THIRD SECTION
CASE OF
LAVRIC v. ROMANIA
(Application no.
22231/05)
JUDGMENT
STRASBOURG
14 January
2014
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 Lavric v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Luis López Guerra,
Nona Tsotsoria,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on
10 December 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22231/05) 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, Ms Elena Lavric (“the applicant”), on
9 June 2005.
The applicant was represented by Ms A. M. Lavric,
a lawyer practising in Piatra-Neamț. The Romanian
Government (“the Government”) were represented by their Agent, Mrs I.
Cambrea from the Ministry of Foreign Affairs.
The applicant alleged that her right to protect
her good reputation had been breached following the publication in February
2002 of two articles in a national newspaper which raised serious
allegations about her professional activity as a public prosecutor.
On 27 January 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1951 and lives in Piatra-Neamț.
1. Background information
The applicant (also referred to herein as
prosecutor L.), in her capacity as a prosecutor at the prosecutor’s office
attached to the Neamț County Court, initiated criminal proceedings
against A.B. on two occasions. She filed an indictment proposing A.B.’s
conviction in both sets of proceedings.
The first indictment, filed by the applicant on 17 January 2000,
sought the conviction of A.B. for the offences of making false declarations and
destruction. On 20 September 2001 the Ploiești District Court found A.B.
guilty as charged and sentenced her to six months’ imprisonment in respect of
each offence. The judgment was upheld by the Prahova County Court, which
dismissed an appeal lodged by A.B. on 7 January 2002. On 22 March 2002
the Ploiești Court of Appeal allowed an appeal on points of law lodged by
A.B. in part, noting that the limitation period had expired in respect of the
offence of destruction.
The second indictment of 25 July 2001 was not approved
by the chief prosecutor, who ordered the discontinuance of the criminal
proceedings against A.B.
On 7 February 2002 disciplinary proceedings were
initiated against the applicant following a complaint being lodged by A.B. On
6 March 2002 the prosecutor’s office attached to the Supreme Court of
Justice found that the applicant had not committed any disciplinary offence and
closed the investigation.
2. The newspaper articles concerning the applicant
A.S., a journalist at the national newspaper Romania Liberă,
wrote two articles concerning the applicant’s professional activity in
connection with the criminal proceedings against A.B.
The first article published on 13 February 2002
was entitled “Judicial corruption. Prosecutor L. falsified two indictments! An
innocent person was sentenced to prison” and had six sections. The first section,
entitled “Professional dross, confirmed by her superiors” (“Rebut
professional, confirmat de șefi”), referred to an allegedly “falsified”
indictment filed by the applicant on 25 July 2001. It concerned A.B.,
who according to the journalist had been innocent and a victim of the applicant’s
corrupt actions. In the journalist’s opinion the fact that this indictment had
been invalidated by the chief prosecutor proved that it had been the result of falsification
and could be considered professional dross (“rebut professional”).
In the second section, entitled “Exclusion
from the magistracy” (“Excludere din magistratură”), the journalist referred
to “the cheating prosecutor L.” (“procurorul măsluitor”) who
“did not manage to send A.B. before a court on the basis of her falsified indictment
on this occasion. However she had already managed to send A.B. before a court
of justice on the basis of another indictment, the product of scandalous falsification”.
It was stated that an examination of the applicant’s conduct in connection with
the first indictment “could result, besides criminal charges against her for
abuse of position, in her rapid exclusion from the magistracy by the disciplinary
board of the public prosecutor’s office. By misleading her superiors,
cheating prosecutor L. managed to send the defendant A.B. before a court on 17
January 2000 for criminal damage and making false declarations. The lies and the
wilfully erroneous interpretation contained in the ten pages of the second
falsified indictment could fill a whole chapter in ‘a real handbook of judicial
corruption’”.
The third and the fourth sections of the article
concerned civil proceedings brought by A.B., without making any reference to
the applicant. The fifth section concerned a complaint of criminal damage
lodged by “the mafia of crooked businessmen” against A.B. and allocated
to “cheating prosecutor L.” In the last section, the journalist accused
the applicant, “the cheating prosecutor”, of causing A.B. to be
sentenced to prison by lying to the courts with her “falsified indictment”.
