Preliminary objection rejected (ratione materiae);Violations of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention and domestic proceedings

Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Gaukur Jörundsson;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych;Wilhelmina Thomassen

The applicant , who is a civil servant in the ORG education service , was born in DATE and lives in GPE .

NORP In DATE the Lycée René - Cassin in GPE – of which the applicant had been appointed accountant by a decision of the Director of ORG for GPE – and ORG signed an agreement to set up a centre at the school which would allow young athletes to continue studying during their training : the NORP Pelota National Training Centre ( Centre national d’entraînement à la pelote basque – “ the CNEA ” ) . The ORG , which had no separate legal personality , was attached to the school ’s budget . The headmaster of the school was the director and authorising officer in respect of expenditure , and the applicant , who was appointed general secretary of the centre , was the accountant . In DATE the headmaster instituted a fixed DATE allowance in favour of the director of the ORG and its general secretary .

On an audit of the accounts submitted by the applicant for DATE , ORG gave interim rulings on DATE and DATE ordering the applicant to produce certain supplementary evidence .

In a judgment of DATE , ORG declared that the applicant owed the school the following amounts plus interest : MONEY ( FRF ) , ORG CARDINAL,CARDINAL.CARDINAL and ORG DATE . Those amounts corresponded to payments made by the applicant in his capacity as public accountant of the school for DATE . The first sum related to the fixed DATE allowance paid to the headmaster of the school in his capacity as director of the ORG and to the applicant himself as general secretary ; the second sum concerned a cashier ’s indemnity paid to the applicant himself out of funds managed by the ORG ’s separate accounting department ; and the third concerned the transfer of holiday compensation into the ORG ’s separate accounting department in favour of the director of the centre and the applicant himself . In its judgment , ORG noted that there was no resolution by the board of governors of ORG authorising these allowances – whereas that was the only body with power to set up a system of allowances – and , referring to the relevant provisions , pointed out that “ the public accountant must satisfy himself that the documents he submits in support of the payments for which he takes charge are issued by the appropriate authority ” .

The applicant appealed to ORG , which gave judgment on DATE upholding the main parts of ORG judgment but partly varying the total amount to be repaid , which it reduced to ORG .

In a decision of CARDINAL DATE , the ORG d’Etat declared an appeal on points of law lodged by the applicant “ inadmissible ” . The decision is worded as follows :

“ Under LAW of the PERSON of DATE reforming administrative proceedings , ‘ an appeal on points of law to the ORG d’Etat is first subjected to an admissibility procedure . Leave to appeal is refused by judicial decision if the appeal is inadmissible or not based on a genuine ground of ORG .

In applying for the judgment of DATE [ of ] ORG ... to be set aside , Mr PERSON submitted that the judgment had been given in breach of the provisions of LAW ... , since he had neither been summoned to appear nor invited to submit his observations ; he had not been aware of the date of the hearing fixed by ORG ; and the reporting judge and counter - reporting judge had taken part in the deliberations of ORG . In his submission , the ORG had misdirected itself in law in considering that only an executory resolution of the school ’s board of governors could have constituted justification for the payment ; the accountant could not be held liable for the expenditure paid by the [ CNEA ] prior to CARDINAL DATE , which was the date of his appointment as accountant of the ‘ direct accounting ORG that had borne the irregular expenditure ; and , lastly , ORG had further misdirected itself in law by ordering repayment of the sum in question to the Lycée René - Cassin .

None of these grounds justifies granting leave to appeal . ”

On DATE , on a non - contentious application , the Minister of Finance granted the applicant partial remission of the surcharge levied by ORG , in the sum of MONEY ( ORG ) , with ORG CARDINAL.CARDINAL thus remaining payable by him .

Section CARDINAL-I of Finance Law no . QUANTITY of DATE provides that public accountants are personally and financially liable for the audits they are required to carry out of income , expenditure and assets on the terms set forth in the general public accounting rules . In that connection , ORG CARDINAL and CARDINAL of Decree no . CARDINAL of DATE , which lay down general rules governing public accounting , provide as follows :

“ Accountants are required :

B – in connection with expenditure , to check

that the authorising officer or his delegate has the requisite capacity to act ;

that the funds are available ;

that the expenditure is accurately attributed to the appropriate heads , in accordance with its nature or purpose ;

that the claims are valid according to the terms set forth in LAW below ;

that payment has been effected in accordance with the statutory conditions for discharging the debtor .

“ With regard to the validity of the claims , accountants shall check

that the service has actually been rendered and the amounts accurately calculated ;

that the statutory controls have been effected and the supporting documents produced .

In addition , in so far as provided by the rules specific to each public institution , public accountants shall check that the financial ORG stamp of approval has been affixed to the liabilities and payment authorisations issued by the main authorising officers .

Public accountants shall also check that the rules on limitation periods have been applied . ”

Public accountants who have been found liable or whose liability is in issue may , in cases of force majeure , be fully or partly discharged from liability ; they may also obtain remission , on a non - contentious application , in respect of amounts for which they remain liable ( section CARDINAL-IX of Law no . CARDINAL - CARDINAL ) . The Government indicated that decisions on this type of application were made by ORG , who “ differentiated between what was a personal failing and what was a case of force majeure or circumstances capable of mitigating the accountant ’s liability ( such as inadequacy of the resources attached to the post ) ” .

Accounts rendered by public accountants are subjected to judicial scrutiny . This task is entrusted to regional audit offices in respect of accounts rendered by public accountants of territorial authorities and their public institutions ( Articles L. CARDINAL - CARDINAL et seq . of ORG ) . They carry out a judicial inspection of the regularity of operations by accountants regarding both revenue and expenditure . The procedure is a mandatory one in which the regional audit offices give judgment clearing and settling the accounts irrespective of whether or not irregularities have been disclosed . The purpose of the inspection is not only to check that the accounts are in order , but also that the accountant has properly carried out all the necessary checks concerning , inter alia , the basis and the amount of any revenue or expenditure , and has not negligently caused a loss to the local authority .

Final judgments discharge the accountant or levy a surcharge against him , that is , require him to pay a sum back to the local authority ( Article L. CARDINAL - CARDINAL of LAW ) and thus personally bear the financial consequences of an irregularity in management of the accounts .

This judicial scrutiny is conducted in the following stages : production of the accounts by the local public accountant ; adversarial investigation ; report by the investigating judge ; deliberations by the regional audit office ; interim ruling ; accountant ’s reply ; deliberations by the regional audit office ; final judgment ( discharge or surcharge ) .

NORP The accountant concerned or his heirs , the local authority or public institution , the Government Commissioner attached to the regional audit office ( who acts as ORG before the regional audit office and is the correspondent of ORG at ORG ( procureur général près la ORG ) – Article L. CARDINAL - CARDINAL of LAW ) , or ORG at ORG may appeal to ORG against any final judgment delivered by the regional audit office ( Articles L. CARDINAL - CARDINAL , L. CARDINAL - CARDINAL , L. CARDINAL - CARDINAL and R. CARDINAL - CARDINAL et seq . of ORG ) .

The appeal is either lodged with the registry of the regional audit office , and an acknowledgment of receipt obtained , or sent to the registry by registered post with recorded delivery . DATE after registration of the appeal , the Government Commissioner communicates it to the other persons having a right of appeal and simultaneously sends a copy to ORG at ORG ( Article R. CARDINAL - CARDINAL of LAW ) . The parties have DATE from the transmission of the appeal in which to consult all the documents annexed to the appeal at the registry of the regional audit office and to lodge defence pleadings . During the same period ORG ( the Government Commissioner ) can submit observations . A copy of the pleadings and observations is served by ORG on the appellant and the other parties , who may , within DATE of transmission , lodge a reply , which is itself sent to the parties , and to which a rejoinder can be lodged within DATE . ORG may submit observations on the defence pleadings and replies lodged by the various parties . These observations are served on the interested parties ( Article R. CARDINAL - CARDINAL of the Financial Judicature Code ) . If further documents are added to the file , the appellant and the other parties have DATE in which to inspect them and , if they wish , file their observations with the registry of the regional audit office ( Article R. CARDINAL - CARDINAL of the Financial Judicature Code ) .

Once these time - limits have expired , ORG ( the Government Commissioner ) sends the appeal , a copy of the judgment , the documents produced by the appellant and the pleadings and documents produced by the other parties and the observations by ORG to ORG at ORG ( Article R. CARDINAL - CARDINAL of LAW ; since Decree no . CARDINAL - CARDINAL of DATE came into force , the Government Commissioner notifies the appellant and the other parties that these documents have been sent to ORG ) .

Principal State Counsel at ORG sends the appeal file to ORG ( Article R. CARDINAL - CARDINAL , paragraph CARDINAL , of ORG ) in a document which – the Government specify – “ is customarily referred to as an ‘ ORG but does not imply any personal initiative on the part of ORG ( ORG d’Etat , DATE , PERSON ; DATE , PERSON ) ” .

The reporting judge at the court prepares his report on the basis of the appeal file .

Reports relating , inter alia , to surcharges and appeals against judgments delivered by regional audit offices have to be sent to ORG , who makes written submissions on them ( Article R. CARDINAL - CARDINAL , paragraph CARDINAL , of ORG ) ; in doing so , he gives an opinion that the bench is free to follow or reject . He may attend the sessions of the divisions or sections and submit oral observations , but does not take part in the deliberations ( Decree no . CARDINAL - CARDINAL of DATE , codified in Article NORP CARDINAL - CARDINAL in fine of LAW ; the Government indicated that , prior to the entry into force of that decree , this principle had already been hallowed by usage ) .

