CASE OF ANTONESCU v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
1. The applicant, Mihai-Bogdan Antonescu, is a Romanian national who was born on 1 July 1965 and lives in Bucharest. He was represented before the Court by Ms Iasmina Simona Pîrvulescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr RăzvanHoraţiu Radu, from the Ministry of Foreign Affairs. 2. At the date of the events, the applicant was working in the city of Cluj as a supervisor (“supervizor”) at the local weekly newspaper “ATAC DE CLUJ”. 3. One issue of that newspaper (29 July – 5 August 1999) included an anonymous article signed under the pseudonym “Măcelaru’s cell phone” (Celularu’ lu’ Măcelaru) which described certain scandalous and alleged illegal acts of D.M., the chief police officer in the town of Cehu Silvaniei, Sălaj county. D.M. tried to find out who the author of the article was from the newspaper, but as he could not obtain this information he filed a criminal defamation complaint against the applicant and against I.G., the regional coordinator at the same Cluj newspaper. D.M. considered that both accused had violated journalistic ethics by allowing the publication of such a defamatory article. 4. By the time the criminal proceedings were initiated, the applicant had left his job in Cluj and was living and working in Bucharest. His official residential address registered with the police was at that time an address in the city of Câmpina, even though he was not in fact living there. He had not registered his new address with the police. 5. The applicant submits that he had not been aware of the trial against him during the time that the first-instance proceedings were underway, as: (i) all of the the procedural documents had been sent by way of notification to his registered address in Câmpina and; (ii) later summonses had been displayed at the Cluj local council. 6. During the first-instance proceedings, the applicant and I.G. were represented by the same defence lawyer. The transcript of the hearing held on 16 March 2000 mentions that the defence lawyer had stated that the applicant had been aware of the trial and that the lawyer had not been hired by the applicant or by I.G., but by a third party, namely the new coordinator of the newspaper. He had also mentioned that he had not been instructed to make any requests on behalf of the defence and that he would make written submissions. 7. The written submissions filed by the lawyer in the defence of the applicant consisted of the following text: “The only explanation for the drafting of the article complained of is the total lack of judgment [on the part] of A. (the applicant). The material presented before the court is highly trivial and abnormal. If the accused had presented himself in front of the court or at least contacted me, I would have asked for an expert psychiatric opinion to be ordered [in order] to establish his degree of judgment. In my opinion, it is impossible that as at the date of [the] publication [of] the material he was not crazy. On the other hand, it is also impossible that any of the readers believed a single bit of the article. [...] The only circumstance which I can raise in his defence is that [this] is the first time he is being tried before a court for the commission of such an offence. He does not have criminal record.” 8. On 23 March 2000, the Cluj Napoca Court of First Instance delivered its judgment, sentencing the applicant to the payment of a criminal fine of 1,500,000 Romanian lei (ROL) and the payment of civil damages of ROL 5,000,000 jointly with the other co-defendant. The court of first instance found the applicant guilty of aiding and abetting the offence of defamation, considering that by the nature of his function as supervisor he could have prevented the publication of the article. 9. The applicant became aware of the proceedings on an unspecified date and he filed an appeal on points of law against the judgment of 23 March 2000, requesting that the judgment be quashed and that a re-examination of the case be ordered. During the appeal proceedings he was represented by a lawyer of his choice. 10. He presented two grounds of appeal: firstly, the lack of proper summons procedure and lack of diligence on the part of the authorities in seeking to find out his real address; secondly, a breach of his right to mount a defence on account of the fact that the lawyer who had represented him in front of the first-instance court had not defended him properly, but on the contrary had acted against his interests, as could be seen from the written submissions put forward. The applicant further submitted that he had not tried to avoid attending the proceedings, as the court of first instance had held, but that he had not been aware of them due to the irregularities in summoning him. He concluded that these irregularities had prevented him from taking part in the first-instance proceedings and therefore that the judgment had to be quashed and referred back for fresh consideration. 11. On 5 July 2000, a first hearing of the appeal took place. The applicant lodged a request for postponement, in order to hire a lawyer. During the next hearing, held on 9 August, the applicant appeared before the court, assisted by a lawyer of his choice. As no representative of the newspaper was present, the parties, including the applicant, asked for a postponement. A new hearing date was set for 27 September 2000. The parties present took note of the new hearing date. On 27 September 2000, the applicant did not attend the hearing. His lawyer was present and argued that the appeal on points of law should be allowed, given the irregularities in summoning the applicant that had occurred during the first-instance proceedings. No requests for further evidence were lodged. The Cluj County Court postponed the delivery of the decision to a later date. 12. By a final decision of 11 October 2000 the Cluj County Court dismissed the applicant’s appeal, finding that he had been legally served the summons to appear in front of the first-instance court. The county court considered that the applicant had been legally summoned at his home address. The police had confirmed that the address noted in the summons was his official address and that he had not registered any new address with them. They had also indicated that his parents lived at his official address, but that his parents had declared that they did not know his new address. Taking these facts into account, the first-instance court had tried to summon him at his work place in Cluj, but a letter from the newspaper by way of response had indicated that he did not work there anymore and that they were not aware of his new address. Thus, it had been decided, in accordance with the provisions of the Code of Civil Procedure, to display the summons at the local council’s office. Taking into account these elements, the County Court concluded that the summons procedure had been in compliance with the law. The County Court then reviewed the legality of the first-instance judgment and concluded that the lower court had correctly assessed the facts and applied the law, and thus upheld the first-instance judgment. 13. Article 171 of the Romanian Code of Criminal Procedure (“the CCP”) lists the cases where assistance by a lawyer is compulsory in the framework of criminal proceedings, namely if the accused is under aged, is doing his military service, is held in a re-education centre, when he has been arrested, when the prosecutor or the courts consider that he needs to be represented, as well as in other cases provided for by law. During the trial, the assistance of a lawyer is also required when the possible penalty for the crime committed is imprisonment for more than 5 years or lifelong detention. 14. Article 177 of the CCP, as in force at the material time, provided the following with regards to summonses: “(1) The accused shall be summoned at the address where he lives and, in the event that this address is unknown, at the address of his workplace, through the human resources department of the unit in which he works (...) (4) In the event that the address where the accused lives or works is unknown, the summons shall be posted at the headquarters of the local council having territorial jurisdiction over the place where the crime was committed (...)” 15. Article 385 § 3 of the CCP provides that where an appeal on points of law is lodged against a judgment which had not been subject to an appeal, the appellate court has the duty to analyse all aspects of the case and not to limit its examination to the grounds for appeal on points of law listed by the CCP. 16. Article 385 of the CCP lists the grounds for appeal, amongst which is that a lower court has proceeded to judge a case in the absence of an accused when his presence is compulsory according to the law, or in the absence of a civil defendant when his presence is compulsory. Another reason for an appeal on points of law listed under this provision is that the lower court judged the case without properly summoning one of the parties, or when, even if lawfully summoned, it was impossible for that party to present herself before the court or to inform the court about the impossibility of doing so. 17. The Romanian Criminal Code provides that defamation is punishable by criminal fine. No imprisonment sentence is foreseen for this crime. 18. Articles 70-74 of the Law no. 51/1995 on the organisation and the exercise of the lawyers’ profession regulate the procedure for imposing disciplinary sanctions on members of the bar association.