CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 octobre 2022

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margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s53D4691F { width:35.23pt; display:inline-block } .s6B870CDD { width:153.11pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s38729B7C { font-family:Arial; font-size:8pt; font-weight:bold }   FOURTH SECTION CASE OF STANCU AND OTHERS v. ROMANIA (Application no. 22953/16)     JUDGMENT Art 10 • Freedom of expression • Civil sanctioning of editors and editing company of online publication for publishing defamatory article about the then vice-president of the High Council of the Judiciary and alleging the commission of a miscarriage of justice in her earlier role as a superior prosecutor • Absence of fundamental distinction in national judicial system between status of judges and prosecutors • Safeguarding impartiality, independence and authority of prosecutors’ decisions a key element for preserving confidence in the proper functioning of the national justice system • Measure pursuing legitimate aim of maintaining the authority of the judiciary • Impugned statements with a sufficient factual basis and within the wider acceptable limits of criticism in view of the public office held • Relevant yet insufficient reasons given • Sanction capable of having dissuasive effect on exercise of freedom of expression   STRASBOURG 18 October 2022 FINAL   18/01/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stancu and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Yonko Grozev , President, Tim Eicke, Krzysztof Wojtyczek , Faris Vehabović , Armen Harutyunyan , Pere Pastor Vilanova , Jolien Schukking , Judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application (no.   22953/16) 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, Ms   Adina-Isabella Stancu and Mr Ovidiu-Răzvan Savaliuc, and a Romanian company, Jurindex Media S.R.L. (“the applicants”), on 21 April 2016; the decision to give notice to the Romanian Government (“the Government”) of the application; the parties’ observations; the withdrawal from the case of Ms Iulia Motoc (Rule 28 §§ 2 and 3 of the Rules of Court), the judge elected in respect of Romania, and the appointment by the President of Mr Krzysztof Wojtyczek to sit as ad   hoc judge (Rule 29 §   1); Having deliberated in private on 17 December 2021 and 30 August 2022, Delivers the following judgment, which was adopted on that last-mentioned date: INTRODUCTION 1.     The applicants complained that the sentence imposed on them for a press article published in a publication they were editing breached their right to freedom of expression. They relied on Article 10 of the Convention. THE FACTS 2.     Ms Adina-Isabella Stancu (“the first applicant”) and Mr   Ovidiu ‑ Răzvan Savaliuc (“the second applicant”) were born in 1964 and 1967 respectively, and live in Bucharest. The company Jurindex Media S.R.L. (“the applicant company”) was created in 2010 and is registered in Bucharest. The applicants were represented by Mr C.L. Popescu, a lawyer practising in Bucharest. 3.     The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     The first two applicants are journalists and editors working for the online publication Lumea Justiţiei . The applicant company is the company which edits the publication. 6 .     According to a presentation published on its website, the publication describes itself as the only online daily newspaper in the country which covers the field of justice and “deals with the real problems” of the judicial system. The presentation further states that two years after its launch in 2010, the publication’s website had an average of 20,000 to 30,000 visitors per day, that the profile of its readers consists of people between the ages of 21 and 69 with legal or economic training, and that 60 per cent of those   visitors accessed the publication from State and private institutions, including the Ministry of   Justice, the Ministry of Finance and the Ministry of Administration and Interior. Background to the case The charges against N.T. and his committal for trial 7.     Between 5 November 2004 and 12 December 2005, N.T. was detained pending trial on charges of aggravated murder and attempted aggravated murder, because he had allegedly intentionally crashed his car into the car belonging to his girlfriend’s ex-boyfriend out of jealousy, and the latter person’s car, which was occupied by two other persons, had plunged into a river on impact. The driver of the car died and the two passengers survived. 8 .     On an unspecified date in 2005, a prosecutor attached to the Bacău Prosecutor’s Office, namely V.P., indicted N.T. on the charges of aggravated murder and attempted aggravated murder. N.T.’s indictment was confirmed by a superior prosecutor attached to the same prosecutor’s office, namely O.S.H., and the case was sent to trial. The judgment of the Bacău County Court 9 .     On 2 July 2008 the Bacău County Court acquitted N.T. of the charges brought against him. It held that as the three expert reports produced in the case could not confirm the existence of an impact between the two vehicles and the testimonial evidence was partly contradictory, N.T.’s guilt could not be established beyond reasonable doubt. In reaching that conclusion, the court took into account, inter alia , the following elements. 