Factors Contributing to the Changes in the Bulgarian Penal Code Relating to Libel and Insult

Factors Contributing to the Changes in the Bulgarian Penal Code Relating to Libel and Insult May 2001

Factors contributing to the changes in the Bulgarian Penal Code relating to libel and insult Đ?uthor: Boyko Boev

Contents: Introduction Participants in the campaign for amendments to the Penal Code Key events: Blazing the trail that led to the amendment of the Penal Code

Introduction

In the spring of 2000, the provisions contained in the Republic of Bulgaria's Penal Code for libel and insult were amended. These amendments made criminal prosecution for insult and libel possible only when the aggrieved party files a complaint with the court. The prosecutor's office no longer has the power to initiate proceedings when insult and libel are directed towards officials in exercise of, or in connection with their public duties.

Following the process of democratisation initiated in 1989, the number of cases for insult and libel against journalists has increased. According to data available to the Thirty-Eighth National Assembly, charges were pressed against approximately 90 journalists in 1995, approximately 80 in 1996 and over 100 in 19971.

Now that one year has passed since the amendments were approved, it is possible to review the process which contributed to the modifications of the Penal Code and greater freedom of expression in Bulgaria.

On 17 March 2000, a study of the factors which contributed to the passing of the Act for Amendment to the Penal Code was published in State Gazette No.21. The study revealed the involvement of a range of individuals and groups involved in the anti-defamation campaign. The impact of freedom of expression activists on the democratisation process can be traced back to 1997.

Participants in the campaign for amendments to the Penal Code

It is not possible to individually name all the participants in the campaign for amending the Penal Code. It is possible, however, to clearly categorise them into distinct groups.

Non-governmental sector Several of the most prominent organisations in the NGO section were active in protecting the rights of journalists subject to criminal prosecution in Bulgaria. These organisations included the "Reporter Foundation", "Free Speech" Civic Forum, National Association for Protection of Journalists, "Podkrepa" Journalists Union in Bulgaria, Union of Bulgarian Journalists, Centre of Independent Journalism and the Bulgarian Helsinki Committee. International pressure placed on the government by Interights and ARTICLE 19 through their submission of amicus briefs to the Constitutional court also contributed to the legislative change.

Members of Parliament A number of Members of Parliament were active advocates of the right to freedom of expression. In the spring of 1998, twenty-seven Members of Parliament submitted a proposal for the suspension of sentences imposed on journalists and publishers. However, the Committee on Legal Matters and Legislation against Corruption and the National Assembly refused to examine the proposal. The same year, fifty-five Members of Parliament approached the Constitutional Court with a motion to question the validity of the penal provisions for criminal insult and libel. At the root of this action were members of the opposition in the National Assembly. In the summer of 1998 and in the fall of 1999, Mr. Luben Kornezov, a member of the Democratic Left Parliamentary Group, introduced two bills for the amendment of the Penal Code's insult and libel provisions.

International Participants In addition to the two international non-governmental organizations mentioned above, the Parliamentary Assembly of the Council of Europe (hereinafter "PACE") and its two rapporteurs for the development of democratic change in Bulgaria, David Atkinson and Hennik Gjellerod, persuaded the state authorities of the necessity for legislative change 2. The most significant contributory factors were the January PACE Resolution No 1211 and Recommendation No 1442 which led to the final adoption of the amendments to the Penal Code.

The Bulgarian President The Bulgarian President was integral in the process of amending the Penal Code. The President exercised his right to veto the Act for the Amendment of the Penal Code and returned it to Parliament, arguing that the fines introduced as substitutes for custodial sentences were unjustifiably high. Due to his intervention, the fines were revised and later decreased.

