ÎCCJ — COUR EUROP É ENE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS CASE OF CUMPĂNĂ AND MAZĂRE v

The case originated in an application (no. 33348/96) against Romania lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Constantin Cumpănă (“the first applicant”) and Mr Radu Mazăre (“the second applicant”), on 23 August 1996.

The applicants were represented by Mr M. Mocanu-Caraiani, a lawyer practising in Constanța. The Romanian Government (“the Government”) were represented by their Agent, Mrs R. Rizoiu, Under-Secretary of State, Ministry of Foreign Affairs.

The applicants alleged, in particular, that there had been unjustified interference with their right to freedom of expression, as guaranteed by Article 10 of the Convention, on account of their conviction following the publication on 12 April 1994 of an article in a local newspaper.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

On 10 September 2002 the application was declared partly admissible by a Chamber of that Section (“the Chamber”), composed as follows: Mr J.‑P. Costa, President , Mr L. Loucaides, Mr C. Bîrsan, Mr K. Jungwiert, Mr V. Butkevych, Mrs W. Thomassen, Mrs A. Mularoni, judges , and Mrs S. Dollé, Section Registrar .

On 10 June 2003 the Chamber delivered a judgment in which it held by five votes to two (Mr Costa and Mrs Thomassen) that there had been no violation of Article 10 in respect of the applicants.

On 2 September 2003 the applicants requested under Article 43 of the Convention and Rule 73 that the case be referred to the Grand Chamber. The request was lodged and signed on behalf of both applicants by the first applicant, Mr C. Cumpănă.

A panel of the Grand Chamber accepted that request on 3 December 2003.

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

On 15 March 2004 the Government filed submissions on the applicants’ referral request.

The applicants replied to those submissions in a letter of 17 August 2004. The second applicant appended to the letter a declaration to the effect that he intended to join the first applicant’s request for the case to be referred to the Grand Chamber.

A hearing took place in public in the Human Rights Building, Strasbourg, on 1 September 2004 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mrs R. Rizoiu , Under-Secretary of State, Agent , Mr R. Rotundu , Co-Agent , Ms R. Pașoi , Ms A. Prelipcean, M s C. Roșianu, Advisers ; (b) for the applicants Mr M. Mocanu-Caraiani, Counsel , Mrs D. Mocanu-Caraiani, Adviser . The Court heard addresses by Mr Mocanu-Caraiani, Mrs Rizoiu and Ms Roșianu, and also their replies to questions put by its members. THE FACTS

The applicants, Mr Constantin Cumpănă and Mr Radu Mazăre, were born in 1951 and 1968 respectively and live in Constanța. A. The circumstances of the case 1. Background to the case (a) The city authorities’ partnership contract with the Vinalex company

In decision no. 33 of 30 June 1992 Constanța City Council, implementing Government decision no. 147 of 26 March 1992, introduced a fine for drivers of illegally parked vehicles and entrusted the task of removing, towing away and impounding such vehicles to S.C. CBN, a company based in Constanța.

By order no. 163 of 30 June 1992 the mayor of Constanța authorised a private company, Vinalex, to perform the services of removing, towing away and impounding illegally parked vehicles.

A partnership contract was signed on 16 December 1992 by the city authorities and the company in question, the signatories on behalf of the authorities being the deputy mayor (hereinafter “D.M.”) and the council’s legal expert (“Mrs R.M.”). In a letter of 1 April 1994 the mayor of Constanța requested Vinalex to stop carrying out its activities under the contract and informed it that it was considering terminating the contract. (b) Content of the article in issue

On 12 April 1994 the applicants, who are journalists by profession, published an article in the local newspaper Telegraf , of which the second applicant was the editor, with the headline “Former Deputy Mayor D.M. and serving judge R.M. responsible for series of offences in Vinalex scam”. The names of the former deputy mayor and of the city council’s former legal expert, Mrs R.M., who had subsequently become a judge, were printed in full in the headline and in the article itself.

