IVANCIUC v. ROMANIA
Inadmissible
The applicant, Mr Cornel Ivanciuc, is a Romanian national who was born in 1956 and lives in Bucharest. He was represented before the Court by Mr D. Costea, a lawyer practising in Bucharest. The facts of the case, as submitted by the applicant, may be summarised as follows. After winning the local and parliamentary elections in 2000, the Social Democratic Party (PSD) had scheduled elections within its local and regional branches for 2001. On 24 July 2001 the applicant, a journalist with the weekly satirical review Academia Caţavencu, published an article under the following heading: “The contents of this page are based on actual facts, events and individuals. Any resemblance to reality is the result of lengthy investigation!” The article was directed at a number of PSD branches and bore the title: “Family secrets of main governing party’s provincial bosses in run-up to elections” The article included the following passages: “Despite appearances ... Timiş county is, by some margin, the PSD’s craziest. Chairman of the branch is the esteemed university lecturer Dr D.P. However, closer examination of the situation reveals that the leader is no more than an aristocratic figurehead, a harmless small fish in a pond beneath whose surface lurk some large and evil fish with shark-like tendencies and ambitions ... Right now, deputy prefect Mr Dorel Gâtlan is the man calling the shots behind the scenes. Consider the facts: Gâtlan recently removed the secretary-general of Timiş prefect’s office, D.B., from his post. The latter had refused to sign an order from the prefect, drawn up by Gâtlan, handing over possession of a large piece of land in the border village of Cenad to V.M., a PSD senator ... Deputy prefect Gâtlan whipped D.B. out like a rotten tooth for having the temerity not to put his name to the illegal appropriation of the land by the senator and his pack of hounds. He did not rest until D.B. had been removed from any outfit even remotely concerned with the restitution of land ... But don’t be fooled into thinking that Dorel Gâtlan doesn’t have problems of his own. He has two major problems. The first concerns the land he inherited from his daddy in the village of Cernăteaz. Roughly 17 hectares of marshland ... Given the pitiable state of his inheritance, Mr Gâtlan has his eye on a roadside property in the municipality of Gearmata. Unfortunately for him, the mayor of Gearmata, who chairs the local committee on implementation of the Real Property Act, is against the exchange of the two pieces of land. Without further ado, Gâtlan suspends him from his post and hands him over to the police, who open two criminal investigations against him ... It should be noted that in Romania dealings in real property are coordinated, by law, by the prefects. However, in Timiş county, the deputy prefect has long since supplanted the prefect by stripping him of all his powers. Gâtlan’s biggest personal problem arose on 1 January 1998, when he fatally injured the septuagenarian C.M. in an accident. The victim was a shop caretaker ... His executioner, who at the time was sales director of the S.C. Radiotel Timişoara company, was driving under the influence of recent New Year’s Eve Bacchanalian celebrations. The victim was small and thin. The impact was so sudden and so violent that the bonnet and windscreen of the executioner’s car were smashed to pieces. The victim’s internal organs, also in pieces, were scattered over a radius of a hundred metres. Gâtlan’s friends in the police said that the executioner’s car had been travelling at only 40 km.p.h. Unfortunately for Gâtlan, the victim’s soninlaw is the university lecturer Dr V.B. ... Initially, Gâtlan obtained a ruling that there was no case to answer, and the case was closed. However, Dr V.B. subsequently sent a memorandum to the Procurator-General of Romania and the case was reopened. Sickened by the machinations of those in power, whose excesses are such that the PSD’s exploits in Timiş county surpass even those in the capital, V.B. dismissed his lawyer and lost the case following an appeal by Gâtlan. The executioner was merely ordered to pay the victim’s family 20,000,000 lei in damages. V.B. then made one last-ditch attempt to get rid of Gâtlan. Shortly before the appointment of the prefects and deputy prefects, he tried desperately to alert the Civil Service Minister and the Prime Minister to the fact that Gâtlan was not fit for the job of deputy prefect, as he was guilty of killing through negligence. But the die has already been cast. The person pulling strings to have Gâtlan appointed is the current Minister of Agriculture, I.S. At first, V.B.’s case had been backed up to prime ministerial level by his colleague P.A., PSD member of parliament for Timiş county and a university lecturer. But, under pressure from the rector of Timişoara Polytechnic, a leading PSD