Key events: Blazing the trail that led to the amendment of the Penal Code

Proposal for Suspension of Sentences Imposed On April 2, 1998, twenty-seven members of Parliament submitted "A Proposal for Suspension of the Sentences Imposed on Journalists, Publishers and Authors"3 to the National Assembly. The proposal comprised a draft resolution of the 38th National Assembly, whereby "the execution of the punishments imposed by court under Articles 146, 147 and 148 of the Penal Code to convicted journalists, publishers and authors in printed editions and the electronic media in their capacity as such are being suspended"4. The group leading the campaign was drawn mainly from the opposition and was headed by Mr. Luben Kornezov. The Draft Resolution was supported by references to Article 39 of the Constitution which guarantees the right to freedom of expression. Members of Parliament pointed out that "the freedom of speech is sacred and it cannot be restricted. The road to objective journalism is not passing through court rooms and conviction of journalists" 5.

Case before the Constitutional Court

On 30 April 1998, fifty-five members of Parliament filed a motion with the Constitutional Court. They contested the constitutionality of custodial sentences attached to crimes of insult and libel as established by Articles 146, 147 and 148 of the Penal Code. It was also maintained that punishment relating to the crimes of insult and libel did not conform to Article 10 of the European Convention of Human Rights and Fundamental Freedoms (hereinafter referred to as "ECHR"). Those presenting the motion alleged that the custodial sentences for insult and libel was "too severe" a punishment and "not proportionate to the character" of those crimes.

It was also maintained that Article 148 of the Penal Code contradicts Article 6, paragraph 2 of the Constitution of the Republic of Bulgaria6, as it provided for a "discriminatory procedure for the imposition of criminal liability". These articles afford greater protection to public officials and government representatives and attribute more severe punishments to any individual who insults or libels them in connection with the performance of their public duties. Finally, a motion was made to declare Article 148, paragraph 1, items 1 and 2 and paragraph 2 of the Penal Code unconstitutional.

Article 148 provided for graver punishments for insult and libel inflicted publicly or spread through printed matter or in some other way.

The National Assembly, the Minister of Justice, Prosecutor General, "Civic Forum for Free Speech" Association, Union of Bulgarian Journalists, Centre of Independent Journalism, Bulgarian Helsinki Committee and Bulgarian Human Rights Centre were all interested parties in the case. These organizations submitted written opinions. A joint amicus brief was presented by two international human rights organizations, "Interights" and "ARTICLE 19". This marked the first occasion the Bulgarian Constitutional Court had considered an amicus brief submitted by international organizations.

The National Assembly, the Minister of Justice and Legal Euro-Integration, the Prosecutor General and the Bulgarian Human Rights Centre expressed the opinion that the motion was not justified. They argued that the criminalisation of insult and libel served as a restriction on the right to freedom of expression, provided for by Article 39, paragraph 2 of the Constitution and by Article 10, paragraph 2 of ECHR7. They maintained that the constitutional provisions and the provisions of the Convention did not specify requirements in connection with the nature and severity of the punishments provided for by law, and thus it was left to the legislative body to ensure that the punishments be in compliance with, and proportionate to, the respective offences.

According to the aforementioned organizations, the motion was justified. The amicus brief of the Bulgarian Helsinki Committee stated that "the restrictions set (on the right to freedom of expression) should be precise and clear, should pursue only the purpose, expressly specified as admissible by the Constitution and the international documents and, finally, to be proportionate to the interest sought to be protected."8 According to the Bulgarian Helsinki Committee, one of the guarantees to freedom of expression is the requirement that any restrictions should be minimal. Since the "deprivation of liberty" was the most severe punishment prescribed only for the most serious offences, its imposition for insult and libel would have a negative impact on the right to freedom of speech and a chilling effect on the practice of journalism.

The Bulgarian Helsinki Committee noted its concern over the special protection of public officials provided for in the Penal Code and the power vested in the prosecutor's office to initiate criminal proceedings on their behalf. They pointed out that "the different regime of exercising penal proceedings for one and the same offence depending on the quality of the person is an infringement upon the principle of equality and the principle for higher protection of the freedom of speech which criticises public persons".

