The Sofia City Court must rule on the claim of Nikolay and Evgenia Banevi against the former chief prosecutor Ivan Geshev and his five former deputies (one of them is the current acting head of the state prosecution Borislav Sarafov). This was determined by the Supreme Court of Cassation, “Now” saw in its electronic filing.
So far, both the city court and the appellate court have refused to deal with the claim for BGN 60,000, which the Banevis filed in 2021 against Geshev, Sarafov, Desislava Pironeva, Daniela Masheva, Krasimira Filipova and Plamena Tsvetanova.
The leadership of the prosecution was brought to court by Banevi for moral damages caused to them by a letter to 67 European institutions, in which, in addition to complaining about pressure, Geshev and his deputies also boast of unfinished cases, including the one against Banevi. This is an arrogant abuse of rights and a violation of the presumption of innocence, according to the Banevis.
The lower courts accepted that the letter was within the professional competence of Geshev and his deputies, and their functional immunity, which is for life, protects them from a lawsuit. However, three supreme judges – Margarita Sokolova, Svetlana Kalinova and Galabina Gencheva annul the acts of the city and appeal courts and return the case for consideration.
The three supreme judges explain that the functional immunity of magistrates is not absolute. And its purpose is to protect the state and the normal functioning of the judiciary, not the persons using it.
The practice of the Constitutional Court as well as decisions of the European Court of Human Rights are cited.
In each filed civil case, it must be assessed separately whether functional immunity is an obstacle to its conduct, the Supreme Court further explains.
The prohibition on public reference to guilt does not apply to acts of prosecution that aim to prove the guilt of the suspect or the accused (for example, an indictment). According to the practice of the European Court of Human Rights, the scope of the principle of the presumption of innocence is not limited to a simple procedural guarantee in criminal cases, but requires that no representative of the state declares that a person is guilty of a crime before his guilt has been established by a court.
If, in public statements by the authorities, someone is presented as guilty before being convicted, the presumption of innocence would be violated, the court explained.
So now the Sofia City Court, which will hear the case on its merits, will have to answer whether the statement of Geshev and his deputies goes beyond the usual disclosure to the public of information about the conduct and development of the criminal proceedings instituted against Banevi, as it contains the idea that they are guilty of committing the crimes with which they were charged before the criminal court had rendered a final conviction.
The court will also have to assess whether the way of expression and the meaning of the words used, as well as the context in which the information about Banevi is presented, violates the balance between the public’s right to information and the individual rights of the persons mentioned in the letter.
It should also be taken into account that the Banevis were mentioned after they condemned Bulgaria in Strasbourg because of Ivan Geshev’s statements while he was the head of the special prosecutor’s office.
Nikolay and Evgenia Banevi condemned Bulgaria in Strasbourg. The European Court of Human Rights issued a decision today, according to which the state owes them a total of 13,800 euros in compensation – 7,800 euros for Banev and 6,000 euros for his wife.
For the letter of Geshev and his deputies, recall here:
In an attempt to save his position, Chief Prosecutor Ivan Geshev appealed to Europe from Prime Minister Kiril Petkov, from Interior Minister Boyko Rashkov and Justice Minister Nadezhda Yordanova, from former and current MPs, from political leaders, businessmen and civil activists.