CASE OF GHIULFER PREDESCU v. ROMANIA
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1956 and lives in Constanţa. At the time of the relevant events, she was an investigative journalist working in Constanţa. 6. During the night of 12 to 13 August 2006 a group of approximately fifty to eighty armed persons were involved in a violent incident that took place in Mamaia, a seaside resort on the outskirts of Constanţa. Several locations in Mamaia – including Hotel F., belonging to a company in which R.M., mayor of Constanţa since 2000, was a shareholder – were attacked and severely damaged. 7. Following that incident, R.M. accepted to participate in a television show hosted by A.G. and broadcast on “R.”, a national television channel. During the show, the applicant intervened and made some remarks which R.M. considered as defamatory. Consequently, he instituted civil proceedings against the applicant (see paragraphs 9-22 below). 8. The relevant excerpts from the television show are set out below: “[A.G., the host of the show, acting as a moderator, asks [the applicant], a journalist in Constanţa]: What types of clans are we talking about, are they gangs, are they clans, who are these people we are talking about? [The applicant]: These are clans, it is well known, the city of Constanţa is divided between the supporters of R.M. and his enemies. More precisely, it is the V. clan, in other words the clan of the V. brothers, who are at war with the supporters of R.M. This war has been going on for several years and it is well known that at the beginning, the V. brothers and R.M. were good friends. The hostility occurred, if my memory is not mistaken, on the occasion of the construction of Hotel O., when one of the V. brothers was excluded from the business, in spite of the initial plan. This doesn’t mean that M. [R.M.] or V. is personally involved in this war. This war continued between the people that represent the two, and the enmity has continued to this day. ... But the crux of the problem is not the conflict between R.M. and the V. brothers. It seems that nowadays they have different claims, at a different level, within different hierarchies ... [A.G.]: The image you describe is that of a city torn between the underworld clans, in which the offenders retaliate against the mayor. The latter is a business partner of the President of the Regional Council and during the night anything can happen because the police have made a pact ... and do not want to sanction anyone. [The applicant]: Lately, the police have been doing their job, as I said before. Except that they do not succeed in finalising it ... Two years ago, when there was a big fight in the city centre, before the eyes of everybody, when the G. clans were opposed to the P. clan – and here we are talking about the same clan masters – the police did not intervene promptly because, they said it clearly, these were R.M.’s men and they were afraid, because M. [R.M.] was and still is the mayor. The only victims were the heads of the city police, who were sacked; the aggressors were allowed to go free. [A.G.]: I have the impression that we are talking about an ungoverned city, in which the delinquents walk freely and the mayor fights different clans. Is this an erroneous conclusion? [R.M.]: I have the impression that [the applicant] needs to be hospitalised – in a psychiatric hospital (la balamuc). How dare she? What is this story, this nonsense? The supporters of R.M. fight I do not know who – V.? I do not even know him, I have never seen him in my life and I have never spoken to him .... I have listened for fifteen minutes to her [the applicant’s] lucubrations, in which she tries to create about Constanţa the image of a demonic city, in which the mayor runs everything, is a smuggler, has clans with Kalashnikovs and bodyguards ... [A.G.]: Would I be entitled to believe that this conflict was generated by one of your actions, or by one of your past activities, or your past partnerships; maybe you had relations with them and in this context they came to vandalise your hotel? [R.M.]: Mr. A.G., [the applicant] is a journalist, she should have submitted a document from the Chamber of Commerce to prove that I have a business partnership with whomever she mentioned. She had not submitted anything because it is all false. I personally asked the police to intervene and arrest the perpetrators. ... I do not know the people who were fighting. It does not interest me what they do in their free time, why they fight. All I said was that it is unacceptable to see forty people armed with axes. Let them identify and arrest the guilty. Everything else is just a fantasy of [the applicant], worthy of a psychiatric hospital ... [A.G.]: ... this is what the mayor says, that everything is false ... [The applicant]: What I have said, I said as an observer of the daily events; these things have been observed, discussed, noted for years. I have presented a general picture of the situation. [R.M.]: And they must be proved ... Just like other journalists, you have learned to drag others in the mud, with no evidence to support what you state. [The applicant]: If I understand correctly, he does not know the V. brothers, he knows them well, but that is not the point, the point is that their men ...