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THIRD
SECTION
DECISION
Application no.
14621/06
by Marin STĂNCIULESCU
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 22 November 2011 as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 11 February 2006,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Marin Stănciulescu, is a Romanian
national who was born in 1952 and lives in Piteşti.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
- The
applicant worked as a legal advisor to a private company, T. On
7 December 2001 his employer terminated his work contract on
disciplinary grounds. Before being signed by the general director,
the dismissal decision was also endorsed by another legal advisor,
namely M.N.
- The
applicant lodged a judicial complaint against the dismissal decision,
which he eventually won. During these proceedings, his former
employer was represented by M.N.
- When
the applicant found out that M.N. had acquired a criminal conviction
in 1996 for taking bribes while she was working as a public servant,
he started bringing up this issue on every available occasion, mainly
by making handwritten additions to various documents, such as his
employer’s register of visitors, copies of the decision to
terminate his employment contract, and so on, in which he wrote “no
convicted persons”, “convicted of taking bribes”,
“practising corruption”, “unworthy convict”
and other similar remarks. In the various submissions made by him in
the proceedings against his employer, he constantly referred to M.N.
in terms which included “notorious accused”, “notorious
criminal”, “convicted of taking bribes”, “deported
by citizens for corruption”, “not knowing anything”,
“citizen of doubtful morality”.
- On
1 October 2003, M.N. lodged a criminal complaint against the
applicant for defamation, also submitting a civil claim for
compensation for non-pecuniary damage. The case was referred to the
Piteşti District Court.
- In
his defence, the applicant argued that his employment contract had
been unlawfully terminated by the plaintiff and that he had been
forced to go to trial against a person not holding a law degree. He
further submitted that he had a legitimate interest in referring to
M.N. in this way and that in any event he could prove that the
statements he made were true.
- In
a first-instance judgment of 24 June 2004, the Piteşti District
Court found the applicant guilty of defamation and fined him
10,000,000 Romanian lei (ROL), approximately 246 euros (EUR). He
was also ordered to pay M.N. ROL 25,000,000, approximately EUR 615,
in compensation for non-pecuniary damage. The district court
indicated that it was applying the minimum sentence for defamation to
the applicant, considering that this sentence represented a
sufficient warning for him to cease making such remarks about the
plaintiff.
- The
district court found that the applicant had transferred the work
litigation to a personal level and attempted to discredit M.N. on
every available occasion. It looked at the various documents
submitted by the parties, in which he made the references to M.N. It
also noted that in the proceedings before it the applicant continued
to use the same expressions and words about M.N.
- As
regards the applicant’s claims that he had provided proof that
the statements were true, the district court noted that the applicant
had failed to show what was the legitimate interest in obsessively
repeating the statements, his only purpose being to cause distress to
M.N every time they met: at her workplace, in court, in the street
and even when she was with her family.
- The
applicant lodged an appeal, arguing that his statements were true and
that M.N. by her own conduct had subjected herself to public
contempt. The appeal was assigned to Hunedoara County Court. In a
hearing of 22 November 2005, the applicant raised a
constitutional challenge to Articles 206 and 207 of the Romanian
Criminal Code (CC). The county court postponed its ruling on whether
to refer the case to the Constitutional Court to 20 December
2005.
- The
Hunedoara County Court, in a decision of 20 December 2005 (drafted on
31 January 2006) dismissed his appeal. The county court concluded
that the facts were correctly determined by the district court and
that his argument that his statements were true was not valid, taking
into account that he failed to show a legitimate interest in making
those statements. It also took note that the applicant continued to
make the same remarks about M.N. even when in court for the review of
the criminal case against him.
B. Relevant domestic law and practice
- Article
206 of the CC, as in force at the time of events, was worded as
follows:
“Anyone who makes any statement or allegation in
public, by any means, concerning a particular person, which if true
would render that person liable to a criminal, administrative or
disciplinary penalty or expose them to public contempt shall be
liable to shall be imprisonment for between three months and three
years or to the payment of a fine ....”
- Article
207 of the CC read as follows:
“Evidence of the truth of such a statement or
allegation is admissible where the statement or allegation was made
in order to protect a legitimate interest. Where the truth of the
statement or allegation is proved, no offence of insult or defamation
will have been committed.”
- The
Constitutional Court, in a decision of 7 February 2002, dismissed a
plea of unconstitutionality of Articles 205-207 of the CC. In so
ruling, it decided that the possibility of providing evidence that
the impugned statements or allegations were true represented a
special circumstance for removing criminal liability. It concluded
that subjecting this test of truth to the condition that the
statements or allegations were made with a legitimate interest was
perfectly consistent with the Romanian Constitution, which provided
in its Article 30 § 6 that freedom of expression shall not cause
prejudice to the dignity, honour and private life of a person.