member, V.B. was forced to drop the case unconditionally and hold his tongue. The same sources say that the rector himself had come under intense pressure from I.S. [the Minister of Agriculture] to persuade V.B. to drop his complaint against Gâtlan. And Gâtlan, by way of thanks for being found not guilty and having his reputation restored vis-à-vis his superiors, never made any apology, not even a purely formal one, to the victim’s family. Our readers are no doubt well aware that Gâtlan is the most ardent supporter of I.S.’s election to the chair of the PSD county branch.” On 25 September 2001 Mr Gâtlan lodged a criminal complaint with the Timişoara Court of First Instance, alleging that the applicant had made several defamatory and insulting statements in his article, in breach of Articles 205 and 206 of the Criminal Code. He also applied to be joined as a civil party to the proceedings against the applicant and the weekly review Academia Caţavencu, the party with civil liability. Although the applicant was summoned to appear and a warrant was issued for him to be brought immediately before the court, he did not attend any court hearing, nor did he produce any evidence in his defence. In a judgment of 6 March 2002, the court rejected the criminal complaint on the ground that there was no evidence in the case file that the applicant had published the article with the intention of insulting or defaming the complainant. The court therefore acquitted the applicant, finding that one of the elements constituting the offences of insult and defamation was lacking, namely intent. However, the court observed that the applicant had accused the complainant of causing a road traffic accident by driving under the influence of alcohol and of unfairly dismissing the secretary-general of the prefect’s office and the mayor of a municipality. The court considered that those assertions were inaccurate, since the courts which had tried Mr Gâtlan on a charge of manslaughter had not found him guilty of driving under the influence of alcohol. It also observed that the two persons referred to above had been removed from office by order of the prefect, and that there was nothing to suggest that the complainant had influenced the decisions in any way. In view of the circumstances, the court found that the complainant should be awarded damages since, while the offences of which the applicant stood accused did not fall within the sphere of criminal law, they were such as to render him liable in tort, as he had not checked thoroughly the facts set out in his article. Accordingly, under Articles 998 and 999 of the Civil Code, the court ordered the applicant and the weekly review jointly and severally to pay the complainant 5,000,000 Romanian lei (ROL) in respect of the non-pecuniary damage sustained. The applicant, the weekly review Academia Caţavencu and the complainant all lodged appeals against the judgment with the Timiş County Court. The applicant appealed against the award of compensation for nonpecuniary damage, arguing that the complainant had not proved the existence of such damage. The complainant, for his part, requested that the applicant be convicted of insult and defamation and that the amount of compensation be increased. On 7 June 2002 the court allowed the request for an adjournment lodged by the applicant’s lawyer. At a hearing on 3 July 2002, the applicant’s lawyer raised an objection of unconstitutionality in respect of the first two paragraphs of Article 346 of the Code of Criminal Procedure and requested the court to stay its decision on the merits and to refer the case to the Constitutional Court. He argued in particular that, for a criminal court to decide on a claim for damages without the civil party having paid stamp duty, when the defendant had been acquitted, was in breach of the constitutional principles of protection of private property and prohibition of discrimination with regard to the payment of taxes and levies. The applicant’s lawyer alleged that the exemption from stamp duty gave the civil party an unfair advantage over individuals who, in order to have access to a civil court, had to pay stamp duty in proportion to the amount being claimed. On 8 July 2002, under the third and sixth paragraphs of section 23 of the Constitutional Court (Organisation and Operation) Act (Law no. 47/1992), the court declared the objection inadmissible on the ground that the Constitutional Court had already ruled several times, notably on 2 December 1997, 3 February 1998 and 1 February and 23 May 2001, on the constitutionality of the Article in question, and had found it to be compatible with the Constitution. On 19 November 2002 the applicant’s lawyer lodged a memorial with the registry of the County Court, objecting that the first and sixth paragraphs of section 23 of Law no. 47/1992 were in breach of the Constitution. He submitted that the