TIMCIUC v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
1. The applicant, Mr Constantin Timciuc, is a Romanian national who was born in 1956 and lives in Satu Mare. 2. The present application consists of complaints lodged at different times by the applicant, each complaint concerning individual sets of domestic proceedings in respect of which he addressed the Court. 3. 4. From 31 October 1996 the applicant occupied the post of director of the Administration of Markets in Satu Mare, an administrative body under the authority of the mayor. At that time the mayor of Satu Mare was H.A. The applicant was also working as a part-time legal advisor for the Satu Mare Town Hall. After his arrest (see paragraph 7 below), he was released from his duties as director by a decision of the Local Council of 24 April 2003 and was dismissed from the post of legal advisor by a decision of the Mayor's Office of 9 May 2003. 5. From 2002, a series of articles was published in Gazeta de Nord Vest (“GNV”), a local daily newspaper, in which the applicant and the mayor were accused of having accepted bribes in their professional capacity. 6. On 13 January 2003 at 6 a.m. two police officers paid the applicant a visit and invited him to the police station in order to make a statement. On the same day he was taken from Satu Mare to Bucharest along with other individuals and questioned through the night, concerning alleged acts of corruption. The mayor was also under investigation. 7. On 14 January 2003 in the morning the prosecutor issued an arrest warrant in connection with the crimes of accepting bribes over a period of time and abuse of office (“luare de mită în formă continuată” and “abuz în seviciu în dauna intereselor publice”). The applicant was released on 17 November 2003 by an order of the Oradea Court of Appeal. 8. Throughout the criminal investigations, several articles were published in GNV concerning the mayor's and the applicant's alleged acts of corruption. Most of the articles appeared in the gossip column entitled Gura Târgului, where petty facts about local public figures were published without mention of the author. The director of GNV explained to the courts dealing with the defamation claims brought by the applicant against the newspaper that those articles were the creation of all the editors, thus could not be attributed to a particular individual. 9. On 23 and 24 February 2005 the newspaper published a “note” claiming that it was as a result of its whistle blowing that the mayor and the applicant had been arrested. 10. On 22 September 2003 the Prosecutor's Office against Corruption (Parchetul Naţional Anticorupţie) decided to close the criminal proceedings concerning certain counts of bribery while nevertheless continuing them on other counts. 11. On 17 October 2003 the prosecutor committed the applicant, the former mayor and five other persons to trial on several counts of corruption during the mayor's mandate. The applicant was indicted for abuse of office and giving bribes (dare de mită). 12. The prosecutor noted that the applicant had occupied the post of director without the legal formalities - competition for the post, decision of the Local Council confirming the nomination - having been completed. It also noted that the post of legal advisor did not appear in the Town Hall's organisational chart, and that nobody in the local administration knew that the applicant was occupying it. 13. Furthermore, in 1999 the applicant and the mayor had agreed that the former would get his law degree in 2000 and that the latter would keep a legal advisor post blocked for him until then. In exchange, the applicant promised H.A. that he would convince his mother and uncle to sell the mayor a plot of land. On 14 March 2003 the mayor bought that land for a small price, which he never paid. 14. The prosecutor also noted that the applicant had leased a booth in the market to a company administered by him and owned by his son and another person, and paid for the repair of the booth from the local budget. 15. The Alba County Court examined the case and rendered its 79-page long decision on 28 February 2008. The court dismissed as unfounded the accusations that the applicant had occupied his two posts in the local administration unlawfully. The court also considered unfounded the allegations concerning the sale of land to the mayor; it found that the price paid corresponded to the quality of the land and to the prices in the area, and noted that the applicant had never owned the plot in question therefore could never have offered it as a bribe; it reiterated that as the applicant had occupied his posts in the administration lawfully there was no causal link between them and the impugned sale. Lastly, the court considered that the applicant had not broken any regulations when attributing the space in the market to his son's company. 16. The applicant and the co-defendants were acquitted on all counts. 17. The judgment was upheld, by a decision of 5 March 2009 of the Alba Iulia Court of Appeal, and by a final decision of 19 November 2009 of the High Court of Cassation and Justice (the latter decision was rendered upon an appeal on points of law lodged by the applicant and the codefendants). 