- Section
11 § 3 of Law no 47/1992 on the Organisation and Functioning of
the Constitutional Court (“the Constitutional Court Act”)
provides that decisions delivered by the Constitutional Court are
generally binding and effective for the future.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of
the Convention that the proceedings against him were not fair, as the
domestic courts lacked independence and impartiality.
- He
cited a violation of Article 10 of the Convention, as he had a
legitimate interest in proving that the person who endorsed the
decision to terminate his employment contract had been convicted of
corruption and lacked the moral standing to act as a legal advisor.
- He
complained under Article 13 of the Convention, that the Hunedoara
County Court did not refer the constitutionality challenge that he
had raised to the Constitutional Court and failed to take into
account his clear arguments in favour of acquitting him.
THE LAW
A. Complaints concerning the alleged unfairness of the
proceedings
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the criminal proceedings against him were unfair, as
the domestic courts lacked independence and impartiality, failed to
take due account of his arguments and did not refer his plea of
unconstitutionality to the Constitutional Court.
- The
Court finds that the above complaints fall to be examined primarily
under Article 6 § 1 of the Convention, since the requirements of
Article 13 are less strict than, and are absorbed by, those of
Article 6 (see, for example, Związek Nauczycielstwa Polskiego
v. Poland, no. 42049/98, § 43, ECHR 2004 IX).
- As
regards the complaint that the domestic courts lacked independence
and impartiality, the Court notes that the applicant did not
substantiate this allegation with any evidence. Moreover, there is no
element in the case file that could raise doubts as to the
independence and impartiality of the domestic courts which reviewed
the case against the applicant.
- As
to the complaint concerning the alleged failure of the domestic
courts to take into account the arguments raised by the applicant in
his defence, in so far as this complaint may be understood to concern
the result of the proceedings in the domestic courts, the Court
reiterates that it is not its function to deal with errors of fact or
law allegedly committed by a domestic 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, 29, ECHR 1999-I).
- Furthermore, the Court notes that the domestic courts,
in both the first-instance and the appeal proceedings, responded to
the arguments raised by the applicant in his defence, according to
which his statements were true. The domestic courts dismissed his
argument indicating that one of the conditions set by Article 207 of
the CC in order to remove criminal liability was not met, as he did
not pursue a legitimate interest in making the impugned statements.
Moreover, the Court notes that the applicant was given sufficient
opportunity to present his arguments and that those arguments, while
duly taken into account by the domestic courts, were nevertheless
rejected on the basis of reasoning which appears consistent and
devoid of arbitrariness (see Osmani and Others v. the former
Yugoslav Republic of Macedonia (dec.), no. 50841/99, ECHR
2001-X).
- As
regards the applicant’s complaint that the Hunedoara County
Court had not referred his objection of unconstitutionality to the
Constitutional Court, the Court observes at the outset that the
Constitutional Court examined previously similar objections of
unconstitutionality and declared the impugned provisions to be
compatible with the Constitution. It does not appear from the case
file that the applicant raised new arguments which had not already
been examined by the Constitutional Court. Further examination of the
Article was therefore unlikely to achieve anything (mutatis
mutandis, Ivanciuc v. Romania (dec.), no. 18624/03,
ECHR 2005 XI).
- 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.
B. Complaint under Article 10 of the Convention
- The
applicant complained under Article 10 of the Convention that he had
been convicted of defamation.
- The
Court notes at the outset that the applicant’s conviction for
defamation under Article 206 of the CC constituted interference by
the public authorities with his rights guaranteed under Article 10 of
the Convention; and that this interference was in accordance with the
law and pursued the legitimate aim of protecting Ms M.N.’s
reputation.
- It
remains to be determined whether in the circumstances of the present
case, a fair balance was struck between the protection of the
applicant’s freedom of expression and Ms M.N.’s
reputation, a right which, as an aspect of private life, is protected
by Article 8 of the Convention, (see Cumpǎnǎ and Mazǎre
v. Romania [GC], no. 33348/96, §§ 90-91,
ECHR 2004 XI, and Marchenko v. Ukraine, no.
4063/04, § 44, 19 February 2009). That provision may require the
adoption of positive measures designed to secure effective respect
for private life even in the sphere of relationships between
individuals (see Von Hannover v. Germany, no. 59320/00, §
57, ECHR 2004-VI, and Stubbings and Others v. the United Kingdom,
22 October 1996, §§ 61 62, Reports of
Judgments and Decisions 1996 IV).
