CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 novembre 2013

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ROMANIA   (Application no. 45543/04)               JUDGMENT     STRASBOURG   19 November 2013   FINAL   19/02/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Someşan and Butiuc v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Corneliu Bîrsan,   Ján Šikuta,   Nona Tsotsoria,   Kristina Pardalos,   Johannes Silvis, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 22 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 45543/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two   Romanian nationals, Mr Claudiu-Horaţiu Someşan (“the first applicant”) and Ms Gina-Ioana Butiuc (“the second applicant”), on 30   November 2004. 2.     The applicants were represented by Mr A. Ş. Koloji, a lawyer practising in Oradea. The Romanian Government (“the Government”) were represented by their Agent, Mr R.-H. Radu, from the Ministry of Foreign Affairs. 3.     The applicants alleged a violation of their right to reputation guaranteed by Article 8 of the Convention. 4.     On 5 July 2010 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1969 and 1971 respectively and live in Oradea. 6.     The first applicant is a journalist, and at the time of the publication of the article which forms the object of the current application he was the editor in chief of the local newspaper Afaceri bihorene and was married to the second applicant. 7.     On 29 May 2002 another local newspaper, Bihoreanul , published on the front page and on several other pages an article entitled ‘Sex scandal involving VIPs’ son’ ( Scandal sexual cu fiu de VIP-uri ). The article referred to an extramarital relationship being conducted by the first applicant with a woman, D.M. The author, G.L., wrote that D.M. wanted to put an end to the relationship but that the applicants were harassing her. Details were given about an incident allegedly set up by the applicants to get the wife of C.I., the son of a football club director (the alleged VIP), to catch him cheating on her with D.M. Large photographs of the applicants and of D.M., as well as of all the other people mentioned in the article, were posted on each of the five pages of the article. 8.     The article contained banner headlines such as: ‘A scandal never seen   in Oradea! Because of the obsession with his lover developed by a well-known journalist from Oradea, C.I., the son of the technical director of the national football team, has now got to explain himself to his wife’ and ‘A marriage which started off on the right foot was placed in jeopardy by a rather bothered journalist’ posted under a photograph of the applicant. Another headline, which filled a whole page, read: ‘The son of E.I. fell victim to a flagrant set-up by a journalist obsessed with his former lover’. Under a photograph of the applicants was the caption: ‘The Someşans. She the cock, he the hen, together two eagles’. 9.   Under the title ‘D.[M.] on Claudiu [the first applicant]’ the following remarks were made about the applicant: “D. [M.] says about Claudiu that he is a weak person who doesn’t know what he wants. Because on the one hand he wants to escape from a failed marriage, and on the other, he stays stuck in it.” 10.     The article also included several statements from D.M. in quotes, the relevant parts reading as follows: “I told him not to get a divorce for my sake, but only to divorce if this is what he feels is right. So many terrible things have happened in his house. In the Someşan family, Gina [the second applicant] is the boss. Claudiu came to me several times with his back covered with bruises and scratches He told me that she beats him every time she gets angry. And she is the one he stayed with! And when I think that Gina called me once ... to tell me to go back to Claudiu, because he is suffering, and she does not want him to be in this state because of me. She said she did not want someone else’s leavings. I see that she has changed her mind now ... I fell in love with him. Maybe because I felt he was a captive in an unhappy marriage.” 11.     Under the title ‘Treatment for venereal diseases’ the article contained statements allegedly given by the first applicant but without quotes, as follows: “Claudiu claims that as a result of the sexual relationship he had with his former lover, D.[M.] he caught a venereal disease which he transmitted to his wife, and he had to pay ten million lei for treatment.” 12.     Under the title ‘Businessmen from Bihor...’ ( Afacerişti bihoreni ) it was mentioned: “Ex-reporter at Morning Journal until it was closed in 1994, Claudiu Someşan worked for a while at TVS. Accused of unfair competitive practices, because he produced his own advertising, he went back to his old editorial office. In 1999 he set up ... Afaceri Bihorene . The newspaper, whose editorial director he is, contains exclusively economic news and advertising articles, the type Someşan specialised in before ...” 13.     The applicants lodged a criminal complaint against both D.M. and the journalist G.L. for slander and defamation under Articles 205 and 206 of the Criminal Code. The applicants claimed that the article was published by a competitor publication in order to destroy the first applicant’s image and reputation and the reputation of his newspaper. They requested compensation for non-pecuniary damage in the amount of 500,000,000 Romanian lei. 14 .     On 12 May 2003 the Oradea District Court rejected the applicants’ complaint and their claim for damages. The court held that the journalist’s statement indicated that she had not intended to insult or defame the applicant, and had published only matters she had previously verified as fact in discussions with the applicant Claudiu Someşan, as well as with D.M. With respect to D.M., the court quoted relevant parts of her statement, from which it appeared that the journalist had contacted her to verify information allegedly obtained from Claudiu Someşan, and that everything she had told the journalist was true. 15 .     