10 .     One of N.T.’s victims had stated before the court that she had informed the prosecutor of the fact that she had not herself recollected the events described in her statement. Nevertheless, the prosecutor had not made a written note of her disclaimer. 11.     During the first interview of the witness C.Z. – who was the only eyewitness close to the site of the crash and who had been interviewed four times at the investigation stage of the proceedings, including once during a reconstruction of the accident and once while being filmed –, the prosecutor had breached the procedural rules requiring that a parent of an under-age witness be present during the interview. C.Z.’s mother had assisted him only during his third interview. 12 .     According to C.Z.’s second statement (which had been filmed) and to the one made during the reconstruction of the accident (the fourth one), he had not seen the cars crash into each other but had only heard two thumps. His credibility was also doubtful because of the details he had known about the relationship between two of the victims of the incident and the defendant, and because of the fact that he was familiar with the defendant’s car, even though he had stated before the court that he had never seen the defendant before. 13.     The prosecutor had ignored the defence lawyer’s lawful request to be notified of the date of C.Z.’s third interview in order to be able to attend. In addition, C.Z. had not maintained before the court the statements he had made at the criminal investigation stage of the proceedings, because he stated that he had been insulted and threatened by the prosecutor and that he had given his first three statements in the absence of his mother, who had been brought in only to sign his third statement. C.Z. had also stated before the court that he had not seen the victim’s car before it had fallen into the river, that he had heard a thump and had not seen anything else, and that the distance between the bar and the bridge had been 300 metres. The witness had stated further that his statement before the court had been similar to the ones made during his first interview and during the reconstruction of the accident, and that the prosecutor had told him what to write in his first statement. 14 .     When examining C.Z.’s statements, the court noted that his statement before the court was the truth, since his statement made during the accident’s reconstruction corroborated his filmed statement where it could be seen that the witness had not stated that he had seen the defendant’s car hit the victim’s car. 15 .     Two expert reports had been produced at the criminal investigation stage of the proceeding. The first was produced by the I. Laboratory and concluded that the defendant’s car had had a single trace of dynamic friction on the rubber band of the left-hand side of the back bumper, whilst traces of an impact had been identified on the right-hand side of the back of the victim’s car. The court noted that the traces identified on the defendant’s car were not created by physical contact between the two cars, and that the infrared spectrometric analysis of a piece of the victim’s car’s back spoiler from the area presenting the traces of an impact had not revealed the presence of material from the defendant’s car’s front bumper. The statement in the act of indictment that this expert report had confirmed the impact between the two vehicles because traces of friction could be found on the defendant’s car was false, given that those traces were found on the back and not the front bumper of the defendant’s car, as would have been the case if it had hit the victim’s car. The second expert report produced at the investigation stage of the proceedings, and the only one incriminating the defendant, was produced by a specialist engineer and not by an authorised expert. The prosecutor had not relied on any special reasons explaining his need to use this specialist and not authorised experts. 16.     In these circumstances, the court could not rely on the conclusions of the second expert report. In addition, the court noted that because of the blatant contradictions between the two expert reports, which had not been clarified by the prosecutor ordering a third expert report as required by law, it had ordered other expert reports in order to determine the dynamics of the accident and whether there had been any physical contact between the two vehicles. 17 .     The expert reports had concluded that it could not be said that there had been any contact between the two vehicles before the traffic incident took place, and that it could not be established whether crashing into the deceased’s car could have caused the car to collide with the barrier and to fall in the river, since the time when and the place where the deceased had lost control and the extent of the manoeuvres he had performed were not known. 18 .     