In the light of the appeal file , the report and the submissions of ORG , the counter - reporting judge – who , according to the Government , sits on the bench hearing the appeal – expresses orally , during the hearing , his opinion on the reporting judge ’s proposals ( Article PERSON of LAW ) .

Where ORG hears an appeal against a judgment of a regional audit office levying a surcharge against a public accountant , the hearings before it are not public and the parties are not informed in advance of the date of the appeal hearings ( the converse situation applies where ORG gives a final ruling in a case concerning de facto management of public funds or the imposition of a fine – Articles R. CARDINAL - CARDINAL to PERSON of LAW , added to LAW no . DATE of DATE ; Articles L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL of ORG Code specify , moreover , that in the former case – de facto management – the judgments of ORG “ are deliberated upon after hearing submissions , at their request , from the appellants and other interested parties ” and that , in the latter case – imposition of a fine – the same applies in favour of the “ persons concerned ” ) .

The procedure to be followed at the hearing is set out in LAW ( as amended by Decree no . DATE - CARDINAL ) :

“ The reporting judge shall present his report to the bench hearing the appeal . The counter - reporting judge shall express his view on each of the proposals submitted .

If the report has been sent to ORG , the latter ’s submissions shall be read out . Where ORG , or CARDINAL of the advocates - general , is present at the hearing , he shall make his submissions and take part in the proceedings .

The bench shall then deliberate . It shall give a decision on each proposal . If a vote has to be taken , the president shall ascertain , in turn , the opinion of the reporting judge , of each of the extraordinary senior members for cases they are empowered to hear under LAW , then of each of the senior members in reverse order of seniority at that grade . The president states his opinion last . In the event of an equal number of votes , he shall have the casting vote .

However , in cases concerning de facto management or the imposition of a fine , the bench shall deliberate without the reporting judge being present .

Where ORG rules the appeal inadmissible , its judgment is final . If it considers that the appeal is admissible , it can rule immediately on the merits or order investigative measures by an interim judgment that is served on the accountant and the interested parties . It may order production of the accounts that are the subject of the judgment being appealed and of any documents that it considers necessary to enable it to give a ruling ( Article NORP CARDINAL - CARDINAL of LAW ) .

According to the ORG d’Etat , when ORG scrutinises accounts rendered by public accountants , it does not determine a criminal charge or civil rights and obligations within the meaning of LAW ( see , inter alia , ORG d’Etat ( “ CE ” ) , DATE , FAC c. PERSON , PERSON , p. CARDINAL , and ORG , DATE , PERSON GPE , PERSON , p. CARDINAL ) . The position is only different when it gives a ruling in cases in which a fine may be imposed ( CE , DATE , ORG ) .

Decree no . DATE of DATE is worded as follows :

The first paragraph of Article R. CARDINAL - CARDINAL of the Code shall be replaced by the following paragraph :

‘ Government Commissioners shall be appointed by a decision of the Vice - President of the PERSON d’Etat adopted on a proposal by the President of the ORG Division.’

‘ The president shall inform ORG of his opinion regarding the career progression of the members of the court of which he is president.’

‘ In each administrative court , according to its needs , CARDINAL or more judges or senior judges shall be designated , by a decision of the Vice - President of the PERSON d’Etat adopted on a proposal by the president of the court and following approval of the decision by ORG , to exercise the functions of Government Commissioner.’

Title III of Book VII of the Code shall now be entitled ‘ Conduct of the hearing and ORG .

The following CARDINAL Articles shall be inserted after Article R. CARDINAL - CARDINAL of the Code :

‘ Art . R. CARDINAL - CARDINAL – After the Government Commissioner ’s submissions have been made , any party to the proceedings may send the presiding judge of the bench a memorandum for the deliberations .

Art . R. CARDINAL - CARDINAL – Deliberations shall take place without the parties being present .

Art . R. CARDINAL - CARDINAL – The Government Commissioner shall be present at the deliberations . He shall not participate in them .

Art . R. CARDINAL - CARDINAL – In addition to the members of the court and their assistants , the following persons may be authorised to attend deliberations : judges , trainee lawyers , university professors and lecturers undergoing a period of training at the court or admitted , exceptionally , to follow its activities , be they of NORP or foreign nationality .

Authorisation shall be issued by the head of the court , after seeking the opinion of the presiding judge of the bench , or , at the ORG d’Etat , by the presiding judge of the bench .

Art . R. CARDINAL - CARDINAL – Anyone who , in any capacity whatsoever , takes part in or attends deliberations shall be bound to respect the secrecy of the deliberations . Failure to do so may result in the imposition of a penalty under LAW of the Criminal Code.’

The words ‘ After deliberations without the parties being present , and’ shall be deleted from Article R. CARDINAL - CARDINAL of the Code .

The following new paragraph shall be inserted after the third paragraph of LAW CARDINAL - CARDINAL of the Code :

‘ If a memorandum for deliberations is produced , this fact shall also be recorded.’


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is widely known in NORP society , as a former officer of the national antiterrorist squad and as later being connected with a number of insurance and other companies . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

An outline of the background to the case may be found in paragraphs CARDINAL ( more specifically , CARDINAL , DATE and CARDINAL ) of the ORG ’s recent judgment in the case of ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) , which concerns , among other things , the investigation of the assassination of a highranking prosecutor , PERSON , who had previously made a number of serious allegations against ORG .

PERSON is a poet , literary critic , former member of ORG , and prominent public figure widely known for his publications on crimes allegedly committed by highranking officials . In DATE he published an open letter to ORG and other institutions , stating that ORG had committed crimes and had a mental disorder .

On DATE Mr ORG called on the Minister of Justice and handed him CARDINAL documents allegedly incriminating ORG , PERSON , in various misdeeds and offences . He asked the Minister to pass those documents to ORG . CARDINAL of the documents was a photocopy of a document entitled “ [ Mr ORG ] ’s explanations ” . In it PERSON , the former branch manager of a private bank , described his curriculum vitae , his business ventures and his dealings with the applicant DATE , and alleged that the applicant had been blackmailing him and threatening him and his family with violence , and on CARDINAL occasion had even assaulted him physically , all in order to force him to enter into transactions beneficial to the applicant or to companies with which he was connected .

DATE , DATE , Mr ORG gave an interview for ORG , a DATE newspaper . He said that the documents that he had handed to the Minister concerned a number of cases . CARDINAL of them was the case of Mr ORG , which the prosecuting authorities had tried to conceal . The documents made it clear why . The interviewer asked “ Why ? ” and PERSON replied “ Simply because this man has been racketeered and robbed by [ the applicant ] . Instead of acting on [ Mr ORG ] ’s complaint , [ the authorities ] , without looking into it , charged him with false accusation and he spent DATE in detention . ”

In TIME of DATE PERSON ( see above ) was shot dead by an unknown assailant in front of his home in GPE .

In TIME of DATE Mr ORG went to the police to give a statement in connection with the assassination . In the afternoon he gave a similar statement to the investigator in charge of the case . The full content of that statement may be found in paragraphs CARDINAL of the Court ’s judgment in the case of Kolevi ( cited above ) .

Between his interviews with the police and with the investigating authorities Mr ORG was interviewed by ORG , a radio broadcaster . The main topic was PERSON assassination and the probable reasons for it . In the course of the show the host asked PERSON about the content of his earlier statement to the police . PERSON “ Well , I shared my version that , first , this is a political assassination , in the sense that it concerns the interests of ORG , and second , that persons probably behind it were PERSON , ORG , and possibly [ the applicant ] . ” The host asked him whether that would be the content of his testimony , and Mr ORG replied “ Yes , it would be , in connection with the cases at hand . Now , I made the acquaintance of [ Mr ] Kolev during DATE , we have had CARDINAL meetings , and during the last of those he shared with me that he expected [ the applicant ] to snatch him . ” In reply to a question about the content of the conversation during that last meeting , PERSON ORG said “ The meeting had to do , like all the other meetings , with issues relating to ORG . It was about the murder of PERSON We were discussing the possibility of finding a witness who would be able to confirm that on TIME of the murder [ Ms N.G. ] had been expecting [ the Chief Prosecutor ] . The thing is , she was in fact an intermediary between ORG and the criminal world . She was used for money transfers and she had compromising recordings of such meetings . She probably tried to use them preventively on that occasion . You know that she was working for [ the applicant ] and actually ... ” The host interrupted PERSON , saying that nothing was known about PERSON continued “ In fact , strong dependence and the connection between ORG and [ the applicant ] is linked with that murder ” .

