or oral submissions before the second‑instance court or indeed before the Supreme Court of Cassation. Those courts’ reluctance to analyse the factual basis for his allegations thus appears to have been due to the manner in which he conducted his case rather than to procedural obstacles which they placed in his way (contrast Lacroix v. France, no. 41519/12, § 46, 7 September 2017), or to unduly onerous requirements as to the standard of proof (contrast Kasabova v. Bulgaria, no. 22385/03, § 62, 19 April 2011).

12. The requirement for the applicant to make out his allegations, based on the so-called “presumption of falsity”, was not in itself contrary to Article 10 of the Convention (see Kasabova, cited above, §§ 58-61, with many further references). It was open to him to rely on the “defence of truth”, but he apparently did not make enough efforts to do so.

13. In this case, which concerns a personal controversy rather than a political debate, the above considerations take on a special significance (contrast Lombardo and Others v. Malta, no. 7333/06, § 60, 24 April 2007; Dyuldin and Kislov v. Russia, no. 25968/02, § 49, 31 July 2007; and Margulev v. Russia, no. 15449/09, § 52, 8 October 2019). As a consequence, the ruling that the applicant was civilly liable for defamation can be seen as “necessary in a democratic society”.

14. It is hence superfluous to assess whether the words which the applicant used to describe his former employers/business partners were in any event excessive by reason of being unduly derogatory (see, mutatis mutandis, Marinova and Others v. Bulgaria, nos. 33502/07 and 3 others, § 88, 12 July 2016). Nor is it necessary to determine whether his former employers/ business partners were indeed well known, at least locally (compare with Roseiro Bento v. Portugal, no. 29288/02, § 42, 18 April 2006, and Koutsoliontos and Pantazis v. Greece, nos. 54608/09 and 54590/09, § 45, 22 September 2015 (municipal councillors), and with Novaya Gazeta v Voronezhe v. Russia, no. 27570/03, § 46, 21 December 2010 (local businessman)).

15. The judgment against the applicant was, moreover, not disproportionate in its effects. After all, he was only held liable to pay monetary compensation; the criminal prosecution against him was discontinued owing to the expiry of the relevant limitation period (compare with Vesselinov, cited above, § 38). The sums which he was ordered to pay – 2,000 Bulgarian levs (BGN) (equivalent to 1,023 euros (EUR)) to one of his former employers/business partners and BGN 1,500 (equivalent to EUR 767) to the other – do not seem disproportionate either. Although the Bulgarian courts could have explained more clearly why they opted for those amounts, the evidence submitted by the Government – which shows that (a) in November 2013, about five months after the end of the defamation proceedings against him, the applicant gifted his son a plot of land of 9,865 sq. m., and that (b) in October 2015, a little over two years after the end of the proceedings, he purchased a 106 sq. m. flat – tends to suggest that the awards of damages against him were not overly burdensome relative to his financial circumstances.

16. More importantly, the applicant has not actually paid those sums (compare with Vesselinov, cited above, § 38). Although in late 2013 both of his former employers/business partners brought enforcement proceedings against him to recover the damages which he owed them, that has apparently not happened so far. According to a July 2020 statement by the enforcement agent in charge of both sets of proceedings, no money had been collected from the applicant in the proceedings brought by one of his former employers/business partners. The statement further said that those proceedings had lapsed in June 2016 by operation of law owing to a two-year inaction by the judgment creditor after the latest enforcement step (an unsuccessful public sale), which had taken place in June 2014. There is no information about the state of the enforcement proceedings brought by the other of the applicant’s employers/business partners, but there is no reason to suppose that they have resulted in the recovery of any sums.

17. It appears furthermore that the damages can no longer be sought from the applicant (contrast Steel and Morris v. the United Kingdom, no. 68416/01, § 97, ECHR 2005-II). By section 117(2) of the Obligations and Contracts Act 1950, the limitation period for judgment debts in Bulgaria is five years, and according to a 2015 interpretative decision of the Supreme Court of Cassation (тълк. реш. № 2 от 26.06.2015 г. по тълк. д. № 2/2013 г., ВКС, ОСГТК, т. 10), when a judgment creditor has brought enforcement proceedings that period runs from the latest valid enforcement step (rather than from the end of those proceedings). Since in the applicant’s case that latest step took place in June 2014, it appears that the limitation period expired in June 2019, and that the award of damages in favour of one of his former employers/business partners can no longer be enforced. The same goes, a fortiori, for the award of damages in favour of the other former employer/business partner of his – which, in the apparent absence of any enforcement steps, seems to have lapsed due to limitation even earlier.

5. Conclusion

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

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

Ilse Freiwirth Tim Eicke
Deputy Registrar President