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15.09.2017

Court backs prosecutor over interview alleging corruption – and he gets his money back

By Emil Weber

European Court of Human Rights (ECtHR) judgment has backed a former prosecutor on his comments made in the press alleging corruption in the court system, based on the right to freedom of expression under Article 10 of the European Convention on Human Rights. He had been convicted and fined in his native Bulgaria, but now the government must pay him back the 7,565 euros, with costs.

The European Court of Human Rights (ECtHR) in Strasbourg The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0)

By Emil Weber

A European Court of Human Rights (ECtHR) judgment has backed a former prosecutor on his comments made in the press alleging corruption in the court system, based on the right to freedom of expression under Article 10 of the European Convention on Human Rights. He had been convicted and fined in his native Bulgaria, but now the government must pay him back the 7,565 euros, with costs.

Slavcho Krastev Karzhev, a former district head prosecutor in Sofia, was interviewed by the daily "Trud" in 2006 about a commission investigating his management while in office. Among the members of the commission were two prosecutors with whom Mr. Karzhev had been in conflict over their daily work. 

In the interview, he made comments such as: "'I have tried to defeat the mafia present in the prosecution services’; ‘The unhealthiest elements in the prosecution service’; ‘many pieces of trash came to the surface ...crushing me now’, ‘Prosecutor Rushvetchiyski’”.

Two prosecutors brought a case of insult under the criminal code and civil law in 2007. In a final judgement, in 2008, a domestic court in Bulgaria found that the comments of the former prosecutor had harmed the honour and dignity of the two applicants and provoked in them “a feeling of humiliation”. It set aside his criminal liability but imposed an administrative penalty on him for insult in an aggravated form. Karzhev paid 7,565 Euros in damages and costs.

Late in 2008, Karzhev addressed the case to ECtHR complaining that the conviction related to his interview in the press amounted to a breach of Article 10 of the European Convention on Human Rights. The Bulgarian government claimed, among other excuses, that the prosecutors enjoy “higher degree of protection against criticism compared to other public officials” and that Karzhev had not provided “any facts or evidence in support of his allegations, which meant that his statements had gone far beyond the acceptable threshold of constructive criticism”.

Freedom of expression

The Fifth Section Committee of the ECtHR, after nearly nine years, found in September 2017 that it amounted to a violation of the Article 10 and backed Karzhev’s right to comment in the media.

According to the judgment, the national court had not weighed the comments against the right to freedom of expression and did not account for the fact that the statements were aimed to contribute “to a debate of considerable public interest”.

“The (national) court, focusing on the expressions at issue, appears to have lost sight of the overall content of the applicant’s interview ... in which the applicant discussed alleged corruption within the prosecution service”, reads the judgment. “Taken as a whole, his interview did form part of a debate on issues of considerable public interest and did not amount, as stated by the government ..., to gratuitous insult against the complainants”.

The judgment says the national court also “failed to take into account the fact ... that in respect of public officials, including prosecutors, the limits of acceptable criticism should be wider than in respect of private citizens”. The court emphasises the difference between value judgments and facts. “The domestic courts did not assess whether the contested statements were value judgments and if they were, whether there was a sufficient ‘factual basis’ for such value judgments”.

It was noted that the prosecutors who were criticised had also used the right to reply in the media. Lastly, the Court observed that the prosecutor was ordered to pay a high fine. It held that the sanction was excessive and disproportionate and imposed on him without sufficient justification or an appropriate analysis of the different interests at stake.

The government of Bulgaria was obliged by the judgment to repay to Karzhev the 7,565 Euros he had paid, and additional 1,500 euros for costs.

Karzhev v. Bulgaria, Application no. 60607/08, 7 September 2017

Judgment is available here





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