The applicants appealed against this decision before the Bihor County Court, and on 2 June 2004 their appeal was rejected and the judgment of the Oradea District Court was upheld. Judge M.A.C. joined a separate dissenting opinion to the judgment on the appeal, stating that the first-instance court had wrongly evaluated the evidence, and that the material published revealed the journalist’s intention to affect the reputation of the applicants, since the article did not make any positive contribution to society. The judge noted: “ ... the explicit scope of the article in question does not contribute to debate on a matter of public interest, but contains assertions concerning the private and family life of some individuals; this is targeting private individuals who do not hold public office, thereby overstepping the limit of tolerance allowed for politicians or those in public life ...” 16.     On an unknown date after the publication of the article the applicants divorced. II.     RELEVANT DOMESTIC LAW 17.     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 18.     Citing Articles 6 § 1, 8 and 10 of the Convention, the applicants complained that the publication of the article in question breached their right to reputation, which the domestic courts subsequently failed to protect. The Court reiterates that it is master of the characterisation to be given in law to the facts, and therefore notes that the complaint falls to be examined within the ambit of Article 8 of the Convention (see Timciuc , cited above, § 140). Article 8 of the Convention 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 19.     The Court notes that the application 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 20.     The applicants submitted that the article published on 29 May 2002 in the Bihoreanul newspaper made untrue and defamatory assertions about their private lives which damaged their reputations. In addition, when assessing their complaint the domestic courts had failed to take into consideration the fact that they were not in public life, and the allegations made in the article were not of public interest. 21.     The Government contended that the domestic courts had thoroughly assessed the applicants’ complaint and the other evidence available and, weighing the applicants’ right to protection of their private life against the right to freedom of expression, had given priority to the latter. 22.     The Court notes that the applicants did not complain about any action by the State, but rather that the State had failed to protect their reputation against interference by third parties. In this context the Court reiterates that, although the object of Article 8 is essentially that of protecting the individual 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 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, 13   February 2003 and Dickson v. the United Kingdom [GC], no. 44362/04, § 70, 4 December 2007). 23.     The Court considers that the present case engages the State’s positive obligations arising under Article 8 to ensure effective respect for the applicants’ private life, in particular their right to protect their 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, §§ 27-29 and 34-36, 14 October 2008; and Timciuc , cited above, § 143). 24.     The main issue in the present case is whether the State has, in the context of its positive obligations under Article 8, achieved a fair balance between the applicants’ right to protection of their reputation, which is an element of their ‘private life’, and the other party’s right to freedom of expression guaranteed by Article 10 of the Convention (see Von Hannover v. Germany , no. 59320/00, § 57, 24 June 2004, with further references and Pfeifer , cited above, § 38). The Court 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 balancing the right to freedom of expression against the right to respect for private life in the present case, the Court will take into account the following relevant criteria laid down in its case-law. 25.   An initial essential criterion is the contribution made by articles or photographs published in the press to a debate of general interest such as political issues, crimes, sporting or performing arts issues (see Von Hannover , cited above, § 60; White v. Sweden , no. 42435/02, § 29, 19 September 2006; and Axel Springer AG v. Germany [GC], no. 39954/08 , § 90, 7 February 2012, with further references). The rumoured marital problems of a president of the Republic or the financial difficulties of a famous singer were not deemed to be matters of general interest (see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009, and Hachette Filipacchi Associés (ICI PARIS) v. France , no. 12268/03, §   43, 23 July 2009). In addition, the Court has previously found no public interest justifying the publication of data concerning a person’s health or reference to her sexual life, which were held to be of a purely private nature and therefore fell within the protection of Article 8 of the Convention (see Biriuk v. Lithuania , no. 23373/03, §§ 39-42, 25 November 2008). 26.     In the current case, the article published on 29 May 2002 in the Bihoreanul newspaper was describing the extramarital relationship of a private newspaper editor, the first applicant, as well as his relationship with his wife, the second applicant, and included remarks about their health. The article also included lampooning statements about the applicants’ characters by the journalist, such as: ‘The Someşans. She the cock, he the hen, together two eagles’, or qualifying the first applicant as a bothered journalist who was ‘obsessed with his former lover’. The Court further observes that the domestic courts did not make any assessment at all as to whether the material published was of public interest, but focused on other aspects of the case, such as whether what was published was true, or whether there was an intention to defame the applicants. Even so, these aspects were not analysed in the general context of the case, but only in the light of the statement given by the journalist (see paragraph 14 above). 