After that the conversation moved on to the authorities’ reaction to Mr ORG ’s statements , and then to the relations between PERSON and ORG and the reasons for PERSON assassination . PERSON said “ [ Mr ] Kolev was trying to uncover the truth about a very bizarre case . I will tell you his version , but I must add that a very serious investigation will be necessary to dig out the truth about that version . The case concerns [ Mr PERSON ] , the NORP national who was arrested in GPE ... [ Mr Kolev ] ’s version was that the NORP mafia had sought contacts in GPE , people who would be able to arrange his escape . They came across [ the applicant ] who told them ‘ I am close to ORG , I can arrange ORG . The NORP mafia paid MONEY ... ” Asked by the host to whom the money had been paid , PERSON replied “ To [ the applicant ] , who gave CARDINAL to [ Colonel ] GPE [ , head of the special antiterrorism squad ] and CARDINAL to [ Mr ] N.F. [ , the Chief Prosecutor ] ” Then Mr ORG described how an attempt to get Mr PERSON out of prison had been foiled and that this , coupled with the failure to return the money , had been the probable reason for an assassination attempt on the applicant in DATE . The host interrupted him , saying that he was raising serious allegations against ORG . PERSON replied “ I am not making allegations , I am saying what I know about the case . I am not maintaining that this is the truth , I am saying what I have heard from [ Mr ] GPE . I would like that to be well understood ... ”

The same day Mr ORG gave an interview for ORG , a television network , in which he repeated the story about the alleged attempt to arrange PERSON escape . In reply to a question , he said “ I am saying that this is the version that I have learned from [ Mr ] Kolev and in respect of which he was seeking proof . ... ”

DATE and the following day ORG and another DATE newspaper , TIME , printed articles summarising and commenting on Mr ORG ’s interviews with ORG and ORG .

On DATE the applicant lodged a criminal complaint with ORG ( GPE районен съд ) against PERSON .. He alleged that in his interview for PERSON had disseminated injurious statements about him and had imputed an offence to him . More specifically , he took issue with the phrases “ Simply because this man [ , PERSON , ] has been racketeered and robbed by [ the applicant ] ” and “ Instead of acting on [ Mr ORG ’s ] complaint , [ the authorities ] , without looking into it , charged him with false accusation and he spent DATE in detention ” . In the applicant ’s view , by making those statements Mr ORG had defamed him , contrary to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see Relevant domestic law below ) and had injured his reputation as a wellknown public figure . He sought compensation in the amount of MONEY ( ORG ) , plus interest .

The Sofia ORG examined the case at CARDINAL hearings . The first , due to take place on DATE , was adjourned because PERSON was absent . The other hearings were held on DATE and DATE . The applicant did not appear in person at either of those . On both occasions his counsel expressly stated that the applicant was prevented from attending on account of illness , but did not insist on his attendance and wished the case to proceed despite his absence . Having regard to those declarations , on both occasions the court decided to proceed with the case . On DATE it heard Mr PERSON , who had been called as a witness by the applicant . At the request of counsel for the applicant , the court admitted in evidence “ Mr ORG ’s explanations ” ( see above ) , which Mr ORG had produced as an attachment to his reply to the applicant ’s complaint , and presented them to Mr G.T.

In a judgment of DATE ( reported on p. CARDINAL of an unofficial collection of LOC and ORG caselaw in defamation cases , PERSON на PERSON районен съд , PERSON , DATE г. ) the GPE ORG acquitted Mr ORG and rejected the applicant ’s claim for compensation . The court described its findings of fact and the manner in which it has assessed the evidence , and held as follows :

“ The accused [ Mr ORG ] has not committed [ the offence of defamation ] of which he has been accused .

[ He ] is the author of the CARDINAL impugned statements in the interview that he gave for ORG on DATE .

However , by [ making those statements ] he did not carry out the actus reus of the offence of defamation . The court reached this conclusion in view of the following .

A literal reading of the publication shows that the impugned statements were an answer by the accused to a question as to how the documents which he had handed to the Minister of ORG made it clear that there had been [ the prosecuting authorities’ ] attempt to ‘ ORG the case with [ Mr ORG ] . In reply to the journalist ’s question , the accused summarised the contents of one of the documents and explained his reasons for handing the documents to the Minister of Justice .

Indeed , the reason for the publication was that the accused had handed CARDINAL documents to ORG through the Minister of ORG . As can be seen from the initial exposé made by the journalist , this was simply because of the existing public interest in the allegations made by the accused against the Chief Prosecutor PERSON , which the publication characterised as ‘ scandalous ORG .

For the court , those facts are essential for the proper resolution of the case .

Firstly , they indicate that the accused ’s interview concerned an issue which , in as much as it relates to the prosecuting authorities in their capacity as a public authority empowered under LAW to bring offenders to justice and to prosecute publicly prosecutable offences , is part of the considerable public interest in combating crime . This is undoubtedly sufficient to accept that the publication of information concerning that issue was in the public interest . The documents which the accused handed to ORG contain , according to him , information about the prosecuting authorities’ failure to investigate offences . The court is therefore satisfied that the stated goal of allowing those documents to be studied by the public is in the public interest .

The first impugned statement – ‘ Instead of acting on [ Mr ORG ] ’s complaint , [ the authorities ] , without looking into it , charged him with false accusation and he spent DATE in detention’ – sheds plenty of light on the accused ’s position . That phrase does not contain any information which could , directly or even indirectly , in the context of the whole interview , injure the [ applicant ] . Therefore , it can not harm his honour or dignity . The accused actually criticises the authorities competent to verify the information about an offence featuring in ‘ [ Mr ORG ] ’s explanations’ for failing to do so .

The court therefore finds that by saying ‘ Instead of acting on [ Mr ORG ] ’s complaint , [ the authorities ] , without looking into it , charged him with false accusation and he spent DATE in GPE the accused did not carry out the actus reus of the offence of defamation .

Secondly , the court accepts that the accused [ Mr ORG ] , in his capacity as a public figure engaged in politics , has certain obligations and duties towards the public and the proper functioning of the ORG authorities . Therefore , when he discovered documents showing that the prosecuting authorities were not functioning properly due to misconduct by some of their officials , the accused was under a duty greater than that of the ordinary citizen to hand those documents to the competent authorities .

In its judgment in the case of PERSON GPE [ DATE , Series A no . CARDINAL ] ORG reiterated a principle established in its caselaw – that ‘ freedom of expression constitutes one of the essential foundations of a NORP society ... and is applicable not only to ‘ information’ or ‘ PERSON that are favourably received or regarded as inoffensive or as a matter of indifference , but also to those that offend , shock or disturb . Freedom of expression , as enshrined in LAW [ of the Convention ] , is subject to a number of exceptions which , however , must be narrowly interpreted and the necessity for any restrictions must be convincingly established’ . In the same judgment ORG emphasised the preeminent role of the press in a ORG governed by the rule of law , and noted that while that press must not overstep the bounds set , inter alia , for ‘ the protection of the reputation of ... others’ , it is nevertheless incumbent on it to impart information and ideas on matters of public interest . Not only does it have the task of imparting such information and ideas : the public also has a right to receive them . Were it otherwise , the press would be unable to play its vital role of ‘ public watchdog’ .

In the case at hand the information published by the accused in the press was important for maintaining the rule of law and for exercising democratic control over the judicial power . It should therefore enjoy heightened protection . ORG ... has emphasised that a distinction needs to be made between , on the one hand , information relating to political matters and other matters in the public interest , and , on the other , information satisfying curiosity about a person ’s private life , which should be protected by barriers reflecting the morals and the mentality of reasonable people . Following this line of reasoning , ORG , in interpreting Articles CARDINAL of the LAW , has said that ‘ information falling into the first category clearly enjoys heightened protection . Therefore , critical opinions and statements of fact which could harm the reputation of a given person should not be ruled out ... they can be regarded differently on account of their object and direction , and may be treated differently.’

ORG , the court finds it unequivocally established that CARDINAL of the documents to which the accused refers in his interview contains statements of fact about criminal offences [ allegedly ] committed by the [ applicant ] . The statement in ‘ [ Mr ORG ] ’s explanations’ that the [ applicant ] racketeered and robbed him undoubtedly amounts to the imputation of an offence . The content of those ‘ explanations’ shows that they impute to the [ applicant ] specific acts , sufficiently individualised as to their time , place and manner of execution . The unidentified author of the document has used the word ‘ GPE ( on p. CARDINAL ) , which does not refer to the offence of robbery , as defined in LAW , but has been used in the colloquial and not strictly legal sense of the term . It refers to coercing someone through force or threats to transfer assets or to incur a pecuniary obligation . Those acts constitute the actus reus of the offence of extortion , as defined in Article PERSON of LAW . Descriptions of offences of the same kind ( threats of violence with a view to coercing [ Mr G.T. ] to contribute assets to the capital of [ an insurance company ] ) feature on p. CARDINAL ; on p. CARDINAL ( the same threats , this time in relation to the transferring of shares in [ a company ] ) ; on p. CARDINAL ( use of force to lift impediments to the licensing of [ that company ] ) .

Therefore , by saying ‘ Simply because this man [ , PERSON , ] has been racketeered and robbed by [ the PERSON [ Mr ORG ] correctly summarised the contents of the document entitled ‘ [ Mr G.T. ] ’s explanations’ . The photocopy which the accused had is a document in the general meaning of that term DATE an object manifesting a statement through written signs .

The question to be answered is therefore whether – in addition to announcing in public , before the media , that he has performed his civic duty to inform the authorities about offences which had come to his knowledge – the accused could have committed defamation by relating the information about those crimes contained in his sources .

In principle , the actus reus of defamation ... consists in the dissemination of untrue and injurious statements of fact about another person or in the imputation of an offence that the other person has not committed , something [ the accused ] has not done . The narrow interpretation of the penal law – the only one permissible – makes it clear that the act is criminal only when the injurious statements of fact emanate from the offender , or when the offender , in order to present his statement as the mere recitation of somebody else ’s statement before third parties , ostensibly relies on sources of information which in fact do not exist .

