Alexander Kashamov, attorney-at-law, head of the legal team of Access to Information Programme
On 30th June 2014 the MP Jordan Tzonev put forward in the National Assembly a text suggested by the Bulgarian national bank (the Central bank) that was looking to criminalize a certain type of disclosure of information in regards to banks and other financial institutions. Two days later, on 2nd July 2014, this bill was swiftly voted and passed by the legal parliamentary commission. There was neither a public discussion initiated nor was an assessment of the need of such amendment of the legislation or any estimate of the impact of the new provisions made.
The freedom of the media is at stake.
The prepositional norm was suggesting the punishment of “imprisonment” for two to five years to be imposed not only in cases of announcement of false information which might lead to panic but also for proclaiming of “other knowledge” regarding banks and other financial institutions. Such a wide interpretation of the sanction on announcement and commenting on information actually constitutes a breach of the standards that are applicable in the field of the protection of the freedom of expression and opinion and the right of a person to circulate information.
It is possible for such provision to never be passed by the National Assembly. However the merits would go to the ones who put forward those amendments. It is quite unfortunate that the proposition of controversial legislation amendments affecting the freedom of speech without any transparency and public debate grew into a habit for the authorities. In January 2014 the Minister of Justice Zinaida Zlatanova put forward to the Parliament a proposal for a completely new Criminal Code. That again happened without any public discussion. The draft of the Code consisted of almost six hundred articles that the ones who were interested in were forced to look into and debate on during Christmas days, New Year’s Eve and the very first holidays after that in the month of January.
Suspiciously enough this initiative recalls the “public debate” on the project for a new nuclear power station in “Belene”, conducted between the winter holidays in 2004-2005. Given that the authorities are not willing to listen to the citizens but are rather very keen on passing a highly problematic piece of legislation, it seems that faking democracy has no limits. Furthermore the Minister of Justice has demonstrated blatant neglect towards the citizens by putting forward for voting in the Council of Ministers the project for a new Criminal Code before the expiration of the deadline that was given by her – 15th January 2014. Because of that reason the comments and the suggestions of a number of professionals and non-governmental organizations as well as the Supreme cassation court which is meant to enforce the law were not taken into consideration. These are all things that are unthinkable even in an undeveloped democracy.
The new Criminal Code provides for expansion of the list of cases where criminal responsibility is considered for disclosure of a state secret, encumbrance of the sanctions for revealing of official secret and for the first time – the implementation of sanctions for disclosure of “other protected information”. The criminal responsibility for insult and defamation remains unchanged regardless the development of the international standards. Due to the heated critics minister Zlatanova withdrew in the very last moment the proposed for the first time in the Bulgarian law provisions for criminalization of photographing of people.
Alterations in the legal regulation of the freedom of expression and information in the last two decades.
With the adoption of the Constitution of 1991 the right of free expression of opinion (art.39) and the right to seek, acquire and spread information (art.41) were guaranteed. According to the interpretation of the Constitutional court these two rights should be considered as principles and any restrictions – as an exception (Decision No. 7/04.06.1996 on case No.1/1996). With the adoption of the European convention on human rights and its ratification in 1992 the right of access and dissemination of information and the freedom of opinion were further protected (art.10). In 1976 the International Covenant on Civil and Political Rights was promulgated. Art. 19 of this act confirms the above mentioned rights.
The local legislation however was changing relatively hard and slow. A huge step forward was made in year 2000 when the imprisonment for insult and slender was revoked. They are no longer prosecuted by the Prosecutor’s Office but rather by a complaint of the victim. During the 90s journalists were often a subject of criminal prosecutions under the initiative of the Prosecutor’s Office in connection to publications where certain actions or activities of politicians and magistrates have been commented on. Due to that practice a change was made. As far as the protection of secrets is concerned, during the last years the provisions in the Criminal Code concerning that matter did not undergo a serious change. In 2003 the attempts of the Parliament to adopt larger sanctions for dissemination of state secret failed because of the active opposition by the civil society – media and non-governmental organizations. (1)
Nevertheless in 2010 the sanctions for dissemination of state secret were drastically increased and in certain cases reached to imprisonment for 5 to 15 years (for instance the punishment for severe bodily injury resulting in death is imprisonment for 3 to 12 years). One positive change was the adoption of the Law on protection of classified information in 2002. With this piece of legislation were given definitions of state and official secret, their maximum range was set and a procedure for classification of documents was set.
In that way the objective belonging of certain information to a preliminarily defined category seized to be decisive for the determination as state secret but rather the classification of the document by a specific employee raised in importance. Thus prepositions for narrow application of this secret were created.
The right of every single person to seek, acquire and disseminate information through photograping is a subject to restrictions under art.31, par.2 from the Bulgarian Constitution in cases when a photo was taken without the approval or no matter the refusal of the person who was photographed. No provision for criminal responsibility in cases of disregard of that obligation by the person who is taking the photos is envisaged. Nevertheless a few years ago the Prosecutor’s Office used the provisions in art.339a of the Criminal code which forbids one from taking a photo without the due approval for that in order to raise criminal charges against a journalist from BBC.