The article, which appeared under the byline of both applicants, was worded as follows: “In decision no. 33 of 30 June 1992 Constanța City Council entrusted a commercial company, S.C. CBN SRL, with the task of impounding illegally parked vehicles or trailers ... It was the duty of the city authorities’ specialist departments to lay down the practical arrangements for implementing the council’s decision. But things did not turn out that way. Six months after decision no. 33 was adopted, the city authorities, knowingly breaching the provisions of Law no. 69/1991, illegally concluded a partnership contract ... with S.C. Vinalex SRL, a company having no connection with the one initially chosen. It is worth noting, however, that the contract in question was signed by the deputy mayor, D.M., in place of the mayor, ... and by a certain M. instead of the legal expert M.T. By what miracle did S.C. Vinalex enter into a partnership with the city authorities when, in decision no. 33 of 30 June 1992, the city council had authorised CBN SRL to provide a straightforward service? What is striking is that there is no evidence that CBN agreed to give up the task of towing away illegally parked vehicles! ... The crook D.M. (the former deputy mayor, now a lawyer) granted Vinalex’s irresponsible employees the power to decide when a vehicle is illegally parked – in other words, to treat citizens and their property with contempt. What form did the fraud take? Sections 89 and 29 of Law no. 69/91 provide that no partnership contract with a commercial company may be signed without a prior decision by the local council, adopted by a two-thirds majority of the total number of councillors. Before a contract is signed, it must be referred to all the local council’s specialist committees for their opinion ... The contract with Vinalex was negotiated and signed illegally, as the signatories based it on the decision [of 30 June 1992], which, as has already been shown, referred to a different company without envisaging any other partnership. Given that the city authorities had already signed four other contracts before that one, the signatories cannot claim ignorance of the law, but only an intentional breach of it! And because any intentional breach of the law pursues an end in itself – generally that of securing material advantages – it is clear that in this case the former deputy mayor, a lawyer by profession, received backhanders from the partner company and bribed his subordinates, including R.M., or forced them to break the law. The Constanța Audit Court detected this blatant fraud, which has generated considerable profits for the briber (S.C. Vinalex) ... The offending company [S.C. Vinalex] has never shown that it had adequate means to impound illegally parked vehicles. This explains why large numbers of privately owned vehicles have been damaged and, as a result, thousands of complaints have been made on the subject. Furthermore, the alleged partnership contract was valid for one year, until 16 December 1993. From that date [S.C. Vinalex] no longer had any right to interfere with citizens’ private property! It has nevertheless carried on towing vehicles away and illegally collecting money ... It is incomprehensible how the police could have provided it with assistance for the past four months. Let us briefly consider the conduct of the council’s former legal expert, R.M., who is now a judge. Either she was ignorant of national legislation when she signed the partnership contract, in which case it is hard to understand how she can subsequently have been appointed as a judge (delivering justice on the basis of the same laws which she does not know), or she accepted bribes and may continue to do so in future! It is no surprise that the same judge should have been investigated by the Audit Court for a further illegal act, also committed while she was at the city council (as we reported at the time). Ironically, the court’s president did not take any action against her on the ground that the sum received was not ... high enough. Apparently becoming aware that the matter was likely to be uncovered, the city authorities’ coordination department ... notified S.C. Vinalex in writing of the possibility of the contract being terminated on the following grounds: ... ‘You have not supplied any documents showing that you have purchased the platform-type equipment necessary for carrying out the activity properly’ (as stipulated in clause 3 of the contract ...). In the same letter the city council informed S.C. Vinalex: ‘As you have not proved that you have the appropriate equipment, we would assess your contribution to the partnership at the level of your company’s capital, that is 110,000 lei. Your share in the partnership’s net income will have to be recalculated in relation to the parties’ contributions.’ Facts are facts, and the documents in our possession ‘speak’ for themselves of the illegal Vinalex scam.”

The article was accompanied by a photograph of a police car on the scene as an illegally parked vehicle was being towed away, photocopies of extracts from the partnership contract and from Constanța City Council’s decision of 30 June 1992, and certain passages of Law no. 69/91 concerning the responsibilities and powers of mayors, prefects and city and county councils.

