Case Summary and Outcome

The Sofia City Court of Bulgaria held that an article calling a judge “scandalous” harms the judge’s reputation and should be resolved in compensatory damages. The court evaluated the compensation at BGN 60 000 (approx. EUR 30 000 or USD 32 000). The Bulgarian journalist Boris Mitov wrote a series of articles published on the website Mediapool about the failed election of the judge to be the chairman of the Sofia City Court. The amount of damages to be paid by the journalist and the online platform is considered exorbitant in comparison with Bulgarian court practice.

Facts

Since 1992 the plaintiff, Svetlin Mihailov, held the position of judge at Sofia City Court. He was the chairman of the Sofia City Court from 2004 to 2009. In 2017, a procedure was initiated for the election of the chairman of the Sofia City Court, to which the plaintiff was one of the candidates. The website “Mediapool.bg”, published by Mediapool LtD and owned by Stoyana Georgieva and Foundation Infospace, published a series of articles written by journalist Boris Mitov related to the election process.

On February 12^th 2018, an article entitled “City judges do not support Svetlin Mihailov for a new management mandate” was published on “Mediapool.bg”. The article opened as follows: “The infamous former chairman of the Sofia City Court Svetlin Mihailov did not, as expected, receive the support of his colleagues…”. The article indicated that Svetlin Mihailov was the judge who allowed usage of special intelligence devices in another well-publicized case, in addition to claims among the judicial circles that the judge enjoyed the favors of the DPS, a Bulgarian political party mainly representing the Turkish minority in the country, while he was the chairman. The article also stated that “the biggest scandals that involved judge Mihailov were related to the denied registration of another political party, SDS, as well as to the dubious political motives for the decision regarding the registration of the leadership of the chief mufti”. The article ends with the statement that in 2005 the judge used a jeep stolen in Germany, provided by the Ministry of Finance to the Sofia City Court.

On February 16, 2018, another article was published under the title “The city court asked for an inexperienced judge, not the scandalous millionaire. The Supreme Court Council is underway”. When discussing the candidacies, the article referred to the plaintiff as “the ex-chairman, known both for his proximity to the DPS and for the series of scandals in which his name was involved during his management mandate from 2004 to 2009″. The article continued that “probably for this reason, the plaintiff did not obtain the necessary majority, and that this vote shows the reluctance of the magistrates to be led by a proven scandalous magistrate”. When discussing the financial status of the candidates, the article indicated that “Svetlin Mihailov, whose professional career has been spent entirely in the judicial system, is officially a millionaire”, and that “the ambiguous circumstances in which this fortune was generated are not the biggest problem in Mihailov’s biography. It is far more important that his possible election is a guarantee of new scandals in the activities of the Sofia City Court, and this is not an assumption, but a logical consequence of his mandate as the head of the court”. The article quotes another judge, Konstantin Penchev, who was the chairman of the Supreme Administrative Court and later Constitutional judge, who refers to Mihailov as a “disgrace to the judicial system”. In the subtitle “Scandal after scandal”, it is stated that during the five years while he was chairman, Mihailov was able to get involved in not one or two scandals, some “with a political overtone, others with an economic one, but mostly characterized by suspicions of corruption”. Several cases are mentioned: the bankruptcy of Kremikovtsi, the refused registration of SDS, and “the stolen company of Mavrodiiski”. The role of the Sofia City Court was also discussed, stating that “against this background, it seems more than absurd that the Judicial College of the Sofia City Court would prefer a compromised candidate for the head of a city court. […] Additional concerns are raised by rumors in judicial circles that Svetlin Mihailov has already sought the support of high-ranking political figures”.

On February 19, 2018, the same online platform published another article with the subtitle: “Svetlin Mihailov has not yet commented on his enrichment”. The article gives details about the declarations made by another candidate on his assets, stating that “it is said that the other candidate in the race – the infamous former chairman of the Sofia City Court, Svetlin Mihailov, remains silent on the subject for now, although it is his property situation that raises far more doubts.”

On February 20, 2018 an article entitled “Svetlin Mihailov rushed into a government hospital and vote for Sofia City Court postponed”. In the article, the expressions “the scandalous former chairman of the largest district court in the country” are used again in relation to the plaintiff. It is stated that “thanks to his transactions with his parents from 1999 he is now officially a millionaire, although he has only been a magistrate throughout his career” and that “apart from doubts surrounding his rapid enrichment, part of which coincides with his management mandate at the Sofia City Court, another serious minus in the biography of Judge Mihailov is the numerous scandals that broke out while he was the chairman of the court.” The facts of the enrichment and the financial status of the judge have not been challenged before the court.

On February 19, 2018 the plaintiff was urgently admitted to the Lozenets Hospital, where he was hospitalized until February 23, 2018.

Decision Overview

Judge Daniela Popova of Sofia City Court delivered the judgment. The main issue before the Court was whether the impugned articles defamed the plaintiff under art. 39, par. 1 of the Bulgarian Constitution.

The defendants denied that the reporting was unprofessional and defamatory. They argued that the articles accurately discussed issues in the public interest relating to an election and the candidates running for office. The reporting about the plaintiff was based on verifiable facts (i.e. he is a millionaire according to official documents), information published by other media outlets, and official documents such as meeting minutes from the Supreme Court Council and the Board of Judges in the Sofia City Court, as well as information from official websites of state institutions. They further asserted that the articles did not include negative statements or falsehoods about the plaintiff, only critical opinions illustrated through quotes from other judges relating to the previous mandate of the plaintiff as a head of the court.

The Court found a violation of art. 39, par. 1 of the Bulgarian Constitution (guarantee of freedom of expression) and articles 45 and 49 of the code of contracts and obligations on torts in relation to Mediapool.bg and Infospace Foundation as employers.

The Court did not examine the truthfulness of the articles but determined that the reporting was insulting. While Art. 39, para. 1 of the Bulgarian Constitution protects freedom of expression, it is not absolute and para. 2 of Art. 39 provides for legitimate restrictions to protect the reputation of others. The Court clarified the difference between critical opinions and insult, explaining that insults are words which are “indecent, vulgar, cynical,” and demeaning that can objectively harm the dignity of another person.

The ruling stated that despite the fact that the plaintiff is a public figure and enjoys a lower level of protection regarding his privacy, “it is clear from the content of all the articles that their purpose was not to publicize public information important to society – in this case the election of a new chairman of the largest district court in the country – but to attract the attention of readers and increase their interest to the publishing website through defamation of the person of the plaintiff. Moreover, the very titles of the articles were provocative, aiming to attract the attention of the readers by directing them to disgraceful facts related to a public figure, which is undoubtedly the plaintiff. It is clear and unequivocal that what is described in the articles will lead to the negative reaction of the society and create extremely lasting and negative emotions towards a person and will harm his reputation.” The court ruled that the words “scandalous”, “a scandalous millionaire”, “a proven scandalous magistrate” and also the quotation of judge Penchev, who described the plaintiff as a “disgrace to the judiciary”, are a direct violation of art. 39, par. 1 of the Bulgarian Constitution and caused damages to the good name and the reputation of judge Mihailov.

According to the court, all expressions made in the articles were humiliating to his honor and dignity and are therefore beyond the limits of the right to freely express and disseminate an opinion.  The court considered that, as a result of the publications, the plaintiff suffered and continues to suffer negative emotions, both personally and professionally. This was established by a witness testimony. Consequently, the court ruled that the claim is justified in its full amount, in which it should be honored, ordering the defendants to pay the amount of BGN 60,000 as compensatory damages to the negative emotions suffered by the plaintiff.