Artistic Expression, Defamation / Reputation, Hate Speech, National Security
Baltasar Adolfo v. Audiencia Nacional
Closed Expands Expression
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The European Court of Human Rights (the Court) ruled that the conviction and fine against a former prosecutor in Bulgaria violated the right to freedom of expression. The former prosecutor had provided an interview to a national newspaper in which he discussed the corruption he believed existed in the Sofia prosecution office during the time he was head of the office. The Court held that the Bulgarian domestic courts had not applied standards in conformity with article 10 of the European Convention on Human Rights, and that the conviction and fine imposed against the former prosecutor were not necessary restrictions of the right to freedom of expression and were therefore violations of the right.
Slavcho Krastev Karzhev was the former head of a large prosecution office in Sofia, Bulgaria. After he left this office in 2006 a commission was appointed to look into the office’s work under his management. Two of his former subordinates with whom he had had conflict during his time as head of the office were members of this commission. The review carried out by the commission led to the opening of criminal proceedings against Karzhev on the grounds that he had allegedly exerted pressure over his subordinates concerning the outcome of a case.
On October 12, 2006 the national daily newspaper Trud published an interview with Karzhev in which Karzhev discussed the corruption he believed was carried out by his subordinates in the Sofia prosecution office. He referred to one of his subordinate prosecutors as “Rushvetchiyski” which is a Bulgarian colloquial term for someone who takes bribes, and said that he had sought “to defeat the mafia present in the prosecution services” (paras. 8 and 9). In the article he criticized the commission on the grounds that it “includes exactly those prosecutors … who staged a revolt at the time against the working methods I introduced.” (para. 8). He said that he had tried to “to sweep all the trash out of the house” but that “many pieces of trash came to the surface” and were crushing him now (para. 13). Trud published a response from the two prosecutors mentioned by Karzhev, but this response was not part of the Court proceedings.
In 2007, the two prosecutors named by Karzhev in the interview initiated a private prosecution of Karzhev arguing that he had insulted them which constituted an offence under articles 146 and 148(1) of the Criminal Code. In addition, they sought criminal damages of 10 000 Bulgarian levs (about 5 100 euros) each. The prosecutors argued that the criminal offense was aggravated because they had been insulted through the media in their capacity as “public officials”.
On December 5, 2007, the Plovdiv District Court acquitted Karshev and dismissed the civil claims. The Court ruled that the prosecutors had not proven that Karshev’s statements had referred to them specifically and that they had only assumed they did because of their “strained relationships” with Karshev. The prosecutors appealed the decision to the Plovdiv Regional Court.
The Plovdiv Regional Court reversed the decision of the lower court, finding Karzhev guilty of “insult in an aggravated form”. The Court set aside his criminal liability but imposed a fine of 1000 levs (equivalent to 510 euros) and ordered him to pay damages to each of the two prosecutors of 5 000 levs (the equivalent of 2 551 euros) plus interest and 412 levs (the equivalent of 210 euros) in compensation for the costs and expenses they had incurred. The Court held that Karzhev “was aware that the incriminatory expressions were offensive and humiliating to those to whom they were addressed [and] the manner in which he disseminated them [shows] that he aimed to make them public and that they reach the complainants” (para. 20).
Karzhev paid the amounts ordered by the Court but filed an application with the European Court of Human Rights, arguing that his conviction was an infringement of article 10 of the European Convention on Human Rights.
The issue before the Court was whether Karshev’s conviction, the fine imposed on him, and the civil compensation he was required to pay were compatible with the right to freedom of expression under article 10.
Karshev argued that his comments had not been directed specifically at the two prosecutors but instead against the “institution of the prosecution” itself. He further argued that while his words may had been aggressive and unpleasant they were part of an important public debate which could not be restricted.
The Bulgarian government acknowledged that there had been an interference with Karshev’s freedom of expression but argued that the fine imposed on the applicant had not been significant and that the damages he had been ordered to paid had been moderate. The government further argued that Karshev’s comments had been clearly directed against the two prosecutors and could not be considered mere general criticism of the work of the prosecution office, and that as Trud was the leading newspaper in Bulgaria Karshev’s comments had reached a very large audience. They submitted that Karshev had not presented any facts or evidence to support his allegations.
As the government had not disputed that Karshev’s conviction was an limitation of his right to freedom of expression, the Court analyzed whether the interference with Karshev’s right to freedom of expression under article 10 was necessary. The Court referred to its own judgements in Janowski v. Poland app no 25716/94 (1999), Hertel v. Switzerland App No 2518194 (1998) and Nikula v. Finland App No 3161196 (2002) where the principle that “the limits of acceptable criticism, … are wider with regard to public officials than in relation to a private individual” had been clearly established (para. 33).
The Court noted that the Plovdiv Regional Court had convicted Karzhev based on the particularly offensive remarks without taking into consideration the whole context of the interview in which they had been made. The Court considered that the interview addressed the alleged corruption within the prosecution office, the efforts Karzhev had made as head of the office to combat that corruption, the problems he had encountered in those endeavors, and the participation of two prosecutors with whom he had been in conflict in the commission which was reviewing his work as head of the office. Based on this, the Court concluded that the interview, seen as a whole, formed part of a debate of considerable public interest and did not amount to gratuitous insult, and so warranted a high degree of protection under article 10. The Court criticised the Plovdiv Regional Court for applying a domestic standard “which treats the official capacity of the victim of alleged insult as an automatic aggravating circumstance” (para. 36) rather than the international law standard of allowing greater latitude in the criticism of public officials.
The Court held that the decision of the Plovdiv Regional Court had failed to present relevant and sufficient reasons to show that the interference with the Karzhev’s rights had been proportionate. The Court further noted that the domestic court had “failed to weigh the alleged gravity of his conduct against his right to freedom of expression and to provide specific reasons showing the necessity of imposing a penalty” (para. 36), and had not considered that Karzhev’s statements were “contributing to a debate of considerable public interest” (para. 36).
Accordingly, the Court concluded that the Bulgarian authorities had not applied standards in conformity with the principles embodied in article 10. The Court also held that total sum the applicant had been required to pay had been excessive, even though the applicant had “not shown what his financial situation was at the time and whether he struggled to pay that amount”. Thus, the Court concluded that the interference in Karzhev’s right to freedom of expression under article 10 was not necessary and that Bulgaria had violated the applicant’s right to freedom of expression (para. 38).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights protected freedom of expression by detailing the standards domestic courts must follow before imposing restrictions on freedom of expression and by declaring that all convictions, fines or penalties imposed in proceedings that do not adhere to those standards shall be considered violations of freedom of expression. Further, the decision also establishes that fines or pecuniary penalties can be considered disproportionate and, thus, in violation of freedom of expression independently of the personal economic situation of the person to whom they are imposed, and whether that individual would be in a position to pay.
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