The second article, published on 22 February 2002,
was entitled “E.L., the prosecutor who falsifies indictments”. It
referred to the conviction of A.B. on the basis of an indictment drafted by the
applicant. The journalist claimed to have exposed the alleged influence
exercised over the applicant by S.E., directly interested in the affair, which
had led to A.B.’s conviction. According to the journalist, S.E. had repeatedly “brought
a variety of food products to [the applicant’s] home in bags or in boot of her
car (...). Once she brought a pig cut in half to [the applicant’s] home,
leaving bloodstains in the building’s corridors”.
3. The defamation complaint lodged by the applicant
On 15 April 2002 the applicant lodged a criminal
complaint for defamation against A.S. The applicant complained that A.S. had
damaged her reputation and dignity by publishing the two above-mentioned articles
in February 2002. She sought one million Romanian lei (ROL) in compensation for
non-pecuniary damage.
By a judgment of 3 November 2003, the Călărași
District Court found the journalist guilty of defamation and sentenced him
to a criminal fine of 10,000,000 Romanian lei (ROL), the equivalent of EUR 270.
The journalist and the newspaper were jointly ordered to pay the applicant
damages of ROL 300,000,000, the equivalent of EUR 8,000. The court found
that the expressions “falsifier and cheater” did not correspond to reality, as
a disciplinary investigation had concluded that the applicant had conducted
herself professionally and appropriately in connection with the charges she had
brought against A.B. in her capacity as a prosecutor. The court noted that in
February 2002, when the articles had been published, the journalist had been aware
that the prosecutor’s indictment in the first set of proceedings had been
upheld by the first two levels of the domestic courts and the appeal on points
of law was still pending. The court also noted that the journalist had been
aware that the disciplinary investigation against the applicant was pending
when he had written the articles. It therefore held that this should have caused
the journalist to exercise a certain amount of caution in his approach and use
of language, given that he could have exposed the applicant to disciplinary and
even criminal sanctions.
The district court examined the indictment of
17 January 2000, mentioned by A.S. in his first article, and noted
that it had been upheld by final decisions of the domestic courts.
As regards the second indictment, the court noted that it had not
been approved by the chief prosecutor on 18 January 2002. The court also noted
that at the time the articles were published the chief prosecutor’s decision
was not yet final, as a complaint had been lodged against it. The court
considered that the refusal of the chief prosecutor to approve the applicant’s
indictment should not have led the journalist to the conclusion that the
applicant had falsified the indictment.
The court concluded that in the two articles the
journalist had overstepped the limits of acceptable speech provided by
Article 10 of the Convention.
Journalist A.S. and the newspaper appealed
against this judgment. On 28 December 2004 the Hunedoara County Court
allowed the appeal, quashed the first-instance judgment and proceeded to rehear
the case. It acquitted the journalist of the defamation charge and dismissed
the applicant’s request for damages. The county court held that the journalist
had merely provided details of A.B.’s situation as it emerged from the court
records. It also held that the article published on 22 February 2002 had
simply been a reproduction of the administrative complaints lodged by A.B. with
the Ministry of Justice and the Public Prosecutor’s Office. The county court classified
the relevant statements of the journalists as value judgments and found that the
expressions used were to be examined in connection with the function of
the press in a democratic society to impart
information and ideas on all matters of public interest, as was the case in
respect of the matter before it, which concerned the administration of justice.
It referred to the judgment Dalban v. Romania ([GC], no. 28114/95,
§ 49, ECHR 1999-VI), noting that the journalist had had
recourse to a certain degree of exaggeration and provocation.
II. RELEVANT DOMESTIC LAW
The relevant domestic provisions of the Civil
and Criminal Codes concerning slander and defamation and liability for paying
damages in force at the material time, as well as the subsequent developments
in the legislation, are described in Timciuc v. Romania (no.
