CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 avril 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sC9AE5FA8 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } 321 20.04.2010   Press release issued by the Registrar   Chamber judgment [1] Cârlan v. Romania (application no. 34828/02)   THE CONVICTION OF A MEMBER OF IAŞI MUNICIPAL COUNCIL FOR DEFAMATION FOLLOWING VIGOROUS CRITICISM OF THE TOWN’S MAYOR IN 1998   BREACHED HIS RIGHT TO FREEDOM OF EXPRESSION   No violation of Article 6 § 1 ( right to a fair trial) Violation of Article 10 (freedom of expression) of the European Convention on Human Rights     Principal facts   The applicant, Mr Dan Cârlan, is a Romanian national who was born in 1961 and lives in Iaşi (Romania). In 1998 he was a municipal councillor in Iaşi and a member of the opposition. In that capacity he and other council members formed a commission to review the situation regarding commercial properties managed by the mayor’s office. On 8 May 1998 the applicant staged a press conference at which he stated that “... if a commercial property Mafia exists, it is headed by the mayor himself; mayor C.S. is at the apex of the pyramid of unlawful dealings.” On 11 May 1998 the commission published its report, finding a number of irregularities. On 15 May 1998 Mr Cârlan stated at a second press conference that the mayor had “not abided by the provisions of the law” applicable to the designation of properties for commercial use. At the applicant’s request the police carried out an investigation, which partly endorsed the findings of the commission’s report. However, the prosecuting authorities closed the case in 2001. The supervisory unit attached to the Prime Minister’s Office also conducted an investigation; while it disagreed with most of the commission’s conclusions, it nevertheless found that some irregularities had occurred.   On 11 June 1998 the mayor brought an action for defamation against Mr Cârlan. On 8   May   2001 the Iaşi District Court ordered the applicant to pay a criminal fine of 10   million   lei   (ROL) solely on account of the remarks made on 8 May 1998. The court based its decision in particular on the fact that, although he had submitted evidence to the court in that connection, the applicant had not expressly stated that he wished to prove the truth of his assertions. The court further held that it did not have jurisdiction to rule on the lawfulness of the mayor’s actions. In a final judgment of 7 March 2002 the Iaşi County Court dismissed an appeal by Mr Cârlan. It allowed the appeal lodged by the mayor and ordered the applicant to pay the latter ROL 60 million in damages in addition to the criminal fine. The applicant had specified before the County Court that the evidence he had produced was aimed at proving the truth of his statements. The County Court likewise held that it did not have jurisdiction to rule on the alleged unlawfulness of the mayor’s actions, but nevertheless examined the evidence submitted by the applicant and held that the latter had failed to prove the truth of his allegations. Mr Cârlan’s conviction was entered in the criminal records.     Complaints, procedure and composition of the Court   Relying on Article 6 § 1, Mr Cârlan complained of the refusal of the courts to take account of his main defence in the form of evidence demonstrating the truth of the statements for which he was convicted. Under Article 10 he alleged that his criminal conviction and the award of damages against him had breached his right to freedom of expression.   The application was lodged with the European Court of Human Rights on 6   September   2002.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Alvina Gyulumyan (Armenia), Egbert Myjer (Netherlands), Luis López Guerra (Spain), judges , and Santiago Quesada , Section Registrar .     Decision of the Court   Complaint concerning the fairness of the proceedings (Article 6 § 1)   Article 6 § 1 required courts to give reasons for their decisions. In Mr Cârlan’s case the Court accepted that the national courts hearing the case had responded only indirectly to the applicant’s wish to adduce evidence proving the truth of his assertions. The Iaşi District Court had adopted a very formalist approach in finding that Mr Cârlan had not expressly requested that the evidence be taken, although he had done so in substance. However, despite initially stating that it did not have jurisdiction on this point, the County Court had nevertheless gone on to examine the applicant’s evidence, concluding that the latter had not succeeded in proving the truth of his allegations. The applicant’s defence arguments had therefore been taken into account.   Accordingly, the Court held that there had been no violation of Article 6 § 1.   Complaint concerning freedom of expression (Article 10)   The Court began by pointing to its case-law, according to which the fact of describing a mayor’s actions as unlawful, expressing a personal opinion of a legal nature, amounted to a value judgment and should be analysed as such. Although the truth of value judgments was not susceptible of proof, the applicant had been asked to furnish such proof and had been convicted on the basis that no competent authority had expressly found the actions of which he accused the mayor to have been unlawful.   The Court went on to observe that the impugned remarks had had a sufficiently substantiated factual basis (two investigations and a report) and had been made in the context of a press conference on a subject of undoubted public interest (the designation of property for commercial use).   Furthermore, unlike the Romanian courts, the Court took the view that the manner in which Mr Cârlan had planned the two press conferences, timed to coincide with the publication of the commission’s report, meant that he had made the impugned remarks in his capacity as a municipal councillor, a member of the opposition and a member of the above-mentioned commission. While precious to all, freedom of expression was particularly important for political parties and their active members.   Conversely, the limits of acceptable criticism were wider with regard to politicians as such (like the mayor in the present case) than with regard to private individuals; the former inevitably and knowingly laid themselves open to close scrutiny of their every word and deed by both journalists and the public at large.   Taking all these factors into consideration, together with the amount of the fine imposed on Mr   Cârlan and the entry of his conviction in the criminal records, the Court took the view that the applicant’s conviction, while it had been prescribed by law and had pursued a legitimate aim (to protect the reputation and rights of others), had not been “necessary in a democratic society”.   The Court therefore held that there had been a violation of Article 10.   Article 41 (just satisfaction)   The applicant did not submit any claim for just satisfaction.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   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.