OZON AND CANDEA v. ROMANIA
Inadmissible
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos
1. The applicants, Mr Vasile-Sorin Ozon and Mr Ștefan Candea, are Romanian nationals, who were born in 1969 and 1979 respectively and live in Timișoara and Bucharest respectively. The applicants were represented by Mr D. Costea, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr RăzvanHoraţiu Radu. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants, both investigative journalists, wrote a series of articles on the activities in Romania of certain individuals allegedly belonging to the Italian Mafia. The articles were edited by company E. and carried the headline “Italian Mafia – high-level connections in Romania” (Mafia italiană – legături la vârf în România). 4. The articles referred especially to P.B., who was alleged to have connections with the Italian Mafia and the Romanian political world. A Member of Parliament, C.N., was cited among the Romanian personalities mentioned as having connections with P.B. 5. One of the articles was published on 30 January 2002 in the national newspaper Evenimentul zilei. It was signed by the applicants and was worded as follows: “We had always said that in our country there were active groups belonging to international mafia organisations, but until now nothing had been proved by the national authorities. Evenimentul zilei reveals for the first time the highlevel connections between an Italian criminal organisation and Romania, connections worthy of a gangster film. There is, on the one side, the organisation Cosa Nostra and on the other side the Romanian politicians and civil servants. In the middle there is a mysterious person, P.B. He is connected to persons with important positions in Cosa Nostra and in our country; he has connections at the highest level ... The investigations carried out by the Romanian and Italian police, as well as our own research, have revealed that P.B. has many connections, including former and current high and local officials and businessmen: ... C.N., former export manager at R.B. before the 1990s and former manager of the Predeal State Protocol, and B.T.T., a current Member of Parliament ... and well-known businessman who owns four companies and is a shareholder in two other companies ... We spoke with those who, according to our information, have connections with P.B., asking them questions about their trips to Italy and their relationship with P.B. ... C.N.: I have not seen M.B. [P.B.] since 1995-96, when he came to see me. I know that there were discussions about going to Italy, but I did not participate. We were supposed to go to visit a certain plant, but I did not go. I did not get involved with M.B. in any business. We just talked. I met him in Brașov through an intermediary of the director of the newspaper Gazeta de Transilvania, H. He was, in general, on good terms with M. and P. and those from Brașov. They should know more. I saw him once or twice in Brașov and once in Bucharest. He knew many businessmen from Brașov. I know that he had a closer relationship with H., who was also a shareholder in bank A. B. was on good terms with the group that invested in bank A. P.B.: I was not really involved with the parliamentarian C.N.” 6. That article was accompanied by a diagram showing the organisation and functioning of the Sicilian Mafia. The name P.B. was in the middle, surrounded by the names of those alleged to have connections with him. The name C.N. appeared at the perimeter. 7. On 13 February 2002, another article headlined “Deputy has businesses worth sixteen billion lei” was published in the same newspaper. It was signed with the initials “C.O. & S.C.” and carried the subheading “C.N., a rich parliamentarian”. It was worded as follows: “C.N., someone that knew P.B. who is associated with the Mafia, has a prosperous life. Exactly two weeks ago, Evenimentul zilei started writing every day about the infiltration of the Italian Mafia in Romania and its high-level connections. With the exception of the Romanian police, who started meticulously investigating certain companies but without releasing any information in that respect, nobody has done anything to bring this scandal to light. The activity of Cosa Nostra in Italy is probably not of interest to Romanians. Nevertheless, the activity of the members of this organisation and their contacts in Romania are of major interest. For this reason it is necessary to reveal P.B.’s connections in Romania. Evenimentul zilei has shown that B. [P.B.], who helped members of Cosa Nostra with money-laundering activities in Romania, had connections with important persons in Romania, the most important being ... G.F. There were also other important persons on the list with P.B. about whom we will inform you later. We refer to R.M. ..., C.N. ..., H.F. and C.C. .... We will later reveal two of the most senior figures that know P.B. They are in important positions and one of them has businesses worth a great deal ...”. 8. On 15 February 2002 C.N. lodged a criminal complaint of defamation with the Brașov District Court against the applicants and the company E. that had published the articles. He alleged that the newspaper Evenimentul zilei had launched a press campaign seeking to denigrate him and that the articles contained unfounded accusations about his activities. He joined to the proceedings a civil claim for compensation in respect of nonpecuniary damage, amounting to 5,000,000,000 lei Romanian lei (ROL) (about 160,000 euros (EUR)). 9. At the public hearing of 5 September 2003, C.N. gave a statement to the court. He acknowledged that he had been interviewed by the journalists and that the quotations in the newspaper articles corresponded to his statements. However, he considered that the inclusion of his name in the organisational diagram was detrimental to his interests. 10. On 17 October 2003 the witnesses for the prosecution, C.V. and T.M., gave testimony in the presence of the applicants’ lawyer. 