The court noted that it had to base its conviction about a defendant’s guilt on certain and clear evidence when delivering a guilty verdict. However, the evidence against the defendant was uncertain, indecisive, or incomplete, leaving room for doubt about his guilt, and therefore it had to apply the in dubio pro reo principle. Such principle was a matter of fact before it could become a matter of law. The court took the view that as long as a person’s guilt was still doubtful, even though as a matter of fact evidence had been adduced in support of prosecution and other evidence could not be envisaged or simply had not existed, then this doubt was “the equivalent of a positive proof of innocence” and therefore the defendant had to be acquitted. Further appeals against N.T.’s acquittal 19 .     On 16 December 2008 the Bacău Court of Appeal dismissed an appeal by the Bacău Prosecutor’s Office against the judgment of 2   July 2008 and upheld N.T.’s acquittal on the ground that the available evidence had not proven that he had committed the offence. The court reiterated most of the first-instance court’s reasons for acquitting N.T. (see paragraphs 9-10, 12-15, and 17-18 above). In addition, it noted that all the reasons mentioned in paragraphs 12-14 above proved that C.Z.’s statement at the investigation stage of the proceedings had been suggested to him. 20 .     By a final judgment of 11 June 2009, the High Court of Cassation and Justice dismissed as ill-founded an appeal on points of law by the Bacău Prosecutor’s Office against the judgment of 16 December 2008. N.T.’s criminal complaint against V.P. and O.S.H. 21 .     On 3 May 2012 N.T. lodged a criminal complaint against V.P. and O.S.H. (see paragraph 8 above) for serious abuse of office. He argued that the case prosecutor, V.P., had intentionally violated N.T.’s lawful rights by dismissing his requests for a confrontation with the witness C.Z. and for a new expert report to be produced in the case given the contradictory conclusions of the first two reports. 22.     N.T. argued further that his rights had also been violated because of the suffering and humiliation he had been subjected to as a result of his unlawful pre-trial detention and the false charges brought against him. Lastly, N.T. contended that O.S.H., in her position as superior prosecutor, had committed the offence in question because the above-mentioned violations of his rights had been evident and should have led to the act of indictment being invalidated in accordance with the relevant procedural rules. The confirmation of the act of indictment had made it possible for his case to be sent to trial and for a considerable amount of time to elapse before he could prove that he was innocent, even though that conclusion could already have been reached at the criminal investigation stage of the proceedings. 23 .     On 27 August 2012 the prosecutor’s office attached to the High Court of Cassation and Justice discontinued the criminal proceedings against V.P. and O.S.H. on the ground that the offence in question did not exist. It held that under the relevant national law, the assessment of the legal classification of the acts under investigation, the identity of the perpetrator and his or her guilt, the truthfulness of certain statements, and the factual circumstances reflected by the available evidence were within the exclusive jurisdiction of the judicial body seised of the case. The first-instance court had maintained N.T.’s pre-trial detention until a different factual situation had emerged because witnesses had changed their statements and new expert reports had been produced. 24 .     The prosecutor’s office further held that the first-instance court’s judgment had found that the evidence adduced had been insufficient to prove N.T.’s guilt, and not that no evidence had been adduced during the criminal investigation in the case. The fact that one of the witnesses had changed his statement and that the injured parties had modified their statements by citing memory problems and feelings of confusion as reasons for their previous statements, could not mean that the prosecutors accused by N.T. had in any way violated their professional obligations. 25 .     On 9 April 2013 the High Court of Cassation and Justice dismissed as ill-founded an appeal by N.T. against the decision of the prosecutor’s office of 27 August 2012. The article 26 .     On 2 August 2012 the journalist R.L. published an article in the publication Lumea Justiţiei concerning O.S.H., the superior prosecutor who had confirmed the indictment against N.T. (see paragraph 8 above). At the time O.S.H. was a prosecutor who was an elected member and vice-president of the High Council of the Judiciary ( Consiliul Superior al Magistraturii – “the CSM”), an independent body that seeks, among other things, to safeguard the independence of the judiciary and the independence, impartiality and professional reputation of individual judges or prosecutors, to contribute to the efficient organisation and functioning of courts and prosecutor’s offices and thereby to promote the efficient functioning of the justice system. 27 .     