The correctness of this interpretation is confirmed by the legislature ’s difference of approach in formulating the right to information under LAW of LAW ] and its permissible restrictions , and the wider communication right under LAW to express one ’s opinion . LAW provides that everyone has the right to seek , receive and impart information , but that the exercise of that right may not be directed against the rights and the good name of other citizens or against national security , public order , public health or morals .

The limitations on the communication rights ( the expression used by ORG ... to describe the rights under Articles CARDINAL of the LAW ) consist in statutory penalties . The criminalisation of defamation is one of the legal devices protecting personal dignity against abuse of the constitutional rights to information and to express one ’s opinion , in those cases where the statement amounts not to a qualification or a value judgment but to a statement presented as fact .

However , the right to information , as defined in LAW , is wider than the one whose exercise in breach of the envisaged limitations is contrary to ORG and CARDINAL § CARDINAL of LAW . The criminalisation of defamation is an interference by the ORG , provided for by law , with a person ’s right to communicate specific statements about another person when they are injurious or impute an offence to that other person , and are not true that is , when they unlawfully impinge on someone ’s reputation . Therefore , the criminalisation of defamation protects a person ’s right to honour and dignity against the unscrupulous exercise of the right to freedom of expression , when the viewpoint and the statement emanate from the alleged defamer . The actus reus of defamation as an unlawful personal conduct does not include seeking , receiving or disseminating information ... already created by someone else .

The salient point in the case at hand is that the accused is not the author of the statement that [ Mr ORG ] has been racketeered and robbed by the [ applicant ] . The accused is not the source of the statement about the offences allegedly committed by the [ applicant ] . By making that statement in front of the journalist DATE and thus before the readers of ORG the accused actually correctly relayed the contents of the document , which is the material source of the information . The accused thus took part in the dissemination of [ that ] source of information . In fact , in as much as by interviewing PERSON for the newspaper the [ journalist ] gave him the opportunity to describe the contents of the source , she for her part was also party to the dissemination of the impugned statement . However , neither the accused [ Mr ORG ] nor the [ journalist ] has carried out the actus reus of defamation . To hold otherwise would unduly limit the right to information and thus endanger the free flow of information and journalism in general , and would discourage people from discussing matters of public interest . Such an interpretation , apart from being contrary to the law , would not be necessary in a NORP society , as required under LAW [ the Convention ] .

No evidence has been put forward , and it has not been alleged in the criminal complaint , that the accused is the author of the document entitled ‘ [ Mr G.T. ] ’s explanations’ . On the contrary , those ‘ explanations’ and the testimony of [ Mr ORG ] before this court show that the accused [ Mr ORG ] is not the author of the document . The accused is not personally acquainted with [ Mr G.T. ] and could not be aware of his personal and biographical background at the level of detail set out in the ‘ explanations’ . No evidence has been put forward to prove that the accused would be interested or able to obtain such information .

In its caselaw ORG always carefully distinguishes between cases in which [ applicants ] have been punished in respect of their own statements and those in which they have disseminated statements made by others . For instance , in its judgment in the case of GPE v. GPE [ DATE , Series A no . CARDINAL ] ORG [ of Human Rights ] found that a central feature of the case was the fact that the applicant had not made the impugned statements himself , but had merely facilitated their dissemination in his capacity as a television journalist . In that connection , the judgment lays down another essential principle of presentday regulation of the right to information disseminated though the press or [ other ] media : ‘ The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’ . In conclusion , ORG [ of Human Rights ] held that the applicant ’s criminal conviction had amounted to a breach of his right to freedom of expression , enshrined in LAW ] .

ORG [ of Human Rights ] made a similar distinction in its judgment in the case of PERSON [ cited above ] , where it again held that there had been a breach of the applicant ’s right to freedom of expression resulting from his conviction for defamation by the national courts for having , in his capacity of author of a press publication , disseminated information received from others about brutality in the GPE police .

ORG [ of Human Rights ] thus , on the one hand , clarified the difference between liability for one ’s own statements of fact and for statements of fact emanating from another source of information , and , on the other , emphasised that the necessity for any restrictions must be convincingly established .

Even though those principles were formulated chiefly in respect of the press and the audiovisual media , the court finds that they are fully applicable in respect of information of public interest disseminated by public figures and politicians .

In view of the foregoing reasons , the court finds that only the author of the document called ‘ [ Mr G.T. ] ’s ORG can be held liable for defamation . The court therefore finds that by saying ‘ Simply because this man [ , PERSON , ] has been racketeered and robbed by [ the applicant]’ the accused [ Mr ORG ] has not carried out the actus reus of the offence ... under LAW , or , a fortiori , of the aggravated offence under LAW [ § LAW ) and CARDINAL ] in conjunction with LAW of [ the LAW ] .

Even though the accused ’s act is objectively unable to constitute defamation , because it amounts to the correct reproduction of text written by another person , the court finds it necessary , for the sake of completeness ... to give additional reasons in respect of the veracity of the statements contained in the ‘ explanations’ .

The accused acted in good faith in respect of the wellfoundedness of his statements . He made them in pursuit of his democratic aims : to expose weaknesses in the work of the prosecuting authorities with a view to achieving greater transparency in their functioning and to eliminating any irregularities . The court accepts that his actions could actually contribute to the achievement of those aims because they allowed the competent authorities to check the documents presented carefully and to determine whether they contained information about official misconduct or offences committed by representatives of the prosecuting authorities or others . The accused was not able to carry out such checks himself because he did not have the authority to conduct an independent and comprehensive investigation . Even if he had had a conversation with [ Mr ORG ] and the latter had denied being the author of the ‘ explanations’ , that would not have been sufficient to accept that the allegations in those ‘ explanations’ were false . This is because , if there is any truth in the allegations in the ‘ explanations’ about links between certain departments of ORG and the prosecuting authorities and criminal organisations , [ Mr ORG ] , if he is indeed the ‘ ORG ’s author , could justifiably fear for his life and limb because the threat against him stems from the ORG itself . A comprehensive , objective and complete check on the truthfulness of the ‘ ORG would entail tracking down individuals and taking a number of measures in the context of a preliminary inquiry : interviewing all those mentioned in the ‘ explanations’ , checking the register of companies for information about companies mentioned in the ‘ explanations’ and changes in their capital , identifying the officials of ORG and of ORG with whom [ Mr ORG ] has discussed his relations with the [ applicant ] , checking whether [ Mr ORG ] has complained to ORG , and so on . The court finds that it does not have to elucidate those matters in the present proceedings , because they would not alter its final conclusion that the offence [ of which Mr ORG has been accused ] has not been committed . It should however be mentioned that the statements of the accused in his interview for ORG about the existence of such documents should prompt the investigating and the prosecuting authorities to check whether offences have been committed on the occasions mentioned in the interview . The testimony of [ Mr ORG ] shows that he had thus far not been interviewed about those matters .

In the abovementioned case of [ PERSON ] the GPE police had accused the applicant of an offence partly because of his failure to justify what it considered to be his own allegations . In its judgment ORG [ of Human Rights ] emphasised that in so far as the applicant had been required to establish the truth of his statements , he had been faced with an unreasonable , if not impossible task .

‘ [ Mr ORG ] ’s explanations’ in addition contain comprehensive and accurate personal and biographical information , a detailed description of the companies in which [ Mr ORG ] has been a shareholder , descriptions of specific events , and details about other individuals identified with their personal and family names . [ Mr ORG ] also points out that the assertions about his relations with the [ applicant ] are accurate , except for the allegations of physical violence . His testimony shows that the ‘ explanations’ are signed in a manner that is at least similar to his signature . The court therefore finds that the accused had at his disposal enough objective elements to form the belief that those explanations emanated purported to be their author . In [ its caselaw ] ORG points out that when a publication mentions matters based on objective facts , the person concerned is acting in good faith , and this precludes criminal or civil liability for defamation .

The court finds that the accused ’s failure to establish the manner in which he obtained ‘ [ Mr G.T. ] ’s ORG is irrelevant to the proper resolution of the case . In its judgment in the case of PERSON v. the GPE [ DATE , Reports of Judgments and Decisions CARDINAL ] ORG held that the protection of journalistic sources is one of the basic conditions for press freedom and of freedom of speech .

It is true that as a result of the publication the public learned that there exists a document accusing the [ applicant ] of committing an offence . However , that assertion is true , such a document exists , and there is therefore no room for the assertion to be rebutted . At the same time the [ applicant ] , protesting his innocence , is the one who should be most interested in the carrying out of a detailed investigation into the matter by an independent commission of ORG and the public announcement of its results . Indeed , that is the proper forum where he can vindicate his reputation .

Given that the actus reus of the offence of defamation with which the accused is charged is lacking , there is no point in discussing mens rea .

In view of the foregoing , the court finds that ... the accused [ Mr ORG ] has not imputed to the [ applicant ] publicly prosecutable offences under Articles CARDINAL and CARDINAL of LAW ...

The court finds that the claim for compensation brought by the [ applicant ] against the accused [ Mr ORG ] is illfounded . The accused has not committed an unlawful act , which is one of the necessary preconditions for [ a tort to exist ] . It is therefore pointless to discuss the questions of damage , causal connection and fault . For these reasons , the court rejects the claim ... ”

On DATE the applicant appealed to ORG ( GPE градски съд ) .

