CASE OF DALBAN v. ROMANIA
Violation of Art. 10;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Luzius Wildhaber;Paul Mahoney
12. Mr Ionel Dalban was a journalist who ran a local weekly magazine called Cronica Romaşcană. He lived in the town of Roman until his death on 13 March 1998. 13. On 23 September 1992 an article by the applicant, headlined “Roman IAS defrauded of tens of millions”, appeared in issue no. 90/1992 of his magazine. The article exposed a series of frauds allegedly committed by G.S., the chief executive of a State-owned agricultural company, FASTROM of Roman (previously known as the Roman IAS or State farm). Citing Fraud Squad reports as the source of his information, the applicant wrote, in particular: “... a new fraud of incredible proportions has been discovered within the Roman company FASTROM S.A. (the former State farm), the prime suspect being a privileged member of the local communist nomenklatura, Mr G.S. The losses caused by him ... amount, according to Fraud Squad and other expert estimates, to over 23,000,000 lei! The fraud was committed by entering stock in the inventory of [FASTROM of Roman’s] central warehouse – stock that does not appear anywhere in the inventories of the undertakings under its control. It has been established that much of this stock was replaced by goods required by Mr G.S. and his friends and family, or exchanged for cash, which was then shared out in fraternal fashion. It makes one think of the highwaymen of old, who flouted the law both of God and of the land (Jaf ca-n codru)! ... The people of Roman are asking how this could have happened. Perhaps Senator R.T., who, hitherto, has been the State representative on the board of FASTROM of Roman, will give us an explanation. He was paid hundreds of thousands of lei every month in that capacity. Now we know why – or, to put it another way, how – he has been protecting the State’s interests ...” 14. In an article in issue no. 104/1993 of the magazine, published on 6 January 1993, the applicant wrote: “A Dacia estate car [belonging to the FASTROM company] was ‘made over’ to Senator R.T. every weekend for a year and a half to take him to and from Bacău Airport (driven by R.M.). This practice may have stopped but it has not been forgotten.” 15. G.S. and R.T. laid an information against the applicant under Article 206 of the Criminal Code on the basis that what he had written was defamatory. 16. On 24 June 1994 the Roman Court of First Instance (judecătoria) convicted the applicant of criminal libel, giving him a suspended sentence of three months’ imprisonment and ordering him to pay 300,000 lei (ROL) to R.T. and G.S., who were claiming damages in the same proceedings. Further, the applicant was banned from practising his profession for an indefinite period. 17. The court found that, although two criminal investigations had been held into G.S.’s conduct, the public prosecutor’s office had decided on 7 September 1990 and 10 December 1992 that he had no case to answer in relation to charges of misappropriation of corporate assets or causing harm to the public interest in the course of his duties as a civil servant (abuzul în serviciu contra intereselor obşteşti), an offence under Article 248 of the Criminal Code. With regard to R.T., the court found that between June 1991 and July 1992 the salary he had received in his capacity as a member of the board of State representatives had been ROL 55,000 – not “hundreds of thousands” of lei. It also found that, under the Senate’s Standing Orders, “prefects [were to] place a means of transport and a secretary at the disposal of senators in order to facilitate the performance of their duties” and that, in a letter (ref. no. 4849/1991), the prefect’s office in the county of Neamţ had requested FASTROM of Roman to make a car available to the office of the senator for Roman. The court concluded that the applicant’s allegations did not correspond to reality. 18. The applicant appealed against this judgment. According to him, the Fraud Squad reports on the basis of which G.S. had been charged, reports by Ministry of Finance inspectors of 19 and 26 June and 18 December 1992 and statements by members of the board of directors of, and of the trade union operating within, FASTROM of Roman all contained evidence of illegal accounting operations attributed to the chief executive, G.S. According to those documents, the sums involved amounted to more than ROL 23,000,000. 19. As regards R.T., the applicant pointed to the fact that the Court of First Instance had acknowledged in its judgment of 24 June 1994 that R.T. had used a car belonging to FASTROM of Roman. He argued that his assertions concerning the salary received by R.T. had not been defamatory, despite the admitted error as to its amount. 