The article was also accompanied by a cartoon showing a man and a woman arm in arm, carrying a bag marked “Vinalex” which was full of banknotes. The two characters were depicted as saying to each other: “Hey, R. [diminutive form of Mrs R.M.’s first name], you’ve done a good job there! When I was deputy mayor we made quite a bit, enough to go to America ...” “D. [diminutive form of the former deputy mayor’s first name], if you become a lawyer, I’ll become a judge and we’ll have enough to travel round the world ...” (c) Findings of the Audit Court’s auditors

In June 1994 the Financial Control Department of the County Audit Court examined a report submitted on 26 May 1994 by several auditors who had conducted a review of Constanța City Council’s budget for 1992 and had made the following findings: (a) The city council’s decision of 30 June 1992 to award S.C. CBN the contract for towing away illegally parked vehicles had not been justified by any bid submitted in writing by the company or by the company’s aims as set forth in its articles of association. (b) The city council had not given its opinion on the partnership contract signed between the city authorities and the Vinalex company, and no expert valuation of Vinalex’s assets had been carried out or submitted to the council for approval, contrary to the provisions of the Local Public Administration Act (Law no. 69/91). (c) The distribution of the proceeds among the parties as agreed in the contract – 70% to Vinalex and 30% to the city council – had not corresponded to the partners’ respective contributions on the date on which the contract had been signed – 76.4% by the city council and 23.6% by Vinalex – resulting in a loss of income for the city council. The Financial Control Department considered it necessary to urge the mayor of Constanța, as the official responsible for authorising appropriations, to “ensure compliance with the law” as regards the parties’ obligations under the contract and to be more efficient when entering into such partnerships with private entities in future. A formal decision to that effect was adopted on 8 June 1994 by the head of the department.

The applicants produced to the Court a report dated 17 March 1994 by the same Audit Court auditors, which likewise referred to the irregularities described in paragraph 23 above in the signing of the partnership contract between the city authorities and Vinalex, and indicated that the contract should be terminated. The applicants did not mention the existence of such a report during the criminal proceedings instituted against them following the publication of the impugned newspaper article. 2. The criminal proceedings against the applicants (a) Proceedings at first instance

On 14 April 1994, after the publication of the article, Mrs R.M. instituted proceedings against the applicants in the Constanța Court of First Instance for insult and defamation, offences under Articles 205 and 206 respectively of the Criminal Code. She complained, in particular, about the cartoon accompanying the article, which had depicted her as a “woman in a miniskirt, on the arm of a man with a bag full of money, and with certain intimate parts of her body emphasised as a sign of derision”. She submitted that the article, the cartoon and the dialogue between the characters had led readers to believe that she had had intimate relations with D.M., and pointed out that she and the former deputy mayor were both married.

At a hearing on 13 May 1994 the court adjourned the case as the applicants were not present and, scheduling a further hearing for 27 May 1994, directed that they should be brought before the court on that date.

On 27 May 1994 the second applicant stated at the hearing that, as editor, he assumed full responsibility for what had been published in the newspaper. He explained that cartoons were frequently used in the press as a medium for criticism and that he had not intended to damage the claimant’s reputation. In reply to a question from the court he admitted having known that, by order of the mayor of Constanța, Vinalex had been authorised to tow away illegally parked vehicles. He stated, however, that he had not thought it necessary to publish that information. Lastly, he stressed that he did not intend to reach a settlement with the injured party and that he was prepared to publish an article in her favour provided that she could prove that what he had published was untrue.

On 10 June 1994 the applicants applied to have the case transferred to a court in another county. They also requested an adjournment of the proceedings, arguing that because the claimant was a judge it was impossible for them to find a member of the Constanța Bar who would agree to represent them.

On an unspecified date the Constanța Bar, in reply to a question from the court, attested that the applicants had not met with a refusal on the part of all of its members and that, in any event, the matter had not been referred to its executive.

On 15 June and 1 July 1994 the court adjourned the case as the applicants were not present.