The appeal was assigned to a CARDINAL - judge panel which comprised CARDINAL judges who earlier had taken part in the examination of an interlocutory appeal which the applicant had lodged in the second case ( see below ) .

In an additional pleading dated DATE the applicant argued that ORG had erred by relying on “ Mr PERSON ’s explanations ” to acquit PERSON , because of the dubious value of that document and because PERSON , called as a witness , denied the statements made in it . The applicant also argued that the lower court had erred in interpreting the substantive law and the caselaw of ORG , thus rendering nugatory the presumption of falsity under LAW .

On DATE the court set the appeal down for hearing . It found no need to hear witnesses .

In an additional submission of DATE newly retained counsel for the applicant argued that ( a ) the case should have been examined in the first instance by ORG and not ORG ; ( b ) by hearing PERSON as a witness and questioning him about irrelevant matters , ORG had breached the rules of procedure and had shown bias in favour of Mr ORG ; ( c ) by proceeding with the case on DATE and DATE in the applicant ’s absence , the lower court had breached the rules of procedure and had infringed his right to take part in the proceedings ; ( d ) by admitting in evidence a photocopy of “ Mr ORG ’s explanations ” and by refusing to admit evidence adduced by the applicant the lower court had breached the rules of evidence ; ( e ) the lower court had incorrectly identified the allegedly defamatory statements ; ( f ) the lower court had erroneously failed to analyse evidence establishing his good reputation ; ( g ) the lower court had analysed erroneously a number of points of fact and law . He requested the court to oblige Mr ORG to answer a number of questions , to appoint a psychiatric expert to assess his mental capacity , to appoint an expert with a view to determining the exact tenor of Mr E.S. ’s interview , to call as a witness the journalist who had taken the interview , and to request a copy of a prosecutorial case file .

At the hearing on DATE counsel for the applicant reiterated his evidentiary requests . The court refused to call the journalist as a witness , finding that the facts had been sufficiently established and that her testimony would not add anything . It refused to appoint experts , finding that it did not need expert knowledge to assess the relevant facts . It held that it did not need to obtain a copy of the prosecutorial case file because it would be irrelevant . It went on to say that there was no problem in admitting “ Mr ORG ’s explanations ” in evidence . Lastly , the court noted that , in view of the criminal character of the proceedings , it could not compel PERSON to answer questions , because that would infringe his protection against selfincrimination . After that the court heard the parties’ closing statements and reserved judgment .

On DATE counsel for the applicant requested that the case be assigned to a different bench , citing his suspicion that the judges hearing the appeal were not impartial in view of their participation in the examination of the interlocutory appeal in the other case ( see below ) and in view of unofficial pressure to decide in favour of Mr ORG It seems that he did not receive a reply .

In a final judgment of DATE ORG upheld the ORG judgment in the following terms :

“ [ This court ] fully shares the firstinstance court ’s findings of fact and law .

Firstly , ORG has correctly established the facts of the case . This court also finds that the accused [ Mr ORG ] made the impugned statements in the course of his interview with the journalist from ORG given on DATE . It is not in dispute that his replies , as printed in the newspaper , were identical to those made to the [ journalist ] . The [ lower ] court also correctly found that the occasion for the interview had been the fact that [ Mr ORG ] had handed the Minister of Justice CARDINAL documents supporting his earlier allegations relating to the Chief Prosecutor [ Mr N.F. ] . This can be seen both from the tenor of the questions put to [ Mr ORG ] and from the introductory part of the publication , where these matters are described .

ORG correctly found that the accused was in possession of a photocopy of a document whose introductory part named the witness [ Mr ORG ] as its author . It also correctly found that this piece of evidence must be admitted and analysed , even though it was a photocopy whose author was not identified in the course of the proceedings . One has to bear in mind that this evidence contains printed text which contains objective information . Neither the fact that the document is not an original nor the fact that , being a photocopy , it can not be graphologically tested with a view to identifying its author , can serve as grounds not to admit it in evidence . Moreover , its existence directly relates to the question whether the impugned act is criminal or not .

That photocopy contains text which can lead to the conclusion that [ Mr ORG ] had been forced by the [ applicant ] to enter into transactions , sign documents , convey and contribute assets for the benefit of [ an insurance company ] connected with the [ applicant ] . The [ lower ] court correctly found that the document ’s text reflects statements made by its author and sets out statements which can lead to the conclusion that [ Mr G.T. ] has been the victim of a criminal offence . It also correctly found that that offence ( if what is said in the document is true ) should be characterised as extortion , contrary to Article PERSON of LAW . This court is likewise certain that the impugned statement ‘ Simply because this man [ , PERSON , ] has been racketeered and robbed by [ the applicant]’ constitutes a correct reproduction of the allegations made in that document .

The charges [ against Mr ORG ] are under LAW read in conjunction with LAW and with LAW , the actus reus of the offence consisting in the imputation of a criminal offence to [ the applicant ] . It is indisputable that one of the impugned statements made by [ Mr ORG ] ( and later printed in the newspaper ) amounts to an allegation that [ the applicant ] has committed an offence . However , the proper interpretation of LAW and more specifically of the second actus reus envisaged by that provision shows that , for an allegation to be defamatory , it must originate from the accused . This court firmly believes that it is absolutely inadmissible to engage the criminal liability of a person who quotes ( in the event correctly ) information or statements made by another . This conclusion finds support in the text of the [ Code ] , where the legislature , when characterising the offence , used the word ‘ impute’ to define the actus reus . The grammatical interpretation of that word also leads to the categorical conclusion that , for there to exist an imputation of an offence , it must originate from the accused , not from a third party . A different construction would , firstly , run counter to LAW and , secondly , lead to a complete impossibility of exchanging information ( characteristic of a NORP society ) .

In as much as there is no evidence showing that the accused is the author of the impugned statement , but on the contrary DATE it has been established that he discovered that information ( a document which contained it ) , this court likewise finds that the accused [ Mr GPE ] has not carried out the actus reus of the offence [ of which he is accused ] .

The court fully shares the conclusions of the GPE ORG concerning the nature of the information which the accused laid out before the media and the nature of his actions . The [ lower ] court correctly found that the occasion for the interview had not been [ the applicant ] . During the course of the entire interview [ Mr ORG ] answered questions relating to his handing over of documents concerning the prosecuting authorities as an organ of the State . The accused shared his view about certain actions or omissions of representatives of the prosecuting authorities . He gave an assessment of the functioning of that institution and revealed the information which he knew ( contained , in his view , in documents that he had handed to the Minister of Justice ) and which corroborated his assertions . The CARDINAL impugned phrases were part of CARDINAL such example . It should here be pointed out that matters touching upon the functioning of the prosecuting authorities , as a body authorised under LAW to perform certain functions in a democratic State , are not and can not be matters which are personal or which touch upon the individual ’s private life . On the contrary , those are matters relating to an essential institution which is of great public importance and enjoys heightened public interest . The [ lower ] court correctly found that the caselaw under LAW ] and ORG [ caselaw ] show that such information concerns a matter of public interest and not the individual ’s private life . It is absolutely impermissible to prevent any person from disseminating and making public information which he or she knows and which relates to the functioning of a ORG institution . To hold otherwise would unduly circumscribe the right freely to express opinions , and would in turn hamper the functioning of a NORP society . It is precisely the opportunity to disseminate and discuss such information that allows society to exercise control over the authorities .

Even if the court were to refrain from holding that the actus reus of the offence has not been carried out because the accused is not the author of the impugned statement but has merely disseminated it during the course of a public appearance , the accused should still not be held criminally liable , because of the absence of mens rea . It is not in dispute that the offence of defamation can be committed only with intent ( direct or oblique ) . The act is criminal if the accused realises the criminal character of the act that he imputes to the victim and also realises that that act has not been perpetrated . In the case at hand , [ Mr ORG ] was in possession of a detailed document containing information which unequivocally showed that CARDINAL criminal offence had been committed . On its face , the document contained all the necessary features . It was entitled ‘ explanation’ , which is typical of criminal proceedings , its author ( a real person ) was named , the document was comprehensive , dated and signed . It is true that it was a photocopy , but this is completely normal in view of the fact that it looked like a document that naturally belonged in a criminal case file . There is no evidence whatsoever that [ Mr ORG ] was aware that the document might be false or that it might not have been drawn up by the person purporting to be its author , or that the information in it was false . It would therefore be completely unwarranted to find that the accused has committed in intentional offence . It should be observed that the evidence gathered in criminal proceedings should establish ... unequivocally and categorically both the actus reus and the mens rea . [ The latter ] has not been so established ; indeed , it was not proven by any of the available evidence . On the contrary , in as much as it was found that [ Mr ORG ] was in possession of the document ( it was produced by him in the course of the proceedings ) and that its contents were correctly reproduced , there is no reason to assume that that he had the intention of imputing an offence to [ the applicant ] while knowing for certain or believing that he had not committed one .

