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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
- The
applicant, Mr Grigore Palade, is a Romanian national who was born in
1963 and lives in Galaţi.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- 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.
- Throughout
the criminal trial against him and the proceedings complained of in
the case at hand the applicant remained in detention.
A. The articles
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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
- 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.
- 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.
- 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
- 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 ...”
- 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).
- 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.
- 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.
- 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.
- 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
- 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.”
- 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.
- 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).
- 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).
- 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).
- 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).
- 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.
- 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).
- 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
- Lastly,
the Court notes that the applicant invoked Articles 2 and 3 of the
Convention, without giving any indication as to the violations
alleged.
- 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
