CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 novembre 2009

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page-break-after:avoid } .s576DFC5F { width:15.93pt; display:inline-block } .sFCD5FEAE { width:165.62pt; display:inline-block } .sAA5C5B93 { width:187.63pt; display:inline-block }       THIRD SECTION             CASE OF IEREMEIOV v. ROMANIA (No. 1)   (Application no. 75300/01)               JUDGMENT       STRASBOURG   24 November 2009   FINAL   24/02/2010   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. 1) , 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 1.     The case originated in an application (no. 75300/01) 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. 2.     The applicant was represented by Mr Dan Mihai, a lawyer practising in Bucharest and acting on behalf of the Association for the Defense of Human Rights in Romania – the Helsinki Committee (APADOR). The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that the criminal proceedings brought against him for defamation had been unfair 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. 4.     On 16 March 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 5.     The applicant was born in 1967 and lives in Timişoara. 6.     At the material time he was a journalist at the newspaper Ziua de Vest in Timişoara. 7.     On 16 June 2000 the applicant attended an official meeting between the prefect and representatives of the interns from the hospitals in the county who were on strike. Ms C.M.O., one of the interns' representatives, stated: “Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre.” 8.     On 19 June 2000 the newspaper Ziua de Vest published an article by the applicant. The relevant parts read as follows: “Scandal in the medical world in Timişoara Dr. [P.] accused of sexual harassment The president of the Interns Association in Timiş County, Dr [D.D.], says that 'Dr   [P.] behaves in certain ways that we all know' A medical intern from Timişoara, whose name we shall not yet make public, declared on Friday, in front of the prefect [L.B.], that the director of the Timiş Public Health Direction, Dr [P.], had attempted to sexually blackmail her. 'Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre' declared the intern. The president of the Interns Association in Timişoara, Dr [D.D.], declared that he had not known about this case of sexual harassment, which he learned of only at the meeting with the prefect. 'Dr   [P.] behaves in certain ways that we all know' said Dr [D.D.] ... Although we tried to get his comments on the accusations brought against him, Dr   [P.] was unavailable.” A photo of P. featured in the article. 9.     On 21 June 2000 P. lodged a criminal complaint for defamation against the applicant with Timişoara District Court. His complaint also concerned the company which published the newspaper. 10.     The District Court heard evidence from C.M.O., who admitted to having made the assertion reproduced by the applicant but denied having given her permission for its publication. The prefect also confirmed that an intern had accused P. of sexual aggression during the meeting. 11.     The applicant was heard by the court on two occasions. He pleaded not guilty and relied in his defence on his right to freedom of expression and the right to provide information about public figures. 12.     On 20 March 2001 the District Court gave judgment. It acquitted the applicant on the ground that he had not intended to denigrate P. It found that the expression “sexual harassment” had not harmed P.'s dignity as it was a stylistic choice by the applicant. 13.     Both parties appealed to the Timişoara County Court. On 18 May 2001 the court was addressed by the parties' counsels, who defended orally the grounds for their respective appeals. P.'s lawyer asked for the applicant's conviction. The applicant's lawyer and the company's representative requested that P. be compelled to pay court fees. The applicant was invited to speak only before the end of the hearing ( ultimul cuvânt al inculpatului ). In his address he asked that P.'s appeal be dismissed. 14.     The final decision was adopted on the same day. The County Court quashed the judgment of 20 March 2001, re-examined the evidence and found as follows: “[the journalist] did not confine himself to merely providing information about the criticisms [expressed against P.] but added his own appreciation, which went beyond [C.M.O.]'s statements. ... Through its title and content, the article contains untrue statements and allegations and personal appreciations by [the applicant] which, if true, would render the victim liable to a criminal penalty or expose him to public opprobrium. By publishing the victim's photo, and by presenting the information that a scandal had been caused in the Timişoara medical world by [P.]'s behaviour ... [the applicant] acted with intent to denigrate the victim, the article being manifestly defamatory. The words “sexual blackmail and sexual harassment” cannot be regarded as having stylistic and literary value when an individual's image, dignity and honour are at stake.” 15.     The County Court noted that a certain degree of aggressiveness was common in journalism. It therefore considered that, in the circumstances of the case, although the facts met the legal criteria to constitute the criminal offence of defamation, the acts perpetrated and their consequences were not severe enough to come within the sphere of criminal law. Consequently, it acquitted the applicant 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 publishing company, in respect of the prejudice caused to the victim. In consequence, it ordered the applicant and the company to pay ROL 5,000,000 to P. as compensation for non-pecuniary damage and ROL 2,000,000 for costs. Lastly, it ordered them to pay ROL 50,000 to the State in court fees. 16.     On 3 October 2001 the applicant paid the administrative fine. II.     RELEVANT DOMESTIC LAW 17.     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. 18.     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). 19.     However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal from the Criminal Code of the Articles on insult and defamation. 20.     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 a statement from the accused if the latter was not heard or if he or she was acquitted by the first-instance court (Articles 385 14   §   1 1 and 385 16 , as amended). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21.     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 22.     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 23.     The Government argued that the applicant had been heard by the first-instance court and had had an opportunity to put forward evidence in his defence. The appeal court had not been called on 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 the applicant's statement in order to establish whether he had intended to denigrate P. In any case, 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. 