CASE OF MOCUŢA v. ROMANIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
1. The applicant, Mr Gheorghe Mocuţa, is a Romanian national who was born in 1953 and lives in Bucharest. 2. 3. At the relevant time, the applicant worked as a prosecutor at the Prosecutor’s Office attached to the Supreme Court of Justice. 4. Prior to the publication of the impugned article, he took a leave of absence from office between 1998 and 2000 as he was appointed to political positions by the Government. In particular, he worked as the Secretary of State at the Ministry of Justice and then as an Under Secretary of State at the Government Audit Office. He was not affiliated to any political party. The party in power at that time went on to lose elections held in 2000, at which time the applicant returned to work as a prosecutor. 5. An article concerning the applicant written by C.I. was published in the 6–12 March 2001 issue of the satirical weekly magazine Academia Caţavencu, under the title “In the balance of justice, Mocuţa plays on a seesaw” (În balanţa justiţiei, Mocuţa se dă huţa). The relevant parts of the article read as follows: “If before the Revolution Mocuţa took advantage of his name, which was identical to that of the county’s chief secretary, after 1989 he had separated himself from the dreaded activist like one would separate [oneself] from the Devil. Whether he was related to Mefisto or not, Mocuţa was appointed straight after graduation to the Prosecutor’s Office at the Bucharest District Court..., despite him not being [ranked] first in his class... No matter how much he would struggle to prove otherwise, Mocuţa appears on [Bank B.’s] list of shame, side by side with high-ranking officers from the Ministry of Internal Affairs and from the Protection and Guard Service. What sets the prosecutor apart from the others [on the list] is that, whilst the soldiers tormented themselves to pay back their debts, as far as Mocuţa is concerned, we do not yet know that he has reached the last payment of his loan. What we do know for sure is that he was fully dedicated to investigating the criminal file opened against [the former director of Bank B.]” 6. The article went on to set out details of the applicant’s real estate acquisitions, which it stated had been made through allegedly suspicious business transactions involving a former director of the State Tourism Agency, an influential local politician and local prosecutors. It also insinuated corruption on the part of the applicant in his office as prosecutor in connection with some real estate deals. 7. Some four months after the publication of that article, a second article on the same matter featured in the magazine, credited to a different journalist, in which it was admitted that C.I. had been misinformed and had thus presented false information in his previous article. 8. On 30 April 2001 the applicant lodged a criminal complaint with the General Prosecutor’s Office against C.I. for insult and defamation of an official in the course of his or her duties (ultraj; Article 279 § 2 of Criminal Code). 9. The prosecutor decided that the facts fell to be examined under Articles 205 and 206 of the Criminal Code and sent the case to the Bucharest District Court. The applicant joined the proceedings as civil party, seeking damages from the journalist and the publisher of the magazine, which was a company. 10. On 9 December 2002 the court acquitted C.I., but ordered him, together with the publisher, to pay the applicant 250,000,000 Romanian lei in respect of non-pecuniary damage. The court considered that the article had been insulting and defamatory and had thus damaged the applicant’s reputation and violated his dignity. It nevertheless considered that the journalist had not acted with a clear intention to offend the applicant, his aim being to inform readers about the applicant’s conduct as a prosecutor and high representative of the State, which was a matter of public interest. The court noted that C.I. had relied on previously published articles and on information delivered by protected sources, but considered that he should have been more diligent in checking the information before publishing it. As regards the civil claim, the court considered that C.I. had acted unlawfully as he had failed to thoroughly check the information published or to prove its veracity at trial, and that his behaviour had been prejudicial to the victim. 11. Both C.I. and the public prosecutor appealed against the judgment of 9 December 2002. C.I. requested that the civil claim be dismissed, while the prosecutor sought to overturn the acquittal. 12. On 25 June 2003 the Bucharest County Court allowed the appeal lodged by C.I., quashed the judgment in so far as it concerned the civil action and dismissed the applicant’s claim, on the grounds that there had been no causal link between the journalist’s conduct and the detriment suffered by the applicant. It upheld the remainder of the judgment, accepting the reasoning of the lower court in doing so. 13. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages, in force at the material time, as well as their subsequent amendments are described in Timciuc v. Romania (dec.), no. 28999/03, 12 October 2010).