27.     The role or function of the person concerned and the nature of the activities that are the subject of the article constitute another important criterion, related to the preceding one. In that connection, the Court has previously held that a fundamental distinction needs to be made between reporting factual matters capable of contributing to debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions, with the sole aim of satisfying public curiosity (see Von Hannover , cited above, §§ 63 and 65, and Standard Verlags GmbH , cited above, §§ 47 and 53). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover , cited above, § 66, and Hachette Filipacchi Associés (ICI PARIS), cited above, § 40). 28.     The Court observes that the applicants in the present case are the editor in chief of a private local newspaper and his wife. It also notes that the domestic courts did not make any assessment which could lead to the conclusion that they were public figures, but confined themselves to quoting the journalist’s statement that the first applicant was a public figure. The domestic courts did not mention and did not assess in any way the situation of the second applicant. On this point, the Court notes the dissenting opinion of Judge M.A.C. from the Bihor County Court, who made an extensive analysis of the applicants’ situation and held that they could not be regarded as people in public life, and that it was not proved in the case that the matters publicised relating to them, even if true, were of public interest (see paragraph 15 above). 29.     There can be little doubt that the disputed article entailed particularly grievous prejudice to the applicants’ honour and reputations that was harmful to their psychological integrity and to their private life (see, mutatis mutandis , A. v. Norway , no. 28070/06, § 64, 9 April 2009, Mikolajová v.   Slovakia , no.   4479/03, § 55, 18 January 2011, and Roberts and Roberts v.   the United Kingdom , (dec.), no.   38681/08, §§ 40-41, 5 July 2011). Therefore, in view of the above, the Court is not convinced that the national courts attached the required importance to the questions whether the article contributed to a debate of general interest and whether the applicants should have been regarded as public figures. It is not the Court’s intention to speculate on the result of the domestic proceedings in the current case or on whether a person should have been convicted or not by the domestic courts. However, the Court considers that the national courts did not carefully balance the right of the journalist to freedom of expression against the right of the applicants to respect for their private life. 30. The foregoing considerations are sufficient to enable the Court to conclude that there has thereby been a violation of Article 8 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.     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 32.     The first applicant claimed 1,600 euros (EUR) in compensation for pecuniary damage, consisting of loss of income for the sixteen days that he could not work because he had to prepare and attend the trial before the domestic courts. In compensation for non-pecuniary damage the applicants claimed EUR 20,000, each submitting that the publication of the article in question had led to their divorce, and that their reputations had been irremediably damaged, as had their relationships with other persons. 33.     The Government submitted that there was no link between the alleged violation and the requested pecuniary damages. With respect to the non-pecuniary damages, they contended that the amounts claimed were excessive, and that the finding of a violation would constitute sufficient just satisfaction for the applicants in the current case. 34.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the failure to protect the applicants’ reputations against the defamatory article in issue must have caused them   feelings of distress. Making its assessment on an equitable basis, the   Court   awards each of the applicants EUR 4,500 in compensation for non-pecuniary damage. B.     Costs and expenses 35.     The first applicant also claimed EUR 375 for costs and expenses incurred for legal representation before the domestic courts, and EUR 2,000 for legal representation before the Court. The first applicant also claimed EUR 1,218.14 in interest in respect of the above-mentioned costs and expenses incurred. 36.     The Government requested the Court to dismiss the applicants’ claims as unsubstantiated, and in any event excessive and not linked to the alleged violation. 37.     According to 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 are reasonable as to quantum. In the present case, regard being had to the lack of relevant documents justifying the payment of the requested expenses and in the light of its case-law, the Court rejects this claim (see Alkaya v. Turkey , no.   42811/06, § 48, 9 October 2012). C.     Default interest 38.     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 application admissible;   2.     Holds that there has been a violation of Article 8 of the Convention;   3.     Holds (a)     that the respondent State is to pay each 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), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage; (b)     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;   4.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 19 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago Quesada   Josep Casadevall   Registrar   President