Motives

On penal case of private nature No. 2082 / 2000 of the Sofia Regional Court, Criminal Division, 1st Panel

The proceedings have been instituted on the grounds of a complaint filed by Liuben Borisov Berov against Yavor Iliev Dachkov for crimes under Art. 148, para 2, ref. to para 1, item 1, 2 and 3, ref. Art. 147, para 1 of the Penal Code and under Art. 148, para 1, item 1, 2 and 3, ref. Art. 146, para 1 of the PC for his calling the plaintiff "a patron of the robbing of Bulgaria" on 20.02.2000 in the TV program "Voices" thus ascribing to the plaintiff a crime committed in his capacity as an official - Prime Minister of the Republic of Bulgaria - in the performance of his official duties and publicly, through the media - the program of the Bulgarian National Television, Channel 1, as well as for humiliating his honor and dignity in his capacity as a public official - Prime Minister of the Republic of Bulgaria - in the performance of his official duties and publicly through the media /television/.

In a court hearing the attorney for the private plaintiff claimed that the factual circumstances of the case stated in the complaint have been established beyond doubt. He pleads the court to adjudge the defendant guilty of the crimes pointed out in the complaint and on the grounds of Art. 78a of the Penal Code impose on him an administrative penalty of BGN 750.

The defendant gave explanations on the accusations. He pled not guilty to the charge. In his last word he stated that in his statement he did not aim at affecting the dignity of the plaintiff since he differentiates between his personal aspirations and the professional analyses that he makes in his program. The defendant considers that he has expressed a personal opinion the freedom of which has to be guaranteed to ensure the freedom of the public debate.

The attorneys for the defendant pled the court to adjudge him not guilty and acquit him on the charges. Detailed arguments have been presented to prove that the action of the defendant does not constitute a crime.

After reviewing the collected evidence and taking into consideration the statements and the objections of the parties the court establishes the following factual and legal circumstances:

The defendant Yavor Iliev Dachkov was born on 24.12.1971 in Gabrovo, Bulgarian, Bulgarian citizen, single, University graduate, journalist, with a clean record, Common Civic Number 7112242202, living in Sofia, "Chumerna" Street, No.7. Positive characteristics have been provided of him at his workplace. The defendant is known amongst his colleagues as a good professional and his program "Voices" is considered by them significant for the development of Bulgarian publicism.

On 20.02.2000 at 18.00 Channel 1 of the BNT broadcast the program "Voices". The defendant is the author of the program. This edition was concerning the reform in Bulgarian culture. In his opening remarks the defendant stated that Bulgarian intellectuals have no reasons to reproach those in power because their representatives had the opportunity to participate in state governance since 1989 and their participation was unsuccessful. To illustrate this statement the defendant Dachkov enumerated names of people that he considered intellectuals and who have participated in the state governance in different periods of time. He used the following expressions: "Let us remember the names of the most popular MPs from the Great National Assembly - Yordan Radichkov, Valeri Petrov, Todor Kolev, Kiril Marichkov, Petar Slabakov, Mihail Nedelchev, Alexander Yordanov, Blagovest Sendov, Nikolay Vassilev, Anzhel Vagenschtein, Edvin Sugarev, Yordan Vassilev - all of them intellectuals. A president of the country and a leader of the UDF was the philosopher Zheliu Zhelev, vice-president - the poetess Blaga Dimitrova, a strategist of the modern left party - the philosopher Lilov, the boss of the Movement for Rights and Freedoms - the philosopher Dogan, the boss of the Parliament - academic Todorov, the patron of the robbing of Bulgaria - professor Berov, etc."

Thus the defendant made the introduction to his conversation with Minister Moskova who was present in the studio.

The plaintiff Berov felt offended by being called "the patron of the robbing of Bulgaria".

The court accepts the above factual circumstances as established beyond doubt through the verbal evidence - the explanations of the defendant, the testimony of the witness Ms. Kulezich, the written evidence - a reference and a criminal record for the defendant, the conclusion of the technical experts containing the contents of "Voices from 20.02.2000 transcribed on a hard copy and read and accepted under the procedure laid down in Art 280 of the Penal Procedure Code, as well as through the presenting to the parties of material evidence - the video cassette of the edition demanded from BNT by the court.

In forming its final conclusions the court did not review the presented as written evidence press publications from different dailies since it considered that they were irrelevant to the case.

With regard to the significant circumstances of the subject of proof that are relevant to the proper deciding of the case, the evidentiary material cited above is consistent and categorical and therefore no detailed analysis of each of them is necessary.

