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THIRD
SECTION
CASE OF IEREMEIOV v. ROMANIA (No. 2)
(Application
no. 4637/02)
JUDGMENT
STRASBOURG
24 November 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Ieremeiov v.
Romania (No. 2),
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Luis
López Guerra,
Ann
Power, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4637/02) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Laurian Ieremeiov (“the
applicant”), on 19 October 2001.
- The
applicant was represented by Ms Monica Macovei and Ms Alexandra
Răzvan-Mihalcea, lawyers practising in Bucharest and Timişoara
respectively and acting on behalf of the Association for the Defense
of Human Rights in Romania – the Helsinki Committee (APADOR).
On 12 January 2005, Ms Monica Macovei withdrew from the case
following her appointment as Minister of Justice. The Romanian
Government (“the Government”) were represented by their
Agent,
Mr Răzvan-Horaţiu Radu, of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that the criminal proceedings for
defamation brought against him had not been fair and that the
imposition of a fine and the obligation to pay compensation for
non-pecuniary damage had breached his right to freedom of expression.
- On
15 May 2007 the President of the Third Section decided to communicate
this complaint to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Timişoara.
- At
the material time he was a journalist at the newspaper Ziua de
Vest in Timişoara.
- On
23 June 2000, following the local elections, the newspaper Ziua de
Vest published an article by the applicant accusing A.V.I., the
newly elected mayor of Buziaş, of having collaborated with the
Securitate (the intelligence service during the communist
period). The article, featured on the third page of the newspaper,
was announced on the front page by the headline: “Mayor with
file” (Primar cu dosar).
- The
relevant parts of the article read as follows:
“Citizens' safety above State security
The Scandal of the files in Buziaş
The newly elected mayor, [A.V.I.], is suspected of
having collaborated with the Securitate
The first scandal concerning the Securitate files
is about to burst in the town of Buziaş. The elected mayor,
[A.V.I.] is suspected by some citizens – whose names will not
be made public for obvious reasons – of having collaborated
with the Securitate. Based on information from inside the
Romanian Secret Service, our sources said that [A.V.I.] was under
surveillance until 1989 as an irredentist chauvinist, which made it
impossible for him to obtain a history teaching post in Buziaş...
During the same period [A.V.I.] was allegedly persuaded to
collaborate with the Securitate, and a file allegedly exists
on this matter...
Before the local elections, [A.V.I.] lodged a written
statement with the Electoral Bureau... declaring that he had not been
part of the former Securitate. He informed us yesterday
that what he had written in that statement was true and that he had
never collaborated in any way with the secret police before 1990.”
- On
21 August 2000 A.V.I. lodged a criminal complaint for insult and
defamation against the applicant with Timişoara District Court.
His complaint also included the company which published the
newspaper.
- The
District Court heard testimonies from two witnesses who confirmed
that they had told the applicant about the rumours concerning the
victim's collaboration with the Securitate.
- On
31 October 2000 the applicant gave a statement to the court. He
pleaded not guilty and relied in his defence on the right to freedom
of expression and the right to provide information about public
figures.
- On
20 February 2001 the District Court gave judgment in the case. It
considered that the applicant had not committed defamation, as he had
not referred to any specific offences allegedly committed by the
victim. It found that the expressions used by the applicant,
including the headline on the front page, were manifestly insulting
to the victim. However, the District Court noted that the applicant
had not described any of the rumours as fact and that he had also
presented the victim's point of view in the article.
It
further considered that a certain degree of aggressiveness was common
in journalism and that therefore, although the facts met the legal
criteria to constitute the criminal offence of insult, in the
circumstances of the case the acts perpetrated and their consequences
were not severe enough to come within the sphere of criminal law.
The
District Court acquitted the applicant of both defamation and insult
and imposed an administrative fine of 500,000 Romanian lei
(ROL). The court also found that the conditions had been met for the
applicant's civil liability and that of the company publishing the
newspaper, in respect of the prejudice caused to the victim. It thus
ordered the applicant and the company to pay ROL 3,000,000 to A.V.I.
as compensation for
non-pecuniary damage. Lastly, the applicant
was ordered to pay ROL 350,000 to the State in court fees.
- All
parties appealed. The victim contested the acquittal and sought to
have the amount of damages increased. The company publishing the
newspaper argued that the prejudice had not been proven by the
victim. The applicant claimed that the legal requirements had not
been fulfilled either for the existence of the offence of defamation
or for the existence of insult.