In an interlocutory decision of 21 July 1994 the Supreme Court of Justice ordered the referral of the case to the Lehliu-Gară Court of First Instance.

On 15 November 1994 the case was entered on that court’s list of cases for hearing. Public hearings were held on 21 December 1994 and on 25 January, 27 February, 20 March, 17 April and 17 May 1995.

On 21 December 1994 and 25 January 1995 the applicants did not attend the hearings, although they had been duly summoned. The court summoned them to appear at the hearings of 25 January and 27 February 1995. The applicants did not comply with the summonses.

At the hearings on 27 February and 20 March 1995, representatives of Telegraf applied for an adjournment on behalf of the applicants, who were not present. The court allowed the application.

On 20 March 1995 a member of the Bucharest Bar, N.V., agreed to represent the applicants.

At the hearing on 17 April 1995 in the morning N.V. asked the court to consider the case after 11.30 a.m. The court granted his request. However, when it sat to examine the case at 12 noon and, subsequently, at 2.30 p.m. it noted that neither the applicants nor their counsel were present in the courtroom. It accordingly adjourned the case until 17 May 1995.

At the hearing on 17 May 1995 the court reserved judgment, after noting that neither the applicants – despite their having been duly summoned – nor their counsel had appeared. In a judgment delivered on the same day the court found the applicants guilty of insult and defamation, offences under Articles 205 and 206 respectively of the Criminal Code. It sentenced them to three months’ imprisonment for insult and seven months’ imprisonment for defamation and ordered them both to serve the heavier sentence, namely seven months’ immediate imprisonment. As well as this main penalty, the court imposed the secondary penalty of disqualification from exercising all the civil rights referred to in Article 64 of the Criminal Code (see paragraph 58 below). It also prohibited the applicants from working as journalists for one year after serving their prison sentences, a security measure provided for in Article 115 § 1 of the Criminal Code (see paragraph 59 below). Lastly, it ordered them to pay Mrs R.M. 25,000,000 Romanian lei (ROL) (equivalent to EUR 2,033 at the exchange rate applicable at the material time) for non-pecuniary damage.

In stating its reasons for the judgment the court observed, firstly: “The court notes that the injured party has always been present, both in the Constanța Court of First Instance and in the Lehliu-Gară Court of First Instance, whereas the defendants have generally been absent without justification, despite having been lawfully summoned. In support of her prior complaint, the injured party, Mrs R.M., sought leave to produce documentary evidence. [Mrs R.M.] submitted a copy of the 12 April 1994 edition of the local newspaper Telegraf , containing the article referred to in her complaint and the cartoon in which she was ridiculed. The court notes that the defendants and the party liable to pay damages, despite being lawfully summoned, have not attended any hearings, and that only the injured party has been present. The court notes that the defendants R. Mazăre and C. Cumpănă were informed of the charges against them and of the hearing dates, and that they were assisted by a lawyer of their choosing (who asked the court first for an adjournment and subsequently for consideration of the case to be postponed until the second sitting, after 11.30 a.m.). The court observes that the defendant R. Mazăre gave evidence to the Constanța Court of First Instance at a public hearing on 27 May 1994, and notes the following from his testimony: the defendant considered that it was not compulsory to have studied at journalism college to work as a journalist; he refused to reply when asked whether he had had access to any other documents on which Constanța City Council’s decision no. 33 had been based; he understood by ‘series of offences’ the fact of committing several offences; he understood by a multiple breach of the criminal law the ‘infringement of several offences’; he considered that the injured party, in signing the contract in her capacity as a legal expert at the city council, had infringed a number of the provisions of Law no. 69/1991; he pointed out that he could not give the precise legal classification of the offences committed by the injured party, as that did not come within his sphere of competence; he stated that he had said everything there had been to say about the injured party in the newspaper article; he submitted that cartoons were used everywhere and maintained that he had not (through the cartoon) damaged anybody’s reputation (specifically, that of the injured party). [The court] notes that the defendant R. Mazăre stated that he assumed full responsibility for everything published in his newspaper, as its editor; ... that he stated that he was aware of the constitutional provisions on the right of journalists to impart information to the public; that he had read the Government decision in its entirety and had not published it for lack of space; that he also stated that he had read the full text of the partnership contract entered into by the city authorities and signed by the injured party, Mrs R.M., but that he did not know whether the Government decision had referred to partnership contracts; ... that the defendant had been aware that the Vinalex company had been authorised by order of the mayor of Constanța to provide the service of towing away illegally parked vehicles, but that he had not thought it necessary to publish that information in the newspaper; and, lastly, that he stated: ‘In view of the seriousness of the offences committed, I do not think that it was necessary to discuss the matter with the injured party beforehand. Should any documents prove that my statements are unfounded, I am prepared to publish an article in the injured party’s favour.’”

