CASE OF CARAGEA v. ROMANIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was the CEO (Chief Executive Officer) and majority shareholder of a commercial company, SC “L” SA, which had been Stateowned until 1995; the company was based in Târgu Jiu and between 1998 and 2002 was listed in the top three most valuable private companies in Gorj County. 6. Between 1997 and 2004 a number of shareholders and employees of the company lodged criminal complaints against the applicant concerning the alleged improper manner in which he conducted his professional activity as manager of the company during and after its privatisation. Several criminal investigations were accordingly conducted in respect of the applicant, which were ongoing at the time of the relevant events; none of them led to his indictment. 7. On 24 September 2004 C.P., a journalist with the local newspaper Impact de Gorj published an article entitled “Who do we call when we disregard the law?” (La cine apelăm când încălcăm legea?). The article, in its relevant parts, read as follows: “It is with regret that we have to make an absolutely necessary response to an unacceptable act of servitude of the press. A so-called journalist of the once serious Gorjeanul, decided to defend, through some completely unverified articles, the CEO of the company “L” S.A., Ovidiu Caragea, and to transform him from a dirty person into a clean one. It is true that corrupt members of the Romanian legal establishment, including county prosecutors, have cleared the CEO of S.C. “L” SA (l-au scos basma curată) in contradiction of the clear facts and the written evidence. Ovidiu Caragea has managed the company in a completely dictatorial style, to shareholders’ cost, with serving his personal interest as the only aim. It is regrettable that colleagues from the daily Gorjeanul have taken to defending persons of dubious morality, perhaps even criminals, aiming neither to properly inform the readers nor to provide a space for regular advertising. In none of these cases has the author of the article had the courage to write under his or her true name. What the readers should know is that when an investigation is made public in the press – even though Gorjeanul invented the term “positive investigation” (assuming that such a thing could possibly exist) – the author should make their real name public so as to take responsibility and very often to be sworn at. The fact that the articles praising G.N., who brought the OJT Gorj [the County Tourist Office] to disaster, or those praising D.I.M. did not have real names in the byline, proves the lack of responsibility and the sense of shame emanating from the words written in the paper. Not only should the author be held accountable for this practice; so should the management of the publication, who should not accept it as it has nothing to do with the respect ... owed to the reader. These statements are not an attack on our colleagues in Gorjeanul, the oldest publication in the city, but are the opinion of one man who wants to find out who is the slave (slugoiul) who signed one or other of these articles, in order to discover who is the pawn for those who cannot be portrayed positively in the press after having defrauded their business partners. It is worth mentioning that our newspaper has published a few articles relating to the irregularities in the company “L” S.A. The documents we have clearly prove that what has happened has nothing to do with legality, but these have not attracted the interest of our colleagues in the other county newspaper; their only interest is, in many cases, “brown-nosing” (“de a-i spăla la fund”) those who fail to comply with the law. We mustn’t forget the hosannas to honour N.M. and the editorial subordination shown to D.I.M. What a pity!” 8. On 17 November 2004 the applicant lodged before the Târgu Jiu District Court a criminal complaint for defamation against C.P., the author of the above article. The applicant argued that the expressions that had been used by the journalist, who had associated him with “persons of dubious morality, perhaps even criminals”, had damaged his good reputation and put at risk his relations with business partners on a local and national level, thus endangering the financial situation of his company. He stated that none of the charges referred to in the article had led to him being indicted. 9. On 28 March 2005 the court acquitted C.P. Having analysed the content of the article and the witnesses’ testimonies, it held that the journalist’s intention had not been to defame the applicant but merely to make his opinion regarding the applicant’s activity public, and to highlight the dispute with other local journalists who had written articles praising the applicant. As the disputed acts had not severely damaged the dignity and the reputation of the applicant, his request for non-pecuniary compensation was dismissed. 10. The applicant appealed claiming that: the journalist had previously been convicted several times for defaming other third parties in his newspaper, showing his perseverance in using the press to insult others; and the article was part of a revenge campaign by the journalist. According to the applicant, the journalist’s publishing company operated on commercial premises owned by the company “L” SA; the applicant brought a civil suit against the publishing company for rent arrears, and when the claims were granted, the journalist asked that the publisher’s debt be written off in exchange for favourable publicity in the press; the proposal was turned down; hence the appearance of the disputed article a few months later. 11. On 6 June 2005, the Gorj County Court dismissed the applicant’s appeal. The court stated that as the applicant had been the subject of criminal prosecution for the manner in which he had conducted his job as CEO of his company, there had been sufficient factual basis for the article, which in any case had been merely a response to another article praising the applicant published in a different newspaper. The court pointed out that the role of the press was to inform the general public and that the journalist had had no intention to defame the applicant, only to express his opinion concerning the latter’s professional activity as CEO of an important company in the city of Târgu Jiu.