This court finds that it should examine whether the accused disseminated the information contained in the document after having tried to verify its veracity . It is true that there is no evidence that [ Mr ORG ] checked the information that he had received , but in view of the nature of the document whose photocopy he had obtained he could not have checked it . As already mentioned , that document bore all the marks of a document produced within the framework of a criminal investigation . Since the accused is [ merely ] a social figure , he could not have checked whether that document was genuine or what it contained . He did not have official powers , nor did he have the opportunity of acquainting himself with the materials in a potential criminal case . He did not therefore have any opportunity to check the document ’s contents . It is not disputed that it was the responsibility of the authorities to check whether the allegations in that document were true ( that is , the prosecuting authorities ) , not of a private individual . That is also an argument in support of the proposition that the accused had good reason to reveal and make public the information that he had received , not hide it . Even if it is accepted that he should have checked ( which he did not do ) , it is beyond doubt that the failure to do so can not lead to the conclusion that his act was intentional .

As regards the second impugned statement ( which was in fact made first ) – ‘ Instead of acting on [ Mr ORG ’s ] complaint , [ the authorities ] , without looking into it , charged him with false accusation and he spent DATE in detention’ – , this court also finds that it does not contain any information concerning [ the applicant ] . Therefore , by saying those words [ Mr ORG ] carried out neither the actus reus nor the mens rea of the offence under LAW [ LAW ] of LAW . The arguments given by ORG on this point are entirely correct and do not need to be repeated here .

The court can not accept the argument made by counsel for [ the applicant ] that ORG constant caselaw in similar cases clearly shows that the accused did commit the offence . Firstly , the case does not concern the spreading of rumours , because rumours are what are generated when the information which is being disseminated does not have a source . Here , the source was clearly identified ; the case concerns the reproduction of an independently existing document . It is immaterial that the caselaw relied on by [ the applicant ] runs counter to the constant case - law on the application of [ the Convention ] ( which has priority over the caselaw applying our domestic law ) , which says that the normal exchange of information in a NORP society does not oblige those who disseminate information to reveal their sources .

Secondly , the court can not agree with [ the applicant ] ’s argument that the accused was expressing his own opinion . On the contrary , he reproduced DATE correctly – the contents of a document which was in his possession . His statement does not contain a personal assessment of the facts and does not reflect an opinion . The impugned phrases support his assertions concerning the actions of a ORG authority and not [ the applicant ] personally . Those assertions are outside the ambit of the present case .

The court does not accept that the accused sought to achieve the unlawful and noxious result proscribed by LAW . There is not a single piece of evidence to support that proposition , and , as explained in detail above , the aim of [ his ] media appearance was not connected with [ the applicant ] ’s personality or activities .

As regards the argument ... that the caselaw cited by the [ lower ] court relates to the activities of persons exercising the profession of journalist , whereas [ Mr ORG ] was not a journalist , this court finds that the accused ’s profession is irrelevant . Whether an individual is a journalist or something else makes no difference to the criminality or otherwise of his or her act . It can not be accepted that an act can amount to a criminal offence depending on the profession of its perpetrator .

Concerning the argument that the above - mentioned document is false , one should bear in mind that if the veracity of the assertions contained therein had been established , we would have been in the situation envisaged in paragraph CARDINAL of Article CARDINAL of LAW . In the case at hand , it was not indisputably and categorically established whether the assertions in the document are true or not . However , the question whether they are true is relevant solely for the purposes of LAW . The court should pursue that point only if it finds that the actus reus of the offence under paragraph CARDINAL [ of LAW ] has been carried out . Since this is not the case , the court does not find it necessary to give reasons or gather evidence concerning the veracity of the assertions made in the document .

In view of its conclusion that the impugned act is not criminal , the court does not need to discuss the [ applicant ] ’s arguments concerning the existence of the various aggravating factors enumerated in Article CARDINAL .

In view of the foregoing and given that the accused has not carried out the actus reus of the offence , [ the lower court ] was right to dismiss the claim for compensation . ... ”

On DATE counsel for the applicant obtained a copy of the judgment and of the transcript of the hearing of DATE . On CARDINAL DATE he requested that the transcript be rectified , arguing that it did not adequately reflect the tenor of his closing speech . It seems that he received no reply to his request .

On DATE the applicant lodged a criminal complaint against Mr GPE with ORG . He alleged that in his interviews for ORG and ORG Mr ORG had disseminated injurious statements about him . More specifically , he took issue with the allegation that in DATE the NORP mafia had given him MONEY to prevent the extradition of PERSON to the GPE . In the applicant ’s view , by making those statements Mr ORG had defamed him , contrary to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see Relevant domestic law below ) and had injured his reputation as a wellknown public figure . He sought compensation in the amount of BGN CARDINAL,CARDINAL , plus interest .

In a second criminal complaint , dated DATE , the applicant accused Mr ORG of libelling him , again in the interviews with ORG and ORG . More specifically , he took issue with the allegation that he had been involved in ORG and PERSON ’s murders . In the applicant ’s view , by making this allegation Mr ORG had defamed him , contrary to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see Relevant domestic law below ) and had injured his reputation as a wellknown public figure . He sought compensation in the amount of BGN CARDINAL,CARDINAL , plus interest .

The first criminal complaint was assigned to LAW , ORG . The second criminal complaint was assigned to LAW .

Bench CARDINAL , which consisted of a single judge , examined the case at several hearings .

At a hearing held on DATE the court requested the GPE to nominate a person to be appointed ex officio counsel for Mr E.S.

At the next hearing , held on DATE , the applicant did not appear in person . His counsel , both of whom were present , presented a medical certificate saying that he could not attend for health reasons . Mr ORG was also absent . However , shortly before the hearing a lawyer presenting herself as acting on behalf of Mr ORG had requested the court to examine the CARDINAL criminal complaints jointly . Counsel for the applicant opposed the request and pointed out that the lawyer in question had not presented a power of attorney authorising her to act for Mr ORG They also noted that FAC had nominated ex officio counsel for PERSON , and urged the court to proceed with the case despite Mr ORG ’s absence . The court , noting that there were indications that Mr ORG wished to retain counsel and not be represented by a courtappointed one , decided to adjourn the case to allow him to do so properly . It also noted that , while it could not formally rule on the joinder request because it emanated from an unauthorised representative , it could unofficially request the Bench CARDINAL registry to provide a copy of the second criminal complaint .

At the next hearing , which took place on DATE , the applicant was again absent but represented by counsel . The court , at the request of counsel for Mr ORG and over the objection of counsel for the applicant , decided to examine the CARDINAL criminal complaints jointly . It held that there existed a link between the CARDINAL complaints and that to avert contradictory rulings it was bound to examine them together . Indeed , the rules of criminal procedure mandated such a joinder , which would not prejudice the rights of the applicant because he would still obtain judicial pronouncement on both charges brought by him .

In reaction , counsel for the applicant requested the judge to withdraw from the case . They argued that by adjourning the case on DATE , by requesting , without a proper application by PERSON , a copy of the second criminal complaint from LAW , and by deciding to examine the CARDINAL criminal complaints jointly , the judge had shown bias in favour of Mr GPE The judge dismissed the request , saying that procedural rulings could not serve as grounds for requesting a judge ’s withdrawal unless they plainly expressed bias . Her decision not to proceed with the case on DATE had been fully warranted in view of Mr ORG ’s wish to retain counsel . Her decision to request a copy of the second criminal complaint had been a fully warranted case management decision in the interests of procedural economy . Nor had her decision to examine the CARDINAL criminal complaints been indicative of bias .

On DATE the applicant appealed against the judge ’s decision to join the CARDINAL complaints and not to withdraw from the case . He argued that the joinder of the CARDINAL complaints would be an error and could delay the examination of the case . It also showed that the judge to whom the case had been assigned was biased in favour of Mr GPE On DATE the ORG declared the appeal inadmissible , observing that the lower court ’s decision to examine the CARDINAL criminal complaints jointly had been an interim case management decision which did not restrict the procedural rights of the parties and was therefore not subject to appeal separately from the final decision . The judge ’s refusal to withdraw was likewise not amenable to interlocutory appeal .

ORG held its last hearing in the case on DATE . In a judgment of DATE ( reported on p. CARDINAL of the abovecited unofficial collection of GPE and ORG caselaw in defamation cases ) it acquitted PERSON and rejected the applicant ’s claim for compensation . In the reasons for its judgment the court described the procedural history of the case , summarised the parties’ written and oral submissions , and set out in detail its findings of fact and the manner in which it had assessed the evidence . It went on to say that several injurious statements made in the course of CARDINAL publication constituted CARDINAL single offence and not several separate offences . Therefore , by making separate allegations in the course of the same interview Mr ORG had not allegedly committed several offences but CARDINAL . The court also found that Mr ORG could not be held liable for his words being republished by newspapers . Having clarified those preliminary points , the court continued as follows :

