CASE OF CONSTANTINESCU v. ROMANIA
Violation of Art. 6-1;No violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Gaukur Jörundsson;Wilhelmina Thomassen
8. On 8 June 1992 the General Assembly of the Primary and Secondary School Teachers' Union of the second district of Bucharest (“the union”) elected a new leadership. The applicant was elected General Secretary. 9. On 29 June 1992 the union lodged a complaint against A.P. and R.V., former managers, and M.M., former Secretary of the union, who were all teachers, alleging theft, misappropriation and fraudulent conversion. The union complained that the individuals in question had refused to return the union's property and accounting documents when the new leadership took up its duties and had used them to form a new trade-union organisation. 10. In a letter of 2 October 1992 the applicant requested, on behalf of the union, information from the Bucharest public prosecutor's office about the progress of the investigation, but received no reply. In a further letter, of 9 December 1992, he renewed his enquiry of the same public prosecutor's office and also complained about the slowness of the criminal investigation. He received no reply to his letter. 11. On 8 February 1993 the public prosecutor gave a decision discontinuing the proceedings in respect of the union's complaint lodged against A.P., R.V. and M.M. That decision was sent on 18 January 1994 only to those three individuals. 12. In 1993 the applicant, in his capacity as representative of the union, took out a summons against R.V. in the Court of First Instance of the second district of Bucharest, seeking an order, under Articles 998 and 999 of the Civil Code governing civil liability, to return to the union 170,000 Romanian lei (ROL) in union subscription fees. 13. On an unknown date the applicant had a conversation with a journalist during which he expressed his dissatisfaction with the slow pace of the criminal investigation. On 23 March 1993 the following article was published in the Tineretul Liber (“Free Youth”) newspaper: “The Primary and Secondary School Teachers' Union of the second district of Bucharest ... is the most militant union because it battles against everyone to ensure respect for the law and teachers' rights. Those are the assertions of Mihail Constantinescu, a teacher at M.S. school, who tells us: 'I have lodged a complaint against the Bucharest Schools' Inspectorate [Inspectoratul] for failure to comply with the collective bargaining agreement; the hearing has been listed for 29 April. We will be lodging a complaint against the police and the public prosecutor's office, who are engaging in anti-union activities by slowing down the criminal investigation in respect of certain delapidatori [persons found guilty of fraudulent conversion] – R.V., A.P., M.M., teachers in the second district; we have at our disposal against them written evidence and confessions by two of them to being in possession of a sum of money belonging to the union, which they have not returned. The anti-union activities are premeditated ...' ” 14. On 22 April 1993 A.P., R.V. and M.M. instituted criminal libel proceedings against the applicant in the Court of First Instance (judecatoria) of the third district of Bucharest. 15. The trial took place on 25 February 1994. The single-judge court delivered its judgment on 18 March 1994. 16. After hearing evidence from six witnesses for the plaintiff and three for the defence, from the applicant and from the three teachers, the judge acquitted the applicant. He noted that on the date on which the article in question had appeared, the three teachers had been the subject of a criminal investigation in connection with a charge of fraudulent conversion and that they had not been informed of the decision discontinuing the proceedings until after the article had appeared, that is, on 18 January 1994. Furthermore, the judge noted, it was not disputed that the teachers had not returned certain sums of money belonging to the union. Accordingly, he considered that the applicant had not had any intention of libelling the teachers, but merely of informing the public that his union was going to lodge a complaint against the police and the public prosecutor's office, accused of slowing down the criminal investigation concerning the three teachers. 17. A.P., R.V. and M.M. appealed to the Bucharest County Court, which upheld their appeal. The court quashed the decision of 18 March 1994 and decided to re-try the case on the merits. 18. The trial took place on 26 September 1994. The Court cannot establish from the documents in its possession whether the applicant's lawyer was able to make oral submissions. However, his lawyer submitted in the written pleadings in defence that his client had expressed himself on behalf of the union; that the aim pursued was that of reconstituting the union's assets; and that the new trade-union organisation formed by the three teachers had been declared illegal by the courts. He referred to the evidence given by the witnesses before the Court of First Instance testifying to negligence on the part of the three teachers in the administration of the union's property and to their refusal to return certain sums of money and documents. He added that the article had distorted the applicant's statements to the journalists, but that the applicant did not want to sue the press. 19. Although the applicant was present at the trial, the court did not hear submissions from him. No evidence was adduced. The record of the hearing did not mention the public prosecutor's submission allegedly requesting the applicant's acquittal, but merely indicated that the parties' lawyers had been able to address the court. 