11. On 7 November 2003 the applicants’ lawyer submitted his written observations on the merits of the case. 12. By a judgment of 14 November 2003, the firstinstance court acquitted the applicants. It held that the intent to denigrate had not been proved in respect of the article of 30 January 2002. The court made reference to Article 10 of the Convention and held that the newspaper article concerned aspects of general interest. It also considered that the applicants had done their own investigation and interviewed all the persons involved, including C.N., and had faithfully reproduced their statements. It noted that C.N. had even stated before the court that the details presented in the articles were true. 13. The court held that the applicants’ statements had a factual basis. They were based on reliable sources of information and their purpose had not been to damage the reputation of C.N. It also held that the applicants had acted in good faith. After reiterating that a journalist’s work involved a certain degree of exaggeration, the court stressed that the applicants had been more critical in their analysis of C.N.’s behaviour in society and connections than they would have been in the case of a simple citizen, given that C.N. was a politician. 14. The court also held that an element of exaggeration had been used in the organisational diagram bringing together P.B.’s contacts in Romania. 15. With respect to the article of 13 February 2002, the court held that C.N. had not proved that the applicants had written the article. It acquitted the applicants on the ground that they had not committed the offence in question. 16. The court dismissed the civil claim lodged by C.N. on the ground that the applicants did not meet the requirements to be deemed to have civil liability. 17. C.N. lodged an appeal on points of law before the Brașov County Court on the ground that the investigation carried out by the applicants had been incomplete and that the published articles had tarnished his public image and reputation. 18. The applicants did not show any interest in the proceedings before the appellate court. Even if they had been duly summoned, they were absent from the proceedings and did not appoint a lawyer to represent them before the court. No new pieces of evidence were adduced before the appellate court. 19. By a final decision of 7 April 2004, the County Court upheld the applicants’ acquittal and allowed the appeal on points of law only with respect to the civil claim. It reiterated that the articles contained information of general interest and that the applicants had carried out their own investigation, obtaining information from competent authorities and C.N. It confirmed that the applicants’ intent had not been to defame the civil party. However, with respect to the civil claim, the appellate court considered that by publishing the organisational diagram of 30 January 2002, which had made it appear as if C.N. had connections with P.B., the applicants had exaggerated to a degree that had damaged the reputation of the civil party. C.N. was a public person and the publication of the articles had tarnished his image and reputation. The court observed as follows: “... after the publication of the impugned articles, many persons (including parliamentarians, senators, members of the Chamber of Deputies and the Senate) discussed the civil party’s connection with the Italian Mafia. This had multiple consequences: at local level, many colleagues in his political party did not want to speak to him, opposition Members of Parliament criticised him for his supposed connection with the Mafia, and discussions also took place on this topic within his own family. In conclusion, it is obvious that the publication of these articles has tarnished the public image, honour and dignity of the injured party, as the articles generated suspicions that he had connections with the Italian Mafia. The allegations are particularly damaging because he is a Member of the Romanian Parliament. The defendants did not intend to defame the injured party but they should have anticipated the result of their actions, namely the political scandal that was generated. However, they believed their reasoning based on presumptions to be correct, even though their investigation had not proven beyond doubt that the injured party had connections with the Italian Mafia. Under Article 999 of the Civil Code, each person is responsible for damage he or she causes, not only with intent but also by negligence or carelessness. In conclusion, the defendants’ actions met the conditions of civil responsibility.” 20. In accordance with Article 346 § 2 of the Code of Criminal Procedure and Articles 999, 1000 and 1003 of the Civil Code, the appellate court ordered the applicants and the company that had published the newspaper to jointly pay the victim ROL 100,000,000 (about EUR 2,600). 21. The relevant provisions of the Code of Criminal Procedure, as in force at the relevant time, read as follows: (1) Criminal proceedings cannot be instituted, or continued if they have already been instituted, in the following situations: ... (c) if the offence was not committed by the defendant; (d) if the offence lacks one of the constitutive elements of a crime. ... (1) If one of the situations described in Article 10 applies: ... (2) During the trial the court shall decide: (a) to acquit, in the situations described in Article 10, subparagraphs (a) to (e). The final decision of the criminal court has the status of res judicata in the civil court that decides the joined civil action, as far as the existence of the act, the person who has committed it and his or her guilt are concerned. (1) In the case of conviction, acquittal or discontinuance of the criminal trial, the court shall also decide on the civil action. (2) When an acquittal has been pronounced for the reason given under Article 10 subparagraph (1)(b) or because the court has uncovered evidence that removes the criminal nature of the affair, or because one of the constituent elements of the offence is missing, the court can award compensation for pecuniary and non-pecuniary damage in accordance with the civil law. (3) Civil damages cannot be paid in the event of an acquittal where the offence was either not committed or was not committed by the defendant.” 22. The relevant provisions of the Civil and Criminal Codes concerning defamation and liability for paying damages in force at the material time are described in Stângu and Scutelnicu v. Romania (no. 53899/00, §§ 30-31, 31 January 2006) and Barb v. Romania (no. 5945/03, §§ 19-20, 7 October 2008).