Criminal proceedings have been initiated in 2004 for the usage of hidden camera for the recording of Ivan Slavkov, member of the International Olympic Committee. In 2004 again a charge has been raised against the Romanian journalist Buhnici for a material photographed with hidden camera. He was declared not guilty by the court. Later on in 2006 the case was closed after the Prosecutor’s Office withdrew its protest from the Supreme cassation court against the decision of the lower instance court. Actually the text of art.339a has a completely different aim as it is focused on sanctioning the usage of special technical device for “secret gathering of information”. It is quite obvious that the language refers to the sphere of police and investigation activities and has nothing to do with the work of journalist in their own investigations. According to an interpretation adopted by the court the Criminal Code (in this article) is focusing on the application of special intelligence means /SIS/ as prescribed by the Law on special intelligence means. The misuse of this right – the usage of SIS without permission – is possible only by those who have access to them.
Standards in regards to the freedom of expression and the right to acquire and disseminate information
Democracy is based on free debate, on the opportunities for citizens to freely express what they think, to share information. That way they can discuss different policies of the state and their execution. They can also form their own opinions on which they could make their free political choice. Media are having a substantial role in this process. Their main goal is to distribute information and ideas thus attributing to the debate on questions of public significance.
According to the main principles of the freedom of every single person to seek, acquire and distribute information set into art.41 of the Constitution of Bulgaria, art.10 of the European convention on human rights and art.19 of the International covenant of civil and political rights, citizens have the right to receive and share freely information and ideas. Actually this right does not concern only information and ideas that are well-welcomed or considered harmless but also is valid for information that “shocks or bewilders the state or any part of the population”. That is confirmed by the European court for human rights (Case of Handyside v. the United Kingdom) and the Constitutional court of the Republic of Bulgaria in its Decision No.7 from 4th July 1996 on case No. 1/1196. Those principles are of particular importance when it comes to media as it is not only its main goal to distribute information and ideas but it is rather a right of the society to get familiar with them (Case of Lingens v. Austria, etc.).
Really and truly the freedom of a person to express opinion and the right to seek, acquire and disseminate information is not limitless. It is a subject of restrictions in order for the rights of others to be respected together with certain points of public interest as it is said in the above mentioned legal provisions.
According to the interpretation of the Bulgarian Constitutional court such a freedom should be regarded as a principle and its suppression – as an exception from this principle which should be determined and well-grounded for every specific case. In the same manner the European court on human rights reckons that in the provisions of art.10, par.2 of the European convention on human rights there is an obligation for strict interpretation of the restrictions on that right. For every specific case the court examines not only if a particular restriction is envisaged in the law but whether it aims at protecting certain right or interest among the ones listed in this provision of the Convention. It also examines if this protection corresponds to the requirement for “necessity in a democratic society”. The assessment here includes issues on the observance of the principles for “relevance and sufficiency” of the restriction and also raises questions for its implementation as a last resort in cases of “urgent public need”.
In its case law from the recent years, the European court on human rights declared the punishment of the crime of slander with imprisonment for incompatible with the principles of the Convention. In 2007 the Council of Europe adopted Resolution 1577(2007) regarding the decriminalization of the slender and the insult. In 2010 the Council also adopted Resolution 1729 (2010) for protection of those who have announced information according to which bona fide announcements of information that expose irregularity and crimes should be released from responsibility. Such a progress remains unnoticed by the Bulgarian legislator as no actions for the improvement of the current provisions regarding the freedom of speech were taken.
Legislative proposals, concerning the freedom of expression and information in 2014
In January the Minister of Justice Zinaida Zlatanova lodged for debate in the Council of Ministers a new Criminal Code. The text was voted and lodged in the Parliament. There is hardly any danger of the current Parliament positively voting on that piece of legislation. However there is no obstacle for it to be lodged again for consideration by the next Parliament. The threat for the freedom of acquiring and distribution of information is contained in the provisions regarding the state, official or “other protected” secret.
In the provisions concerning the prohibition of announcement of a state secret in the current Criminal Code which were actually formulated back in 1968 such a responsibility is imposed mainly on an employee to whom the document is entrusted as part of his/her job (art.357, par.1). Another person can carry responsibility only in cases when he/she realizes that the dissemination of such information might harm the state. In the new Criminal Code the spectrum of criminal responsibility broadens due to the fact that the enforcement act becomes a simple one – him/her who announces. That way under the provisions of the Criminal Code fall a wider group of people including journalists who published classified information regardless whether they realized or not that this can cause harm.
The difference with nowadays legislation is significant as if until now only ill-intentioned dissemination of such information was punishable, currently the responsibility embraces all cases of conscious distribution regardless the motives. In numerous cases however the press and the journalists are serving their prime goal – to deliver significant information to the society. There can be a lot of abuse, violations and even crimes behind a top secret sign. In a democratic society such information must be announced and the publication should be protected.