condition laid down in the first paragraph of the section in question for the referral of an objection to the Constitutional Court, namely that the provision in issue must be decisive for the outcome of the case, allowed the courts a margin of appreciation and was therefore contrary to the constitutional principle of free access to a court. Pointing out that the third paragraph of the section in question ruled out referral to the Constitutional Court only of objections relating to provisions which had already been found to be unconstitutional, the lawyer concluded that the court should have referred his first objection to the Constitutional Court. On 20 November 2002 the court observed that neither the applicant nor his lawyer had attended any hearings, although the applicant had been repeatedly given notice to appear. The court dismissed the objection of unconstitutionality raised the previous day, finding that it had already been examined at the hearing of 3 July 2002. The hearing was held the same day and, in a fresh decision on the merits, the court allowed the complainant’s appeal and ordered the applicant to pay a criminal fine of ROL 500,000 for insult and defamation. It also ordered him, jointly and severally with the weekly review, to pay the complainant ROL 10,000,000 in compensation for the nonpecuniary damage sustained. The court found that the assertions concerning the removal from office of the mayor of a municipality and the complainant’s having driven while under the influence of alcohol had been defamatory, since they had lacked any factual basis and even the most cursory checking of the facts by the applicant would have revealed the truth. In that connection, the court pointed out that the mayor in question had been removed from office by an order of the prefect dated 30 March 2001, published in July 2001, and that the Timişoara Court of Appeal, in a final judgment of 8 November 2000, had found the complainant not guilty in relation to the road traffic accident, taking the view that the victim had been entirely at fault, having crossed the road without due care and attention. In the circumstances, the court found that the use of the term “executioner” had been insulting. In a dissenting opinion, one of the judges took the view that the applicant should have been acquitted, as account should have been taken of the fact that the weekly review Academia Caţavencu had a reputation as a satirical publication which made frequent revelations concerning the professional and private conduct of politicians. He added that the complainant could have obtained satisfaction by making use of his right of reply. “Any attack on an individual’s honour and reputation through words, gestures or other means shall be punishable by a prison sentence of between one month and two years or by payment of a fine.” “Any public statement or allegation concerning an individual which, if true, would render that individual liable to a criminal, administrative or disciplinary penalty or expose him or her to public opprobrium, shall be punishable by a prison sentence of between three months and one year or by payment of a fine.” “Evidence of the truth of such a statement or allegation shall be admissible where it 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 shall be deemed to have been committed.” “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.” “The victim of an offence may apply to join the proceedings as a civil party seeking damages against the defendant or the party with civil liability ...” The civil action shall be exempt from stamp duty.” “In its decision to convict or acquit the defendant, the court shall also rule on any claims for damages. When the defendant has been acquitted ... on the ground that one of the elements constituting the offence is lacking, the court may order compensation to be paid in accordance with the rules of civil law.” “The Constitutional Court shall rule on objections raised before the courts relating to the constitutionality of a [government] law or decree or of a provision of a [government] law or decree which is in force and is decisive for the outcome of the case. The objection may be raised by the court of its own motion or by one of the parties. Provisions which have been found to be unconstitutional by an earlier decision of the Constitutional Court ... may not be the subject of an objection of unconstitutionality. The Constitutional Court shall rule on an interlocutory decision by the court with which the objection of unconstitutionality was lodged ... The proceedings before the court shall be stayed pending examination of the objection by the Constitutional Court. If the objection is declared inadmissible because it does not fulfil the requirements of the first three paragraphs, the court shall dismiss it by means of a reasoned decision without referring it to the Constitutional Court.”