CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 3 mars 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   164 3.3.2009   Press release issued by the Registrar   CHAMBER JUDGMENT BĂCANU AND SC “R” SA v. ROMANIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Băcanu and SC “R” SA v. Romania (application no. 4411/04).   The Court held unanimously that there had been:   a violation of Article 6 §§ 1 (right to a fair trial) and 3 (d) (right to obtain attendance and examination of witnesses) of the European Convention on Human Rights; and, a violation of Article 10 (liberty of expression) of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 8,150   euros   (EUR) in respect of pecuniary and non-pecuniary damage. ( The judgment is available only in French. )   1.     Principal facts   The applicants are Petre Mihai Băcanu, a Romanian national who was born in 1941 and lives in Bucharest, and the company “R” SA. Mr Băcanu is the editor of the national daily newspaper România liberă , published by “R”.   On 24 May 1999 Mr Nicolae Văcăroiu (N.V.), the Vice-president of the Social Democratic Party, former Prime Minister, Vice-president of the Senate at the material time and later President of the Senate, signed a contract with a businessman, Sorin Ovidiu Vântu (S.O.V.) concerning a plan to set up a new bank, the Bank for Investment and Development (“the bank”). The contract stipulated “ex gratia” remuneration of 10,800,000,000   old   Romanian   lei   (ROL) for N.V., the equivalent of about EUR   657,000.   On 31 January 2000 the national bank authorised the formation of the new bank. N.V. was appointed chairman of the board. Some media sources suggested that the bank’s capital had been formed with sums invested by savers in an investment fund that had gone bankrupt in May 2000.   Following the publication of a number of articles in România liberă , two sets of proceedings were brought by N.V. against its editor for criminal libel.   On 26 November 2001 Mr Băcanu published an article entitled “Văcăroiu got 10.8   billion from Vântu for no consideration”. On 3 December 2001 a further article was published referring to “links between a mafioso, the well-known businessman S.O.V. and a senior official of the Iliescu regime”. N.V. brought criminal proceedings against Mr Băcanu. The court authorised Mr Băcanu to submit written documents to corroborate his allegations but refused requests to summon a number of witnesses.   N.V. appealed against a judgment of March 2003 in which Mr Băcanu had been acquitted. In a final judgment of 10 September 2003 the court fined Mr Băcanu ROL   5 million, about EUR   130, in respect of which he received dispensation by means of a general pardon enacted by parliament. He was also ordered to pay in civil damages, jointly with “R”, ROL   50   million, about EUR   1,300, to make good the non-pecuniary damage sustained by N.V.   On 7 October 2002 Mr Băcanu published another article accompanied by a caricature of N.V. and excerpts from bank statements showing his salary as a director of the bank (about 10,000   US   dollars) and transfers of money from the new manager after he had left the board. Mr   Băcanu spoke of a sham salary, describing it as “protection money”, “bribery” and “corruption”, intended to secure protection for the bank and bring in new customers, and in particular companies controlled by the State at a time when the bank was on the verge of insolvency. N.V. brought criminal proceedings against Mr Băcanu, alleging that the article was part of a campaign against him led by România liberă .   At hearings in January and March 2003 requests by the applicants for witnesses to be examined were twice refused by the court. In its judgment the court held that the defamation was not sufficiently serious as to fall under the scope of the criminal law. Mr Băcanu and N.V. appealed. N.V.’s appeal was upheld. Mr Băcanu complained of the refusal to admit his evidence and of an infringement of his freedom of expression. His appeal was dismissed and he was fined ROL   20 million, about EUR   530. He was also ordered to pay in civil damages, jointly with “R”, ROL   70   million, about EUR   1,850, to make good the non-pecuniary damage sustained by N.V.   In 2005, following enforcement proceedings in which “R”‘s assets were attached, the applicant company paid N.V. the damages awarded, plus default interest and the execution costs.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 22 January 2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura-Sandström (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Alvina Gyulumyan (Armenia), Ineta Ziemele (Latvia), Luis López Guerra (Spain), judges , and also Stanley Naismith , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants relied on Article 6 §§ 1 (right to a fair trial) and 3 (d) (right to examine witnesses), complaining of the Romanian courts’ refusal to admit several pieces of evidence, and on Article 10 (freedom of expression), with regard to the criminal and civil orders made against them for libel following publication of the articles in România liberă .   Decision of the Court   Article 6 §§ 1 et 3 (d)   The Court noted that the applicants’ whole system of defence had been based on the evidence of witnesses given in open court subject to the rules of adversarial procedure, and that this defence had been hampered by the refusal throughout the proceedings to admit the evidence they wished to adduce, a refusal for which the courts had not given any satisfactory justification. The evidence concerned, in the Court’s opinion, might have contributed to the equality required in a trial between the prosecution and the defence.   In view of the importance of respecting the rights of the defence in criminal proceedings, the Court considered that the restriction of those rights in the present case had deprived Mr   Băcanu of a fair trial. It accordingly held that there had been a violation of Article 6 §§ 1 and 3 (d).   Article 10   The Court observed that, although it was frequently necessary to protect politicians from serious unfounded attacks, the limits of permissible criticism were wider in their respect than for private individuals, as they inevitably exposed themselves to public scrutiny. It further observed that the articles concerned N.V.’s acts as a senior political official, not his private life.   The Court noted that Mr Băcanu and “R” had played the role of “watchdog” which falls to the press in a democratic society, while acting in good faith and taking care to corroborate their allegations.   The Court found that the accusations of corruption against Senator N.V. had a factual basis, namely the role he had played when the bank was being set up. It further noted that these allegations were not deliberately defamatory but fell within the scope of press freedom, which included the possibility of recourse to a degree of exaggeration and even provocation.   The Court held that the court orders against the applicants had been disproportionate in relation to the legitimate aim pursued and that the national authorities had not given relevant reasons to justify them. There had therefore been a violation of Article 10.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.