The new Criminal Code is not only lacking in such protection but also revoking the current protection of conscientious publications. One can easily imagine the effect of that widely formulated criminal responsibility for dissemination of classified information if we recollect some renowned cases of outrageous classification or keeping in secret of documents. That is why Access to Information Programme (AIP) was forced to lead a case in front of the Supreme administrative court for access to the statute-book of the Organization for protection of state secret in People’s Republic of Bulgaria from 1980 which was marked as “top secret”. (2) As a result of that case, in 2004 the government declassified around 1500 documents. In the period 2002-2006 court cases were led by the team of AIP for access to the contract concluded between the Minister of Finance Milen Velchev and the British company Crown Agents for consultations regarding the reform of the Bulgarian custom services. The Supreme administrative court revoked as unlawful the state’s refusal to provide the contract stating that no evidences which are determining its classification as a state secret were presented. In 2009 the contract was declassified and published in the website of the Ministry of Finance.
These are not the only examples and the reluctance of the authorities to provide access to public information can be clearly seen. The state secret is used as an excuse for the protection of important documents and a basis for keeping them away from the public eye. In regards to this it was time sensible for an amendment of the Criminal Code to be adopted where it is necessary to be listed that employees who are revealing information labeled as classified due to an overwhelming public interest should be exempted from criminal responsibility. Instead of adopting this approach that was recommended to the member-states by the Council of Europe the Bulgarian legislator currently expresses its appreciation for establishment of habits inherent for eastern countries. (3)
Regarding the official secret a different path has been chosen although the direction of restricting the right of information was kept. The current maximum punishment of imprisonment for two years established in 1968 is set to be increased to three years. Possibly the workgroup missed to note that as of the current legislation the official secret is a subject of protection for no more than three months. With regards to the legal principle for proportionality of the punishment in accordance to the committed crime, it is hugely inappropriate for the sanction to surpass six times in terms of longitude of deprivation of liberty the period for retaining in secret facts and information classified as official secret. With the adoption of the new Criminal code for the first time in Bulgarian law was introduced a punishment for announcement of “other protected information”. With the provisions of art.416 a sanction was brought in for everyone who reveals to somebody or announces publicly information which dissemination is restricted via law and that was entrusted or became known in connection to his/her regular job. The responsibility here is broadly formulated.
Therefore it turns out that the publication of any public information that is considered by a certain director in the system to be falling within the restrictions of the Law on access to public information would entail criminal responsibility. Such a norm can be easily used to cover corruption practices and misconduct within the system where high-rank employees would intimidate and put pressure on their inferiors so that no damnatory information is disclosed. In modern legal systems exists a protection of the so called “inside man”, the employee that “disclosed the information”. This person is having an access to internal information regarding misconducts and such a person should be well protected and stimulated to disclose the information in favor of the public interest of eradicating such corruption practices. Instead of listing such possibilities in the Bulgarian legislation measures were taken for such information to be never disclosed.
The restrictions in the Law on access to public information (LAPI) are not only linked to the protection of state and official secrets but also to “protection of the interest of a third party” (whatever that might mean), protection of preparation papers, statements and proposals (art.13, par.2, p.1 from LAPI), trade secret. It is hugely inappropriate for the announcement of any information of such character to entail criminal responsibility. When you are reading those provisions in the new Criminal Code it leaves you with the impression that no other legal responsibility rather than the criminal one exists for the people who have drafted the new Code. Even though the Criminal law is the blade, along the sword there are various other forms of sanction and prevention that might oppose unlawful patterns of behavior.
Some final conclusions
In the last two decades some democratic attitudes developed, a number of different sectors of the state were regulated. Unfortunately the absence of discussion on bills still remains an issue. It is particularly unacceptable that there is an absence of wide public debate and precise discussion on particular provisions when it comes to regulation of basic human rights.
In 2014 only at least two bills – the new Criminal Code and the recommendation from June for its addendum in connection to the bank information, are directly interfering with the freedom of speech and dissemination of information. In both cases the procedure for public discussion was corrupted. The new provisions are lodged with the sole purpose to further protect different interest at the expense of the freedom of speech.
Whether the confrontation of the rights and interests of the citizens and the right of free expression is made on purpose or is the outcome of incompetence, the result is quite the same – a genuine threat of censorship and restriction of the right of information. The consequences of such regulations can be no other than an increase in corruption and misconduct – in the past few years journalist investigations seem to surpass in quality, quantity and impact the criminal proceedings led by state authorities. Therefore in a society that aims at being civilized and developing there should be respect for a status quo that enables media to fulfill their objectives undergone in public interest.
(1) See statement of Access to Information Programme and the international organizations Article 19 and Legal initiative of Institute “Open Society” at the following Internet address.
(2) See Decision No. 10640/25.11.2003 on administrative case No. 9898/2002 Supreme administrative court
(3) The statement of Access to Information Programme regarding the project for a new Criminal Code is available at the following Internet address
The current analysis is conducted as part of the project “Mediator” executed by Association of European journalists – Bulgaria with the financial support of “America for Bulgaria” Foundation. Association of European journalists – Bulgaria carries the entire responsibility for the content of the project.