ROSCA STANESCU and ARDELEANU v. ROMANIA
Inadmissible
The applicants, Mr Sorin Roşca Stănescu and Mrs Cristina Ardeleanu, are Romanian nationals, born in 1949 and 1975 respectively and living in Bucharest (Romania). They were represented before the Court by Mr Vasiliu, of the Bucharest Bar. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are journalists. At the material time they were working for the newspaper Ziua. On 11 May 1995 the Bucharest police commenced a judicial investigation concerning a number of articles the applicants had published in Ziua. According to the police, certain statements made about the then Romanian President, Mr Iliescu, amounted to an insult to authority, an offence punishable under Article 238 of the Criminal Code. At their trial in the Bucharest Court of First Instance, the applicants pleaded that Article 238 of the Criminal Code was unconstitutional. The Constitutional Court dismissed their objection in a decision of 6 March 1996, noting that the purpose of Article 238 of the Criminal Code was to uphold the authority of the State and that it was necessary to punish such an offence as the authority of the State was a prerequisite for the exercise of State power. The offence therefore involved an insult aimed at authority, not an individual. Furthermore, whether the offence had taken place or not depended on the status of the victim, who had to be someone holding high office within the State. Article 238 was necessary to create an ideal climate of order and perfect security for people entrusted with important duties under the Government’s programme. The crucial requirement for the charge of insult to authority to be made out was that the offence committed should have been such as to undermine authority, for if that condition was not satisfied, the offence did not constitute an insult to authority but an offence against an individual, even if it had been committed against a person holding high office within the State. The applicants appealed against the Constitutional Court’s decision. On 24 October 1996 the Bucharest Court of First Instance found the applicants guilty of the offence of insult to authority provided for in Article 238 of the Criminal Code on the ground that in articles published from 9 May 1995 onwards in Ziua they had denigrated or even insulted the Romanian President, Mr Iliescu, through tendentious or false statements. The court noted, in particular, that in an article published on 9 May 1995, the first applicant had called the Romanian President, Mr Iliescu, a murderer, accusing him of having ordered the distribution of arms on 22 December 1989 and hence of having deliberately triggered off the ensuing “genocide”. The Court of First Instance also noted that the applicants had stated in an article published on 31 May 1995 that Mr Iliescu had been recruited by the KGB while he was studying in Moscow. The court sentenced the first applicant to one year’s imprisonment and the second to two years’ imprisonment. The applicants appealed against that decision. On 19 November 1996 the Constitutional Court dismissed the applicants’ appeal against its decision of 6 March 1996, holding that Article 238 of the Criminal Code was compatible with the Constitution and Article 10 of the European Convention on Human Rights. The appeal against the judgment of 24 October 1996 was allowed by the Bucharest County Court in a decision of 24 March 1997 against which no further appeal lay. The County Court acquitted the applicants, holding that the provisions of Article 238 of the Criminal Code were not applicable to the press, as the statements in question related to political matters, for which the freedom of expression as safeguarded by Article 10 of the Convention was broader. Lastly, the County Court considered that the applicants could not be punished otherwise than by the application of rules of professional conduct. The relevant provisions of the Criminal Code are the following: OFFENCES AGAINST DIGNITY “Anyone who disparages the reputation or honour of another through words, gestures or any other means, or by exposing him to mockery, shall be liable to imprisonment for between one month and two years or to a fine. ... The prosecuting authorities are seised of the case on a complaint by the victim. ...” “Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium, shall be liable to imprisonment for between three months and one year or to a fine.” “Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation will have been committed.” OFFENCES AGAINST AUTHORITY “Public disparagement of or threats against a person belonging to one of the categories referred to in Article 160 in connection with their activity and of a nature to undermine authority shall be punished by imprisonment for between six months and five years. ...” “Insults, defamation or threats uttered directly or by direct means of communication against a civil servant holding an office which involves the exercise of State authority in the performance of his duties or on account of acts carried out in the performance of his duties shall be punished by imprisonment for between three months and four years. Assault or any other act of violence together with infliction of bodily harm on the persons referred to in the first paragraph during the performance of their duties or on account of acts carried out in the performance of their duties shall be punished by imprisonment for between six months and seven years and, in the case of serious bodily harm, by imprisonment for between three and twelve years. Where the offences referred to in the preceding paragraphs have been committed against a member of the national legal service, police officer, gendarme or other member of the military, the maximum sentence shall be increased by three years”.