CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 31 août 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9C156EF7 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s76CF415B { page-break-before:always; clear:both } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE256019B { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5E34492 { width:18.86pt; display:inline-block } .sB2998F02 { width:154.72pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 37441/05 by Grigore PALADE against Romania The European Court of Human Rights (Third Section), sitting on 31   August 2010 as a Chamber composed of:   Josep Casadevall, President,   Elisabet Fura,   Corneliu Bîrsan,   Alvina Gyulumyan,   Egbert Myjer,   Ineta Ziemele,   Ann Power, judges, and Santiago Quesada, Section Registrar, Having regard to the above application lodged on 3 October 2005, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Grigore Palade, is a Romanian national who was born in 1963 and lives in Galaţi. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 13 June 2001 the applicant murdered G.C. in the latter's apartment, cut the victim's body into pieces and disposed of some of them in rubbish bins around the town. He was apprehended by police on 18 June 2001 while trying to leave the country. He was convicted of murder and sentenced by the first-instance court on 11   February 2003. The decision became final on 8 December 2004. 4.     Throughout the criminal trial against him and the proceedings complained of in the case at hand the applicant remained in detention. A.     The articles 5.     Between November 2001 and June 2003 a series of articles was published in the local newspaper Monitorul de Galaţi concerning the criminal trial against the applicant. The following articles were submitted by the applicant: –     “The Butcher 'Gogu' committed to trial” ( “Măcelarul 'Gogu', trimis în judecată” ), written on 10 November 2001 by C.S.; –     “The indictment of horror” ( “Rechizitoriul groazei” ) a detailed article written on 15   November 2001 by the same C.S.; –     “Gogu 'the Butcher''s trial postponed” ( “Procesul lui Gogu 'Măcelaru' a fost amânat” ) written on 1 February 2002 by the same C.S.; –     “Key-witness in Gogu the Butcher's trial” ( “Martor-cheie în procesul lui Gogu Măcelaru” ), written on 26 April 2002 by E.T.; –     “Gogu the Butcher is caught up in the victim's relatives' games” ( “Gogu Măcelaru este ţinut in şah de rudele victimei sale” ); written on 17   December 2002 by E.T.; –     “Gogu 'the Butcher' unhappy with his sentence” ( “Gogu 'Măcelaru' nemulţumit de pedapsa primită” ), written on 23 June 2003 by V.T. A photograph of the applicant's face accompanied the articles published on 15   November 2001 and 17   December 2002. 6.     V.T.'s article's introductory paragraph read as follows: “The [man] who, two years ago, had killed his friend, chopped his body into several pieces and spread his internal organs all around the town, appealed against the judgment by which he has been convicted to 19 years' imprisonment.” The article went on to reiterate the main facts of the case, the qualification given by the prosecutor to the crimes committed, the fact that “the [first-instance court] laid a distraint upon the applicant's apartment in order to secure payment of the compensation”, and that “the defence counsel had tried to lend weight to the idea that the applicant was not mentally responsible when he had committed the crime” ( “nu era în toate minţile” ) but that “the psychiatric expert evaluation the murderer underwent concluded that he had been responsible for his acts”. Lastly, V.T. reported on the first hearing in the appeal proceedings as follows: “... [The applicant] asked the judges ... to find that he had been provoked by the victim who, allegedly, had tried to kill him. This aspect does not justify the horror [the applicant] committed after ...” B.     The criminal complaint for defamation 7.     On 8 July 2003 the applicant filed a criminal complaint for defamation against Monitorul de Galaţi and its reporters, giving as an example the article published by V.T. on 23 June 2003. He sought 20,000   US Dollars in damages. He argued that he had been defamed by the name given to him “Gogu the Butcher” and by the mention of his alleged insanity, which had not been proven by any medical report. 8.     The Galaţi District Court held thirteen hearings in the case. At the hearing on 10 October 2003, upon the court's request, the applicant clarified his complaint as referring only to V.T. 9.     On 7 and 28 November 2003 the applicant requested legal aid, arguing that his financial situation was precarious. On 6 February 2004 the court dismissed his request as unfounded, after it carried out the necessary checks. 10.     On 7 May 2004 the applicant requested that other articles published about his criminal trial be adduced in the case. The court noted that the applicant was detained, considered that it was difficult for him to obtain evidence and therefore ordered the newspaper to produce copies of the other articles. 11.     The publisher informed the court that no other articles had been published. At the hearing on 1 October 2004 the applicant contested that information and asked the court for a new postponement in order to adduce copies of other relevant articles. However, the court noted that on 5 March 2004 the applicant had declared that he had not wished to present other evidence and that, in any case, he had had enough time, from the beginning of the proceedings, to produce copies of other articles he might have considered relevant. It therefore dismissed the request and proceeded to hearing evidence from the parties and the prosecutor, after which it withdrew for deliberations. 