(interrupted) [R.M.]: But I do not know them! Prove the contrary if you please; I have never spoken to any of them, I do not know them. Stop lying ... [The applicant]: ... the reality is that they present themselves as being M. [R.M.]’s men, or V.’s men. This does not mean that M. [R.M.] or V. order these conflicts. You know what happens in the world of ordinary people: I am strong because I represent R.M., who is mayor. Or I am stronger because I have the backing of the V. brothers ... Mr R.M., I did not say that you ordered this assault. But this is indeed what has been going on for several years in the city of Constanţa. [A.G.]: Actually, we are dealing with a band of delinquents; it doesn’t matter who they are associated with or who is behind them and supports them, these people were on the street, made noises and I, as a simple citizen, am dissatisfied with not seeing them arrested. This is the only thing I can say, apart from the political connotations and connotations of the clans. I now turn to Mr. M.P, a sociologist, a specialist in violent incidents. This type of incident, what do you think? ... [M.P.]: ... I would ask Mr. R.M. if he is still live ... it is necessary to know that mayors elsewhere in the world, such as Giuliani or Chirac, have had what are called urban policies of prevention and that they were directly involved. I am talking about a sociological perspective, an area that in which I specialise. I am not interested in your relationship with the institutions that accuse you today in one way or another. Do you have an urban prevention policy project? For if this were the case, such events would not happen again. ... [R.M.]: Do you know that according to Romanian legislation, the police are not under the authority of the mayor? ... I have asked the police to intervene and to arrest those who are guilty ... [A.G.]: Thank you ... The story we have followed is a violent one. Hooligans go during the night, armed with axes and knives, something very common lately, and vandalise a hotel. The police, ineffective, react very late, disinterestedly, unconvincing ... At the same time, the name of Mayor R.M. and his business partners appears again directly linked to a strange business. And all these strange things, which I quote ‘need proof’, accumulate and accumulate, one after the other, and create in the end the perception of a mayor who raises certain questions, of a forgotten city and, in general, of inefficiency at all levels. In this story, in my opinion, the two managers are also guilty, the police are also guilty and we are also guilty, because we tolerate endlessly the incompetent authorities. I thank you.” 9. On 24 October 2006 R.M. lodged a civil complaint against the applicant. He alleged that, in her capacity as a journalist, she had made defamatory statements during a television show hosted by A.G. in relation to a violent incident that had occurred during the night of 12-13 August 2006 (see paragraph 6 above). R.M. requested that the applicant write a public letter of apology, that she publish at her own expense the final judgment allowing his claims in two newspapers, one with a nationwide circulation and the other a local circulation, and that she pay him 200,000 Romanian lei (RON) in non-pecuniary damages. 10. R.M. complained that the applicant had attempted to persuade people that Constanţa city was divided between two gangs, “M.’s men and those who were against M.”, and that he himself had at one point been familiar with certain persons from the underworld (“persoane interlope”), namely with the V. clan, who had allegedly been at the origin of the violent incident in August 2006. He considered that the applicant’s imagination had proved to be “diabolical and of an infinite malice”, as her remarks had gone beyond what was permitted not only by freedom of speech, but also by professional deontology. He claimed that the applicant had failed to first check her information before using it, and then to prove her statements. R.M. further claimed that the defamatory statements the applicant had made against him in prime time on national television had seriously damaged his image as a public person and a locally elected official. 11. The applicant submitted that her statements during the television show had reflected her opinion in an honest and ethical manner. Like any other opinion, hers was inevitably subjective, the important issue being that it had been expressed with honesty and in good faith, based on information concerning R.M.’s conflicts with the V. brothers that had been presented more than once in the local press. The applicant further argued that the non-pecuniary damage claimed by R.M. was unjustified, in so far as there was no evidence to prove that her statements had had any impact among R.M.’s supporters in connection with his public image. 