18. I.C. published an article in the 20-26 August 2002 issue of the satirical weekly magazine Academia Caţavencu. The article mainly concerned the mayor's alleged dubious business practices, and in this context it touched upon the relationship between the mayor and the applicant. 19. The applicant complained about a statement in that article which read that he “was made chief of the Administration of Markets, from where meat, eggs, milk and wool rain on him every month” and that the mayor sold some booths in the market at double their value and shared the money with the applicant and another individual. 20. On 15 March 2004 the Satu Mare District Court acquitted the journalist and dismissed the applicant's claim for damages. It found that the article had been written in the habitual style of a satirical paper and that the fact that the applicant had been arrested and committed to trial afterwards was a good indication for the journalists that he might have committed the alleged offences. On this point, it noted that the applicant had been arrested based on the evidence in the prosecution's file, and not exclusively on that article, as he had argued in his complaint. Lastly, the court considered that the author of the article, through journalistic means, had aimed to make public certain negative aspects of the work of civil servants, and not to defame the applicant. 21. The journalist did not participate in the proceedings, despite several summonses being delivered to him by the police with an order to appear in court (mandat de aducere). 22. In a final decision of 11 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's reasoning and found, in addition, that the journalist had based his article on previously published material and on a press release issued by the Prosecutor's Office concerning the mayor and the applicant. 23. The applicant lodged his complaint with the Court on 20 September 2004. 24. On 27 November 2002 an article was published in GNV about the mayor's personal real estate acquisitions during his mandate, including the construction of a villa on land bought from the applicant. 25. The latter lodged a criminal complaint against V.M., the director of GNV. 26. V.M. did not participate in the trial. 27. On 13 December 2004 the Satu Mare District Court dismissed the criminal complaint and the civil claim for damages. It considered that even if the mayor had in fact bought that land from the applicant's mother, and not from the applicant himself, as the evidence proved, there was nothing defamatory in the impugned statement. 28. In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and added that the fact that V.M. had not participated in the trial and that he had refused to publish the applicant's comments (“dreptul la replică”) had no bearing on the case. It also dismissed the applicant's arguments of a violation of his right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, as it noted that in the case under examination he had not been accused of any criminal act. 29. The applicant lodged his complaint with the Court on 17 May 2005. 30. On 13 December 2002 F.C. published an article in GNV reporting on the sale of land by the applicant's mother to the mayor, which he described as a present from the applicant to the mayor in return for the applicant's post of director. 31. On 16 December 2002 the applicant made a criminal complaint against the journalist. 32. On 20 October 2005 the Satu Mare District Court acquitted F.C. and dismissed the civil claim for damages. On 20 January 2006 the Satu Mare County Court upheld the judgment, while nevertheless giving its own interpretation of the facts and evidence in the file. In particular, it noted that all the statements of fact made in the article were proven by the evidence in the file and that not even the applicant contested them. It considered that the following value judgments had been made: that the mayor had wanted a trustworthy person on his side; and that the applicant had paid the favour back by selling the plot of land to him. The court noted that F.C. had reported on matters of public interest and that a certain degree of exaggeration was acceptable. It also noted that he had acted in good faith and had not intended to defame the applicant. Lastly, the court pointed out that the applicant had in fact been sent to trial for acts of corruption concerning the sale of that plot of land. For all these reasons it acquitted the journalist. The court also rejected the civil claims for damages, as it considered that the applicant had not suffered any prejudice as a result of the publication. The decision was final. 33. The applicant complained to the Court on 28 June 2006. 34. On 9 January 2003 an article appeared in the “Gura târgului” column in GNV. The relevant parts read as follows: “Gura Târgului says that Timciuc would like to offer [the place in the market] to a favoured trader who would give him, probably as many others do, a present-fee (taxă tip cadou) of 500 euros. We do not know how this sum will appear in the balance sheets and we do not even think this will happen, but we would like to know for how much longer the traders in the market will keep the silence.” 