“ The accused has not performed the actus reus of the offence of defamation . The actus reus of that offence consists in the dissemination of an injurious statement of fact about another or in the imputation of an offence to him or her . The criminal complaint alleges that [ Mr ORG ] has disseminated an injurious statement about the [ applicant ] , consisting in his assertion on radio and television that the latter had connections with the NORP mafia , that that mafia had ordered him to foil the extradition of the NORP citizen [ Mr PERSON ] , paying him MONEY to do so , and that he had split that sum between himself , Colonel PERSON and ORG , but , as the order had not been carried out and the money had not been returned , there had been an attempt on the [ applicant ’s ] life . It should firstly be noted that the law requires the explicit dissemination of an injurious statement of fact , that is , an assertion that an event has occurred which is injurious for the person concerned . The assertion must be clear and contain information presented by the asserter as certain , indubitable information about the matters presented . Thus , the actus reus presupposes dissemination ( clear and precise ) of a statement of fact which is injurious to another . The act of ‘ ORG , as relating to the person committing that act , requires the asserter to make his own assertions ; assertions which emanate from him personally and which he backs by his words , pretending to be certain that those events have occurred . In this respect , the logic of the law [ of defamation ] simply reflects CARDINAL of the general principles of the criminal law : that a person can and should be liable only for his own acts . In the case at hand , the accused did not disseminate his own assertions and on several occasions expressly said that the information which he related were versions put forward by the murdered [ Mr ] Kolev , which the latter had sought to back by evidence . The accused moreover declared that he did not purport to state the truth , but only what he had heard from the murdered [ Mr ] Kolev , and would like that to be understood well . The overall content of the interviews that he gave shows that he never stated that he was certain that the events he related had indeed occurred , and that he did not present those matters as information emanating from him , because that information had been relayed to him by another person . In his interview for ORG , in reply to a question by the host , the accused specified that the version was not his but belonged to the late [ Mr ] Kolev , and that he wished to add that the truth about that version ( concerning [ Mr PERSON ] ’s case ) could be exposed only after a comprehensive investigation . Presented in such a way , the information put forward by the accused does not even amount to the dissemination of a statement of fact about another which the accused presented as true . He did not claim that the other person ’s assertion was accurate ; on the contrary , he expressly cast doubt on the truthfulness of the allegations that had come to his attention – firstly he characterised them as others’ ‘ ORG , and secondly pointed out that they needed to be checked . The accused in fact acted as a sort of intermediary – he brought to the attention of third parties information contained in the words of another . Each viewer and listener who saw and heard the CARDINAL interviews , if later relating to others the accused ’s words , would likewise be an intermediary , disseminating another ’s assertions and not his own , in respect of which act he can not of course be held liable . In sum , the court comes to the following conclusion : a person who relates another ’s and not his own assertions and expressly indicates that should not be liable for defamation because he does not perform the actus reus of that offence ; he merely relates the words of another , cites his source , that is , the person who has disseminated the statement . The relating person is thus a ‘ FAC through which the statements made by another become known to others . The disseminator should be liable only if it is established that the statements in fact emanate from him and not from the person to whom they are ascribed . In the case at hand , in view of its findings of fact , the court finds that the accused was not the author of the statement disseminated by him , and has therefore not performed the actus reus of the offence of defamation . In this connection , the court finds unhelpful the argument of counsel for the [ applicant ] that it would be absurd to accept the accused ’s assertions as true , because the person to whom he ascribes them is dead and it can not therefore be checked whether they really emanated from him . It would be absurd to reach a definitive conclusion as to whether an event has or has not occurred merely on the basis of the possibilities of proving it . The logic of counsel for the [ applicant ] leads to the conclusion that if the assertion ’s source can be verified and it can be confirmed that he or she is the author of the information , the asserter should not be liable because the information emanated from another , but that in the specific situation where the assertion ’s purported author has died the asserter should he held liable . The court can not agree with that proposition and finds it absurd . An assertion can not be attributed to a person who has specified that his knowledge about certain facts comes from another merely because that other person has died . This is a matter of proof ; in the event that the accused ’s assertions have been proved because they have not been duly refuted , he can not be expected to endure negative consequences on account of a matter outside his control such as the death of the assertion ’s author .

The next point is that the [ accused ] did not disseminate statements of fact , but hypotheses , versions and conjectures which were presented as such and not as uncontroverted facts . He asserted as a fact that he had known [ Mr ] Kolev and had had many conversations with him , but that fact has nothing to do with the [ applicant ] . The accused contends simply that [ Mr ] Kolev told him about versions on which he had worked and the content of those versions , and not that he knew whether such events had indeed occurred . With such a caveat the assertion does not amount to the dissemination of injurious statements of fact about the [ applicant ] , but of suppositions relating to him . Therefore , the accused has not performed the actus reus of the offence of defamation , because by uttering the impugned phrases he did not disseminate an injurious statement of fact . He is not the source of the information which he disseminated . The actus reus of the offence defamation does not include searching for or receiving information or its dissemination after it has been created by someone else . In that connection , this court would point out that in its judgment in PERSON [ cited above ] ORG [ of Human Rights ] made a distinction and held that the applicant ’s conviction for defamation for disseminating in the press information which he had learned from others was in breach of LAW . ORG [ of Human Rights ] made that distinction , explaining the difference between liability for one ’s own statements of fact and liability for relating statements coming from another source of information . The [ C]ourt also emphasised that the necessity for any restrictions must be convincingly established , in consideration of the fact that dissemination of information on matters of public interest is connected with the public ’s right to receive information on important matters .

Secondly , the accused has not imputed the offence of murder to the [ applicant ] . In addition to what has already been said about him not making his own assertions , the court would add the following . The interview broadcast on ORG and quoted in the press does not contain words used by the accused that could be characterised as assertions . He said that the ‘ persons probably behind it were PERSON ( ORG ) and possibly [ the PERSON , and later that [ Mr ] Kolev had told him at their last meeting that he ‘ expected [ the applicant ] to snatch him’ . The use of the words ‘ ORG and , in connection with the [ applicant ] , ‘ ORG , categorically show that the words were a supposition and not a statement of fact or an imputation of an offence . Moreover , the phrase has to be seen against the backdrop of the interview as a whole and not in isolation , because otherwise one may lose sight of the overall picture . Seen in context , that phrase was also one of the versions which [ Mr ] Kolev had shared with the accused and which concerned his relations with ORG and the [ applicant ] . As regards the expression ‘ to snatch him’ , the court finds that it can not amount to the imputation of an offence . The phrase obviously suggests negative actions and aggressive conduct , but can not be unequivocally connected with a specific act ( it could refer to various encroachments , such as extortion , coercion , bodily injury , etc . ) . It is possible only to surmise [ about its meaning ] , and the conjectures of the different members of the audience in front of which the statement was made may vary . As regards [ Ms N.G. ] ’s murder , the words said by the accused during the interview do not indicate that he imputed that offence to [ the applicant ] . He merely said that she had been working for [ the applicant ] , but did not make any other assertions relating to [ him ] . He next said ‘ ... in fact , the strong dependence and the connection between ORG and [ the applicant ] is linked with that murder’ . A literal interpretation of that phrase shows that the accused did not state that the [ applicant ] had committed murder . He stated that there existed a dependence and a link between [ the applicant ] and ORG , but did not specify whether those were negative or which CARDINAL of them could be connected with the murder . In order to have performed the actus reus of the offence of defamation , the accused must have made statements indicating unequivocally and clearly that the allegedly defamed person has committed an offence . Since the accused did no such thing , the court finds that he did not impute an offence to the [ applicant ] and did not perform the actus reus of the offence of defamation .

The lack of actus reus shows that no offence has been committed , and it would therefore be superfluous to discuss mens rea . However , for the sake of completeness the court finds it necessary to address the lack of mens rea .

The accused declared clearly and many times that he was relating the content of his statement [ to the police ] , which he later intended to repeat before [ the investigating authorities ] , that is , in both interviews the accused related his testimony . At the same time he replied to journalists’ questions aiming to shed light and inform the public about the outrageous assassination of a public prosecutor . It is well known that the case was reported not only in the NORP but also in the international media , and gave rise to a number of statements , with many public figures commenting on it in public . This clearly shows that the case was a matter of public importance . Therefore , any information relating to it is of public importance as well . Through his acts the accused was aiming to impart such information ; his statements were not seeking to vilify [ the applicant ] ; his goal was not to accuse him of committing an offence or to discredit him ; the accused presented information relating to the actions through which he was trying to assist the investigation . His sense of civic duty impelled him to give a statement to the authorities and publicly to announce his perspective on the event , informing the public about what he had done . In this context , it should be noted that the accused is likewise a public figure – he is a politician and engages in public activities . This explains why he chose to express in public his position in relation to an acute civic problem . The mens rea of the offence of defamation can be only direct intent – the perpetrator must know that the injurious statement of fact or imputation is untrue and wish to vilify the person concerned . In the case at hand , both knowledge and desire are lacking , because the accused specified that he did not know whether the allegations which he was making public were true , and did not wish to vilify the [ applicant ] but simply to inform the public about a widely publicised case . Therefore , by relating the content of his statement to the authorities , the accused did not commit the offence of defamation .

In view of the foregoing , the court finds that the accused has not committed an offence [ and therefore ] acquits him of both charges brought [ against him ] .

The claims for compensation are illfounded , because the accused against whom they have been brought has not committed the offences in respect of which he was brought to trial , and hence did not act unlawfully . The court accepts that the [ applicant ] must have felt negative emotions , but a person can be liable in tort only if all elements of the tort – unlawful conduct , damage , causal link between the conduct and the damage and fault – are in place . In the case at hand , there has been no unlawful conduct . It is therefore pointless to discuss the other elements , because the lack of even CARDINAL element is equivalent to the lack of a tort .

For these reasons , the court dismisses both claims as ill - founded and unproven . ... ”

On DATE the applicant appealed . ORG heard the appeal on DATE and CARDINAL May CARDINAL . At the second of those hearings the applicant was not personally present but was represented by counsel , who asked the court to proceed with the case .

