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THE FACTS

The applicant, Mr Cornel Ivanciuc, is a Romanian national who was born in 1956 and lives in Bucharest. He was represented before the Court by Mr D. Costea, a lawyer practising in Bucharest.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The impugned article

After winning the local and parliamentary elections in 2000, the Social Democratic Party (PSD) had scheduled elections within its local and regional branches for 2001.

On 24 July 2001 the applicant, a journalist with the weekly satirical review Academia Caţavencu, published an article under the following heading:

“The contents of this page are based on actual facts, events and individuals. Any resemblance to reality is the result of lengthy investigation!”

The article was directed at a number of PSD branches and bore the title:

“Family secrets of main governing party’s provincial bosses in run-up to elections”

The article included the following passages:

“Despite appearances ... Timiş county is, by some margin, the PSD’s craziest. Chairman of the branch is the esteemed university lecturer Dr D.P. However, closer examination of the situation reveals that the leader is no more than an aristocratic figurehead, a harmless small fish in a pond beneath whose surface lurk some large and evil fish with shark-like tendencies and ambitions ...

Right now, deputy prefect Mr Dorel Gâtlan is the man calling the shots behind the scenes. Consider the facts: Gâtlan recently removed the secretary-general of Timiş prefect’s office, D.B., from his post. The latter had refused to sign an order from the prefect, drawn up by Gâtlan, handing over possession of a large piece of land in the border village of Cenad to V.M., a PSD senator ...

Deputy prefect Gâtlan whipped D.B. out like a rotten tooth for having the temerity not to put his name to the illegal appropriation of the land by the senator and his pack of hounds. He did not rest until D.B. had been removed from any outfit even remotely concerned with the restitution of land ...

But don’t be fooled into thinking that Dorel Gâtlan doesn’t have problems of his own. He has two major problems. The first concerns the land he inherited from his daddy in the village of Cernăteaz. Roughly 17 hectares of marshland ... Given the pitiable state of his inheritance, Mr Gâtlan has his eye on a roadside property in the municipality of Gearmata. Unfortunately for him, the mayor of Gearmata, who chairs the local committee on implementation of the Real Property Act, is against the exchange of the two pieces of land. Without further ado, Gâtlan suspends him from his post and hands him over to the police, who open two criminal investigations against him ... It should be noted that in Romania dealings in real property are coordinated, by law, by the prefects. However, in Timiş county, the deputy prefect has long since supplanted the prefect by stripping him of all his powers.

Gâtlan’s biggest personal problem arose on 1 January 1998, when he fatally injured the septuagenarian C.M. in an accident. The victim was a shop caretaker ... His executioner, who at the time was sales director of the S.C. Radiotel Timişoara company, was driving under the influence of recent New Year’s Eve Bacchanalian celebrations. The victim was small and thin. The impact was so sudden and so violent that the bonnet and windscreen of the executioner’s car were smashed to pieces. The victim’s internal organs, also in pieces, were scattered over a radius of a hundred metres. Gâtlan’s friends in the police said that the executioner’s car had been travelling at only 40 km.p.h. Unfortunately for Gâtlan, the victim’s son-in-law is the university lecturer Dr V.B. ...

Initially, Gâtlan obtained a ruling that there was no case to answer, and the case was closed. However, Dr V.B. subsequently sent a memorandum to the Procurator-General of Romania and the case was reopened. Sickened by the machinations of those in power, whose excesses are such that the PSD’s exploits in Timiş county surpass even those in the capital, V.B. dismissed his lawyer and lost the case following an appeal by Gâtlan. The executioner was merely ordered to pay the victim’s family 20,000,000 lei in damages. V.B. then made one last-ditch attempt to get rid of Gâtlan. Shortly before the appointment of the prefects and deputy prefects, he tried desperately to alert the Civil Service Minister and the Prime Minister to the fact that Gâtlan was not fit for the job of deputy prefect, as he was guilty of killing through negligence.

But the die has already been cast. The person pulling strings to have Gâtlan appointed is the current Minister of Agriculture, I.S. At first, V.B.’s case had been backed up to prime ministerial level by his colleague P.A., PSD member of parliament for Timiş county and a university lecturer. But, under pressure from the rector of Timişoara Polytechnic, a leading PSD member, V.B. was forced to drop the case unconditionally and hold his tongue. The same sources say that the rector himself had come under intense pressure from I.S. [the Minister of Agriculture] to persuade V.B. to drop his complaint against Gâtlan. And Gâtlan, by way of thanks for being found not guilty and having his reputation restored vis-à-vis his superiors, never made any apology, not even a purely formal one, to the victim’s family.