20. The decision was reserved until 3 October 1994, and then until 10 October 1994, on which date it was delivered in the absence of the applicant and his lawyer. The court held that the applicant had intended to injure the honour and reputation of the three teachers, contrary to Article 206 of the Criminal Code, since his remarks had been published in the newspaper after the decision of 8 February 1993 discontinuing the proceedings. The court also noted that, after that date, the applicant had gone to the schools at which A.P., R.V. and M.M. taught and accused them of running off with the union's money. 21. The applicant was convicted of criminal libel, fined ROL 50,000 and ordered to pay ROL 500,000 to each of the three teachers for non-pecuniary damage. 22. The applicant appealed on 19 October 1994. On 18 November 1994 the Bucharest Court of Appeal declared his appeal inadmissible on the ground that no appeal lay against the decision in question and that it was final. 23. On an unknown date the applicant paid the three teachers the sums which he had been ordered to pay them. On 28 March 1995 he paid the ROL 50,000 fine. 24. On an unknown date the applicant requested the Procurator-General at the Supreme Court of Justice to lodge an application to have the judgment of 10 October 1994 set aside. 25. On 26 May 1995 the applicant was informed that the Procurator-General had refused to lodge an application to have the judgment set aside. 26. In a judgment of 28 January 1997, the Bucharest County Court, after examining the case ex officio and in camera, delivered a judgment rectifying the clerical errors in the record of the hearing of 26 September 1994 and the judgment of 10 October 1994. 27. The court amended the record of the hearing of 26 September 1994 to record the presence of the public prosecutor, L.S., who had requested in his written pleadings that the teachers' appeals be upheld and that the applicant be sentenced to a fine for criminal libel and ordered to pay compensation for non-pecuniary damage. Furthermore, according to the court, the applicant had addressed it last on 26 September 1994. 28. The court also decided to rectify the judgment of 10 October 1994 so as to record the adjournment of delivery date from 3 to 10 October 1994 and the presence at delivery of the public prosecutor, L.S. 29. The parties were not summoned to attend and were not present at delivery of the judgment on 28 January 1997. 30. In a judgment of 12 March 1997, the Bucharest Court of First Instance upheld the action for damages brought by the union against R.V. in 1993 and ordered R.V. to return ROL 170,000 plus interest. The court noted that R.V. had been the Treasurer of the union from 1990 to 1992 and that, in that capacity, she had received ROL 170,000 in subscriptions from the members of the union during that period. The court also noted that, after leaving her post, R.V. had refused to return to the union the documents relating to the deposit of the said sum at the bank, so that the union had never been able to retrieve it. 31. On 6 January 1998 the Government provided the Commission, at its request, with a copy of the Bucharest County Court's hearings register for 3 and 10 October 1994. The register mentions only the adjournment of delivery from 3 to 10 October 1994 and the finding of guilt in respect of the applicant. 32. In a letter of 14 December 1998 the Government informed the Commission that they could not provide it with a copy of the notes taken by the registrar (caietul grefierului) during the hearing of 26 September 1994 because, pursuant to the Ministry of Justice's Circular no. 991/C/1993 (Ordinul ministrului), registers containing the registrar's notes are sealed and archived for three years. 33. On 11 December 1998 the Procurator-General at the Supreme Court of Justice lodged an application to have the judgment of 10 October 1994 set aside. He requested that the applicant be acquitted on the ground that the constituent elements of the offence of libel had not been made out. 34. At the hearing on 21 March 2000 the Government submitted to the Court a decision of 4 February 2000 of the Supreme Court of Justice granting the application lodged by the Procurator-General to have the decision of 10 October 1994 set aside and acquitting the applicant on the ground that intent to defame, a constituent element of the offence of libel, had not been established. 35. The Government also submitted to the Court a copy of a letter of 6 March 2000 in which the Bucharest Court of First Instance requested the tax office of the third district of Bucharest to refund the applicant the ROL 50,000 fine paid by him following his conviction of 10 October 1994. 36. The relevant provisions of the Criminal Code are as follows. “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.” 37. The relevant provisions of the Code of Criminal Procedure read: “A court hearing a recurs lodged directly against a decision from which no apel lies [In respect of certain crimes there is only one level of appellate jurisdiction (recurs), rather than two levels (apel followed by recurs), before a final judgment is delivered] shall examine every aspect of the case, irrespective of the grounds of appeal and requests of the parties ...” “An appeal shall lie in the following circumstances: ... (10) where the judgment does not deal either with one of the charges made against the accused in the committal order, or with certain evidence taken, or with certain applications that are of essential importance to a party in that they may safeguard that party's rights or have an effect on the outcome of the trial; ...” “In giving judgment on an appeal, the court may either ...: 2. uphold the appeal, quash the lower court's decision and ... (d) hold a retrial of the case ...” “Where the court which has given judgment on an appeal holds a retrial of the case in accordance with Article 385-15 (2) (d), it shall also rule on matters relating to the taking of evidence and fix a date for trial ...” “After the first judgment has been quashed, the second trial shall be held in accordance with the provisions of Chapters I (Trial – General Provisions) and II (Trial at first instance) of Title II, which shall apply mutatis mutandis.”