35. The applicant lodged a criminal complaint against M.V. and D.C., director and editor-in-chief respectively of GNV at that time. 36. On 25 March 2004 the Satu Mare District Court considered that the information published was based on reliable sources and concerned acts presumably committed by the applicant; the information had been verified by the journalists before publication and their investigation was likely to have convinced them of its veracity. It also noted that shortly after, the applicant was arrested under the same suspicions. The court also considered that information on the applicant's activity was of interest to the public at the time. The journalists' intention had not been to defame the applicant but to bring those facts to public attention. It concluded that the journalists had not acted in bad faith. 37. In a final decision of 28 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's arguments and added that the fact that the applicant had later been released from custody and committed to trial only on certain counts did not have an incidence on the alleged offence of defamation committed though the publication of that article. 38. The applicant lodged his complaint with the Court on 20 September 2004. 39. On 6 January 2004 another article was published in GNV that the applicant found defamatory. On 27 September 2004 he lodged a criminal complaint against the director and the editor-in-chief of the newspaper. 40. On 13 December 2004 the Satu Mare District Court noted that the applicant had not respected the time-limit set by the Code of Criminal Procedure for lodging his complaint. It therefore ended the criminal proceedings. In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment. 41. The applicant lodged his complaint with the Court on 17 May 2005. 42. On 3 February 2004 the “Gura Târgului” column in GNV carried an article entitled “Murgul mânat de Costică” (“Murgul led by Costică”) in which it was alleged that the applicant had advised someone from the Administration of Markets on how to undermine the authority of the new director who had replaced the applicant in that function, and that the applicant himself was interested in undermining the new director. The applicant lodged a criminal complaint against the director of the newspaper. 43. On 13 May 2005 the Satu Mare District Court dismissed the complaint and the claim for damages. The court considered that it did not need to hear the defendant, who refused to participate in the trial. On the merits it found that the imputations were not serious enough to expose the applicant to a criminal sanction or to public contempt. It relied on the Court's case-law on Article 10, notably in order to ascertain the degree of exaggeration allowed to journalists. As the applicant's public image had not been damaged, the court dismissed the civil claims for damages. 44. In a final decision of 7 October 2005, the Satu Mare County Court dismissed the applicant's appeal. 45. The applicant lodged his complaint with the Court on 28 November 2005. 46. On 24 July 2004, another article was published in the “Gura Târgului” column in GNV, entitled “One more mogul to go” (“Cu un baron în plus”). The following remarks were made about the applicant: “Former chief of markets arrested and then released, having dirtied his hands with some 'dough' (fost pieţar şef arestat şi apoi eliberat... s-a murdărit pe mâini cu oareşce verzişori) ... complains that he is being politically persecuted. He crows wherever he can that all barons are free, but he is not. So, our man thinks he is so important that he acts as if he really were in the shoes of a mogul.” 47. The applicant lodged a criminal complaint against the director and the editor-in-chief of GNV. 48. On 16 December 2004 the Satu Mare District Court considered that the remarks in the article were not capable of defaming the applicant and the mention of his arrest and subsequent release did not expose him to any criminal consequence. 49. On 26 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and it added that the mere fact that the applicant had not been sent to trial for some of the crimes he was arrested in connection with was not enough to prove bad faith on the part of the journalists. It also noted that “Gura Târgului” was a satirical column in the newspaper where pieces were published concerning public figures from the county. The decision was final. 50. The applicant lodged his complaint with the Court on 15 August 2005. 51. On 14 November 2005 the applicant lodged a criminal complaint against G.N., who had declared in the context of a criminal trial involving the mayor and the journalist V.M. that he had heard that the applicant had requested bribes from the traders in the market. G.N. had repeated those affirmations to the press and on national TV. The applicant considered the remarks defamatory. 