Our readers are no doubt well aware that Gâtlan is the most ardent supporter of I.S.’s election to the chair of the PSD county branch.”

2.  The proceedings against the applicant

On 25 September 2001 Mr Gâtlan lodged a criminal complaint with the Timişoara Court of First Instance, alleging that the applicant had made several defamatory and insulting statements in his article, in breach of Articles 205 and 206 of the Criminal Code. He also applied to be joined as a civil party to the proceedings against the applicant and the weekly review Academia Caţavencu, the party with civil liability.

Although the applicant was summoned to appear and a warrant was issued for him to be brought immediately before the court, he did not attend any court hearing, nor did he produce any evidence in his defence.

In a judgment of 6 March 2002, the court rejected the criminal complaint on the ground that there was no evidence in the case file that the applicant had published the article with the intention of insulting or defaming the complainant. The court therefore acquitted the applicant, finding that one of the elements constituting the offences of insult and defamation was lacking, namely intent.

However, the court observed that the applicant had accused the complainant of causing a road traffic accident by driving under the influence of alcohol and of unfairly dismissing the secretary-general of the prefect’s office and the mayor of a municipality. The court considered that those assertions were inaccurate, since the courts which had tried Mr Gâtlan on a charge of manslaughter had not found him guilty of driving under the influence of alcohol. It also observed that the two persons referred to above had been removed from office by order of the prefect, and that there was nothing to suggest that the complainant had influenced the decisions in any way.

In view of the circumstances, the court found that the complainant should be awarded damages since, while the offences of which the applicant stood accused did not fall within the sphere of criminal law, they were such as to render him liable in tort, as he had not checked thoroughly the facts set out in his article. Accordingly, under Articles 998 and 999 of the Civil Code, the court ordered the applicant and the weekly review jointly and severally to pay the complainant 5,000,000 Romanian lei (ROL) in respect of the non-pecuniary damage sustained.

The applicant, the weekly review Academia Caţavencu and the complainant all lodged appeals against the judgment with the Timiş County Court. The applicant appealed against the award of compensation for non-pecuniary damage, arguing that the complainant had not proved the existence of such damage. The complainant, for his part, requested that the applicant be convicted of insult and defamation and that the amount of compensation be increased.

On 7 June 2002 the court allowed the request for an adjournment lodged by the applicant’s lawyer. At a hearing on 3 July 2002, the applicant’s lawyer raised an objection of unconstitutionality in respect of the first two paragraphs of Article 346 of the Code of Criminal Procedure and requested the court to stay its decision on the merits and to refer the case to the Constitutional Court. He argued in particular that, for a criminal court to decide on a claim for damages without the civil party having paid stamp duty, when the defendant had been acquitted, was in breach of the constitutional principles of protection of private property and prohibition of discrimination with regard to the payment of taxes and levies. The applicant’s lawyer alleged that the exemption from stamp duty gave the civil party an unfair advantage over individuals who, in order to have access to a civil court, had to pay stamp duty in proportion to the amount being claimed.

On 8 July 2002, under the third and sixth paragraphs of section 23 of the Constitutional Court (Organisation and Operation) Act (Law no. 47/1992), the court declared the objection inadmissible on the ground that the Constitutional Court had already ruled several times, notably on 2 December 1997, 3 February 1998 and 1 February and 23 May 2001, on the constitutionality of the Article in question, and had found it to be compatible with the Constitution.

On 19 November 2002 the applicant’s lawyer lodged a memorial with the registry of the County Court, objecting that the first and sixth paragraphs of section 23 of Law no. 47/1992 were in breach of the Constitution. He submitted that the condition laid down in the first paragraph of the section in question for the referral of an objection to the Constitutional Court, namely that the provision in issue must be decisive for the outcome of the case, allowed the courts a margin of appreciation and was therefore contrary to the constitutional principle of free access to a court. Pointing out that the third paragraph of the section in question ruled out referral to the Constitutional Court only of objections relating to provisions which had already been found to be unconstitutional, the lawyer concluded that the court should have referred his first objection to the Constitutional Court.