In a final judgment of CARDINAL DATE ORG upheld the ORG judgment . CARDINAL of the judges who took part in the examination of the case was the judge who earlier , as a judge at ORG , had examined the first case against Mr ORG ( see above ) . The court held as follows :

“ The actus reus of the offence has not been carried out , either in the form of an imputation of an offence or in the form of dissemination of an injurious statement of fact , in either interview DATE for ORG or ORG .

When deciding whether the impugned statements were defamatory and amounted to the imputation of an offence , the court must analyse CARDINAL separate statements made by the accused . The first concerns the worries of [ Mr ] Kolev about the prospect of [ the applicant ] ’snatch[ing ] him’ . The second were the stories ... about money received from the NORP mafia in order to foil the extradition of [ Mr PERSON ] . The third was the statement before ORG that the [ applicant ] had been implicated in [ Ms GPE ] ’s murder .

[ This court ] finds that the first expression – ‘ snatch him’ – does not amount to an imputation of an offence or to a statement of something injurious . ... There would be defamation if [ the asserter ] points to specific matters which lead to the conclusion that the defamed person has either committed an offence or has engaged in morally reprehensible acts . Only the dissemination of statements presented as fact , not as opinion , amounts to defamation . There is constant caselaw to the effect that the impugned events must have occurred in the past or be occurring in the present , and not in the future . The impugned statement does not purport to present facts , but merely expectations on the part of the late [ Mr ] Kolev . ( In fact , the impugned statement relates to the fact that the late [ Mr ] Kolev was worried about hypothetical and , according to him , probable actions [ the applicant ] might take against him . The meaning of the word ‘ ORG , although not standard NORP , comes close to the meaning of the words ‘ PERSON and ‘ ORG and demonstrates [ Mr ] GPE ’s misgivings about the [ applicant ] putting him , in an unforeseeable manner , in an unfavourable situation in the near future . ) The exact purport of those misgivings is unclear , because the meaning of the word ‘ ORG can not be ascertained because there is no such word in the literary NORP language or jargon .

In [ this court ] ’s view , the second and the third impugned statements contain sufficiently specific information about the [ applicant ] ’s possible participation in the commission of criminal offences . Relying on [ ORG caselaw ] , this court does not share the lower court ’s view that the allegations do not clearly and unequivocally point to the commission of an offence . In both cases the criminal offences have been sufficiently spelled out . Those to whom the statement was addressed can clearly understand the allegation which has been made DATE that the [ applicant ] received a large sum of money and gave some of it to highranking officials with a view to inducing them to commit another offence . The time , the accomplices and the intended offence – helping a criminal to evade justice – are all clear . In the second case the audience likewise understood that [ Ms N.G. ] had been an intermediary in the giving and taking of bribes between individuals engaged in criminal activities and public prosecutors , and that the contacts necessary for that activity had been made as a result of the close relations between [ the applicant ] and ORG . Again , the statement points to a specific criminal offence – continuously acting as an intermediary in the giving and taking of bribes with an accomplice – [ Ms N.G. ] . Even though Mr ORG described the information put forward by him as [ Mr ] ORG versions , it was specific enough and must be regarded as a statement presented as fact . Unlike a fact , a version is not something that has really happened but a mere conjecture about one of the possible ways in which the events have unfolded and the reasons for it ; it is not subject to proof .

Nonetheless , the accused ’s statements do not amount to the imputation of an offence , because they do not contain his own allegations . CARDINAL facts are of particular relevance in this connection – that PERSON did not make his own allegations but repeated allegations [ made by Mr ] Kolev , and that he declared that he did not know whether they were true . The imputation of an offence – as well as the dissemination of an injurious statement of fact DATE consists in the making of untrue statements presented as fact . The statement made by [ Mr ORG ] was that before his death [ Mr ] Kolev had had several conversations with him and that during those conversations [ Mr ] Kolev had told him that he was investigating possible versions of events as regards the participation of [ the applicant ] in the abovementioned events and had learned the information described above . That is a fact . For the reasons set out in the ‘ GPE part of this judgment , [ this court ] finds that this has been clearly established . It is also clear that [ Mr ORG ] described this not only to the audience of the CARDINAL medias but also to the authorities , under penalty of perjury . It must therefore be concluded that [ he ] did not disseminate untrue statements of fact but the content of his conversations with [ Mr ] GPE . It is not unlawful to report the words of another .

Apart from those cases where the thing which is being reported is a rumour and where the assertion that the statement belongs to someone else is not true , the disseminated statement has an author who is different from the reporter ; it is that author who should bear liability for defamation , if all required elements are in place . Put differently , [ Mr ORG ] is not the author of the offence , but merely a third party before whom [ the applicant ] was defamed by [ Mr ] Kolev . The latter ’s subsequent death , which amounts to a bar to the institution of criminal proceedings ... and to holding him liable for his statements , does not change the fact that he was their author .

There is a substantial difference between disseminating a statement about an offence and disseminating a statement that a specific person has committed an offence . Only an untrue statement can be defamatory . Only those who impute offences to others are liable for the truth of their statements . In contrast , those who merely relate statements made by others are not so liable , and not only if they manage to prove the truth of the statement , but also if they clearly identify the person who has made the injurious statement of fact or has imputed the offence . Such a distinction between the author of a statement and its reporter was made even in the LAW [ of DATE ] , which specifically provided , in LAW , that ‘ [ i]f the writer is known and lives in the realm , the publisher , the printer and the distributor shall not be prosecuted’ .

The constitutionally guaranteed right to express opinions and impart information is not absolute or unrestricted . The restrictions under LAW of the [ Convention ] call for a balance between CARDINAL protected values – the public ’s right to receive information and the individual ’s right to inviolability of his honour and dignity . The matter about which the public has the right to be informed in the instant case is of vital importance – it concerns the assassination , in the centre of [ GPE ] , of a public prosecutor of ORG . There are good reasons for the media to subject the investigation of that offence to intense public scrutiny . Even before the assassination the victim ’s name was widely known and was associated by the public with his overt confrontation with ORG . The content of the impugned statements shows that the [ applicant ] ’s name is mentioned alongside the name of ORG and the assertions concerning [ the applicant ] equally concern ORG , due to the close link between the CARDINAL . Domestic and NORP caselaw both state categorically that public officials are subject to wider limits of acceptable criticism than private individuals . Therefore , the [ lower court ’s ] judgment is fully consonant with the view expressed by ORG ... that the degree to which it is permissible to limit the right to express opinions freely depends on the importance of the countervailing interest deemed worthy of constitutional protection .

In support of their position counsel for the [ applicant ] argue that [ Mr ORG ] on several occasions used the words ‘ my version’ , which in their view refutes the [ lower ] court ’s finding that he had reported another person ’s words . After analysing the CARDINAL impugned interviews , [ this court ] finds that this argument is illfounded . It is true that the accused spoke of his versions and of the versions of the late [ Mr ] Kolev , but those versions concern different issues . [ Mr ] ORG versions concern the link between the [ applicant ] , the extradition of [ Mr PERSON ] and the murder of [ Ms N.G. ] , whereas [ Mr ORG ] ’s version concerns the reasons for [ Mr ] Kolev ’s murder .

The accused is not the author of the allegedly defamatory statements in the CARDINAL publications in ORG and TIME . The articles are editorial , they have not been signed by a named individual , but their content makes it clear that the accused was not their author and has not been interviewed by their authors . Those authors referred to the [ radio and television ] programmes which had already been broadcast . The accused is therefore not the perpetrator of that act , which is moreover not criminal . It is impossible to commit defamation by omission . ...

There are no grounds for finding the accused liable in tort either . The lower court correctly found the [ tort ] claims to be illfounded , because [ Mr ORG ] has not perpetrated an unlawful act . ”

The relevant provisions of the DATE LAW read as follows :

“ The private life of citizens shall be inviolable . All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour , dignity and reputation . ”

“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , whether written or oral , sounds or images , or in any other way .

NORP That right shall not be exercised to the detriment of the rights and reputation of others , or for incitement to forcible change of the constitutionally established order , perpetration of a crime or enmity or violence against anyone . ”

“ The press and the other mass media shall be free and not subject to censorship . ”

“ Everyone has the right to seek , receive and impart information . The exercise of that right may not be directed against the rights and the good name of other citizens or against national security , public order , public health or morals . ”

Article CARDINAL of the DATE LAW , as in force since DATE , provides as follows :

“ CARDINAL . Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from MONEY , as well as by public reprimand .

NORP The perpetrator shall not be punished if he or she can show that the said statement or imputation is true . ”

If defamation is committed in public or through the printed press , it is punishable by a fine ranging from ORG CARDINAL,CARDINAL to ORG CARDINAL,CARDINAL , as well as by public reprimand ( LAW ( CARDINAL ) and ( CARDINAL ) and § CARDINAL , as in force since DATE ) . Since DATE all instances of defamation are privately prosecutable offences ( Article CARDINAL , as in force since DATE ) .

The mens rea for the offence of defamation can only be direct intent or oblique intent ( recklessness ) , not negligence ( Article CARDINAL(CARDINAL ) ) .

LAW , as in force at the material time , provided that appellate judgments were subject to appeal on points of law only in ( a ) cases concerning publicly prosecutable offences or ( b ) cases concerning serious ( that is , punishable by PERCENT DATE imprisonment ) privately prosecutable offences .