28999/03, §§ 95-97, 12 October 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained of a breach of her
right to protection of her reputation and dignity as a result of what she submitted
had been insulting and defamatory articles published in the Romania Liberă
newspaper on 13 and 22 February 2002. She also complained about the dismissal
by the court of last resort of her criminal complaint and civil claim in this
respect. She relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 applicant submitted that the two articles concerning
her professional activity published in the Romania Liberă newspaper
had not only been insulting and defamatory but had been written in bad faith.
She submitted that in his first article of 13 February 2002,
the journalist had not restricted himself to citing the statements made by A.B.,
as the Government submitted, but he had directly accused her of falsifying the
indictments by which she had pressed charges against A.B. The journalist had
repeatedly named her “the cheating prosecutor”, accused her of a lack of
professionalism and of committing the offences of falsification of documents
and abuse of position, despite the fact that the charges brought by her in the
indictments had been upheld by final decisions of the domestic courts. She
further pointed out that although in the second article of 22 February 2002
the journalist had simply repeated A.B.’s statements, he had not made any
effort to check the truthfulness of those statements.
The applicant also maintained that she had never
been offered the chance to present her version of events. In addition, A.S. had
stated before the domestic courts that he had not considered it necessary to
have her opinion.
As to the alleged failure of the courts to
protect the applicant’s reputation, the Government considered the key question
to be whether the courts had struck a fair balance between the applicant’s
right to respect for her reputation and A.S.’s freedom of expression.
The Government submitted that the journalist had,
in the main, given an account of the applicant’s professional activity, who at
that time was a prosecutor at the prosecutor’s office attached to
Piatra-Neamț County Court. They further pointed out that the journalist
had referred in the two impugned articles to the allegations made by A.B., a
person against whom the applicant had pressed charges in two different criminal
cases, who had contacted the newspaper in order to make known her problems
caused by the applicant’s professional misconduct. Therefore, he had mostly
cited expressions used by A.B. in the materials submitted to the newspaper.
Both articles written by the journalist had given an overview of the
judicial proceedings initiated by the applicant against A.B. and the result of
the investigations.
The Government further emphasised that the
impugned articles had referred to an issue of general interest, namely the functioning
of the judicial system, and therefore should be examined in the general context
of the fight against corruption and society’s general concerns about
magistrates’ working practices.
They contended that the statements made by the
journalist about the applicant should be considered partly as value judgments
and partly as objective facts. They also maintained that even a simple reading
of the articles did not reveal any bad faith on the journalist’s part. They
agreed that the journalist had had recourse to a certain degree of exaggeration,
but considered that he had not gone beyond acceptable limits in doing so.
2. The Court’s assessment
The Court reiterates that, although the object
of Article 8 is to protect individuals against arbitrary interference by
public authorities, it does not merely compel the State to abstain from such
interference. In addition to this primarily negative undertaking, there may be
positive obligations inherent in an effective respect for private and family
life. These obligations may involve the adoption of measures designed to secure
respect for private and family life, even in the sphere of the relations of
individuals between themselves (see Odièvre v. France [GC], no.
42326/98, § 40, ECHR 2003-III, and Dickson v. the United
Kingdom [GC], no. 44362/04, § 70, ECHR 2007-XIII).
The Court considers that the present case
engages the State’s positive obligations arising under Article 8 to ensure
effective respect for the applicant’s private life, in particular her right to protect
her reputation. In this respect, the Court reiterates that it has already been
established in its case-law that “private life” extends to aspects
relating to personal identity and reputation (see Pfeifer v. Austria,
no. 12556/03, § 35, 15 November 2007; Petrina v. Romania,
no. 78060/01, 14 October 2008, §§ 27-29 and 34-36; and Timciuc,
cited above, § 143). Moreover, in order for Article 8 to come into play,
the attack on personal honour and reputation must attain a certain level of
gravity and in a manner causing prejudice to personal enjoyment of the right to
respect for private life (see, for example, A. v. Norway,
no. 28070/06, § 64, 9 April 2009; Mikolajová v. Slovakia,
no. 4479/03, § 55, 18 January 2011; Roberts and Roberts
v. the United Kingdom, (dec.), no. 38681/08, §§ 40-41,
5 July 2011 and Axel Springer AG v. Germany [GC], no.
39954/08, § 83, 7 February 2012).
