CASE OF LAVRIC v. ROMANIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1951 and lives in Piatra-Neamț. 6. The applicant (also referred to herein as prosecutor L.), in her capacity as a prosecutor at the prosecutor’s office attached to the Neamț County Court, initiated criminal proceedings against A.B. on two occasions. She filed an indictment proposing A.B.’s conviction in both sets of proceedings. 7. The first indictment, filed by the applicant on 17 January 2000, sought the conviction of A.B. for the offences of making false declarations and destruction. On 20 September 2001 the Ploiești District Court found A.B. guilty as charged and sentenced her to six months’ imprisonment in respect of each offence. The judgment was upheld by the Prahova County Court, which dismissed an appeal lodged by A.B. on 7 January 2002. On 22 March 2002 the Ploiești Court of Appeal allowed an appeal on points of law lodged by A.B. in part, noting that the limitation period had expired in respect of the offence of destruction. 8. The second indictment of 25 July 2001 was not approved by the chief prosecutor, who ordered the discontinuance of the criminal proceedings against A.B. 9. On 7 February 2002 disciplinary proceedings were initiated against the applicant following a complaint being lodged by A.B. On 6 March 2002 the prosecutor’s office attached to the Supreme Court of Justice found that the applicant had not committed any disciplinary offence and closed the investigation. 10. A.S., a journalist at the national newspaper Romania Liberă, wrote two articles concerning the applicant’s professional activity in connection with the criminal proceedings against A.B. 11. The first article published on 13 February 2002 was entitled “Judicial corruption. Prosecutor L. falsified two indictments! An innocent person was sentenced to prison” and had six sections. The first section, entitled “Professional dross, confirmed by her superiors” (“Rebut professional, confirmat de șefi”), referred to an allegedly “falsified” indictment filed by the applicant on 25 July 2001. It concerned A.B., who according to the journalist had been innocent and a victim of the applicant’s corrupt actions. In the journalist’s opinion the fact that this indictment had been invalidated by the chief prosecutor proved that it had been the result of falsification and could be considered professional dross (“rebut professional”). 12. In the second section, entitled “Exclusion from the magistracy” (“Excludere din magistratură”), the journalist referred to “the cheating prosecutor L.” (“procurorul măsluitor”) who “did not manage to send A.B. before a court on the basis of her falsified indictment on this occasion. However she had already managed to send A.B. before a court of justice on the basis of another indictment, the product of scandalous falsification”. It was stated that an examination of the applicant’s conduct in connection with the first indictment “could result, besides criminal charges against her for abuse of position, in her rapid exclusion from the magistracy by the disciplinary board of the public prosecutor’s office. By misleading her superiors, cheating prosecutor L. managed to send the defendant A.B. before a court on 17 January 2000 for criminal damage and making false declarations. The lies and the wilfully erroneous interpretation contained in the ten pages of the second falsified indictment could fill a whole chapter in ‘a real handbook of judicial corruption’”. 13. The third and the fourth sections of the article concerned civil proceedings brought by A.B., without making any reference to the applicant. The fifth section concerned a complaint of criminal damage lodged by “the mafia of crooked businessmen” against A.B. and allocated to “cheating prosecutor L.” In the last section, the journalist accused the applicant, “the cheating prosecutor”, of causing A.B. to be sentenced to prison by lying to the courts with her “falsified indictment”. 14. The second article, published on 22 February 2002, was entitled “E.L., the prosecutor who falsifies indictments”. It referred to the conviction of A.B. on the basis of an indictment drafted by the applicant. The journalist claimed to have exposed the alleged influence exercised over the applicant by S.E., directly interested in the affair, which had led to A.B.’s conviction. According to the journalist, S.E. had repeatedly “brought a variety of food products to [the applicant’s] home in bags or in boot of her car (...). Once she brought a pig cut in half to [the applicant’s] home, leaving bloodstains in the building’s corridors”. 15. On 15 April 2002 the applicant lodged a criminal complaint for defamation against A.S. The applicant complained that A.S. had damaged her reputation and dignity by publishing the two above-mentioned articles in February 2002. She sought one million Romanian lei (ROL) in compensation for non-pecuniary damage. 16. By a judgment of 3 November 2003, the Călărași District Court found the journalist guilty of defamation and sentenced him to a criminal fine of 10,000,000 Romanian lei (ROL), the equivalent of EUR 270. The journalist and the newspaper were jointly ordered to pay the applicant damages of ROL 300,000,000, the equivalent of EUR 8,000. The court found that the expressions “falsifier and cheater” did not correspond to reality, as a disciplinary investigation had concluded that the applicant had conducted herself professionally and appropriately in connection with the charges she had brought against A.B. in her capacity as a prosecutor. The court noted that in February 2002, when the articles had been published, the journalist had been aware that the prosecutor’s indictment in the first set of proceedings had been upheld by the first two levels of the domestic courts and the appeal on points of law was still pending. The court also noted that the journalist had been aware that the disciplinary investigation against the applicant was pending when he had written the articles. It therefore held that this should have caused the journalist to exercise a certain amount of caution in his approach and use of language, given that he could have exposed the applicant to disciplinary and even criminal sanctions. 17. The district court examined the indictment of 17 January 2000, mentioned by A.S. in his first article, and noted that it had been upheld by final decisions of the domestic courts. As regards the second indictment, the court noted that it had not been approved by the chief prosecutor on 18 January 2002. The court also noted that at the time the articles were published the chief prosecutor’s decision was not yet final, as a complaint had been lodged against it. The court considered that the refusal of the chief prosecutor to approve the applicant’s indictment should not have led the journalist to the conclusion that the applicant had falsified the indictment. 18. The court concluded that in the two articles the journalist had overstepped the limits of acceptable speech provided by Article 10 of the Convention. 19. Journalist A.S. and the newspaper appealed against this judgment. On 28 December 2004 the Hunedoara County Court allowed the appeal, quashed the first-instance judgment and proceeded to rehear the case. It acquitted the journalist of the defamation charge and dismissed the applicant’s request for damages. The county court held that the journalist had merely provided details of A.B.’s situation as it emerged from the court records. It also held that the article published on 22 February 2002 had simply been a reproduction of the administrative complaints lodged by A.B. with the Ministry of Justice and the Public Prosecutor’s Office. The county court classified the relevant statements of the journalists as value judgments and found that the expressions used were to be examined in connection with the function of the press in a democratic society to impart information and ideas on all matters of public interest, as was the case in respect of the matter before it, which concerned the administration of justice. It referred to the judgment Dalban v. Romania ([GC], no. 28114/95, § 49, ECHR 1999VI), noting that the journalist had had recourse to a certain degree of exaggeration and provocation. 20. The relevant domestic provisions of the Civil and Criminal Codes concerning slander and defamation and liability for paying damages in force at the material time, as well as the subsequent developments in the legislation, are described in Timciuc v. Romania (no. 28999/03, §§ 95-97, 12 October 2010).