Under the headline “The CSM vice-president, [O.S.H.], fails to provide explanations for the serious miscarriage of justice [committed] by her – [O.S.H.] and the prosecutor [V.P.] indicted a student for murder, who remained in detention for 13 months but was acquitted because he was not the perpetrator. Find out [about] the prosecution’s abuses, noted by the judges in this case!”, the article read: “Lumeajustiţiei.ro has asked the [CSM]’s Press Department for an opinion from the CSM’s vice-president O.S.H. (photograph) with regard to the press article published on 29 July 2012 under the headline: ‘[O.S.H.] and the prosecutor [V.P. from Bacău] have pinned on a student a murder committed by someone else. The young man remained in detention for 13 months while innocent, as he was acquitted by all of the courts on the grounds that he was not the perpetrator. The judges noted the pressure [put] by the prosecutors on [the] witnesses’. Even though we have asked for written explanations through the CSM’s Press Department, so far [there has been] silence. [O.S.H.] was asked for her point of view given that in ... 2005, when she was a superior prosecutor attached to the Bacău Prosecutor’s Office ... she confirmed the act of indictment [produced by] prosecutor [V.P.], who committed reprehensible acts in order to send the student[‘s case] to trial on charges of aggravated murder which were noted by the judges of the Bacău Court of Appeal in decision no. 158 of 16 December 2008. Here are some of the prosecutor [V.P.]’s abuses which Lumeajustiţiei.ro has reminded the CSM’s vice-president, [O.S.H.] about, in the written request [made] to the Press Department. To remind the former superior prosecutor attached to the Bacău Prosecutor’s Office ... [O.S.H.] the abuses committed by her colleague [V.P.] and which she has endorsed, Lumeajustiţiei.ro has summarised certain passages [written] by the judges who have confirmed the acquittal [verdict] in decision no. 158 of 16 December 2008 of the Bacău Court of Appeal. We [should] mention that these passages have also been included in the request made to [the] CSM [asking] for an answer from [O.S.H.]: -     The hearing of the minor [C.Z.], to whom he told what to write, by using insults and threats of prison time ... He was a minor, and given the circumstances, the investigator did not ever ask him to attend the hearings accompanied by one of his parents. Instead of [C.Z.]’s parents, the initial statement was co-signed by an attesting witness [( martor asistent )] who could not be identified; -     The expert report by C.N., who was not an expert in the field. The prosecutor [V.P.] discarded the expert report produced by the [I.] ... Laboratory by holding that the [report] produced by C.N. was the lawfully adduced evidence and contained the correct content because it confirmed the impact between the vehicles, a statement which was completely false as established the Bacău County Court itself, but also the Bacău Court of Appeal [which] in the reasons for the judgment no. 158 of 16   December 2008 emphasised that: ‘the statement in the act of indictment that this expert report confirmed the impact between the two vehicles ... was false, given that traces were found on the back bumper and not on the left-hand side of the front bumper of the BMW, as would have been the case if it had hit the Dacia driven by the victim’; -     [N.T.]’s request for a new expert report to be produced at the criminal investigation stage [of the proceedings], which was rejected by the [prosecutor’s] order [...], but also the dismissal [of the request for a] confrontation with the minor witness [C.Z.], who afterwards retracted his statement. The conclusion of [N.T.]’s innocence could already have been reached at the criminal investigation stage [of the proceedings], if [O.S.H.] had checked and disputed [( infirmat )] prosecutor [V.P.]’s abuses. Because of the two prosecutors, [O.S.H.] and [V.P.], the 32-year-old N.T. from Bucharest, a graduate of Bucharest ... University, remained in detention for 13 months (charged with having intentionally crashed [his car] into the car of his girlfriend’s ex ‑ boyfriend out of jealousy, the [latter] having lost control of his car following the impact and plunged into a river). After years of trials, [N.T.] was acquitted at first instance ... [because] the offence was committed by a different person. The prosecutor’s office’s appeal and appeal on points of law were dismissed as ill ‑ founded, [and] thus the acquittal judgment of the judges of the Bacău County Court was upheld. On 3 May 2012, because of the ‘suffering caused by the unlawful detention’, [N.T.], the victim of this miscarriage of justice, lodged a complaint with the General Prosecutor’s Office against the two prosecutors, registered under [number] 8386, hoping for justice to be served. In his opinion both the ... [vice ‑ president] of the CSM [O.S.H.] and the prosecutor who had investigated the case [V.P.] were guilty ‘of actions that had clearly breached his rights conferred by criminal procedure norms as well as his fundamental right to a defence. Instead of the conclusion [of his innocence] being already reached at the criminal investigation stage [of the proceedings], the confirmation of the act of indictment made [it] possible [for his] indictment [to be filed] and [for] another considerable amount of time to elapse until [ he ] was able to prove his innocence’. Judgment no. 158 of the Bacău Court of Appeal [stated]: ‘If evidence does not exist, and doubt still persists with regard to [the existence of] guilt, then doubt is “the equivalent of a positive proof of innocence” and therefore the defendant must be acquitted.’ This is how the judges of the Bacău Court of Appeal reasoned decision no. 158 of 16   December 2008, in which they decided to dismiss as ill-founded the appeal of the prosecutor’s office, upholding the judgment of the first-instance court ... : ‘The witness C.Z. did not maintain the statements [given] at the criminal investigation [stage of the proceedings] before the court, stating that he had been insulted and threatened by the prosecutor, that his mother had not been present when [he had made] his first statement, and that his second statement had been likewise taken in the absence of his mother, who had been brought [in] to sign [it] after [it was taken]. The witness stated before the court that he had not seen the “Dacia” before it had fallen into the river, that he had heard a thump, that he had not seen anything else, and that the distance between the bar and the bridge had been 300 metres. He also stated that his statement before the court had been the same as the one given during his interview ... [at the scene], but the prosecutor had told him what to write in his statement. When examining witness [C.Z.]’s statements, the first-instance court noted that the statement which was made before the court represented the truth, given his statement [at the scene] which corroborated his filmed statement ... from which it can be seen that the witness did not state that he had seen the BMW car hit the “Dacia” driven by the victim [O.L.] ... Two expert reports were produced at the criminal investigation [stage of the proceedings]. The first produced by the [I. ...] Laboratory concluded that the BMW ... car had a single trace of dynamic friction on the rubber band of the left-hand side of the back bumper, whilst on the “Dacia’s” ... body the traces of an impact were identified on the right-hand side of the back [of the car] ... [The court] notes that the traces identified on the BMW ... car ... were not created by physical contact between this [car] and the Dacia car, and the infrared spectrometric analysis of a piece of the Dacia’s back spoiler from the area presenting the traces of an impact had not revealed the presence of material from which the BMW’s car’s rubber band on the front bumper was made. The statement in the act of indictment that this expert report confirmed the impact between the two vehicles because traces of friction could be found on the BMW car was false, given that the traces in question had been found on the back and not the front left bumper of the BMW, as would have been the case if it had hit the Dacia driven by the victim. The second expert report produced during the criminal investigation [stage of the proceedings], the only one incriminating the defendant, was produced by a specialist engineer, [C.N.], and not by an authorised expert ... and the prosecutor has not relied on any special reasons [explaining] why he had been forced to use this specialist and not authorised experts. In these circumstances, the court cannot rely on the conclusions of this expert report. Because of the blatant contradictions between the two expert reports ... other forensic expert reports had been ordered [in the case] with the aim of establishing the dynamics of the accident [and] whether there was any physical contact between the two vehicles ... The expert report[s] concluded that it could not be said that there was contact between the two vehicles before the traffic incident happened [and] it could not be established whether the crash into the Dacia car could have caused the impact with the barrier and the fall into the ... river, [because] the time [when] and the place where ... [O.L.] lost control ... and the extent of the manoeuvres performed by the Dacia car’s driver were unknown ... Given that the three expert reports produced in the case ... could not establish the existence of an impact between the two vehicles ... and that the testimonial evidence was partly contradictory, the court finds that the defendant’s guilt was not established beyond reasonable doubt. Given that in delivering a guilty verdict the court must base its conviction about a defendant’s guilt on certain and clear evidence and that in the [present] case the evidence against [the defendant] is not certain, decisive or is incomplete, leaving room for doubt about the defendant’s guilt, the first-instance court has correctly applied the in dubio pro reo ... principle. ...The in dubio pro reo principle is a matter of fact before it becomes a matter of law ... And [if] the doubt still persists with regard to [the existence of] guilt, even though [as a matter of] fact evidence was adduced in support of prosecution, and other evidence could not be envisaged or it simply did not exist, then the doubt is “the equivalent of a positive proof of innocence” and therefore the defendant must be acquitted.’ Why is [O.S.H.] not responding? How can litigants still believe that CSM will deliver justice in those cases where certain [officers of the court – ( magistraţi )] break the law, when a CSM manager is silent in the face of such a story? Lumeajustiţiei.ro has been waiting for four days for the response of the CSM vice ‑ president [O.S.H.] who is in the office and [is] not on leave. It should be mentioned that the CSM spokesperson, [M.P.], is on leave, but she has indicated [as follows] that she has sent the request directly to [O.S.H.]: ‘I have sent your request to the CSM vice-president, [O.S.H], and the response will be communicated to you through the Press Department’.” 28 .     The article included an attachment of the Bacău Court of Appeal’s judgment of 16 December 2008 (see paragraph 19 above), a photograph of O.S.H. set against the background of a CSM meeting, and a photograph of the first page of the act of indictment concerning N.T., showing that the superior prosecutor attached to the Bacău Prosecutor’s Office, O.S.H., had signed the act of indictment and endorsed it. 29 .     On 4, 9, 15, and 31 January 2013, four more articles were published in the publication Lumea Justiţiei concerning the same events, namely the N.T. case. All of these four articles were published in the context of O.S.H.’s election as president of the CSM in January 2013. Only the article of 9   January 2013 was written by the first two applicants. proceedings against the applicants O.S.H.’s submissions 30 .     On 1 March 2013 O.S.H. brought general tort law proceedings against the applicants seeking 60,000 euros (EUR) in respect of non ‑ pecuniary damage, the publication of the court’s judgment at the applicants’ expense in three national newspapers specified by her and in the publication Lumea Justiţiei , and costs and expenses. She argued that Lumea Justiţiei had organised a defamatory press campaign against her consisting of thirty-six articles which had breached her rights to respect for reputation, image, and honour and had sought to affect the image and credibility of the CSM. From 2   August 2012 to 25 February 2013 the applicants had written, published, and maintained the articles in question on the online platform Lumea Justiţiei , including the articles mentioned in paragraphs 26-29 above, which had disseminated untruthful, unproven, and distorted information, and had exceeded the limits of journalistic freedom of expression. 31.     O.S.H. argued further that the statements and accusations in the articles had been even more serious given that the publication portrayed itself as a good source of information on matters concerning the justice system. According to the presentation on its website, the publication was the most read website so far as this topic was concerned, which meant that the public considered the information provided by it to be credible. 32 .     The information conveyed to the public about the N.T. case had not correctly presented the procedure applicable in criminal cases because the publication had sought to present accusations which served its own personal interests. O.S.H. stated that she had clarified matters by responding to those accusations in an interview with the R. media outlet. 33 .     In that interview she had stated that she had not been the prosecutor investigating the case. Moreover, in her role as superior prosecutor she had had to check in accordance with Article 264 of the Code of Criminal Procedure whether the indictment was lawful and well founded. That meant that she had had to see whether the criminal procedure had been followed and whether the charges brought were supported by the evidence. She stated further that she had checked whether the evidence was lawful and well founded, and that at the time when she had conducted her review, the evidence had supported the charges that had been brought against N.T. Furthermore, it was the case prosecutor, and not her, who had asked the court to detain N.T. pending trial, and the court had granted that request because it had considered that there was sufficient evidence that N.T. had committed the offence. 34.     In the same vein of untruthful accusations, the articles in the publication had portrayed her as someone who had pressured and misused the anti-corruption institutions in the country. In addition, the applicants had induced the public to believe that she had had ties to the country’s President, T.B., in a context in which the public had been very sensitive to information about the influence that certain State institutions could have had on the CSM’s activities. The fact that that information had been circulated publicly even on the day of her election as CSM president was proof of the ill-intent behind the applicants’ actions, given that it was a tense ( tensionat ) situation, and that her election had been widely debated by the media. 35 .     The first two applicants had also endorsed the slanderous campaign organised by the publication during their appearances on shows broadcast by the A.3 television station. 36 .     Lastly, O.S.H. argued that the applicants had a duty as journalists to present information to the public correctly and not in accordance with their own personal interests or views because of the role of the CSM as the guarantor of the independence of the justice system. The Report from the European Commission to the European Parliament and the Council on progress in Romania under the Cooperation and Verification Mechanism of 30   January 2013 had emphasised that it was important for journalists to comply with that duty. 37.     