With regard to the documentary evidence which the injured party intended to rely on in support of her allegations, the court observed: “Apart from the article published in Telegraf , the injured party, Mrs R.M., produced Constanța City Council’s decision no. 33 – adopted in accordance with Government decision no. 147 of 26 March 1992 – in which it was decided to tow away illegally parked vehicles; order no. 163 of 30 June 1992 by the mayor of Constanța ... authorising the Vinalex company to remove, tow away and impound illegally parked vehicles (‘The conditions for the performance of these services shall be laid down in the partnership contract to be drawn up’); Government decision no. 147 of 26 March 1992, in which mayors were empowered to order the removal, towing away and impounding of illegally parked vehicles by duly authorised specialist companies; and order no. 369 of 1 July 1994 by the mayor of Constanța, in which Vinalex was authorised to provide such services.”

With regard more particularly to the article and cartoon in issue, the court held: “... the article, by the defendants R. Mazăre and C. Cumpănă, was directed at the injured party, disparaging her honour, dignity and public image and injuring her own self-esteem by means of the (written) accusations conveyed through signs and symbols targeted specifically at her. The court considers that these acts took place, that they are punishable under the criminal law, and that they posed a danger to society, not so much because of their practical effect (physical distortion of outward reality) but above all because of the psycho-social consequences resulting from the provision of misleading or incorrect information to the public, giving rise to inaccurate judgments about facts and individuals, establishing a false scale of values in view of the role and public impact of the media, and causing psychological trauma to the injured party. In making its assessment, the court has had regard to the particular status of the parties to the proceedings: the injured party, Mrs R.M., being a lawyer and a representative of the judiciary, and the defendants, Mr R. Mazăre and Mr C. Cumpănă, being representatives of the media. The court notes that the defendant R. Mazăre, while realising the seriousness of the acts he had committed, irresponsibly stated that he had been ‘aware of the fact that Vinalex had been authorised by order of the mayor, but did not consider it necessary to publish that order (as well)’... The court considers that publication of the article in the newspaper cannot have been justified by a ‘legitimate interest’ in that it was not based on actual facts and the provision of accurate information to the public. It concludes that the defendants ... ‘forgot’ the content of Article 30 § 6 of the Constitution: ‘Freedom of expression shall not be prejudicial to a person’s dignity, honour and private life or to the right to one’s own image’, and of Article 31 § 4 of the Constitution: ‘Public and private media shall be required to provide the public with accurate information.’ It follows from the written submissions filed by the injured party ... that she always wanted the criminal proceedings to be terminated by amicable agreement, provided that the defendants agreed to retract the allegations made in the article. The court notes that the injured party is a public figure and that, following the publication of the article, her superiors and the authority above them asked her for an explanation about the trial, particularly in view of the fact that she was due to take the examination to obtain permanent status.” (b) Proceedings on appeal

On an unspecified date the applicants appealed against the first-instance judgment of 17 May 1995.

At a hearing on 2 November 1995 the Călărași County Court reserved judgment, having noted that the case was ready for decision and that the applicants had not appeared in court, despite having been duly summoned, and had not stated any grounds for their appeal.