On 20 November 2002 the court observed that neither the applicant nor his lawyer had attended any hearings, although the applicant had been repeatedly given notice to appear. The court dismissed the objection of unconstitutionality raised the previous day, finding that it had already been examined at the hearing of 3 July 2002.

The hearing was held the same day and, in a fresh decision on the merits, the court allowed the complainant’s appeal and ordered the applicant to pay a criminal fine of ROL 500,000 for insult and defamation. It also ordered him, jointly and severally with the weekly review, to pay the complainant ROL 10,000,000 in compensation for the non-pecuniary damage sustained.

The court found that the assertions concerning the removal from office of the mayor of a municipality and the complainant’s having driven while under the influence of alcohol had been defamatory, since they had lacked any factual basis and even the most cursory checking of the facts by the applicant would have revealed the truth. In that connection, the court pointed out that the mayor in question had been removed from office by an order of the prefect dated 30 March 2001, published in July 2001, and that the Timişoara Court of Appeal, in a final judgment of 8 November 2000, had found the complainant not guilty in relation to the road traffic accident, taking the view that the victim had been entirely at fault, having crossed the road without due care and attention.

In the circumstances, the court found that the use of the term “executioner” had been insulting.

In a dissenting opinion, one of the judges took the view that the applicant should have been acquitted, as account should have been taken of the fact that the weekly review Academia Caţavencu had a reputation as a satirical publication which made frequent revelations concerning the professional and private conduct of politicians. He added that the complainant could have obtained satisfaction by making use of his right of reply.

B.  Relevant domestic law

1.  The Criminal Code

Article 205

“Any attack on an individual’s honour and reputation through words, gestures or other means shall be punishable by a prison sentence of between one month and two years or by payment of a fine.”

Article 206

“Any public statement or allegation concerning an individual which, if true, would render that individual liable to a criminal, administrative or disciplinary penalty or expose him or her to public opprobrium, shall be punishable by a prison sentence of between three months and one year or by payment of a fine.”

Article 207

“Evidence of the truth of such a statement or allegation shall be admissible where it was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation shall be deemed to have been committed.”

2.  The Civil Code

Article 998

“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”

 

Article 999

“Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.”

3.  The Code of Criminal Procedure

Article 15

“The victim of an offence may apply to join the proceedings as a civil party seeking damages against the defendant or the party with civil liability ...”

The civil action shall be exempt from stamp duty.”

Article 346

“In its decision to convict or acquit the defendant, the court shall also rule on any claims for damages.

When the defendant has been acquitted ... on the ground that one of the elements constituting the offence is lacking, the court may order compensation to be paid in accordance with the rules of civil law.”

4.  The Constitutional Court (Organisation and Operation) Act (Law no. 47/1992)

Section 23

“The Constitutional Court shall rule on objections raised before the courts relating to the constitutionality of a [government] law or decree or of a provision of a [government] law or decree which is in force and is decisive for the outcome of the case.

The objection may be raised by the court of its own motion or by one of the parties.

Provisions which have been found to be unconstitutional by an earlier decision of the Constitutional Court ... may not be the subject of an objection of unconstitutionality.

The Constitutional Court shall rule on an interlocutory decision by the court with which the objection of unconstitutionality was lodged ...

The proceedings before the court shall be stayed pending examination of the objection by the Constitutional Court.

If the objection is declared inadmissible because it does not fulfil the requirements of the first three paragraphs, the court shall dismiss it by means of a reasoned decision without referring it to the Constitutional Court.”

COMPLAINTS

1.  Relying on Article 10 of the Convention, the applicant complained that his conviction amounted to unjustified interference with his right to freedom of expression.

2.  He alleged that he had not had a fair trial before the Timiş County Court, in breach of Article 6 § 1 of the Convention. Firstly, he alleged that he had been convicted without having given evidence in person before the court. Secondly, he maintained that the decision not to refer his two objections of unconstitutionality to the Constitutional Court had infringed his right to a fair trial.

THE LAW

1.  The applicant alleged that his right to freedom of expression under Article 10 of the Convention had been violated. Article 10 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.”

The applicant submitted that his conviction had not been “necessary in a democratic society” as he had merely informed the public in good faith on a topic of general interest, namely the conduct of a politician who held an important post in local government.