52. On 16 October 2006 the Satu Mare District Court noted that the offence of defamation had been decriminalised by Law no. 278/2006 amending the Criminal Code and acquitted G.N. Consequently, it did not decide on the civil claims for damages. 53. On 12 October 2006 the applicant sent a letter to the President of the District Court, asking him to order that the civil claims be decided. He considered that in choosing not to examine the civil claims, the court had denied him access to court, in violation of Article 6 of the Convention. His letter was considered to be an appeal against the judgment and was therefore sent to the county court for examination. 54. On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that while the criminal court was not competent to examine the civil claims, the applicant could lodge them with the civil courts. 55. It appears from the documents in the file that the applicant did not do so. However, after the Constitutional Court's decision nr. 62/2007 (see paragraph 97 from the “Relevant domestic law” part below), the applicant again brought an action for defamation against N.G. and sought damages. It seems that on 13 November 2006 the Satu Mare District Court acquitted G.N. because the act complained of was not punishable by the criminal law and the judgment was upheld on 12 January 2007 by the County Court. The applicant did not submit copies of those decisions to this Court. It appears that the applicant did not lodge a complaint with the civil courts. 56. The applicant submitted his complaint to the Court on 8 January 2007. 57. On 15 May 2006 the applicant filed a criminal complaint for defamation against the same G.N., whom he accused of having called him “dumb” (tâmpit) in his address to the court in a criminal trial where G.N. appeared as a witness. 58. On 13 November 2006 the Satu Mare District Court acquitted the defendant as the facts were no longer punishable by the criminal law. Accordingly it did not decide on the civil claims. The judgment was upheld on 26 January 2007 by the Satu Mare County Court. The applicant did not provide the full text of those decisions. It appears, however, that he did not seek damages with the civil courts. 59. On 15 February 2007 the applicant lodged his complaint with the Court. 60. The applicant complained in 2004 about several articles published in GNV which he found defamatory. He lodged his complaint against C.D., the director of the newspaper at that time. 61. On 16 October 2006 the Satu Mare District Court noted that defamation had been decriminalised by Law no. 278/2006 and therefore acquitted C.D. and left the civil claims unresolved. 62. On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that the applicant could have pursued the civil claims before a civil court, which he chose not to do. The decision was final. 63. On 8 January 2007 the applicant brought the complaint to the Court. 64. On 10 October 2002 the applicant lodged a criminal complaint against an expert accountant who had been appointed by the court in the criminal trial against the applicant to assess some investments made by the local authorities. 65. On an unspecified date the prosecutor dismissed the complaint. The applicant objected, but the courts upheld the prosecutor's decision. The final decision in the case was that of 1 October 2004 by the Satu Mare County Court. 66. The applicant did not provide information on whether he sought civil damages in the proceedings. 67. He lodged his complaint with the Court on 17 November 2004. 68. The applicant filed a criminal complaint against S.T., the current director of the Administration of Markets in Satu Mare, accusing him of several illegalities in his activity. On 27 February 2007 the Chief Prosecutor attached to the Satu Mare District Court upheld the prosecutor's decision not to prosecute S.T. The applicant complained to the courts, but his complaint was dismissed on 15 June 2007 by the Satu Mare District Court as out of time. The appeal was also rejected on 9 August 2007 by the County Court (final decision). 69. The applicant lodged his complaint with the Court on 15 September 2007. 70. G.N. and S.I. were witnesses in the criminal trial against the applicant. In the proceedings before the courts they withdrew the initial statements they had made to the prosecutor, which were unfavourable to the applicant. In the autumn of 2003, the applicant filed a criminal complaint of false testimony against them. It appears that on 7 February 2006 the prosecutor attached to the Satu Mare County Court decided not to prosecute and that his decision was upheld by the Prahova County Court in a final decision of 29 October 2007. The applicant did not submit copies of the court decisions delivered in the case. 71. He lodged his complaint with the Court on 15 January 2008. 72. On 10 October 2005 the applicant lodged a criminal complaint against three judges from the Satu Mare County Court. He accused them of having arrested him and extended his detention unlawfully and of having behaved abusively towards him, in the knowledge that he had not committed any crime. 