- According
to the Court’s established case-law, it must therefore be
determined whether the interference complained of was proportionate
to the legitimate aim pursued and whether the reasons given by the
national authorities to justify it were relevant and sufficient. The
Court’s task is not to take the place of the national courts
but rather to review under Article 10, in the light of the case as a
whole, the decisions they have taken pursuant to their power of
appreciation (see Dalban v. Romania [GC], no. 28114/95, § 47,
ECHR 1999 VI).
In
cases in which the Court has had to balance the protection of private
life against freedom of expression, it has stressed the contribution
made by the impugned forms of expression to a debate of general
interest (for instance, Tammer v. Estonia, no. 41205/98, §§
66 and 68, ECHR 2001 I; Von Hannover, cited above, §
60; and Standard Verlags GmbH v. Austria (no. 2),
no. 21277/05 § 46, 4 June 2009).
- In
the instant case, the Court notes that the domestic courts examined
the content of the remarks made by the applicant in respect of M.N.
and the context in which they were made, and that they concluded that
those remarks were not made in pursuit of a legitimate interest. The
domestic courts established that those statements were made in the
context of a conflict which had arisen from the work litigation which
had set the applicant against his previous employer, and that they
were made with the sole intention of discrediting M.N. and subjecting
her to public contempt. The Court is satisfied that the applicant’s
remarks did not therefore form part of an open discussion of a matter
of public concern and that they did not involve the issue of freedom
of the press, since the applicant was acting as a private individual
(see, mutatis mutandis, Janowski v. Poland [GC],
no. 25716/94, § 32, ECHR 1999 I).
- Even
assuming that the applicant’s aim was to inform his employer
that M.N. had a previous criminal conviction, in order for his
employer to decide whether she had the necessary qualifications to
work as a legal advisor, the Court notes that such a disclosure
should be made in the first place to the person’s superior or
other competent authority or body. It is only where this is clearly
impracticable that the information could, as a last resort, be
disclosed to the public (see Guja v. Moldova [GC], no.
14277/04, § 73, 12 February 2008). Nevertheless, it appears
from the case file that the applicant made those remarks on every
available occasion, at the plaintiff’s workplace, in front of
the courts, in his written submissions to different courts and
authorities and that those remarks were neither legal arguments in
support of his work litigation nor official notifications signalling
a potential professional incompatibility.
- The
Court further notes that at the time of the events M.N. was not a
public figure or a politician but an ordinary person who had been the
subject of criminal proceedings in 1996 (see Schwabe v. Austria,
28 August 1992, § 32, Series A no. 242). At the time
of the events in question she was not a public servant and the
applicant’s remarks did not concern any unlawful act on her
part in the exercise of the legal-advisor job she had at the time.
The Court considers in this respect that her status as an ordinary
person enlarged the zone of interaction which may fall within the
scope of private life. The fact that she had been the subject of
criminal proceedings cannot deprive her of the protection of Article
8 (see Sciacca v. Italy, no. 50774/99, §§ 28-29,
ECHR 2005-I).
- Having
regard to the above considerations, the Court is satisfied that the
reasons advanced by the domestic courts were “relevant and
sufficient” for the purposes of paragraph 2 of Article 10 to
justify the interference with the applicant’s right to freedom
of expression. The latter could thus be reasonably considered
necessary in a democratic society for the protection of the
reputation or rights of others (see Böhm v. Germany
(dec.), no. 66357/01, 16 December 2003).
- In
reviewing the proportionality of the impugned measure, the Court also
needs to consider the severity of the punishment, that is the amount
of money payable by the applicant following his conviction. It
reiterates that under the Convention a criminal conviction or an
award of damages for defamation must bear a reasonable relationship
of proportionality to the injury to reputation suffered (see, inter
alia, Tolstoy Miloslavsky v. the United Kingdom,
13 July 1995, § 49, Series A no. 316-B). The
Court notes that the fine the applicant had been sentenced to pay,
amounting to approximately EUR 246, was targeted to the minimum
threshold set by the CC. It further considers that the civil damages
which the applicant was ordered to pay, amounting to approximately
EUR 615, could not be considered disproportionate, given the offences
he had been convicted of (see, mutatis mutandis, Metzger v.
Germany, (dec.), 56720/00, 17 November 2005).
- Consequently,
the Court is satisfied that the interference at issue was
proportionate to the legitimate aim pursued and that the reasons
adduced by the national courts to justify the interference were
relevant and sufficient.
- This
part of the application is therefore manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and
must be rejected pursuant to Article 35 § 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application
inadmissible.
Marialena Tsirli Josep
Casadevall Deputy Registrar President