However, the facts of her case had shown a serious violation of the legal, constitutional and ethical provisions applicable to those responsible for disseminating information. The applicants’ submissions and counterclaim 38 .     The applicants argued before the court, inter alia , that O.S.H.’s court action was a settling of scores and an attempt to silence them because she refused to accept that she could not be immune from criticism by the media. They contended that from 2010 to the spring of 2012, the first two applicants had had repeated contact with O.S.H., and that Lumea Justiţiei had published several positive articles about her and her projects which had helped her become first a CSM member and then a vice-president of that institution in January 2012. Nevertheless, O.S.H. had started behaving aggressively towards the publication, and also other journalists, after articles it had published in the spring and early summer of 2012 had criticised, inter alia , some of the benefits granted by the authorities to CSM members and its management, and the misuse of some of those benefits by O.S.H. and another CSM manager. 39 .     The second applicant and the applicant company also brought a counterclaim against O.S.H. seeking non-pecuniary damages because in a press article published on 26 July 2013 O.S.H. had stated that for approximately the last ten months she had been subjected to a media lynching which had sought to intimidate her and prevent her from doing her job. She had also stated that this had been done by the I. Group, who were using a website whose stories were then reproduced by the A.3 television station. O.S.H. had further stated that she had brought court proceedings against the S.Z. website, the I. Group and one other website that had been used for those acts. The applicants were of the opinion that the latter unnamed website that O.S.H. was referring to was Lumea Justiţiei . The first-instance court’s judgment 40 .     On 30 October 2014 the Bucharest County Court allowed O.S.H.’s action in part (see paragraph 30 above) and ordered the applicants to pay her EUR 5,000 in respect of non-pecuniary damage, and to publish the operative part of the judgment at their expense in the publication Lumea Justiţiei . In addition, the court allowed in part O.S.H.’s claim in respect of costs and expenses. The court dismissed the counterclaim brought by the second applicant and the applicant company (see paragraph 39 above) against O.S.H. 41 .     Relying on the relevant national and international norms, as well as the principles set out in the Court’s case-law concerning the criteria that need to be taken into account when balancing the right to freedom of expression against the right to private life, the court held that the publication had covered the CSM’s activities because it had an editorial profile focused on the justice system. The CSM was presided over by O.S.H. and, even though it received media attention in general, it had received special attention since the summer of 2012 because of in-house conflicts and the position of certain officers of the court. 42 .     The articles had concerned O.S.H.’s behaviour as prosecutor and CSM president, as well as matters connected to the manner in which the CSM had operated and interacted with other State institutions, including the country’s President. The articles had therefore debated matters of public interest, namely the manner in which the justice system worked and the moral probity of those called to protect it, and had concerned O.S.H., a public person and a high-ranking official. O.S.H. had received attention from the press before, given that Lumea Justiţiei had also published numerous articles favourable to her. 43.     The court held that the articles had consisted mostly of value judgments written in a journalistic fashion which had been supported by a sufficient factual basis. 44 .     The court held, however, that the five articles concerning O.S.H.’s behaviour as prosecutor in the N.T. case had to be distinguished from all the other articles in dispute. While the journalistic style and content of the latter had remained within the limits of the protection afforded by Article 10 of the Convention, the same thing could not have been said about the former. Those articles were capable of raising doubts about O.S.H.’s professional integrity in the mind of a reasonable, well-intentioned, disinterested, and informed observer, thus exceeding the limits of expression, mindful of the duty of discretion. 45.     The circumstances of the articles concerning the N.T. case were very specific because the applicants had presented the circumstances of that case, published the act of indictment, referred to the judgment of acquittal, and accused O.S.H. of having committed a miscarriage of justice. It was understandable that they had publicised the N.T. case in order to inform readers about O.S.H.’s professional integrity, given the context of the elections for CSM president and the existence of a sufficient factual basis. Moreover, according to one of the articles O.S.H. was given a chance to respond. 