The Bulgarian Helsinki Committee stressed that Article 148, paragraph 1, item 1 and item 2 and paragraph 2, which provided for different levels of protection in view of the place of the act and the manner of perpetrating the insult and libel, pertained to the press and electronic media rather than to individuals. The recognition of a higher degree of social threat of insult and libel inflicted publicly or through printed matter contradicts the Constitution and the ECHR in light of the special role the latter gives to the press in order to ensure effective enjoyment of the right of freedom of expression and information and its function as a watchdog for public interests.

In their joint amicus brief, Interights and ARTICLE 19 considered the implementation of penal provisions for libel in twelve countries in Europe, the Commonwealth and the common law system9and studied the degree to which criminal responsibility for libel was compatible with the protection of freedom of expression. They concluded that in the countries analysed, criminal prosecution for libel was atypical and custodial sentences were rarely meted out as punishment. The amicus brief demonstrated that the civil liability for libel was more appropriate than the penal. The two international organizations also came to the conclusion that penal sanctions for libel were at best unnecessary and at worst, a gross encroachment on the right to freedom of expression. The amicus brief maintained that from the point of view of the ECHR, criminal liability for libel was often in contradiction with the requirement for "pursuance of a legitimate aim". Custodial sentences were also unwarranted. Neither of these practices could be considered "necessary in a democratic society".

On 14 July 1998, the Constitutional Court pronounced its Decision No 20 on constitutional case No 16/98. The constitutional judges rejected the motion of the members of Parliament 10. The judges confirmed their position11 that, "the restrictive measure (of freedom of expression) should be proportionate to the character of the interest protected" 12. They considered however that the weight of criminal liability corresponded to the interests protected and did not go beyond the permissible restriction. The judges found that "[t]he criminal liability for insult and libel [provides] for alternative punishments of imprisonment or fine, which in type are sanctions set out in the Penal Code and in size - the lowest of all those for offences against one's personality". Further, the judges considered that "the importance of aim pursued makes the protection against infringement ‌ a basis for the larger interference with the right to freedom of expression". "Criminal responsibility for insult and libel is one of the legal guarantees, which ensure the protection of personal dignity". The Constitutional Court also offered a comparative analysis and pointed out that criminal responsibility, similar in severity, existed in the legislation of a number of European countries - Germany, France, Holland, Austria, and Denmark, where imprisonment was provided for as a punishment for libel.

The Constitutional justices justified the special protection afforded by the Penal Code to public officials and other government representatives with the explanation that "the criminal provision protects not only the individual but also the prestige of the relevant institution". That protection was found not to go beyond the constitutionally permissible restriction of the right to freedom of expression and therefore its exercise was "a matter of expediency to be determined by the legislator rather than of constitutionality".

The Constitutional Court considered that the principle of equality was not infringed upon by the provision for special protection to officials because "neither the office held nor the acts of the victim or the perpetrator of the offence, the peculiarities of the situation and the motives of the act of insult and libel ‌ constitute any of the social characteristics under Article 6, paragraph 2 of the Constitution, which are exhaustively set out and in view of which neither restrictions to the rights, nor privileges are permitted"13.

National Assembly Bills and the Role of the Parliamentary Assembly of the Council of Europe On July 20, 1998 Mr. Luben Kornezov deposited his own bill for a Penal Code, in which he proposed the punishment of "deprivation of liberty" to be replaced with fines and the character of offence to be changed from indictable by the prosecutor's office to indictable by a private complaint. The highest fine provided for was BGL 1,000 (less than 480 USD). Mr Kornezov argued the need for change founded upon the tendencies in contemporary law, which "restricts the imposition of the punishment of "deprivation of liberty" for minor offences, while stressing the penalty of payments (mainly fines)"14.

