DECISION No 20 OF JULY 14, 1998 ON CC No 16/98
The Constitutional Court decision dismissed the challenge by 55 Members of the 38th National Assembly of the constitutionality the following provisions in the Penal Code and their compliance with the European Convention on Human Rights and Fundamental Freedoms: Art. 146 para 1 concerning the phrase “term of imprisonment up to six months”; Art. 147 para 1 concerning the phrase “term of imprisonment up to one year” and the whole of Art. 148 and in relation to Art. 161.
The Preamble of the Constitution lays down human dignity as a supreme principle. Art. 4 para 2 and Art. 32 para 1 read that it is guaranteed by the State and that everyone shall have the right to protection against any impingement.
The Preamble of the Universal Declaration of Human Rights recognizes the inherent dignity of all individuals as do international instruments to which Bulgaria is a party as the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
Penalty for insult and libel is one of the legal guarantees for the protection of human dignity. Provision in that sense is not in contravention to Art. 39-41 of the Constitution reading that “everyone shall be entitled to express and disseminate opinions and to seek, obtain and disseminate information.” This right is not absolute and Arts. 39, 40, 41 and 57 para 2 of the Constitution contain reasons for restriction. Art. 10 para 2 of the European Convention that admits the free expression of an opinion to be codified and subject to a procedure, conditions, restrictions or sanctions that a law provides for and that are needed in a democratic society and in the interest of duly spelled out objectives likewise provides for such a restriction. Therefore liability (penal and civil) for insult and libel as an instrument of protection of the honor, personal dignity and reputation of the individual constitutes such a restriction of the right to the free expression of opinion which is admissible both by the Constitution and by the Convention.
The penalty for insult and libel exists in the legislation of a number of European countries that are signatories to the Conventio? Germany, France, the Netherlands, Austria, Denmark and is even harsher than that in the Bulgarian law by providing longer term imprisonment (Germany) or simultaneous penalties (imprisonment and fine in France).
The eventual deletion of imprisonment as penalty from the Penal Code texts that are challenged would be tantamount to a fine up to 5000 BGL which is pointless given the current economic and price reality in Bulgaria. Such a result would be anticonstitutional as it would deprive human dignity which is a supreme Constitution-enshrined principle of effective and real legal defense.
An official and a representative of the public may be a target of insult and libel or a source of insult and libel only and if they did it in the discharge of their duty, respectively their function. This means that in addition to the individual the penal legal norm protects also the prestige of the relevant institution. The extension of such protection is a matter of legislative discretion and not of compliance with the Constitution.