In a judgment of 2 November 1995 the court, after examining all the aspects of the case against the applicants, as required by Article 385 6 of the Code of Criminal Procedure (CCP), upheld the first-instance judgment, finding it to have been correct. The County Court’s judgment, sent to the archives on 23 November 1995, was final and binding and no ordinary appeal lay against it. (c) Proceedings following the Procurator-General’s application to have the judgments quashed

On 10 April 1996 the Procurator-General applied to the Supreme Court of Justice to have the judgments of 17 May 1995 and 2 November 1995 quashed. He submitted the following arguments. (a) The courts’ legal classification of the facts had been incorrect. Pointing out that in the cartoon the applicants had simply highlighted their allegations of corruption on the part of certain city-council officials, he accordingly submitted that the facts in issue did not constitute the actus reus of insult as defined in Article 205 of the Criminal Code. (b) The amount which the applicants had been ordered to pay in damages had been extremely high and had not been objectively justified. (c) Lastly, the requirements of Article 115 § 1 of the Criminal Code, by which the courts could prohibit persons who had committed unlawful acts from practising a particular profession on account of their incompetence, lack of training or any other ground making them unfit to practise the profession, were not satisfied in the applicants’ case, as there was no unequivocal proof that the applicants were incompetent to continue working as journalists or that their doing so entailed a potential danger.

In a final judgment of 9 July 1996 the Supreme Court of Justice dismissed the Procurator-General’s application as being manifestly ill-founded, for the following reasons: “It has been established from the evidence adduced in the present case that on 12 April 1994 the accused, R. Mazăre and C. Cumpănă, published in the Constanța newspaper Telegraf an article entitled ‘Former Deputy Mayor D.M. and serving judge R.M. responsible for series of offences in Vinalex scam’, in which it was asserted that in 1992, while she was employed as a legal expert at Constanța City Council, the injured party, Mrs R.M., had been involved in fraudulent activities on the part of a commercial company, Vinalex. The Supreme Court further notes that alongside the above-mentioned article, the accused published a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money on his back, and that this was likely to have an adverse effect on the injured party’s honour, dignity and public image. It follows that in publishing the article in Telegraf , the accused attributed specific acts to the injured party which, had their allegations been made out, would have rendered her criminally liable; the two lower courts were therefore correct in finding the accused guilty of defamation under Article 206 of the Criminal Code. The fact that the accused published alongside the above-mentioned article a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money, in such as way as to disparage her honour and reputation, constitutes the offence of insult as defined in Article 205 of the Criminal Code ...”

With regard to the amount which the applicants had been ordered to pay in damages, the Supreme Court held: “... the requirement for the accused to pay 25 million lei for non-pecuniary damage was justified, since it is beyond dispute that in publishing the article on 12 April 1994 in a mass-circulation newspaper, the accused seriously offended the dignity and honour of the injured party.”

The Supreme Court held, lastly, in relation to the alleged unlawfulness of the temporary prohibition on the applicants’ working as journalists: “... since the application of security measures in circumstances other than those provided for by law does not feature on the exhaustive list of cases in which the law permits the Procurator-General to apply to have a decision quashed, it cannot form a legal basis for quashing the judgments in issue.” 3. The applicants’ circumstances after being convicted in the final and binding judgment of 2 November 1995 (a) Execution of the prison sentence and of the secondary penalty of disqualification from exercising civil rights

The applicants did not serve the prison sentence they had received in the judgment of 2 November 1995, since immediately after the judgment had been delivered the Procurator-General suspended its execution for eleven months by virtue of Article 412 CCP (see paragraph 61 in fine below).

In a letter of 30 September 1996 the Procurator-General at the Supreme Court of Justice informed the applicants that he had extended the stay of execution until 27 November 1996.