On the basis of the clarified factual circumstances the court makes the following legal conclusions:

The defendant Yavor Iliev Dachkov has not covered from objective and from subjective* side the characteristics of the crimes under Art. 148, para 2, ref. to para 1, item 1, 2 and 3, ref. Art. 147, para 1 of the Penal Code and under Art. 148, para 1, item 1, 2 and 3, ref. Art. 146, para 1 of the PC.

It was established beyond doubt that in his program the defendant did call the plaintiff L. Berov "the patron of the robbing of Bulgaria".

With this action the defendant did not cover the objective characteristics of the crimes insult and slander. The court reached this conclusion after taking into consideration the following:

First, the plaintiff accused the defendant of ascribing to him a crime with the cited expression.

The cited expression however does not contain claims and information of the existence of certain facts. In its meaning the expression contains solely the subjective author's judgement and a comment of the political line of governance of the cabinet of Prof. Berov. The defendant has chosen the metaphor "patron", with which he emphasizes that he is speaking of the most prominent man in the society who takes a top position in the social hierarchy. Moreover, by using the definite article "the" the defendant draws the metaphor to a symbol, i.e. draws the figure of the plaintiff to a symbol of a certain period of time and of a certain type of state policy. The leadership and the patronage of the plaintiff is related for the defendant to the leading of a process that according to the defendant was objectively going on in the Bulgarian society during the rule of the plaintiff that is called by the defendant "the robbing of Bulgaria". Through this poignantly polemic publicists approach the defendant expresses his negative opinion of the plaintiff and his state governance. This judgement is made in the context of a general short retrospective analysis of the role of the Bulgarian intellectuals in the governance of the state, which the defendant summarizes as unsuccessful and uses as a provoking introduction to his conversation with Minister Moskova.

In the judicial practice as well as in the legal doctrine it is principally being accepted that slander may represent only claims with specific contents that bear information of a specific circumstance, time, place, person. This circumstance shall be disgraceful or in particular shall represent ascribing of a commission of a crime. Next, these facts have to be objectively announced but not derived on the basis of suppositions, associations, interpretations or other forms of subjective psychic activity.

In the present case the expression "the patron of the robbing of Bulgaria" as was already pointed out does not comprise claims or announce information of certain circumstances related to the plaintiff therefore it couldn't objectively ascribe to him a crime. In this sense the arguments of the plaintiff that the expression ascribes to him the commission of a crime against the Republic in his capacity as a Prime Minister are ungrounded since they are not based on the specific verbal contents of the incriminated expression. In fact the plaintiff incriminates his subjective reading, his own perception and interpretation of the evaluative judgement expressed by the defendant. As is however pointed out in the case law of the Supreme Court of Cassation the way of thinking may not be criminalized since the results of it are polysemantic and are subject to proving /R-80-98-II/. What is relevant in this case is that "the patron of the robbing of Bulgaria" does not contain any specific or susceptible to specification facts that could cover the objective characteristics of a crime.

As far as this is a matter of a personal judgement of the defendant with respect to the plaintiff and not of a statement of facts of the objective reality it is unnecessary to discuss its truthfulness since a judgement may not be subject to check and proving and its contents depends solely on the conscience of its author. For the same reason it cannot be answered objectively whether this judgement is right or wrong.

Due to the absence of the objective characteristics of the crime slander, with which the defendant has been charged, it is not necessary to discuss its subjective characteristics.

On these grounds the court adjudges that the defendant Dachkov in the program "Voices" broadcast on 20.02.2000 on Channel 1 of BNT from 18:00, publicly, through the media /television/ with the expression "patron of the robbing of Bulgaria" did not ascribe to Liuben Borisov Berov a crime committed in his capacity of an official in the performance of his official duties - Prime Minister of the Republic of Bulgaria - due to which and pursuant to Art. 302 of the PPC adjudges him not guilty and acquits him on the charge Art. 148, para 2, ref. to para 1, item 1, 2 and 3, ref. Art. 147, para 1 of the Penal Code.

Next, the court adjudges that the action of the defendant does not constitute the crime insult.

Undoubtedly the incriminated expression represents a negative judgement of the personality of the plaintiff that offended him. But it is not sufficient to constitute a crime. In itself an opinion, unless it is indecorous, indecent relating to somebody does not constitute the crime insult but is an exercising of a right, which is guaranteed by the Constitution of the Republic of Bulgaria. Pursuant to Art. 39, para 1 of the Constitution everybody shall have the right to express an opinion and to publicize it. Of course, this right is not absolute, Art. 39, para 2 points out the limits to its exercising - it may not be used to the detriment of the reputation of the others.