- On
27 April 2001 the parties' representatives presented the grounds for
appeal orally before Timiş County Court. The applicant was
invited to speak only before the end of the hearing (ultimul
cuvânt al inculpatului). In his address he requested that
A.V.I.'s appeal be dismissed.
- The
final decision was adopted on the same day. The County Court allowed
the appeal lodged by A.V.I. It acquiesced in the statement of facts
established by the District Court but considered that the
first-instance court had failed to interpret them correctly. It found
that the expressions used by the applicant, in particular, “the
mayor is suspected of having collaborated with the Securitate”,
“was allegedly persuaded to collaborate with the Securitate,
and a file allegedly exists on this matter” and “was
under surveillance as an irredentist chauvinist”, were
manifestly defamatory and, if true, would expose the victim to public
opprobrium at the least. It considered that the applicant's intention
to denigrate was proved and that he was not therefore covered by the
Constitution and the Convention, which guaranteed the right to
freedom of expression only when it was exercised in good faith.
However, for the same reasons as the District Court, it considered
that in the circumstances of the case the acts perpetrated and their
consequences were not severe enough to come within the sphere of
criminal law. It therefore acquitted the applicant on both accounts
and imposed on him an administrative fine of ROL 1,000,000.
- The
court also considered that the prejudice incurred by the victim had
not been correctly evaluated by the District Court and increased the
amount to be paid by the applicant and the newspaper company to
ROL 20,000,000. It awarded A.V.I. ROL 5,000,000 for costs, to be
paid jointly by the applicant and the company. Lastly, the court
ordered the applicant to pay ROL 500,000 to the State for court fees.
- On
3 October 2001 the applicant paid the administrative fine.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Civil and Criminal Codes concerning insult
and defamation and liability for paying damages in force at the
material time are described in Barb v. Romania, no.
5945/03, §§ 19-20, 7 October 2008.
- The
Criminal Code has been amended repeatedly and in 2006 the Articles on
insult and defamation were repealed (for details, see Cuc Pascu
v. Romania, no. 36157/02, §§ 12-14, 16 September
2008).
- However,
in decision no. 62 of 18 January 2007 the Constitutional Court
declared unconstitutional the removal from the Criminal Code of the
Articles concerning insult and defamation.
- Law
no. 356/2006 amended the Criminal Code and made it mandatory for an
appeal court to hear the accused where the first-instance court had
acquitted him or her. Currently, where an appeal court quashes a
judgment given by a first-instance court, it must decide on the
evidence to be adduced and set a date on which it will take
statements from the accused if the latter was not heard or if he or
she was acquitted by the first-instance court (Articles 38514 § 11
and 38516, as amended).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the County Court had not secured a fair
trial, as it had re-examined the case and worsened his situation
without hearing him or allowing him to adduce evidence in his
defence. He relied on Article 6 § 1 of the Convention,
which provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government argued that the applicant had been heard by the
first-instance court and had had the possibility to put forward
evidence in his defence. The appeal court had not been called upon to
establish the facts of the case but rather to reassess the evidence.
In particular, there had been no need for the court to hear a
statement from the applicant in order to establish whether he had
intended to denigrate A.V.I. In any event, he had exercised his right
to address the court before the end of the hearing (ultimul cuvânt
al inculpatului). Lastly, the Government pointed out that the
applicant had been acquitted and the administrative fine imposed on
him could not be described as a criminal conviction.
- The
applicant contested the Government's arguments and considered that
there had been no reason for the County Court to deprive him of his
right to be heard by the court and, if necessary, to put forward
evidence.
2. The Court's assessment
- In
order to establish whether a person has been criminally convicted
within the autonomous meaning of the Convention the Court applies the
so-called “Engel criteria”, most recently
reaffirmed in Jussila v. Finland ([GC], no. 73053/01, §§
30-31, ECHR 2006 XIV) and Sergey
Zolotukhin v. Russia ([GC], no.
14939/03, § 53, 10 February 2009). The Court
reiterates, in particular, that the lack of severity of the penalty
imposed cannot divest an offence of its inherently criminal
character.
- Applying
those principles to the facts of this case, the Court finds, from the
outset, that the decision rendered by the County Court, imposing an
administrative fine on the applicant, amounts to a “criminal
conviction” within the autonomous meaning of the Convention. In
particular, the Court notes that the offence committed by the
applicant came under the domestic criminal law. As for the nature of
the offence, the Court notes that the relevant provisions of the
Criminal Code were directed towards all citizens rather than towards
a group possessing special status and that the offence in question
made the perpetrator liable to penalties intended to punish and deter
(see Ezeh and Connors v. the United Kingdom [GC], nos.