20. In a judgment of 7 December 1994 the Neamţ County Court (tribunalul judeţean) decided by two votes to one to uphold the judgment of 24 June 1994 as regards both the sentence of imprisonment and the compensation order. Noting that the public prosecutor’s office had decided on two occasions not to press charges against G.S., the court found – without examining the police reports produced by the applicant in support of his allegations – that those allegations did not correspond to reality. With regard to Senator R.T., the court found that his use of the car had been lawful. However, the court did set aside the ban on the applicant working as a journalist, “because of the praiseworthy way in which he had conducted himself during the proceedings”. 21. The dissenting judge, M.C., delivered a minority judgment in which he concluded: “... Revealing the truth is a sine qua non if shortcomings are to be eliminated and the interests of society defended. Those interests take priority over the defence – at any price – of our reputations. As the active conscience of the nation, a journalist has both the right and the duty to question institutions and those who run them, so as to monitor whether they are working satisfactorily, whether they deserve the authority with which they have been vested and whether the prestige which surrounds them is deserved or not. No one is infallible and no one can claim to be. It appears to me unjust to convict the journalist Ionel Dalban when all he has done is to fulfil his duty as a journalist in an objective manner, with the aim of contributing to creating a healthier moral climate in the town in which he lives and works ...” 22. Despite his conviction, the applicant continued to publish information concerning the fraud allegedly committed by G.S. Moreover, he did not pay the damages awarded to G.S. and R.T. 23. As a result of his revelations, the Romanian parliament’s Committee for the Investigation of Abuses requested the Neamţ public prosecutor’s office to look into the matter. 24. A non-governmental organisation, the “Democratic League for Justice”, also took up the revelations, with the result that on 20 July 1994 the Roman public prosecutor’s office opened a new judicial investigation into G.S.’s conduct. 25. Following the applicant’s conviction, other newspapers, including the mass-circulation national daily Adevărul, published articles about the alleged fraud. 26. Many newspapers described the applicant’s conviction as an “attempt to intimidate” the press. 27. On 24 April 1998 the Procurator-General applied to the Supreme Court of Justice to have the applicant’s conviction at first instance and on appeal quashed on the grounds that the offence of criminal libel had not been made out. 28. In a judgment of 2 March 1999 the Supreme Court of Justice allowed the application. With regard to the applicant’s conviction for libelling G.S., it acquitted the applicant on the ground that he had acted in good faith. In respect of the libel on R.T., the court quashed the conviction and, while holding that the applicant had been rightly convicted, decided to discontinue the proceedings in view of his death. 29. 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.” 30. The relevant provisions of the Code of Criminal Procedure read: “An appeal shall lie in the following circumstances: ... (10) where the judgment does not deal either with all the charges made against the accused in the committal order, with all the evidence taken or with all 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; ... ” Article 504 “Anyone who has been finally convicted is entitled to compensation from the State for any loss or damage suffered where it is held in a fresh judgment against which no appeal lies that he did not commit the offence in question or that the offence was not committed. … A person who, at any time during the investigative or trial stage of the case, acting with clear intent and in a gravely culpable manner, hindered or sought to hinder the establishment of the truth shall not be entitled to any such compensation. Any person designated in sub-paragraphs 1 or 2 above who was in employment at the time of his arrest shall be treated, for the purposes of all allowances and benefits linked to length or continuity of service, as if he had been continuously employed during the period of his imprisonment or penal labour.” Article 505 “Proceedings under Article 504 for compensation for loss or damage may be brought by any person who has suffered such loss or damage or, after his death, may be brought or pursued by his dependants. Such proceedings must be commenced within one year of the date of the final acquittal or order discontinuing the proceedings.”