CASE OF RUSU v. ROMANIA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1979 and lives in Suceava. At the relevant time, he was a journalist for a local newspaper Monitorul de Suceava (hereafter “the newspaper”). 6. On 26 August 2003 the applicant published an article under the title “An inhabitant of Verneşti is wanted by police across the country, having been accused of breaking into the headquarters of the local branch of the Social Democratic Party” (“the PSD”). The article, accompanied by a photograph of S.A., a suspect at the time, read as follows: “S.A, aged 35, is accused of having stolen two television sets and approximately 17,000,000 Romanian lei (ROL) from the local headquarters of the PSD. As he has fled in order to avoid criminal investigation for the offence of aggravated theft, a general search has now been launched by the police (a fost dat în urmărire generală) and his photograph is now on the desk of the policemen of the judicial service [Biroul Judiciar] throughout the country. An inhabitant of Verneşti is wanted by police officers throughout the country, as he is the main suspect in a case of breaking and entering at the headquarters of the PSD in Suceava. S.A., aged 35, is suspected of being one of the organisers of the burglary of the local headquarters of the governing party committed at the end of last year. The night before Christmas Eve 2002 was marked by bad luck for the PSD in Suceava, as thieves visited their headquarters. On the morning of 24 December some of the members of this party arrived at the headquarters located in the centre of Suceava ... [and] noticed that the headquarters had been ravaged. After checking inside, they realised there had been a burglary and that the thieves had stolen two televisions and approximately ROL 17,000,000. While searching for valuables, the thieves vandalised the offices, breaking all the doors, and yanking the televisions from the electric sockets. Following an investigation by the Suceava police, the main suspect was identified as S.A., who has been missing from his place of residence since that date. S.A. (see photo) fled in order to avoid criminal investigation for the offence of aggravated theft and so a general search has been instituted and his photograph has been sent to judicial service police officers throughout the country. In a case where someone tries to avoid ‘getting nicked’ [pârnaie] by fleeing, despite being sought by the police, a countywide search is launched. If the person is not found within ninety days, the police launch a national search. In a case where there is information that the person has left the country, an international arrest warrant is issued, and the arrest of the fugitive is only a matter of time.” 7. Following the publication of the article, the father of S.A. sent a letter to the newspaper, which read as follows: “To the editor of Monitorul de Suceava, The undersigned A.D. found out from your newspaper that there was a national and local search order for my son, A.S., for the offence of aggravated theft. Regarding the [content of the] article, I can tell you that [at the time] my son was neither in the country nor in Suceava county as he was in Italy. The employees of the Suceava County Police Inspectorate promptly informed me that there had been a mistake and that the general search for my son had been called off. The document confirming this information is available to the public from the Suceava judicial service. My wish would be to have the article retracted.” 8. This letter was published in the newspaper on 29 August 2003. 9. On 15 September 2003 S.A. lodged with the Suceava District Court a criminal complaint against the applicant for the offence of defamation, as prescribed at the time by Article 206 of the Romanian Criminal Code. After explaining that at the time of the theft he was in Italy and thus it was impossible for him to have participated in the alleged offence, he mentioned that once his father had found out about the article, he had written to the newspaper, asking that it be retracted. The letter was published unedited, but nothing else was done since then. S.A. considered that the article contained serious allegations which considerably affected his public image, causing him personal suffering. He therefore requested that those responsible be convicted and ordered to pay him non-pecuniary damages in the amount of ROL 100,000,000. 10. In his defence the applicant submitted that the information concerning the general search for S.A., as well as the photograph of S.A., were given to him on 25 August 2003 by the Suceava judicial service and thus there had been no reason for him to doubt it. He contended that at the time of the publication, the general search order issued in respect of S.A. was valid. He further argued that he did publish a retraction in the newspaper, namely the letter of S.A.’s father. 11. On 17 October 2003, the head of the Police Department of Suceava informed the first-instance court that: “In response to your letter in which you enquire whether on 25 August 2003 a general search order was outstanding against S.A. ... I wish to inform you that on 31 December 2002 by Order no. 124000 of the General Inspectorate of the Romanian Police a general search order was issued in respect of this person as he was attempting to avoid criminal investigation while under suspicion of theft. The measure was revoked by Order no S/150522 of the General Inspectorate of the Romanian Police on 3 September 2003, after clarification of S.A.’s situation”. 12. On 19 November 2003 the court acquitted the applicant of the charge of defamation; however it ordered the applicant to pay, jointly with the newspaper, the sum of ROL 10,000,000 to S.A. The relevant excerpts from the judgment read as follows: “Taking into account the fact that the applicant obtained information concerning the suspect from the judicial office within the General Police Inspectorate, he cannot be found to have deliberately (mens rea) defamed the plaintiff ... Under the civil limb of the action, defamation concerns public communication of a distorted, negative image of a person, which is likely to cause him or her personal suffering and damage to reputation, leading to changes such as social embarrassment and injury to self-esteem. The first-instance court considers that publishing the article in the newspaper caused damage to the standing of the civil party ... Moreover, it must be noted that although the civil party’s father notified the newspaper that the facts published about his son were false, the newspaper did not publish a retraction of the article written by the defendant.” 13. By a final judgment of 23 January 2004 the Suceava County Court rejected an appeal by the applicant and upheld the first-instance court’s judgment. The court stated in its reasoning the following: “Even though there is no mens rea as far as the offence of defamation provided for in Article 206 of the Criminal Code is concerned, given the source of information at the date of the publishing of the article, the defendant’s obligation to pay compensation to the civil party cannot be set aside. This is because following the discovery of the error he did not publish a retraction in order to try to rectify it. The article caused non-pecuniary damage to the civil party which can be repaired only in the manner established by the first-instance court”.