The Court considers at the outset that the applicant’s criminal conviction and the order to pay compensation amounted to “interference” with his right to freedom of expression within the meaning of the first paragraph of Article 10 of the Convention. There can be no doubt, in the light of the domestic decisions, that such interference was “prescribed by law”, in the form of Articles 205 and 206 of the Criminal Code and Articles 998 and 999 of the Civil Code. It also pursued a legitimate aim, namely “the protection of the rights of others”, more specifically the reputation of Mr Gâtlan, the deputy prefect of Timiş county. It remains to be determined whether the interference was “necessary in a democratic society”.

The Court reiterates that the adjective “necessary”, within the meaning of Article 10 § 2 of the Convention, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision (see Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V).

In that connection, reference should be made to the Court’s settled case-law, according to which, in assessing whether there is a “pressing social need” which would warrant interference with the right to freedom of expression, a careful distinction must be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof.

It is true that, in the context of allegations concerning the conduct of a third party, it may sometimes be difficult to distinguish between statements of fact and value judgments. However, this does not alter the fact that when specific allegations are made about particular individuals a sufficient factual basis must exist for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II, and Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 98-101, ECHR 2004-XI).

Lastly, the Court reiterates that, by reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Radio France and Others v. France, no. 53984/00, § 37, ECHR 2004-II).

In the instant case, the Court observes that the impugned article related to a topic of general interest, namely the conduct of a deputy prefect, politician and senior local government official. The domestic courts found that, since they had not been made in good faith and lacked any factual basis, the applicant’s assertions that the deputy prefect had removed the mayor of a municipality from his post and had driven under the influence of alcohol, and also his use of the word “executioner” in relation to the deputy prefect, amounted to an attack on the latter’s reputation which justified the applicant’s conviction and the order to pay compensation.

The Court shares the view of the domestic courts that the first two assertions had no basis in fact. The removal from office of the mayor in question had been ordered by the prefect for reasons unrelated to the activities or conduct of the deputy prefect. The Court also notes that in the criminal proceedings arising out of the road traffic accident in which the deputy prefect was involved, it was never alleged that he had been driving while under the influence of alcohol.

Although the applicant maintained that he had acted in good faith, the Court observes that, despite having been aware of the prefect’s order concerning the removal of the mayor from office and of the decisions given in the aforementioned criminal proceedings, the applicant had nonetheless published the two impugned allegations, which were clearly contradicted by those documents. Consequently, like the domestic courts, the Court is not satisfied that the applicant acted in good faith.

As to the use of the word “executioner”, which refers to a person whose task is to apply torture or carry out the death penalty, the Court considers that, although it could be construed as a value judgment and despite the fact that the weekly review Academia Caţavencu is a satirical publication, it was liable to cause offence to the complainant, who had already been tried and found not guilty.

The Court does not therefore consider that this can be construed as the “degree of exaggeration” or “provocation” which are permissible in exercising journalistic freedom (see Dalban v. Romania [GC], no. 28114/95, § 49, ECHR 1999-VI). In its view, this is a case of misrepresentation of the facts without any basis in reality (see, mutatis mutandis, Constantinescu v. Romania, no. 28871/95, § 73, ECHR 2000-VIII).

The Court is therefore satisfied that the grounds relied on by the domestic courts in finding that the applicant had attacked the reputation of the deputy prefect, and in convicting him, were “relevant and sufficient”.

As to whether the impugned interference was proportionate, the Court observes that the applicant was ordered to pay a criminal fine. That in itself means that the measures taken against him were very serious. However, the Court notes that the fine was little more than a token amount, equivalent to 14 euros (EUR).

The Court also notes the modest amount of the damages (equivalent to EUR 298) which the applicant was ordered to pay jointly and severally with the weekly review.

Finally, the Court notes the exceedingly casual attitude adopted by the applicant during the criminal proceedings against him. The applicant showed a manifest lack of interest in the trial, attending neither the hearings before the Court of First Instance nor those before the County Court, despite being repeatedly summoned to appear and despite the warrant issued by the Court of First Instance ordering him to appear before it immediately (see, mutatis mutandis, Cumpănă and Mazăre, cited above, § 104). What is more, he did not attempt at any point to challenge the accusations made against him.

Having regard to the circumstances of the case, the Court considers that the applicant’s conviction was not disproportionate to the legitimate aim pursued. Accordingly, the impugned interference can be regarded as “necessary in a democratic society”.