On these grounds and with regard to the present case we have to make two important distinctions - between the negative opinion that is in essence criticism of somebody and the insult and the admissible limits of the criticism against a private person as compared to those against a public person.

For an action to constitute an insult words have to be said in the presence of the victim that are objectively capable of affecting his / her dignity and that are under the contemporary social standards indecorous, vulgar or cynical. Consequently insult is a personally humiliating action towards somebody whilst an opinion is a personal statement that expresses a position or a judgement of persons and events.

The expression "the patron of the robbing of Bulgaria - Prof. Berov" does not include indecorous words and does not represent an indecent attitude. It expresses a personal negative judgement and a public criticism in a form admissible under the law towards a regime of state governance and towards the plaintiff's participation in it.

In its decision on the case "Handyside v/s Great Britain" the European Court has formulated a significant principle for defining the acceptable limitations of the right to free expression and the acceptable tolerance". The freedom of expression is one of the main prerequisites for the progress of the society and the development of each person. Of major importance in this context are the freedom of the press to publicize information and ideas and the right of the public to receive them. It is applicable not only as regards "information" and "ideas" that are well accepted or considered harmless but also those that affect, shock or disturb the state or a part of the population."

In this respect it is worth noting that the topical publicism, which is the genre of the "Voices" program, under the journalists' criteria is the most polemical part of journalism and it implies besides the presentation of acutely topical and significant public problems, a distinct discussion and provocative nature of their interpretation. These characteristics of publicism however, as is obvious from the cited decision of the European Court, which is at present a European public standard, do not justify its limiting or incriminating.

At the same time in the present case it is important to note that the plaintiff Berov is a public figure. He felt offended in his capacity of a former Prime Minister of the Republic of Bulgaria. Therefore the limits of the admissible criticism are broader than they would be with respect to a private person. This is so because by opting to be a public figure which a politician and in particular the Prime Minister of RB undoubtedly is, the plaintiff has accepted to be closely monitored and extensively commented not only by the journalists but also by the public as a whole. In its decision on the case "Lingens v/s Austria" the European Court has adjudged that the imposing of a sanction on a journalist who has expressed a negative opinion towards a political figure is equal to censorship, which is probably aimed at discouraging future criticism. And the Constitutional Court of the Republic of Bulgaria states in Decision No. 7 / 1996: "From the perspective of the values of law to allow the expression of opinions on the freedom of political debate as a part of public discussion, the statements that refer to the activity of state bodies or represent criticism of political figures, state officials or the government deserve a higher level of protection." It may be concluded therefrom that state power as a whole as well as the political figures and state officials may be subject to public criticism at a level much higher than that applying to private persons."

On these grounds the court adjudges that the defendant Dachkov in the program "Voices" broadcast on 20.02.2000 on Channel 1 of BNT from 18:00, publicly, through the media /television/ with the expression "patron of the robbing of Bulgaria" did not humiliate the honor and dignity of Liuben Borisov Berov in his capacity of an official in the performance of his official duties - Prime Minister of the Republic of Bulgaria - due to which and pursuant to Art. 302 of the PPC adjudges him not guilty and acquits him on the charge under Art. 148, para 1, item 1, 2 and 3, ref. Art. 146, para 1 of the PC.

Due to the absence of the objective characteristics of the crime insult, with which the defendant has been charged, it is not necessary to discuss its subjective characteristics.

Irrespective of the above considerations it has to be noted as well that it was categorically established in the case that the incriminated expression was not said by the defendant the way it was cited in the complaint. The exact expression that he used with respect to the plaintiff was "the patron of the robbing of Bulgaria". The definite article of the noun "patron" is a significant circumstance since it leads to a change in the meaning of the whole expression. Through it the defendant emphasizes that there is a sole person that is leading the process of the robbing of Bulgaria thus giving the expression the significance of a symbol of this process. The non-stating in the complaint of the exact expression used by the defendant is another ground for acquitting the defendant on the charges.

With a view to the outcome of the case and pursuant to Art. 170, para 1 of the Penal Procedure Code the court sentences the plaintiff Berov to pay to the defendant Dachkov his expenses for the case that amount to BGN 100 (for attorney's fee).

With the above considerations the court has adjudged its sentence.

Chairperson: Miroslava Todorova