Aspects of the ECHR Decision on the case Kasabova v Bulgaria

Alexander Kashumov, AIP

On 19 April 2011, the European Court of Human Rights ruled against Bulgaria on the case of Kasabova v. Bulgaria. The court found violation of Art. 10 of the ECHR. The case triggered a huge interest and public debate early this year because of the appointment at the end of 2011 of the judge-rapporteur of the appellate instance as Deputy Minister of Justice. This debate requires us to recall some forgotten or not well known facts.


The Facts

On September 12, 2000 in a local newspaper the journalist Katya Kasabova published the article “Corruption in the Bulgarian education system – four experts discharged for bribery”. The publication reveals alleged irregularities in the admission procedure for Bulgarian elite schools. The publication is based on a report of an internal inquiry of the Inspectorate within the Ministry of education. Under Bulgarian regulations, pupils suffering from certain health conditions can exceptionally be admitted to specialized secondary schools without an examination. In June 2000 parents complained to the Ministry of education that the parents of some perfectly healthy children had abused the special regime to gain admission for their children through fraudulent diagnoses. In response, the minister of education appointed three officials to inspect the activities of the local admissions commission. The inspectors found that the commission had committed a number of violations and ordered administrative sanctions against four commissioners. The journalist Ms. Kasabova revealed the findings. Her publication alleged that 40 pupils were improperly admitted to the specialized schools, and that bribes were paid to the admissions commissioners. The article also noted that four commissioners, which it named, were being investigated for corruption. The journalist also publishes the opinion of the experts that “all responsibility shall be borne by the doctor who misled them”.


The first article triggered huge public interest in the allegations and more publications appeared in local newspapers. In September 2000 the four experts incurred disciplinary sanctions. The following month they filed complaint for criminal libel against Ms. Kasabova and Mr. Bozhkov[1] who also covered the scandal.


In 2001 while the criminal proceedings against the journalists were pending a parliamentary question was addressed to the minister of education. In 2002 the Parliament committee on complaints and petitions decides to advise the Prosecution to initiate investigation of the illegal admission of pupils. The Prosecution office started investigation for bribery. The Organization for Security and Co-operation in Europe (OSCE) requested information about the Kasabova case from the Minister of Foreign Affairs.       

The Burgas district court ruled against the applicant, holding that she had failed to produce sufficient evidence that they had accepted bribes, and sentencing her to a steep administrative fine and damages to the claimants. The applicant's conviction and sentence were upheld by an appeal court, which held that journalists must verify the truthfulness of their allegations by using every available mean. The applicant had failed to do so and that, in any event, only a final court judgment finding the claimants guilty of the offense of bribe-taking would have been sufficient to establish the truth of her allegations. The Court ordered the applicants to pay in total respectively around 3,797 Euros (EUR) and EUR 3,221 as fines, damages and costs. The court does not allow the amicus curiae brief of ARTICLE 19 grounded on the lack of procedure.


The journalists filed complaints to the European Court of Human Rights. The Justice Initiative submitted third-party comments to the ECHR on the case, jointly with ARTICLE 19.


The ECHR decision

In January 2012 the Minister of Justice and her Deputy Minister argued that the Bulgarian libel legislation (namely Art. 147 and 148 of the Criminal Code). In paragraph 52 the ECHR held that “the Court does not consider that these provisions were overly broad or unclear. The applicant asserted that Article 148 §§ 1 (3) and 2, which provides for harsher penalties where the defamed party is a public official, was inconsistent with the principles emerging from the Court’s case-law. However, the Court does not find that this alleged inconsistency affects that provision’s quality. The applicant’s argument is rather directed towards the question whether the interference was “necessary in a democratic society”.     

 Every interference with the right of freedom of expression shall be:

- provided for by law;

- necessary in a democratic society;

- in the legitimate interests, listed in Art. 10, § 2 of the ECHR.


The requirement that the interference shall be prescribed by law necessitates that the law itself to be consistent with the ECHR requirements of the quality of the law. That law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. In the instant case the Court unambiguously considered the law consistent with the Convention standards; therefore the legislature was not responsible for the established violation of Art. 10.