12.     The court delivered its judgment 15 October 2004. It acquitted the journalist on the grounds that he had not intended to insult or defame the applicant and that he had acted within the limits of his profession and based the article on court decisions which, in its opinion, constituted credible sources. The relevant parts of the judgment read as follows: “The facts [committed by the defendant] do not constitute the offence of insult or defamation, as the defendant did not act with the intention to commit such an offence. The defendant had the professional obligation to report on current issues of public concern ... Given the extreme gravity of the crime imputed to the victim, and its social consequences, the victim exposed himself to public disapproval ( oprobriu public ); the defendant did not intend to defame or insult the victim but rather to meet his obligation to inform the public about his acts. The defendant is a journalist and the victim used to work for a company that raised and processed poultry; therefore a certain degree of exaggeration in describing the victim in the title is acceptable. Furthermore, ... the defendant wrote that the victim had been mentally responsible for his acts and it is a well known fact that only a person that is mentally responsible may be convicted ... The court decision was an official and credible source for the defendant when he drafted the article; therefore it is obvious that by presenting the victim as mentally responsible for his acts, he had no intention of interfering with the victim's reputation.” 13.     The applicant appealed. Before the Galaţi County Court he complained about the acquittal and considered that his right to present his case adequately had been restricted as he had not benefited from legal aid. He did not request further evidence. 14.     In a final decision of 7 April 2005 the County Court upheld the first ‑ instance court decision. The County Court re-examined the facts and the evidence and concluded that the journalist had not intended to insult or defame the applicant and that the affirmations complained of were not capable of producing such consequences. It also considered that given the nature of the offence and the applicant's situation, he was capable of defending himself. COMPLAINTS 15.     The applicant complained that the press articles reporting on his trial had damaged his reputation and had presented an unbalanced image of him; the journalists had not taken into account the fact that for forty years, before committing the crime, he had been an honourable and respectable member of society, and that at the date of the facts he had had two minor children. 16.     He also complained about the fact that the District Court had refused to compel the newspaper to present the other articles written or to allow him to produce them. He further considered that his defence rights had been restricted in so far as he was not granted legal aid during the proceedings. 17.     The applicant relied on Articles 2, 3, 6 § 1 and 8 of the Convention. THE LAW A.     Alleged violation of Article 6 § 1 of the Convention 18.     The applicant complained about the fact that he had not had access to legal aid and that the courts had not heard all the relevant evidence. The Court considers that this complaint falls to be examined under Article 6 of the Convention, which reads as follows, in so far as relevant: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 19.     The Court notes at the outset that admissibility and assessment of evidence are primarily matters for regulation by national law and the national courts, and therefore 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). 20.     In the present case, 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. 21.     In particular, the applicant expressly limited his complaint to the article written on 23 June 2003 by V.T. (see paragraph 8 above). Furthermore, the Court concurs with the District Court's conclusion that the applicant had enough time from the beginning of the proceedings to present evidence. It also notes that before the County Court he did not request to adduce more evidence, notably the other press articles. Moreover, in the present proceedings the applicant had no difficulties in producing on time several other articles that he deemed defamatory. The Court is therefore satisfied that all the applicant's requests about evidence were duly taken into account by the domestic courts. 22.     As for the lack of legal aid, the Court notes that the case in itself was not complicated enough, either in law or on the facts, to require legal assistance (see, mutatis mutandis, McVicar v. the United Kingdom , no.   46311/99, § 55, ECHR 2002 ‑ III). Moreover, the applicant's complaint against the journalist was heard on the merits by two courts, which examined and answered all his requests. The refusal of legal aid thus only denied the applicant free assistance from a lawyer; it did not ipso facto prevent him from effectively pursuing his action (see Gnahoré v. France , no. 40031/98, §§ 39-41, ECHR   2000 ‑ IX). Lastly, the applicant failed to prove that he had suffered consequences serious enough to amount to a restriction of his right to access to court. 23.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B.     Alleged violation of Article 8 of the Convention 24.     