It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.

2.  The applicant alleged that he had not had a fair trial before the County Court because he had been convicted in his absence and because the court had declined to refer two objections of unconstitutionality to the Constitutional Court. 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 and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Court notes that there are two separate parts to this complaint, which it will examine in turn.

A.  Conviction of the applicant in his absence

The applicant complained that he had been convicted by the Timiş County Court without evidence being heard from him in person. He referred to Constantinescu, cited above, in which the Court held that there had been a violation of the right to a fair trial on account of the infringement of the applicant’s right to have his evidence heard by the court during the hearing. Accordingly, he contended that there had also been a violation of Article 6 § 1 of the Convention in the instant case.

The Court reiterates 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, cited above, § 55).

However, unlike Constantinescu, in which no evidence was heard from the applicant despite his being present at the hearing, the Court reiterates that in the present case the applicant showed no interest whatsoever in the trial, failing to attend any of the hearings before the domestic courts.

Observing that the County Court did not act in breach of any internal procedure, the Court therefore considers that the fact that the applicant did not give any evidence before that court did not adversely affect the fairness of the proceedings.

It follows that the first part of the complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.

 

B.  Decision not to refer two objections of unconstitutionality to the Constitutional Court

The applicant complained of the fact that the Timiş County Court had dismissed two objections of unconstitutionality which he had requested it to refer to the Constitutional Court. According to the applicant, under the third paragraph of section 23 of Law no. 47/1992, the County Court had been obliged to take action on his first objection concerning Article 346 of the Code of Criminal Procedure, despite the fact that the Constitutional Court had already ruled on the constitutionality of that Article and had found it to be compatible with the Constitution. He further submitted that, in dismissing his second objection on the ground that it had already given a decision, the court had for the second time infringed his right of access to the Constitutional Court, since the second objection referred to a different provision, namely section 23 of Law no. 47/1992.

The Court observes, firstly, that the Convention does not guarantee, as such, any right to have a case referred by a domestic court to another national or international authority for a preliminary ruling.

It further draws attention to its case-law, according to which the right to have a preliminary question referred to a court cannot be absolute either, even where a particular field of law may be interpreted only by a court designated by statute and where the legislation concerned requires other courts to refer to that court, without reservation, all questions relating to that field. It is in accordance with the functioning of such a mechanism for the court to verify whether it is empowered or required to refer a preliminary question, first satisfying itself that the question must be answered before it can determine the case before it. However, it is not completely impossible that, in certain circumstances, refusal by a domestic court trying a case at final instance might infringe the principle of fair trial, as set forth in Article 6 § 1 of the Convention, in particular where such refusal appears arbitrary (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 114, ECHR 2000-VII, and Wynen and Centre hospitalier interrégional Edith-Cavell v. Belgium, no. 32576/96, § 41, ECHR 2002-VIII).

In the Court’s view, this does not apply in the instant case. The County Court took into account the applicant’s complaint concerning the constitutionality of Article 346 of the Code of Criminal Procedure and of his request to have the objection referred to the Constitutional Court. It subsequently delivered a decision giving sufficient grounds, finding that the Article had already been examined several times by the Constitutional Court, which had declared it on each occasion to be compatible with the Constitution. Further examination of the Article was therefore unlikely to achieve anything.

As regards the second objection raised by the applicant against section 23 of Law no. 47/1992, the Court notes that it did not relate to a provision on which the outcome of the case depended.

Admittedly, the fact that the court dismissed the first objection on the basis of the third paragraph of section 23 of Law no. 47/1992, and the second on the ground that it had already given a decision, could be regarded as an error of law, given that the section in question does not prohibit the referral to the Constitutional Court of objections which have already been examined by that court.

However, the Court reiterates that it is primarily for the national authorities, notably the courts, to interpret domestic law and that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the instant case, for the reasons outlined above, the Court cannot regard the decision not to refer as arbitrary and such as to infringe the principle of a fair hearing (see, mutatis mutandis, Dotta v. Italy (dec.), no. 38399/97, 7 September 1999, and Kefalas and Others v. Greece (dec.), no. 40051/02, 17 March 2005).

It follows that the second part of the complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

IVANCIUC v. ROMANIA DECISION


IVANCIUC v. ROMANIA DECISION