The burden of proof

A very important question considered by the Court is the burden of proof. The Court found that no limits should be placed on the ability of libel defendants to produce evidence that the other party engaged in criminal conduct. Media allegations of criminal conduct should be subject to the same evidentiary standards as all speech on matters of public interest; they should not be confused with the rigorous standard of proof required for the prosecution to sustain a criminal conviction: “In that connection, it is striking that in the instant case the Burgas Court of Appeal held – perhaps erroneously in terms of Bulgarian law (see paragraph 40 above) – that the only way of corroborating the allegation that someone had committed a criminal offence was to show that he or she stood convicted of it. This position cannot be condoned by the Court (see Flux v. Moldova (no. 6), no. 22824/04, §§ 11 and 31, 29 July 2008). While a final conviction in principle amounts to incontrovertible proof that a person has committed an offence, to circumscribe in such a way the manner of proving allegations of criminal conduct in the context of a libel case is plainly unreasonable, even if account must be taken, as required under Article 6 § 2, of that person’s presumed innocence. Allegations in the press cannot be put on an equal footing with those made in criminal proceedings.” (§ 62)

Further the ECHR found the national courts apparently did not pay heed to certain other factors that were equally relevant in that regard. For instance, it seems that they did not take into account the fact that the applicant had included the gist of the complainants’ side of the story in her text. Nor did they sufficiently appreciate that at the time when the applicant had been researching her article, the results of the internal inspection carried out by the Ministry of Education and Science, which could have served as a reliable source of information, had not been made public, in spite of the fact that they had been ready for almost two months: “That lack of publicity shows, on the one hand, the difficulty in obtaining reliable information on the issue and, on the other hand, the media’s vital role of “public watchdog” in relation to such matters. It also highlights the public interest to publish information about the issue and about the authorities’ reaction to it. Indeed, the lack of any contemporaneous official information, coupled with the uncontested existence of numerous irregularities in the admission of students, could reasonably have prompted the applicant to report on anything that was available, including information which was uncorroborated” (§ 67).

In the light of the above mentioned shall be understood the finding of the ECHR in the next paragraph which has been interpreted in the public in one way or another: the Court is prepared to accept that the national courts’ finding that the applicant had failed to sufficiently research her article before going to press, and had thus failed to act as a responsible journalist, could not be considered as manifestly unreasonable and that the applicant’s conviction could be regarded as necessary for protecting the reputations of the officials concerned. However, the Court does not consider it necessary to take a firm stance on that point, because it is in any event of the view that the sanction imposed on the applicant was disproportionate” (§ 68).

These findings do not exactly concur with the interpretations asserted in public by the Minister of Justice and her Deputy Minister, according to which the ECHR agree that the applicant was convicted for irresponsible journalism. The Court unanimously found violation of Art. 10 of the ECHR.   


With regard to the criminal liability for defamation, the Court reiterated its well-settled case-law that its existence in the national legislation does not contravene the Convention. But in the assessment of the proportionality the nature and severity of the penalties imposed are factors to be taken account of. According to the Court  the overall sum which the applicant was required to pay was a far more important factor in terms of the potential chilling effect of the proceedings on her and other journalists (§71). The important fines imposed to journalists are significant obstacles to the media to fulfill its vital role of “public watchdog” which is inherently connected to the freedom of expression and the freedom to receive and impart information.



In conclusion we shall say that responsible for the violation is the judiciary, not the legislator, even less – the journalists. The magistrates did not pay attention to a problem of high public interest involving allegations for wrongdoings and corruption. Doing so, they not only have taken a wrong position on an ethical problem, but also misinterpreted the fundamental act in the field of human rights – the European Convention on Human Rights.             

[1] Mr. Bozhkov was also found liable for criminal libel by the Bulgarian courts and brought complaint before the ECtHR. The Court ordered the joinder of the two applications pursuant to Rule 42 of the Rules of Court.   

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