The applicable principles are similar to those
arising in cases involving the State’s negative obligations: regard must be had
to the fair balance to be struck between the competing interests - in this
case, the applicant’s right to protect her reputation and the right of the
newspaper and A.S. to freedom of expression.
In the cases in which the Court has had to
balance the protection of private life against freedom of expression, it has
always stressed the contribution made by articles in the press to debates of
general interest (see, Tammer v. Estonia, no. 41205/98, §§ 66 and 68,
ECHR 2001-I, and Von Hannover v. Germany, no. 59320/00, § 60, ECHR
2004-VI). In cases concerning debates or questions of general public
interest, the extent of acceptable criticism is greater in respect of
politicians or other public figures than in respect of private individuals (see
Petrina, cited above, § 40).
Turning to the circumstances of the instant case,
the Court notes that the impugned articles referred to the professional
activity of the applicant as a prosecutor. Public prosecutors are civil
servants, part of the judicial system, whose task it is to contribute to the
proper administration of justice.
There is no doubt that in a democratic society
individuals are entitled to comment on and criticise the administration of
justice and the officials involved in it. However, such criticism must not
overstep certain limits, as it is in the general interest that prosecutors,
like judges, should enjoy public confidence. It may therefore be necessary for
the State to protect them from accusations that are unfounded (see Lešník v.
Slovakia, no. 35640/97, § 54, ECHR 2003-IV).
The Court also reiterates that where the
balancing exercise has been undertaken by the national authorities in
conformity with the criteria laid down in the Court’s case-law, the Court would
require strong reasons to substitute its view for that of the domestic courts
(see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Palomo Sánchez and Others v. Spain
[GC], nos. 28955/06, 28957/06, 28959/06, 28964/06, § 57, 12 September 2011 and Von
Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).
In the instant case the domestic courts dealing
with the case examined the circumstances in which the insulting statements were
made and whether they could be justified, for example by the conduct of the
public prosecutor in question.
The Court observes that while the first-instance
court found, after examining all the available evidence, that the journalist’s
statements were unsubstantiated, the court of last resort classified the
relevant statements of the journalist as value judgments (see paragraph 19
above).
The Court reiterates that there is a clear
distinction between statements of fact and value judgments (Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 98, ECHR 2004-XI).
While the existence of facts can be demonstrated, the truth of value judgments
is not susceptible of proof. The Court agrees that the classification of a
statement as a fact or as a value judgment is a matter which in the first place
falls within the margin of appreciation of the national authorities, in
particular the domestic courts. However, even where a statement amounts to a
value judgment, there must exist a sufficient factual basis to support it,
failing which it will be excessive (see Pedersen and Baadsgaard v. Denmark [GC],
no. 49017/99, § 76, ECHR 2004-XI; Timpul Info-Magazin and
Anghel v. Moldova, no. 42864/05, § 37, 27 November 2007;
and Petrina, cited above, §§ 40 and 41).
In the instant case, the Court is not persuaded
that the statements made by journalist A.S. can be considered mere value
judgments. The Court notes that the articles in question contained allegations
of unlawful and improper conduct by the applicant. Thus the journalist alleged,
in particular, that the applicant in her capacity as a public prosecutor had
abused her powers and unlawfully pressed charges against A.B. He also alleged
that the applicant had been involved in bribery and falsification of indictments
concerning A.B. Those allegations are, in the Court’s view, statements of fact
which the domestic court of last resort did not require to be supported by
relevant evidence.
The Court considers that the accusations
concerning the applicant’s alleged corruption and incompetence were of a
serious nature and were capable of affecting her in the performance of her
duties and of damaging her reputation.
