CASE OF ION CÂRSTEA v. ROMANIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1949 and lives in Craiova. He was, at the time of the events, a lecturer at Craiova University. 6. On 8 September 2001 the local newspaper Republica Oltenia published an article entitled “Feature story on sex-blackmail professor” (“Poveste de lung metraj cu un professor de sex-şantaj”). The article, written by R.C., was illustrated by two photographs showing a man and a woman naked and having sex. The man’s face was not visible. On the photographs were the handwritten words “the man in the photos is Ion Cârstea, university as.[sistant] at the electrotechnical faculty”. One of the photographs also appeared at the top of the front page of the newspaper. 7. The article started by mentioning that the man in the photographs was a university professor, an important person in society, who was involved in bribery, blackmail, child sex abuse and sexual deviance, the details of which would be given in the article. 8. The article continued by stating that in 1992 the applicant’s students had complained to the university dean that he was not very friendly during sessions and used to demand money from them. The applicant was also branded as litigious, because he had three trials pending before the courts, two of them brought with the purpose of contesting decisions taken by his university superiors. 9. Further on, the article contained the following statements: In 1982 a girl, so young that she was not even eighteen, got pregnant. Abortion being illegal, she decided to ask her second cousin, a university assistant at the time, to help her find a doctor. The cousin took advantage of the girl’s desperate situation. He might have told her that he would tell her mother if she did not let him “taste” her at least once. The atmosphere at the time may be inferred from the black and white photos attached. They were taken ... by the cousin himself. Apparently, even from a young age, Ion Cârstea had unorthodox habits. After satisfying his needs, Cârstea remembered that in fact he could not help his cousin, and advised her to sell some jewellery in order to raise money for a doctor. To develop the photos, Cârstea appealed to a repeat student and amateur photographer ... “In your fourth or fifth year you will have an exam with me and won’t pass” Cârstea said, according to the photographer. The student gave in to the blackmail, but after developing only gave Cârstea 24 photos instead of 36. The gesture had its logic, because in 1990, when our student managed to proceed to the fifth year, Cârstea tried to raise the stakes, by asking for a non-reimbursable loan of 130 [German] marks to pass an exam. The student was upset and went to the prosecutor’s office: “I made a complaint to the prosecutor’s office in [19]90, accusing him of blackmail. I submitted the relevant evidence, namely the first [set of] photos, because he later came to me with six more films, also porn ... the prosecutor said that we were dealing with a university professor and should leave him alone, not amplify the case. Why not amplify the case? We’ll tell you: because between Cârstea and M.I., the University dean, there is a special relationship, which might also be based on blackmail ... We know that [M.]I. sold Cârstea a flat, but this doesn’t say much. That would be another case of blackmail, because we heard that Cârstea’s obsession with audio-video recordings remained unchanged ... As for the prosecutors who received a complaint from the blackmailed photographer, they were in no hurry to go to talk to the girl in the photos. That would have obliged them to open an investigation ex officio. Instead they sent the victim, the photographer-student, to take statements. And he obtained a statement signed by the girl’s mother, while the actress in the photos wrote on them “The man in the photo is Ion Cârstea, university as. [sistant] at the electrotechnical faculty.” Of course such evidence obtained under these circumstances had no legal relevance. The case would normally be greeted with a gracious non-indictment. ... Our photographer can hardly wait for justice to be done and to finish his studies now, twelve years after he proceeded to the fifth year.” 10. On 6 November 2001 the applicant lodged a criminal complaint with the Craiova District Court against the journalist R.C. and B.B.O., editor-in-chief of the newspaper, accusing them of defamation, an offence under Article 206 of the Criminal Code in force at the time. The applicant alleged that the facts described in the article were not true and that, together with the photographs, they had seriously damaged his reputation. In this connection, the applicant claimed from the two defendants 1 billion lei (RON) for non-pecuniary damage and RON 500,000,000 for pecuniary damage. As to the compensation for pecuniary damage the applicant alleged that owing to the publication of the article and the photographs in question he could no longer be promoted to a higher position within the university. 11. R.C. and B.B.O. did not appear before the court, although they had been summoned on several occasions. 12. Two witnesses for the applicant were heard by the court. M.G. stated that as far as he knew the applicant, the facts described in the article in dispute were not true. P.T. made a statement in support of the compensation claimed by the applicant for pecuniary damage. 13. On 27 June 2002 the Craiova District Court acquitted the two defendants. It decided that they had not intended to defame the applicant, since they had merely brought to the public’s attention certain facts mentioned by other people, with whom the applicant did not have a good relationship. With respect to the photographs complained about, the court briefly held that “... it is not clear from the photos whether the person photographed is or is not the injured party [the applicant]”. The court further rejected the applicant’s compensation claim, stating that there was no connection between the defendants’ acts and the damage alleged. 14. An appeal on points of law (recurs) brought by the applicant against this decision was allowed by the Dolj County Court on 31 October 2003. It ordered a retrial of the case, due to the fact that the two defendants had not been identified and heard by the lower court. 15. A search conducted by the police concluded that B.B.O. had written the article in question under the alias of R.C. B.B.O. did not appear before the court, although he had been summoned. 16. On 8 April 2005 the Craiova District Court acquitted B.B.O. and rejected the applicant’s claim for compensation. Quoting the Court’s caselaw on freedom of expression, the Craiova District Court held that the applicant was a public figure and was hence exposed to criticism. The court also held that the defendant had not intended to defame the applicant, as he had just published information that he had collected from other people, such as students, professors, and so on. It also held: “The publication of the compromising photos accompanied by comments concerning the actors’ identity is a shocking way of exercising the freedom of expression guaranteed by Article 10 of the Convention and Article 30 of the Romanian Constitution. ... Restricting the ability to publish documents because [they] might harm a person’s dignity would not be a necessary measure in a democratic society where the journalist’s sources were credible. As regards crimes against dignity committed through the media, a journalist’s investigation is always important and is based on direct and indirect sources, official documents and documents collected through leaked information, official and private statements, some confidential, not all free from doubt. What must be proved beyond any doubt is the journalist’s bad faith which, in the current case, has not been proved. The statements of witnesses M.G. and P.T., colleagues and friends of the applicant, with respect to his personality and professional reputation are credible, but strictly only prove the perception of these people.” The court analysed the applicant’s claim for compensation from the standpoint of Article 998 of the Civil Code and decided to reject the claim for non-pecuniary damage since the defendant’s guilt had not been proved, and the claim for pecuniary damage as unsubstantiated. 17. The applicant lodged an appeal on points of law against this decision, alleging that the defendant had not been summoned at the correct address and that, in his absence, the judges could not have correctly established the facts or whether he had acted in good or bad faith. The applicant further submitted that B.B.O. had not acted in good faith. Firstly, because he had never contacted him for his version of the facts and secondly, because according to his criminal record attached to the file, the journalist had several previous convictions for slander and defamation. The applicant also alleged that the journalist had made accusations which attracted criminal sanctions, and therefore their truthfulness could and should have been verified by the courts. 18. On 11 November 2005 the Dolj County Court finally dismissed the applicant’s appeal on points of law as ill-founded. The court held that, even though it may have been defamatory, having in mind the applicant’s profession and the media’s role in a democratic society, the article in question had just drawn attention to the behaviour of a public figure in the exercise of his functions. The court further held that the defendant journalist had wanted to “expose certain backstage games and interests in a higher education institution ... with a view to remedying the situation and maintaining good educational process”. The applicant’s specific reasons for appealing on points of law, such as the incorrect summoning and the failure to hear the defendant’s statement and verify the truthfulness of the allegations published by the defendant, were not analysed by the court.