CHIRIAC v. ROMANIA
Inadmissible
András Sajó;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Ms Luminiţa Chiriac, is a Romanian national, who was born in 1969 and lives in Iaşi. The applicant was allowed to represent herself in the proceedings before the Court. 2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 12 April 2004, two individuals, one of whom was the applicant’s brother, were taken to an Iaşi Police station charged with disturbance of public order due to drunken behaviour. Following a call from her brother, the applicant went to the same police station in her capacity as a lawyer in order to represent the two aforementioned individuals. 5. On 23 April 2003 a local newspaper published an article entitled “Big row in the middle of the night between a lawyer and police officers from Station II” (Mare tărăboi în miez de noapte între un avocat şi poliţiştii de la Secţia II). The article related the events of 12 April 2004. It included the following quote from the deputy to the head of the police station: “... both the lawyer and her client were under the influence of alcohol and caused a furore in the police station”. 6. On 16 May 2003 the applicant lodged a criminal complaint of defamation against the journalist who had written the article and the police officer who had been quoted in it. She argued that as a result of the publication of the article, including the allegation that she had been under the influence of alcohol, her reputation had been damaged. Several clients had rescinded their representation agreements with her and her family had been negatively affected subsequent to the publication of the article. On 2 December 2003 the applicant joined the proceedings as a civil party claiming 25,000 euros in compensation. 7. On 20 April 2004 the Iaşi Court of Appeal sent the file to the prosecutor’s office attached to it, instructing the prosecuting authorities to examine the applicant’s complaint under Article 37 § 2 of the Legal Profession Act (Law No. 51/1995). 8. On 29 November 2004 the prosecutor attached to the Iaşi Court of Appeal dismissed the applicant’s complaint in respect of the police officer for lack of sufficient evidence that he had made defamatory statements and in respect of the journalist on the grounds that he had not acted with the intention to defame. The prosecutor based his decision on Article 10 (a) of the Criminal Code. The prosecutor noted that on the evening of 22 April 2004 the journalist had had a private conversation with police officer B.P. but that, according to a few witnesses who had been present, B.P. had refused to give any details about the incident of 12 April 2004 and had invited the journalist to seek the information from the officer tasked with providing information to the press. The prosecutor noted that the versions of the two defendants concerning the journalist’s source for his article of 23 April 2004 differed. While the journalist contended that police officer B.P. had given him information concerning the applicant’s alcoholic intoxication on the evening of 12 April 2004, officer B.P. denied it. 9. On 26 January 2005 the chief prosecutor upheld his decision. 10. The applicant lodged a complaint with the Iaşi Court of Appeal against the prosecutor’s decision not to open a criminal investigation. She contended that the circumstances of the incident of 12 April 2003 had not been accurately reflected by the prosecutor in his decision. She maintained that on the evening of the incident she had complained to the prosecutor in charge about the abusive behaviour of the police officers towards her and the two individuals who had been handcuffed and taken to the police station (one of whom was her brother) and that a criminal investigation had been opened in this connection. 11. On 12 May 2005 the Iaşi Court of Appeal dismissed the applicant’s complaint. The applicant lodged an appeal on points of law. 12. By a judgment of 12 January 2006 the High Court of Cassation and Justice allowed the applicant’s appeal on points of law and remitted the case for further investigation to the prosecutor’s office attached to the Court of Appeal. The court reasoned that the applicant’s complaint had been dealt with superficially and that the investigation should have addressed the crime of defamation of a lawyer, as provided for under Article 37 § 2 of the Legal Profession Act. 13. On 4 May 2006 the prosecutor’s office attached to the Iaşi Court of Appeal dismissed the applicant’s criminal complaint, basing its decision on Article 10 (a) of the Criminal Code. It concluded that police officer B.P. had not made any defamatory statements about the applicant and that the journalist had written the article on the basis of a report drawn up by the police on the evening of 12 April 2003 without the intent to defame the applicant. 14. On 5 June 2006 the chief prosecutor upheld that decision. 15. On 10 October 2006 the Iaşi Court of Appeal allowed an appeal lodged by the applicant against the prosecutor’s decisions. It quashed the prosecutor’s decision on the grounds that the applicant’s complaint should have been examined in the light of Article 37 § 2 of the Legal Profession Act and sent the case-file back to the prosecutor’s office for a fresh examination. 16. By a decision of 27 September 2007 the prosecutor’s office attached to the Iaşi Court of Appeal dismissed the applicant’s criminal complaint. 17. The applicant challenged the prosecutor’s decision before the courts. 18. An appeal on points of law lodged by the applicant was finally dismissed by the High Court of Cassation and Justice on 6 March 2008. The court upheld the reasoning of the lower courts that the offence did not fall under the provisions of the Legal Profession Act, as the acts complained of had not occurred during the exercise of the applicant’s duties. Furthermore, the High Court of Cassation and Justice held that although the acts complained of may have fallen under the provisions of the Criminal Code regarding defamation, those charged with such acts could no longer be prosecuted because from 2006 to 2007 defamation had been decriminalised. The defendants were therefore able to benefit from the application of the more favourable law. No reference was made to the civil action lodged by the applicant. 19. Article 206 of the Code of Criminal Procedure (CCP), as in force at the time of the events, read as follows: “Anyone who makes a 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 a fine ....” 20. Law No. 278/2006 amended certain provisions of the CCP and repealed the Articles on insult and defamation. 21. However, by its decision no. 62 of 18 January 2007 the Constitutional Court declared the repeal unconstitutional. 22. The relevant provisions of the CCP in force at the time of the relevant facts read as follows: “(1) Criminal proceedings cannot be instituted and, if instituted, cannot be continued if ... ... (b) the act is not proscribed by the criminal law;” “The aim of a civil action is to establish the civil liability of the accused and the liability for the payment of damages of any other person who may be held legally responsible. A civil action can be brought together with a criminal action in a criminal trial, by way of joining the proceedings.” “A person who has suffered civil damage may join the criminal proceedings ... He or she may do so either during the criminal investigation ... or before the court ...” “The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act.” “(1) In the event of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action. (2) Where acquittal has been pronounced for a reason provided for in Article 10 (b1) or because the court has identified an element that removes the criminal nature of the act, or because one of the constitutive elements of an unlawful act is missing, the court may award pecuniary and non-pecuniary damages in accordance with the civil law. (3) Civil damages cannot be awarded if the acquittal was decided because the offence does not exist or has not been committed by the defendant. (4) The criminal court shall not settle the civil action if it decides to acquit for reasons provided for in Article 10 (b) or if it decides to terminate the criminal proceedings for one of the reasons provided for in Article 10 (f) and (j) or in the event of withdrawal”. 23. The provisions of Articles 19 and 20 of the CCP are mentioned in Forum Maritime S.A. v. Romania (nos. 63610/00 and 38692/05, §§ 64 and 65, 4 October 2007). 24. Articles 999 and 1000 of the Civil Code, as in force at the relevant time, provided that any person who had suffered damage could seek redress by bringing a civil action against the person who had negligently caused it. 25. Article 37 § 2 of the Legal Profession Act, as in force at the time of the events, read as follows: “(2) Insulting, defaming or threatening a lawyer during the exercise of his or her profession and in connection with the profession shall be punished by a term of imprisonment from three months to two years or by a fine.”