CASE OF IEREMEIOV v. ROMANIA (No. 2)
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1967 and lives in Timişoara. 6. At the material time he was a journalist at the newspaper Ziua de Vest in Timişoara. 7. On 23 June 2000, following the local elections, the newspaper Ziua de Vest published an article by the applicant accusing A.V.I., the newly elected mayor of Buziaş, of having collaborated with the Securitate (the intelligence service during the communist period). The article, featured on the third page of the newspaper, was announced on the front page by the headline: “Mayor with file” (Primar cu dosar). 8. The relevant parts of the article read as follows: “Citizens' safety above State security The newly elected mayor, [A.V.I.], is suspected of having collaborated with the Securitate The first scandal concerning the Securitate files is about to burst in the town of Buziaş. The elected mayor, [A.V.I.] is suspected by some citizens – whose names will not be made public for obvious reasons – of having collaborated with the Securitate. Based on information from inside the Romanian Secret Service, our sources said that [A.V.I.] was under surveillance until 1989 as an irredentist chauvinist, which made it impossible for him to obtain a history teaching post in Buziaş... During the same period [A.V.I.] was allegedly persuaded to collaborate with the Securitate, and a file allegedly exists on this matter... Before the local elections, [A.V.I.] lodged a written statement with the Electoral Bureau... declaring that he had not been part of the former Securitate. He informed us yesterday that what he had written in that statement was true and that he had never collaborated in any way with the secret police before 1990.” 9. On 21 August 2000 A.V.I. lodged a criminal complaint for insult and defamation against the applicant with Timişoara District Court. His complaint also included the company which published the newspaper. 10. The District Court heard testimonies from two witnesses who confirmed that they had told the applicant about the rumours concerning the victim's collaboration with the Securitate. 11. On 31 October 2000 the applicant gave a statement to the court. He pleaded not guilty and relied in his defence on the right to freedom of expression and the right to provide information about public figures. 12. On 20 February 2001 the District Court gave judgment in the case. It considered that the applicant had not committed defamation, as he had not referred to any specific offences allegedly committed by the victim. It found that the expressions used by the applicant, including the headline on the front page, were manifestly insulting to the victim. However, the District Court noted that the applicant had not described any of the rumours as fact and that he had also presented the victim's point of view in the article. It further considered that a certain degree of aggressiveness was common in journalism and that therefore, although the facts met the legal criteria to constitute the and their consequences were not severe enough to come within the sphere of criminal law. The District Court acquitted the applicant of both defamation and insult and imposed an administrative fine of 500,000 Romanian lei (ROL). The court also found that the conditions had been met for the applicant's civil liability and that of the company publishing the newspaper, in respect of the prejudice caused to the victim. It thus ordered the applicant and the company to pay ROL 3,000,000 to A.V.I. as compensation for non-pecuniary damage. Lastly, the applicant was ordered to pay ROL 350,000 to the State in court fees. 13. All parties appealed. The victim contested the acquittal and sought to have the amount of damages increased. The company publishing the newspaper argued that the prejudice had not been proven by the victim. The applicant claimed that the legal requirements had not been fulfilled either for the existence of the offence of defamation or for the existence of insult. 14. On 27 April 2001 the parties' representatives presented the grounds for appeal orally before Timiş County Court. The applicant was invited to speak only before the end of the hearing (ultimul cuvânt al inculpatului). In his address he requested that A.V.I.'s appeal be dismissed. 15. The final decision was adopted on the same day. The County Court allowed the appeal lodged by A.V.I. It acquiesced in the statement of facts established by the District Court but considered that the first-instance court had failed to interpret them correctly. It found that the expressions used by the applicant, in particular, “the mayor is suspected of having collaborated with the Securitate”, “was allegedly persuaded to collaborate with the Securitate, and a file allegedly exists on this matter” and “was under surveillance as an irredentist chauvinist”, were manifestly defamatory and, if true, would expose the victim to public opprobrium at the least. It considered that the applicant's intention to denigrate was proved and that he was not therefore covered by the Constitution and the Convention, which guaranteed the right to freedom of expression only when it was exercised in good faith. However, for and their consequences were not severe enough to come within the sphere of criminal law. It therefore acquitted the applicant on both accounts and imposed on him an administrative fine of ROL 1,000,000. 16. The court also considered that the prejudice incurred by the victim had not been correctly evaluated by the District Court and increased the amount to be paid by the applicant and the newspaper company to ROL 20,000,000. It awarded A.V.I. ROL 5,000,000 for costs, to be paid jointly by the applicant and the company. Lastly, the court ordered the applicant to pay ROL 500,000 to the State for court fees. 17. On 3 October 2001 the applicant paid the administrative fine. 18. 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. 19. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008). 20. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal from the Criminal Code of the Articles concerning insult and defamation. 21. Law no. 356/2006 amended the Criminal Code and made it mandatory for an appeal court to hear the accused where the first-instance court had acquitted him or her. Currently, where an appeal court quashes a judgment given by a first-instance court, it must decide on the evidence to be adduced and set a date on which it will take statements from the accused if the latter was not heard or if he or she was acquitted by the first-instance court (Articles 38514 § 11 and 38516, as amended).