According to Mr Kornezov, insult and libel belonged to the category of minor offences and since they were popular crimes it was not "expedient" to levy "imprisonment" for them. Further, he referred to jurisprudence, which had shown that "the express sanctions provided in Articles 146-148 of the Penal Code do not achieve the goals of penal repression ‌". Attention was turned to jurisprudence, which showed that "criminal prosecution against people, who eventually had insulted or libelled, has very often been misused and approached selectively". According to Mr Kornezov, "[t]hese cases turned into a very ineffective and painful procedure both for the accused and the injured". He considered that the change in the character of the offence would allow the injured to protect their interests more efficiently and effectively without having "to start from the first stage" of penal proceedings, because it would be possible for them to approach the court directly. He also argued that the new system would also

reduce government expenses. The MP concluded that "freedom of speech cannot be imprisoned in a cell".

On September 10 1998, the Committee on Legal Matters and Legislation against Corruption, where the ruling coalition of the Union of Democratic Forces had a majority, rejected Mr Kornezov's bill 15.

This decision was justified on the grounds that many European legal systems prescribed imprisonment for the offences of "insult" and "libel". The Penal Codes of Germany, Austria, Switzerland and France were cited as examples. Moreover, according to the Committee, "sanctioning the perpetrators of "insult" and "libel" with fines in fact is likely to permit "insult" and "libel" against certain payment" 16.

On September 2 1998, the two Council of Europe rapporteurs, David Atkinson and Hennik Gjellerod, prepared a report on the development of democratic change in Bulgaria. They stated that "even with the new Government, freedom of expression is being restricted both through political control of the state electronic media and through penal prosecution of journalists for libel of officials". They also reminded that Prosecutor General, Mr. Tatarchev, stated in 1997 that journalists should be subject to penal prosecution "not only for their opinions, but also for the questions they may ask in an interview"17.

In October 1998 the "Reporter Foundation" presented the findings of its study of court proceedings against journalists in Bulgaria in the period 1990 - 1998. The Study was part of the existing "Program for the Legal Protection of Journalists Prosecuted in Court", financed by the European Union. The Foundation announced that it had collected information in relation to approximately seventy-three criminal cases for insult and libel against journalists and specified that their research did not pretend to be thorough. Fifty-three cases were studied in detail. From those, twenty-six were initiated at the claim of the injured and twenty-seven were initiated by the prosecutor's office. Of all the cases, seven were discontinued, twenty were pending as of October 1998, thirteen journalists were acquitted and the sentences of nine were already in force . The researchers were not able to trace four of the cases.

At the beginning of 1999, the Council of Ministers submitted their own Bill for Amendment to the Penal Code. The Government announced the Bill several days before David Atkinson and Hennih Gjellerod's visit in Bulgaria in February that year. The Bill proposed the replacement of the punishment of "deprivation of liberty" with a "fine". The highest fine suggested amounted to thirty thousand Bulgarian Leva (around 14 000 USD).

The Council of Europe rapporteurs, Mr Atkinson and Mr Gjellerod, had meetings with journalists on 8 February and 6 December 1999. They were informed of the cases initiated against journalists for insult and libel. During their meetings with Government representatives and also before the media, the two rapporteurs expressed their concern regarding the practice of penal prosecution of journalists for insult and libel18.

On 13 January 2000 the National Assembly passed the Act for Amendment to the Penal Code. In fact, the National Assembly approved the Bill, submitted by the Council of Ministers, at the beginning of 1999. The punishment of "deprivation of liberty" was replaced with a maximum "fine" of thirty thousand Bulgarian Leva19.

On 17 January 2000, Mr Atkinson and Mr Gjellerod prepared a report which summarised their monitoring of democratic change in Bulgaria. They also prepared a Draft Resolution for the Parliamentary Assembly of the Council of Europe in which they made two central appeals. First, they called for the abolition of the penal prosecution of journalists and second, for fines and compensation for damages to be limited to reasonable amounts. These appeals were made within the context of their belief that journalists should comply with Article 8 of the ECHR and observe the principles of respect for privacy20. On 26 January 2000 the Parliamentary Assembly of the Council of Europe passed Resolution 1211 on the basis of the Draft Resolution prepared by the two monitors.