39665/98 and 40086/98, § 104, ECHR 2003 X; Öztürk
v. Germany, 21 February 1984, § 52, Series A no. 73;
Anghel v. Romania, no. 28183/03, § 51, 4 October
2007; and Zolotukhin, cited above, § 55).
- In
similar circumstances to those of the present case, the Court has
established that where an appellate court is called upon to examine a
case as to the facts and the law and to make a full assessment of the
question of the applicant's guilt or innocence, it cannot, as a
matter of fair trial, properly determine those issues without a
direct assessment of the evidence given in person by the accused (see
Constantinescu v. Romania, no. 28871/95, § 55,
ECHR 2000-VIII).
- In
the case at hand, the County Court re-examined the facts of the case.
In doing so, it failed to hear evidence from the applicant or to
allow him to prepare and present his defence. The fact that the
accused addressed the court before the end of the hearing cannot be
equated with his right to be heard by the court during the trial (see
Constantinescu, cited above, § 58).
- Moreover,
the County Court only heard the parties on the admissibility of the
appeals and did not inform the applicant of its intention to quash
the District Court's judgment and to re-examine the merits of the
accusation. The Court considers that, as a matter of fair trial, a
court cannot quash a previous judgment and reassess evidence without
properly informing the interested parties and allowing them the
opportunity to present their case.
- The
failure to hear the accused in person is even more difficult to
accommodate with the requirements of a fair trial in the specific
circumstances of this case, where the County Court carried out an
assessment of the subjective element of the alleged offence, that is,
the applicant's intent to denigrate.
For
all these reasons, the Court considers that the County Court did not
give the applicant the opportunity to present his defence.
- The
Court acknowledges the changes in the domestic legislation which seem
to bring the criminal procedure closer to the Convention requirements
on this point (see paragraph 21 above). Nevertheless, those changes
occurred in 2006 and thus remain without relevance for the instant
case.
- The
foregoing considerations are sufficient to enable the Court to
conclude that by quashing the first-instance judgment and
re-examining the merits of the accusation against the applicant
without hearing evidence from him and without allowing him to present
his defence, the County Court failed to comply with the requirements
of a fair trial.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that by concluding that he had committed
defamation and by imposing an administrative fine and non-pecuniary
damages on him, the County Court had infringed his right to freedom
of expression. He also claimed that in order to present his defence
and bring proof of the validity of his statements (proba
verităţii), he was constrained to reveal his sources,
that is, the two witnesses who were heard by the first instance
court, which amounted to an additional interference with his freedom
of expression. He relied on Article 10 of the Convention, which
provides:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government averred that the interference with the applicant's freedom
of expression was prescribed by law and pursued a legitimate aim, to
which it was proportionate. In particular, they pointed out that the
applicant had been acquitted and that there was no evidence that he
had paid the damages or court fees imposed (they referred to Stângu
v. Romania (dec.), no. 57551/00, 9 November 2004; and
Stângu and Scutelnicu v. Romania, no. 53899/00, 31
January 2006). Moreover, the amounts imposed by the court had been
moderate.
As
for the applicant's allegation that he had been forced to reveal his
sources, they pointed out that the relevant article of the Criminal
Code did not preclude the possibility of proving the absence of an
intention to denigrate, but that the courts had concluded that the
applicant had acted in bad faith.
- The
applicant argued, in particular, that the issue of collaboration with
the former Securitate by persons who ran for public office had
been a matter of general interest at the material time, and its
importance had continued to increase over time. He considered that he
had acted in good faith and in full accordance with a pressing social
need; he had not exceeded the limits of the rules of conduct set for
the press.
2. The Court's assessment
- The
Court refers to the general principles established in its case-law
regarding freedom of expression, in particular the protection
afforded to journalists who cover matters of public concern and that
afforded to civil servants' reputations (see, among the more recent
judgments, Busuioc v. Moldova, no. 61513/00, §§
56-62, 21 December 2004; Stângu and Scutelnicu, cited
above, §§ 40-42 and 52-53; and July and Sarl Libération
v. France, no. 20893/03, §§ 60-64, ECHR
2008 ... (extracts)).