24.     The applicant claimed that the County Court's decision amounted to a quasi-conviction, as it found that he had committed a criminal offence, with the degree of guilt required by the criminal law. The only difference from a typical criminal conviction was that, in the view of the court, the facts perpetrated did not have the level of severity required for a criminal punishment to be imposed. He contended that, since the County Court delivered the decision on the same day as it held the hearings on the admissibility of the appeal, there had been no proper retrial on the merits. He had not been informed of the quashing of the District Court's judgment and had not therefore been allowed to prepare and present his defence before the County Court. 25.     Lastly, the applicant claimed that the outcome of the criminal trial against him had not been foreseeable, as two different courts reached opposing conclusions based on the same evidence. 2.     The Court's assessment 26.     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. 27.     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). 28.     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). 29.     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). 30.     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 the evidence without properly informing the interested parties and allowing them the opportunity to present their case. 31.     The failure to hear the accused in person is even more difficult to accommodate with the requirements of 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 an opportunity to present his defence. 32.     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 20 above). Nevertheless, those changes occurred in 2006 and thus remain without relevance for the instant case. 33.     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 34.     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 infringed his right to 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 35.     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 36.     The Government submitted 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. 37.     The applicant argued that he had been sanctioned for quoting in his article a statement made in public by another person and which concerned an issue of public interest. 2.     The Court's assessment 38.     The Court refers to the general principles established in its case-law concerning freedom of expression, in particular the protection afforded to journalists who cover matters of public concern and that afforded to civil servants' reputation (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)). 39.     It is not disputed between the parties that, in the case at hand, the County Court's decision of 18 May 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”. 40.     The Court notes that the domestic court imposed an administrative fine on the applicant for having denigrated P. and ordered him to pay compensation for non ‑ pecuniary damage. 41.     At the material time P. was the head of the Timiş Public Health Direction and as such a public figure. In the impugned article, the applicant reported on P.'s allegedly indecent behaviour towards an intern, based on accusations uttered in an official meeting in the context of a conflict between the interns and their administration, to which P. belonged. The information was related to P.'s public life and can be considered to be a matter of public concern, given, in particular, the power that P. seems to have exercised over the intern's posting. The Court therefore finds that, given the context and the seriousness of the allegations concerning P.'s behaviour, the article contributed to a debate of public interest. 42.     The domestic courts criticised the applicant for publishing P.'s photo and using the expressions “scandal in the medical world” and “sexual blackmail and sexual harassment”. 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 (see Dalban v. Romania [GC], no.   28114/95, § 49, ECHR   1999 ‑ VI). As for P., the facts of the case indicate that he refused to speak with the applicant. The Court also considers that publishing the photo of a public figure, in the context of an article reporting on his public life, cannot be regarded as overstepping the limits set by the Convention and the case-law on freedom of the press. 43.     The Court also notes that C.M.O. admitted to the first-instance court that she had made the accusations against the victim that were reproduced in the incriminated article. 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). 44.     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). 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 P. (see, a contrario , Stângu and Scutelnicu , cited above, § 51). 45.     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. 46.     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 47.     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. 48.     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 49.     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 50.     The applicant claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage caused by the allegedly unjust sanction imposed on him as the consequence of an unfair trial. 51.     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. 52.     The Court awards the applicant EUR 3,000 in respect of non ‑ pecuniary damage. B.     Costs and expenses 53.     The applicant also claimed EUR 4,665 for the costs and expenses incurred before the Court, of which EUR 50 were for correspondence and EUR   4,615 for lawyer's fees. A detailed description of the lawyer's fees is annexed to his observations and the applicant asked that it be paid directly to his representative. 54.     The Government considered that the applicant had not justified the correspondence costs and that the court fees sought by the representative were excessive. 55.     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, as well as to the complexity of the case, the Court considers it reasonable to award the sum of EUR 3,000 for the costs and expenses in the proceedings before the Court. C.     Default interest 56.     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 1.     Declares the complaints concerning Articles 6 § 1 and 10 of the Convention admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds that there has been a violation of Article 10 of the Convention;   4.     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 representative, within the same three months, EUR 3,000 (three thousand 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;   5.     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