A person’s status as a politician or other
public figure does not remove the need for a sufficient factual basis for
statements which damage his or her reputation, even where such statements are
considered to be value judgments, and not statements of fact (see Petrina,
cited above, §§ 45 and 50). In this respect, the Court further observes
that, in giving judgment on 3 November 2003, the District Court emphasised that
there was no proof that the applicant had committed any disciplinary or criminal
offence in connection with her professional activity (see paragraph 16 above).
The Court notes that there is no indication in
the materials submitted by the parties that the applicant committed any offence
of forgery or bribery in connection with the performance of her professional
activity, in particular in connection with the charges she had pressed against
A.B.
In the course of the proceedings before the domestic
courts, the journalist did not produce any material judged sufficient by the
trial court to support his allegations and no witnesses testified that the
applicant was involved in such activities. Moreover, as the domestic
first-instance court noted, at the time the articles were published, the
journalist was aware that the first indictment had been upheld by the first two
levels of the domestic courts and the appeal on points of law was still
pending. The journalist was also aware that the disciplinary investigation
against the applicant was pending at that time. In addition, the mere fact that
an indictment prepared by the applicant was not approved by her superior could
not lead to the conclusion that the applicant had committed a criminal offence.
The Court further notes that the court of last
resort held that one of the two articles, namely the article published on
22 February 2002, had simply been a reproduction of the
administrative complaints lodged by A.B. with the Ministry of Justice and the
Public Prosecutor’s Office. The Government also pointed out that the journalist
had referred in the impugned articles to the allegations made by A.B. and that
he had mostly cited expressions used by A.B. in the materials submitted to the
newspaper.
The Court notes that the present case should be
distinguished from the case of Bladet Tromsø
and Stensaas v. Norway ([GC], no. 21980/93, ECHR 1999-III).
That case concerned the publication in a local newspaper of allegations taken
directly from a report prepared in an official capacity by a government
inspector. The Court decided to err on the side of protecting the right to
freedom of expression, considering that journalists could reasonably rely on an
official report without being required to carry out their own research
into the accuracy of the facts stated therein.
In the instant case, according to the findings
of the court of last resort and the Government’s submissions, in the two
impugned articles the journalist had simply reproduced the
allegations made by a private person in administrative complaints lodged
against the applicant. Based on a careful examination of the two articles the
Court considers that the journalist did not dissociate himself from the
position expressed by A.B. in her complaints and did not make clear that his
articles represented only a reproduction of A.B.’s allegations. The journalist
reproduced the contents of the complaints lodged by A.B. and presented them as the objective
truth, instead of they were - the statements of a party. Furthermore, the
journalist did not check the accuracy of those seemingly partial statements and
did not offer the applicant the opportunity
to respond to the accusations against her.
In conclusion, the Court considers that in the
present case the journalist failed to prove
that he had written the articles with the professional care required of
journalists. Therefore, it is not appropriate to make reference to the
leeway generally permitted to journalists for provocation or exaggeration when
articles concern public figures.
In the light of the above considerations, the
Court concludes that the articles published by A.S. in Romania Liberă
exceeded the acceptable limits of comment in relation to a debate of general
interest. Taking into account the particular gravity of the allegations in the
present case, the Court finds that the reasons advanced by the domestic court
of last resort to protect the newspaper and A.S.’s right to freedom of
expression were insufficient to outweigh the applicant’s right to protect her
reputation.
There has accordingly been a violation
of Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant raised several complaints under
Article 6 § 1 of the Convention concerning the length and
fairness of the proceedings.
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 these complaints are manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
III. 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 150,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that the amount was excessive
and contested the existence of a causal link between the alleged violation and
the losses claimed by the applicant.
Having regard to the nature of the violation
found, and making an assessment on an equitable basis, the Court awards the applicant
EUR 4,500 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not claim any costs and
expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate 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,
1. Declares the complaint concerning the
infringement of the applicant’s right to protection of her reputation and dignity
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. 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 4,500 (four
thousand five hundred euros) in respect of non-pecuniary damage, to be
converted into the currency of the respondent State
at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 January 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
