CASE OF IEREMEIOV v. ROMANIA (No. 1)
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1967 and lives in Timişoara. 6. At the material time he was a journalist at the newspaper Ziua de Vest in Timişoara. 7. On 16 June 2000 the applicant attended an official meeting between the prefect and representatives of the interns from the hospitals in the county who were on strike. Ms C.M.O., one of the interns' representatives, stated: “Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre.” 8. On 19 June 2000 the newspaper Ziua de Vest published an article by the applicant. The relevant parts read as follows: “Scandal in the medical world in Timişoara The president of the Interns Association in Timiş County, Dr [D.D.], says that 'Dr [P.] behaves in certain ways that we all know' A medical intern from Timişoara, whose name we shall not yet make public, declared on Friday, in front of the prefect [L.B.], that the director of the Timiş Public Health Direction, Dr [P.], had attempted to sexually blackmail her. 'Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre' declared the intern. The president of the Interns Association in Timişoara, Dr [D.D.], declared that he had not known about this case of sexual harassment, which he learned of only at the meeting with the prefect. 'Dr [P.] behaves in certain ways that we all know' said Dr [D.D.] ... Although we tried to get his comments on the accusations brought against him, Dr [P.] was unavailable.” A photo of P. featured in the article. 9. On 21 June 2000 P. lodged a criminal complaint for defamation against the applicant with Timişoara District Court. His complaint also concerned the company which published the newspaper. 10. The District Court heard evidence from C.M.O., who admitted to having made the assertion reproduced by the applicant but denied having given her permission for its publication. The prefect also confirmed that an intern had accused P. of sexual aggression during the meeting. 11. The applicant was heard by the court on two occasions. He pleaded not guilty and relied in his defence on his right to freedom of expression and the right to provide information about public figures. 12. On 20 March 2001 the District Court gave judgment. It acquitted the applicant on the ground that he had not intended to denigrate P. It found that the expression “sexual harassment” had not harmed P.'s dignity as it was a stylistic choice by the applicant. 13. Both parties appealed to the Timişoara County Court. On 18 May 2001 the court was addressed by the parties' counsels, who defended orally the grounds for their respective appeals. P.'s lawyer asked for the applicant's conviction. The applicant's lawyer and the company's representative requested that P. be compelled to pay court fees. The applicant was invited to speak only before the end of the hearing (ultimul cuvânt al inculpatului). In his address he asked that P.'s appeal be dismissed. 14. The final decision was adopted on the same day. The County Court quashed the judgment of 20 March 2001, re-examined the evidence and found as follows: “[the journalist] did not confine himself to merely providing information about the criticisms [expressed against P.] but added his own appreciation, which went beyond [C.M.O.]'s statements. ... Through its title and content, the article contains untrue statements and allegations and personal appreciations by [the applicant] which, if true, would render the victim liable to a criminal penalty or expose him to public opprobrium. By publishing the victim's photo, and by presenting the information that a scandal had been caused in the Timişoara medical world by [P.]'s behaviour ... [the applicant] acted with intent to denigrate the victim, the article being manifestly defamatory. The words “sexual blackmail and sexual harassment” cannot be regarded as having stylistic and literary value when an individual's image, dignity and honour are at stake.” 15. The County Court noted that a certain degree of aggressiveness was common in journalism. It therefore, although the facts met the legal criteria to constitute the criminal offence of defamation, the acts perpetrated and their consequences were not severe enough to come within the sphere of criminal law. Consequently, it acquitted the applicant and imposed an administrative fine of 500,000 Romanian lei (ROL). The court also found that the conditions had been met for the applicant's civil liability, and that of the publishing company, in respect of the prejudice caused to the victim. In consequence, it ordered the applicant and the company to pay ROL 5,000,000 to P. as compensation for non-pecuniary damage and ROL 2,000,000 for costs. Lastly, it ordered them to pay ROL 50,000 to the State in court fees. 16. On 3 October 2001 the applicant paid the administrative fine. 17. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008. 18. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008). 19. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal from the Criminal Code of the Articles on insult and defamation. 20. Law no. 356/2006 amended the Criminal Code and made it mandatory for an appeal court to hear the accused where the first-instance court had acquitted him or her. Currently, where an appeal court quashes a judgment given by a first-instance court, it must decide on the evidence to be adduced and set a date on which it will take a statement from the accused if the latter was not heard or if he or she was acquitted by the first-instance court (Articles 38514 § 11 and 38516, as amended).