Kasabova v. Bulgaria
Criminal libel and the challenges of investigating official corruption
The journalist applicant published a series of stories on alleged irregularities and bribe-taking in the school admissions system, naming four public officials implicated in the scandal. She was found liable for criminal libel and sentenced to steep fines and ordered to pay damages to the claimants. The four officials were later disciplined, but not prosecuted. The case raised questions about the burden of proof and liability standards that ought to apply in criminal defamation proceedings.
Under Bulgarian regulations, pupils suffering from certain health conditions can exceptionally be admitted to specialized secondary schools without an examination. In June 2000, fourteen parents of children in Burgas who were sitting competitive examinations to gain admission to such specialized schools 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.
Katya Kasabova, a journalist with the Burgas-based daily, Compass, wrote an article about the scandal. The story alleged that 40 pupils were improperly admitted to the specialized schools, and that bribes of $300 or more were paid to the admissions commissioners. The article also noted that four commissioners, which it named, were being investigated for corruption. The named commissioners wrote to Compass, denying the allegations, requesting that Kasabova be sanctioned, and advising the newspaper that they intended to take legal action. Compass ran a second article, also authored by the applicant, in which she reported the comments of a top Burgas education official and the reaction of the four commissioners to her first article. This was followed by a third piece, which reported on the dismissal of the Burgas education official as a result of the internal inquiry conducted by the ministry.
The four commissioners named in the articles filed a criminal complaint against the applicant over what they claimed were defamatory statements that had accused them of a serious offense. 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 means. 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.
Open Society Justice Initiative Involvement
In December 2008, the Justice Initiative submitted third-party comments on the case to the European Court of Human Rights, jointly with the freedom of expression group, Article 19.
Burden of proof. In a criminal libel case, falsity of factual allegations should be treated as a core element of the offense of criminal defamation, which must be proved by the prosecution to the criminal standard. It should not be for the defendant to prove truth as this would violate presumption of innocence.
Ability to prove truth. No arbitrary 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.
Responsible journalism defense. The court should confirm its rejection of a strict liability approach to either truth or due diligence in such cases. It is essential to preserve the ability of the media to rely on the defense of responsible journalism, which ought to include a right to rely, directly or indirectly, on official reports and investigations.
The European Court found that the sanctions imposed on the applicant were disproportionate and not necessary in a democratic society, amounting to a violation of her Article 10 right to freedom of expression.
The court discussed in detail the issues of principle raised by the third parties, providing the most comprehensive analysis to date. It held that the rule that defamatory statements are presumed to be false is not per se inconsistent with Article 10, especially where truth is not the only defense available to libel defendants. In the current case, the availability of a responsible journalism defense mitigated any restraints imposed by the presumption of falsity principle.
The court noted, however, that it is particularly important in such cases for national courts to examine the truth evidence very carefully, so as not to render it impossible for defendants to reverse the presumption. In particular, the court found that the Bulgarian judges had erred in imposing on the applicant the same burden of proof that prosecutors should have met in obtaining the criminal conviction of the claimants for bribe-taking.
The court further noted that national courts must consider the general chilling effects of their rulings on the media as a whole, not just the parties to the case; and that they should not apply "an overly rigorous approach" to the assessment of journalists’ professional conduct, especially when the latter are investigating potential corruption of public officials.
Court issues its judgment, finding a violation of Article 10.
The Justice Initiative and Article 19 submit written comments to ECHR.
The applicant takes her case to the European Court.
Burgas Regional Court upholds the applicant's conviction and sentence.
Burgas District Court finds the applicant guilty.
Criminal complaint lodged against the applicant.
Second and third articles published.
First article of the applicant published.
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