On 28 January 2000, the President imposed a veto on the Act for Amendment to the Penal Code and returned it for further consideration. He reasoned that the fines established in the Penal Code were very high. According to him "the amount of the punishment or "fine" provided for in this case does not correspond to the public danger of the insult and libel offences. This conclusion can also be drawn from a comparison of the size of "fine" imposed for other types of offences against the individual 21.

The President expressed concern that the disproportionate size of the punishment for insult and libel, provided for in the Penal Code, would undermine the right to freedom of expression.

On 16 February and 8 March 2000 discussions over the Act for Amendment to the Penal Code, returned by the President for consideration, took place. New fines were approved. Unfortunately, the majority voted the maximum fine to amount to BGL 15,000 (around 7 000 USD).

1 See Motives to Draft Resolution for Suspension of the Execution of Sentences Imposed on Journalists and Publishers of 02.04.1998.

In their study entitled "Programme for the Legal Protection of Journalists Prosecuted in Court", financed by the European Union, the "Reporter" Foundation collected information on 73 criminal cases for insult and libel against journalists initiated between 1990 and the summer of 1998. See "Prosecution of Journalists in Court in Bulgaria 1990 - 1998" in "Programme for the Legal Protection of Journalists Prosecuted in Court", p. 2. back 2 By Resolution 1115 of 1997 the Parliamentary Assembly of the Council of Europe established a Committee for Monitoring the Discharge of Obligations and Commitments of Council of Europe Member-States. back 3 See Letter ref. No. 854.02.10 addressed to Mr. Yordan Sokolov, signed by 27 members of Parliament. back 4 See "Draft Resolution for Respite of Sentences of Journalists, Publishers and Authors" of 02.04.1998. back 5 See Motives to Draft Resolution for Suspension of the Sentences Imposed on Journalists, Publishers and Authors of 02.04.1998. back 6 Article 6 paragraph 2 of the Constitution reads: "All individuals are equal before the law. No restrictions of rights or privileges are permitted based on race, nationality, ethnicity, sex, origin, religion, education, convictions, political affiliation, personal and social status or property status." back 7 Article 39, paragraph 2 of the Constitution stipulates that the right to expression cannot be used to infringe upon the rights and the good reputation of another person and to invoke coercive change of the constitutional order, perpetration, unleashing feud or personal violence. back 8 See Opinion of the Bulgarian Helsinki Committee on Constitutional Case No. 16/98. back 9 The states considered in that stand were: Australia, Austria, Belgium, Canada, Denmark, France, Germany, Holland, Norway, Sweden, Great Britain and the USA. A short review was made also regarding the relevant provisions in laws of several other countries. back 10 Only Judge Alexander Arabadjiev signed the Judgement with dissenting opinion regarding the higher degree of bearing criminal liability, when insult and libel were made in public or propagated through printed edition or otherwise. back 11 See Judgement No. 7 of June 4, 1996 on constitutional case No. 1 of 1996 of the Constitutional Court of the Republic of Bulgaria. back 12 See Judgement No. 20 of July 14, 1998 on constitutional case No. 16/1998 of the Constitutional Court of the Republic of Bulgaria. back 13 The Constitutional Court referred here to its Judgement No 14 of November 10, 1992 on constitutional case No 14 of 1992, wherein it stated that social characteristics on the basis of which distinction between individuals was impermissible were those comprehensively stipulated. back 14 See Bill for Amendment to the Penal Code of 19.07.1998, signed by Luben Kornezov. back 15 For the passing of the bill voted two, against - four and four abstained. back 16 See Thirty-Eighth National Assembly, Committee on Legal Matters and Legislation against Corruption, Opinion of 10.09.1998. back 17 See Atkinson and Gjellerod's Report of September 2, 1998. Doc. 8180 of PACE. back 18 See Atkinson and Gjellerod Report of January 17, 2000. Doc. 8616 of PACE. back 19 Average journalist salaries are approximately of BGL 200 - 250. back 20 Ibid. back 21 See Motives for Returning the Act for Amendment to the Penal Code for Further Consideration in the National Assembly, attached to Decree No. 15.