Facts, Conclusions and Recommendations
following the First Phase of the Project
"Practical Access to Democracy in Central and Eastern Europe"

In February and March 2000, the Bulgarian Helsinki Committee (BHC) conducted a survey on judicial proceedings against journalists for insult and libel. This survey was undertaken by BHC as part of a two-year project entitled "Practical Access to Democracy in Central and Eastern Europe". This international project was financed by the Democracy and Human Rights European Initiative of the European Union.

I. Facts established by the survey:

There are more criminal proceedings against journalists for insult and libel than civil ones.
Out of 97 court proceedings against journalists 60 are the criminal proceedings while the civil proceedings are 37.

Libel cases prevail over insult cases
It was established that there existed 33 libel cases and 15 insult cases. There were 44 cases both for libel and insult.

Civil claims and criminal complaints are unevenly distributed over the separate regions.
The highest number of both criminal and civil proceedings for insult and libel against journalists is in the region of Vratza and Montana. There are 24 criminal proceedings in this area. The region of Varna has a total of 16 judicial proceedings - 13 of which are criminal and three civil. Rousse, Razgrad and Silistra are all regions where no journalists have been prosecuted for insult and libel.

Civil claimants seek high pecuniary compensations
The majority of civil claims are for compensation above 7 000 Bulgarian levs. (the amount is equal to 7000 German Marks. The average salary in the country is 250 leva). There are also excessively high claims like the twelve claims against Mr. Pavel Nikolov, owner of radio Montana which amount to 500 000 levs altogether. No claims were filed for non-pecuniary remedy.

Long duration of the libel and insult court proceedings
In average the majority of the libel and insult cases end in a three-year term after filing the complaint or petition. Only first instance proceedings last about two years.

Low success rate of libel and insult cases against journalists
Twenty of the proceedings had been closed by the end of March 2001. The remaining 74 case are still pending. To date, only one journalist, Mr Borislav Borisov, has been sentenced. Mr Borisov, the editor-in-chief of the Vidin newspaper, was sentenced by the District Court of Vidin to pay a fine of 1 000 leva and was publicly reprimanded. The Vidin Regional Court later reduced the fine to 500 leva. In twelve of the closed proceedings, the journalists were acquitted. Six of the cases were closed on the grounds of default or withdrawal of the complaint. Four of the cases were closed after reconciliation and agreement had been reached. In two of the cases, the first-instance court had sentenced the journalists, but the second-instance court acquitted them.

II. Conclusions

1. Journalists are common targets for ungrounded court proceedings

The present survey is the first one of this kind in the country and therefore one cannot establish what is the tendency with respect to the number of the court proceedings cases against journalists. (Future surveys on the subject will establish declines or rises of recourses to court for libel or insult against journalists.)

Nevertheless from the high number of unsuccessful libel and insult cases one can infer that Bulgarian journalists are common targets for ungrounded court proceedings initiated by malicious plaintiffs or complainants. One can also infer that so far the judiciary succeeds to effectively defend the right to freedom of speech.

2. Relying on state repression

The more frequent reliance on criminal prosecution for libel and insult demonstrates that complainants seek to achieve the social stigma that a criminal conviction imposes as opposed to civil decisions.

3. Threatening of journalists

The big number of cases against journalists, unfounded complaints and claims, which led to a low rate of success of the court proceedings, the high claims for compensation, the long duration of proceeding have one purpose and result - limitation of freedom of expression. The distorted court proceedings have a "chilling effect" and threaten journalists in the free practice of their profession.

4. Pecuniary compensation is the only remedy sought

Although non-pecuniary remedies may be sought to redress any harm to reputation caused by defamatory statements such are not sought.

In the majority of the cases civil claimants seek high pecuniary compensations of 10 000, 20 000 or more levs. There is a certain desire of those who claim to be victims of defamation to seek pecuniary enrichment through the court proceedings against journalists. This desire can be also seen in the fact that claimants direct their claims for compensation at the author and the editor/ owner of the media in order to increase their chances to receive a higher compensation.

5. Different defense for journalists

Bulgarian journalist do not enjoy equal defense in libel or insult cases against them. Big central media cover the attorneys' and court fees of their employed journalists when they are accused of libel or insult. Journalists from small media in the country do not enjoy such protection. Moreover they are less likely to be defended by attorneys specialized in media law or defamation proceedings.

This is one of the reasons for the uneven distribution of the cases over the country. The fact that there are only five defamation cases against journalists in Sofia regardless of the biggest concentration of media there can be explained with the restrain of malicious petitioner to initiate unfounded proceedings against journalist whose legal defense is ensured by their rich employers.

6. Investigative journalists are an endangered species

Libel complaints and libel claims prevail over those for insult. The first contain statements that are alleged to be false. Statements are typical for investigative journalism. The bigger number of libel claims and complaints in some regions arises from the concentration of journalists who carry out investigation there. They disclose economic embezzlement of mafia like structures on the Black sea (as it is the case in Varna) or discuss the policy of a municipal company (as it is the case in Montana).

III. Recommendation of the BHC:

1. International courts have stressed on the need for governments to exercise restraint in applying criminal remedies when restricting freedom of speech. The protection of one's reputation is treated primarily or exclusively as a private interest and experience shows that criminalising defamatory statements is unnecessary to provide adequate protection for reputations.

2. According to international law limitation of freedom of speech should aim at protection of people's rights instead of material benefits. Excessive pecuniary awards are always disproportionate to the harm done. Courts should prioritise the use of available non-pecuniary remedies to redress any harm to reputation caused by defamatory statements. Non-pecuniary remedies often have less impact on the free flow of information and ideas than their pecuniary counterparts and may at the same time provide an effective means of redressing any harm done to individuals' reputations. Such remedies should, therefore, be prioritised. These may include the issuance of an apology, correction and/or reply, or publication of any judgment which finds the statements to be defamatory.

3. Long court proceedings also have a chilling effect on the freedom of speech of plaintiffs/accused. Only the establishment of an effective judiciary can guarantee that defamation cases against journalists will be examined in short terms.

4. The Penal Code provides special protection to officials or representative of the public. It is now well established in international law that such officials should tolerate more, rather than less, criticism. It is clear that special protection for public officials falls foul of this rule.

5. The Penal Code prescribes excessive fines for defamation. International law conversely provides that such fines should never be imposed, no matter how blatant the defamatory statement.

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