- It
is not disputed between the parties that, in the case at hand, the
County Court's decision of 27 April 2001 constituted an interference
with the applicant's right to freedom of expression. The interference
was “prescribed by law” (Article 206 of the Criminal Code
and Articles 998-999 of the Civil Code) and served a legitimate aim,
namely the protection of the rights and reputation of others. It
remains to be ascertained whether the interference was “necessary
in a democratic society”.
- The
Court notes that the domestic court imposed an administrative fine on
the applicant for having defamed A.V.I. and ordered him to pay
compensation for non-pecuniary damage.
- At
the material time A.V.I. had just been elected mayor in his town and
the article reported on rumours of his collaboration with the
communist political police. The information was specifically related
to A.V.I.'s public life and was a matter of public concern, in
particular with regard to the relevance for society as a whole of
collaboration with the former Securitate.
Accordingly,
the Court finds that, given the context and the seriousness of the
allegations, the article contributed to a debate of public interest.
- The
domestic courts criticised the applicant for using the expressions
“the mayor is suspected of having collaborated with the
Securitate”, “was allegedly persuaded to
collaborate with the Securitate, and a file allegedly exists
on this matter” and “was under surveillance as an
irredentist chauvinist”.
Without
denying the provocative value of these expressions, the Court
reiterates that journalistic freedom also covers possible recourse to
a degree of exaggeration, or even provocation and cannot be regarded
as overstepping the limits set by the Convention and the case-law on
freedom of the press (see Dalban v. Romania [GC], no.
28114/95, § 49, ECHR 1999 VI).
- The
Court also notes that the two witnesses had admitted before the
first-instance court to having provided the information to the
applicant. Therefore, whether the applicant's statements were
interpreted as statements of fact or value judgments, there existed a
sufficient factual basis to support them (see Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 76,
ECHR 2004 XI).
- Furthermore,
the Court cannot attach weight to the County Court's finding that the
applicant had acted in bad faith, in so far as the criminal
proceedings lacked the requirements of a fair trial (see paragraph 32
above; Folea v. Romania, no. 34434/02, § 42, 14
October 2008; and,
mutatis mutandis, Steel and Morris
v. the United Kingdom, no. 68416/01, § 95, ECHR
2005 II). On this point, the Court notes that the applicant used
a dubitative style in presenting the information and also presented
the victim's position in the same article.
Making
its own assessment in the light of these findings, the Court
considers that nothing in the file indicates that the applicant acted
in bad faith, with intent to denigrate A.V.I. (see, a contrario,
Stângu and Scutelnicu, cited above, § 51).
- The
Court therefore concludes that the interference with the applicant's
right to freedom of expression was not proportionate to the
legitimate aim served and that the authorities failed to give
relevant and sufficient reasons to justify it.
For
the same reasons, although the amounts imposed on the applicant by
the domestic courts in respect of a fine, damages and costs were
moderate, this fact cannot change the above conclusion.
- It
follows that the interference with the applicant's rights was not
“necessary in a democratic society”. There has
accordingly been a violation of Article 10 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 13 of the Convention that the
domestic law did not provide for effective remedies for alleged
violations of Articles 6 § 1 and 10 of the Convention.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 50,000 euros (EUR) in respect of
non pecuniary damage.
- The
Government considered that the finding of a violation constituted in
itself sufficient just satisfaction for the non-pecuniary damage
alleged by the applicant. In any case, they argued that the amount
sought was excessive.
- The
Court awards the applicant EUR 3,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed the following amounts for the costs and
expenses incurred before the Court:
– EUR 2,875 in lawyer's fees for his first lawyer,
Ms Monica Macovei;
– EUR 1,255 in lawyer's fees for his second lawyer,
Ms Alexandra Răzvan-Mihalcea;
– EUR 300 for technical support from APADOR.
A
detailed description of the lawyers' fee is annexed to his
observations.
- The
Government considered that the applicant had not justified the
correspondence costs and that the court fees sought by the
representative were excessive.
- Under
the Court's case-law, an applicant is entitled to the reimbursement
of costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,200 for the proceedings before
the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning Articles 6 §
1 and 10 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that
the respondent State is to pay directly to the applicant's
representatives, within the same three months, EUR 2,200 (two
thousand two hundred euros) for costs and expenses;
(c) that
the above amounts are to be converted into the respondent State's
national currency at the rate applicable at the date of settlement;
(d) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Stanley Naismith Josep Casadevall
Deputy
Registrar President