73. On 21 February 2008 the prosecutor attached to the High Court of Cassation and Justice decided not to prosecute as he considered that the judges had not committed any of the alleged crimes. 74. The applicant objected and brought his case before the courts. 75. On 19 September 2008 the Oradea Court of Appeal upheld the prosecutor's decision, and on 12 December 2008 the High Court upheld the judgment (final decision). 76. The applicant lodged his complaint with the Court on 11 May 2009. 77. The applicant lodged a criminal complaint against V.M., who had allegedly threatened him with “physical correction” during a court hearing on 10 February 2005. The applicant claimed that he had understood this remark to be a threat that V.M. would beat him up. There is no indication in the file as to whether the applicant sought civil damages from V.M. 78. On 6 May 2005 the Negreşti Oaş District Court dismissed the complaint, as it considered that the deed committed by V.M. was not severe enough to create in the applicant a “legitimate and serious fear”, the element required in order for the deed to constitute the offence of threatening behaviour. It also noted that there was a preexisting conflict between the applicant and V.M. caused by the numerous criminal proceedings they were both involved in. 79. In a final decision delivered on 7 October 2005 the Satu Mare County Court upheld the judgment. 80. On 28 November 2005 the applicant lodged his complaint with the Court. 81. On an unspecified date, the applicant filed an action against the Mayor's Office, seeking reinstatement to his former positions: part-time legal advisor at the Town Hall and Director of the Administration of Markets, and payment of his salary for 13 January 2003 to 30 January 2006. 82. On 31 May 2006 the Satu Mare County Court noted that the administrative decision ordering the applicant's dismissal from the post of legal advisor was null and void as it had not been issued in conformity with the legal requirements. 83. However, it noted that during his preventive detention he was not entitled to receive a salary, and that for the damage allegedly suffered during that time he could lodge an action against the State for unlawful detention. Therefore he was not entitled to payment of his salary for that period. 84. The court also considered that from 17 November 2003, when he was released from detention, until 30 January 2006, when he lodged his present action, the applicant had been inactive and had not returned to work. Therefore, he was not entitled to payment of salary for that period. 85. Lastly, the court noted that the applicant had been released from the post of director by a decision of the Local Council of 24 April 2003 and that it was therefore for the administrative court to deal with that part of the request. 86. In sum, the court ordered the Mayor's Office to reinstate the applicant as legal advisor and to pay his salary from 30 January 2006 until effective reinstatement and sent his complaint seeking to be reinstated to his former position as director to the administrative section of the Satu Mare County Court. 87. On 11 October 2006 the Oradea Court of Appeal upheld the judgment, on appeals lodged by both parties. 88. On 7 November 2006 the applicant was reinstated as legal advisor by order of the Mayor's Office. 89. On 4 December 2006 the Oradea Court of Appeal ordered the Ministry of Finances to pay the applicant 500,000 Romanian Lei for illegal arrest and noted that the period spent in detention would count as time spent in work for the purposes of calculating the applicant's pension. 90. On 8 January 2007 the applicant lodged his complaint with the Court. He submitted no further information on the outcome of the case before the administrative courts. 91. On 20 July 2007 the applicant lodged a criminal complaint against I.I., the current mayor of Satu Mare, for abuse of office, accusing him of not having complied with the decisions ordering the applicant's reinstatement and payment of salary. 92. On 14 March 2007 the prosecutor attached to the Satu Mare District Court decided not to prosecute, noting that the mayor had appealed against the 31 May 2006 judgment ordering the reinstatement and that on 11 August 2006 the Oradea Court of Appeal had suspended the enforcement until the appeal had been examined. Therefore, I.I. had been right not to enforce the decisions. 93. On 27 April 2007 the chief prosecutor upheld the prosecutor's decision. The prosecutor's decisions were upheld by the District Court on 16 November 2007 and by the County Court in a final decision of 11 January 2008, with the same reasoning as that set out in the prosecutor's initial decision. The County Court also noted that on 7 November 2006, after the appeal proceedings had ended, the applicant had been reinstated. 94. The applicant lodged his complaint with the Court on 15 January 2008. 95. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008. 96. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (Law no. 278/2006; for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008). 97. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal of the Articles on insult and defamation from the Criminal Code.