46 .     Nevertheless, the applicants had expressed value judgments in an excessive, unnecessarily offensive and ill-intentioned manner. The expressions and terminology used had portrayed O.S.H. as a prosecutor who had acted unlawfully by sending N.T. to prison, and this put the public in an emotional state of mind. It was true that the N.T. case had regrettably followed a certain path, and that the applicants had had a justification for publicising O.S.H.’s involvement in the case. However, this information could have been conveyed to the public in a fair manner that would have allowed the public to form its own opinion about O.S.H.’s behaviour. 47.     Even in the case of value judgments, freedom of expression had limits and those limits were closely connected to a journalist’s good faith. Identifying the limits of a journalist’s right to provoke and exaggerate was a delicate exercise because even the European Court of Human Rights’ approach when classifying certain journalistic language as acceptable or not appeared to be fluid. This was especially true given that the media had, on the one hand, the power to impart information and to suggest how it should be perceived and, on the other hand, the duty to not distort truthful and impartial information. 48 .     The court accepted O.S.H.’s arguments that the articles in question referred to both prosecutors (herself and V.P.) as being responsible for a miscarriage of justice, and that none of the articles had presented clearly to the public her responsibilities and her legal authority as a superior prosecutor. The court held that it could not ignore the fact that the applicants were familiar with the field because they published articles covering the legal field, and should have been aware of the limits of a superior prosecutor’s involvement in confirming an act of indictment and of the fact that his or her legal authority did not cover pre-trial detention. 49.     The excessive tone of the criticism directed at O.S.H. was unacceptable given that as a superior prosecutor, O.S.H. had not investigated the case directly and had not interviewed witnesses personally, and a judge had assessed the evidence and had decided that N.T.’s pre ‑ trial detention had been justified. The acquittal judgment published by the applicants could not support their argument that they had acted in good faith either. According to the judgment in question, N.T.’s acquittal had relied on the fact that some of the witnesses had changed their statements given at the criminal investigation stage of the proceedings and the fact that the available evidence had been insufficient to support a conviction. 50 .     The court emphasised that the articles had used words which had an impact on public opinion – such as “she has the destruction of an art student’s life on her conscience”, “remained in detention for 13   months while innocent, because of the prosecutors [V.P.] and [O.S.H.]”, “these are the human dramas caused by the [officers of the court] who do not know what they are doing or who are ill-intentioned”, or “despite this ‘miscarriage of justice’ [O.S.H.] was promoted staggeringly fast, being seconded for many years to governmental institutions, and recently ascending to become, from CSM vice-president, the first CSM president who had been a prosecutor. How can a person like that manage the Romanian justice system at its highest level? How can such a person judge the disciplinary actions concerning the errors of her other colleagues? We will let you decide how a person who has destroyed the destiny of an innocent young man can cling to the highest position in CSM, knowing the disaster she has left behind ...”. This had gone beyond mere value judgments and had emphasised the applicants’ bad faith, as they were familiar with the circumstances of the publicised case. Such bad faith was also illustrated by the articles’ reference to prosecutors who had influenced witnesses. That reference concerned O.S.H. directly as the perpetrator of the miscarriage of justice, even though she had not been the one interviewing the witnesses. 51.     The articles concerning the N.T. case suggested an intention to defame O.S.H. because they had accused her directly of having committed a miscarriage of justice, questioned her professional abilities and not left room for doubt, and the information had been presented incorrectly and with bias. 52 .     Even though they had included official documents concerning the N.T. case, and had relied on a sufficient factual basis, by blaming O.S.H. for breaking the law and failing in her professional duties, the articles had not been sufficiently reserved in their statements so as to make the information presented to the public sufficiently precise. Thus, the applicants had affected not only O.S.H.’s reputation, but had also undermined the public’s trust in the integrity of officers of the court in general. 53.     The applicants were jointly liable for the damage caused to O.S.H. because the first two applicants were the authors of the articles and the applicant company was the editor of the online publication which had published them. In accordance with the relevant domestic law, the owner of an in