12. On 11 October 2007 the Constanţa District Court dismissed R.M.’s claims. The court started with an overview of the ECHR’s case-law on freedom of expression, referring specifically to the essential role played by journalists in a democratic society and to the fact that the essential criteria in assessing their statements is whether they are made in good faith. The court held that in the case before it, the applicant’s statements could not be interpreted as a personal attack on the claimant and in any event, they were not of such a severe nature as to harm R.M.’s honour, reputation or dignity. The court further noted that in answering the questions of A.G., the host of the show, the applicant had provided an objective explanation for her opinion; in support of her opinion, she had submitted before the court excerpts of articles from the local press, as well as from a publication issued by several investigative journalists on the topic of public integrity, a project implemented by Transparency International Romania, in which the name of the mayor, R.M., was connected to several ongoing criminal investigations. The court concluded that the applicant’s intervention had not been made in bad faith; her opinions concerned a matter of general interest and did not have an illicit nature; at the same time, her opinions were not found to have harmed the reputation of the claimant. 13. R.M. appealed against that judgment. He essentially argued that the applicant’s defamatory statements had not only consisted of her personal opinions, but also reports on specific facts which had not been previously verified, nor ever proved to be true. He further argued that by associating his name and image with that of criminal groups or clans, the applicant had seriously harmed his reputation. 14. On 29 May 2008 the Constanţa County Court allowed the appeal and awarded R.M.’s claims in part, holding the applicant liable for the payment of 50,000 RON in non-pecuniary damages, and 7,197 RON in respect of legal costs. It also ordered her to publish the judgment at her own expense in one national newspaper and in another local newspaper and to present R.M. with written public apologies within fifteen days of the date of the final judgment. 15. The County Court considered that the conclusion of the television show, as drawn by A.G., was based essentially on the applicant’s statements, namely that the city was “torn between the underworld clans, in which the offenders retaliate against the mayor” (see paragraph 8 above), and that the same conclusion would have been drawn by anyone else who had watched the show. From that perspective, it was evident that the applicant’s statements had damaged the reputation of the claimant. 16. The court also held that the applicant’s intention had not been to present facts, but to deliberately discredit R.M. by claiming in bad faith that he was involved in illegal activities. Such allegations, made without prior verification and lacking factual support, were of a serious nature and had severely damaged the claimant’s image. Furthermore, in trying to support her allegations with extracts of articles from the press reporting on the activities of R.M., the applicant had only proved that what she had presented in the television show was information, and not her personal opinions. 17. The applicant appealed against that judgment, reiterating her arguments that the impugned statements were in fact her opinions as an investigative journalist, and that they had been expressed in an honest and ethical manner. She pointed out that the County Court had not analysed whether R.M. had participated in the television show in his capacity as a public person or as a private one, so as to attract specific consequences in the balancing-of-rights exercise carried out by the court. She pointed out that the sanction imposed by the court was excessive and lacked appropriate reasoning and any justifying criteria. 18. On 24 November 2008 the Constanţa Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s judgment. 19. The appellate court firstly noted that R.M. had participated in the television show in his capacity as a shareholder of Hotel F., as well as in his capacity as a local politician. 20. While drawing a clear distinction between opinions and information, the court held that that the applicant had not put forward any argument or explanation to support her allegation that what she had expressed in the show were her opinions, and not factual elements: “By setting herself up as a connoisseur of what was going on in the local area, she had presented to the public, in the form of undeniable truth, some information that was not true”. 21. The court further referred to the responsibilities of journalists, namely to present information and ideas to the public, while respecting certain limits in relation to the rights and reputation of others. The applicant, as a journalist, “had breached the rules of journalistic ethics by manifesting aggression and intention to blame, with no evidence and without maintaining a balance between the statement made and the unconfirmed allegations”. 22. The court considered the amount of damages to be paid by the applicant to be fully justified, in view of the fact that the defamatory statements had been broadcast in prime time on a national television channel, and that the amount had been reduced by the appeal court to one quarter of the full amount claimed by R.M. The court held: “If she had complied with the first obligation, namely ‘to apologise’, the court would have examined the proportionality of the amount in relation to her intentions, as she does not contest the allegations, but by means of victimisation, she gives them strength, albeit without any evidence or documents having been submitted to the present day”. 23. It appears that in February 2009 the applicant fully complied with the terms of the final judgment.