The applicant complained that the press articles reporting on his trial had damaged his and his family's reputation. The Court considers that this complaint falls within the ambit of 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.” 25.     At the outset the Court notes that the applicant's family did not complain, either before the domestic courts of before it, about any alleged infringement of their Article 8 rights. Furthermore, it notes that the applicant narrowed the domestic examination of his complaint to the article published on 23   June 2003 by V.T. It therefore considers that the other articles could only be examined in so far as they provided a general view of the situation that the applicant was facing. 26.     The conclusion reached above, under Article 6 § 1, does not prevent the Court from taking into account the interests sought to be protected by Article 6 in the balancing exercise carried out below under Article 8, without, nevertheless substituting its own assessment for that of the domestic courts (see Mamère v. France , no. 12697/03, § 22, ECHR   2006 ‑ XIII; and A. v. Norway , no. 28070/06, § 47, 9 April 2009). 27.     The Court makes reference to the principles it has established in its recent case-law concerning the protection afforded by Article 8 to the right to a good reputation (see Karakó v. Hungary , no.   39311/05, §§ 17-26, 28   April 2009; Petrina v. Romania , no. 78060/01, §§   27-29 and 34-36, 14   October 2008; and A. , cited above, §§ 63-65) and to the Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers' Deputies). In particular, the Court reiterates that the applicant's right to "respect for his private life" under Article 8 has to be balanced against the public interest in freedom of expression, an interest in which journalists play a critical role as public watchdog. The Court also reiterates that there is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the forum for the determination of a person's guilt or innocence on a criminal charge, this does not mean that there can be no prior or contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large. However, the limits of permissible comment on pending criminal proceedings may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of justice (see Worm v. Austria , 29   August 1997, § 50, Reports of Judgments and Decisions 1997 ‑ V, and News Verlags GmbH & Co.KG v.   Austria , no. 31457/96, § 56, ECHR 2000 ‑ I). 28.     In the case at hand, the Court notes that the incriminated article was one of a series of reports in the local newspaper about the applicant's trial. As the domestic courts pointed out, the acts that the applicant was accused of were very grave. The Court is thus persuaded that the local community, to which the newspaper was addressed, was interested in and concerned about the facts and the trial (see, a contrario , Radio France and Others v.   France , no.   53984/00, § 39, ECHR   2004 ‑ II). Moreover, the article reflected strictly on the trial, used the first-instance court decision as a source and made no specific reference to any aspect of the applicant's private life as such (see, a contrario , A. , cited above, § 70 and, mutatis   mutandis , Saygılı and Others v. Turkey , no. 19353/03, § 37, 8 January 2008). Furthermore the applicant's photograph was not published at that time and, even on the occasions when it was published, did not disclose any details of his private life (see, mutatis mutandis , News Verlags GmbH & Co.KG , cited above, § 54). 29.     Lastly, the Court reiterates that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 56, ECHR 2007 ‑ XI). In this light, it finds no manifestly insulting language in the remarks about the applicant (see Mamère , cited above, §   25). 30.     As for the reasons given by the domestic courts in their decisions, it notes that, by means of a trial that met the requirements of Article 6, they examined the content of the article and concluded that the journalist had written it without any intention to defame or insult the applicant. The Court notes that the article did nothing more than describe the first-instance decision and present the applicant's appeal arguments. As for the affirmations specifically identified by the applicant as defamatory, the Court is satisfied that the domestic court's decisions revealed that a factual basis had existed: the applicant had been earlier working as a butcher, and his mental responsibility for his acts was asserted by the first-instance court at that time. 31.     The Court also notes that, on this point, the present case differs significantly from Petrina , where the domestic courts did not examine in depth either the content of the impugned article or the journalist's attitude (see Petrina , cited above, § 8) and the Court concluded that the allegations had no factual basis (idem, § 50). 32.     In the light of the above, the Court concludes that the domestic courts adduced “relevant and sufficient” reasons to justify their decisions and thus struck a fair balance between the journalists' freedom of expression under Article 10 and the applicant's right to have his honour, reputation and privacy respected under Article 8. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. C.     Other alleged violations 33.     Lastly, the Court notes that the applicant invoked Articles 2 and 3 of the Convention, without giving any indication as to the violations alleged. 34.     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 Articles 2 and 3 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President