On 22 November 1996 the applicants were granted a presidential pardon dispensing them from having to serve their prison sentence. By virtue of Article 71 CPP, the pardon also waived their secondary penalty of disqualification from exercising civil rights (see paragraph 58 in fine below). (b) Prohibition on working as journalists (i) The first applicant

It appears from the first applicant’s employment record ( cartea de muncă ), of which he submitted a copy to the Court, that, following the Călărași County Court’s judgment of 2 November 1995: (a) he continued to work for Telegraf as editor of the “Events” section until 1 February 1996, when he was transferred for administrative reasons to the C. company, occupying the same position and receiving the same salary as before; (b) while working for C., he was awarded a pay rise; (c) he ceased to work for C. on 14 April 1997 on account of staff cutbacks by his employer, a ground for dismissal provided for in Article 130 (a) of the Labour Code as worded at the material time; and (d) he was not then gainfully employed until 7 February 2000, when he was recruited on a permanent contract by the A. company as deputy editor. (ii) The second applicant

Following the final and binding judgment of 2 November 1995 the second applicant continued to work as editor of Telegraf , as indicated in a letter which he sent to the Court on 19 January 2000.

Between 1 September 1997 and 30 November 1999, while he was a member of the Romanian Parliament, the sum of ROL 25,000,000 was deducted from his parliamentary allowance and transferred to Mrs R.M.’s bank account, pursuant to the Lehliu-Gară Court of First Instance’s judgment of 2 November 1995 (see paragraph 37 in fine above).

On an unspecified date after that judgment he was elected mayor of Constanța, a position he still holds.

At the material time the relevant provisions were worded as follows: Article 205 – Insult “Anyone who disparages the reputation or honour of another through words, gestures or any other means shall be liable to imprisonment for between one month and two years or to a fine.” Article 206 – Defamation “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 three years or to a fine.”

In Resolution no. 1123 of 24 April 1997 on the honouring of obligations and commitments by Romania, the Parliamentary Assembly of the Council of Europe observed that Articles 205 and 206 of the Romanian Criminal Code were unacceptable and seriously imperilled the exercise of fundamental freedoms, in particular the freedom of the press. The Assembly therefore called on the Romanian authorities to amend those provisions without delay.

Following a process of legislative reform, the New Romanian Criminal Code Act (Law no. 301 of 28 June 2004) provides that the offence of defamation is punishable solely by a fine (Article 225 of the New Criminal Code) and no longer classifies insult as a criminal offence. These legislative amendments will come into force on 29 June 2005. 2. Penalties

The relevant provisions are worded as follows: Article 64 – Additional penalties “Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty: (a) the right to vote and to be elected to bodies of a public authority or to public elective office; (b) the right to occupy a position entailing the exercise of State authority; (c) the right to perform a duty or practise a profession or activity by means of which the convicted person carried out the offence; (d) parental rights; (e) the right to act as a child’s guardian or statutory representative.” Article 71 – Secondary penalty “The secondary penalty shall consist in disqualification from exercising all the rights listed in Article

A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...” 3. Security measures 59. The relevant provision is worded as follows: Article 115 – Prohibition on performing a duty or practising a profession “Anyone who has committed an [unlawful] act through incompetence, lack of training or for any other reasons rendering him or her unfit to perform certain duties or to practise a certain profession or activity may be prohibited from performing those duties or practising that profession or activity. Such a measure may be revoked on request after one year if the grounds on which it was imposed are no longer valid.” 4. Grounds for negating criminal responsibility or the effects of a conviction 60. The relevant provisions are worded as follows: Article 120 – Effects of a pardon “A pardon shall have the effect of waiving the execution of a sentence… A pardon shall have no effect on security measures or educational measures.” Article 134 – Rehabilitation “A person sentenced to a term of imprisonment of less than one year shall be legally rehabilitated if he does not commit any further offences for three years.” B. The Code of Criminal Procedure (CCP) 61. The relevant provisions are worded as follows: Article 409 “The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final decision to be quashed.” Article 410 “An application to have a final conviction ... quashed may be made: I… 4. where the penalties imposed fell outside the limits prescribed by law; ... 7. where the offence was incorrectly classified in law...” Article 412 “Before applying to have a decision quashed, the Procurator-General may order a stay of its execution.” THE LAW

In view of this dispute between the parties, the Court must determine the scope of the case brought before it following the applicants’ request for referral to the Grand Chamber under Article 43 of the Convention, which provides: “1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. 2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance. 3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.”

According to the Court’s settled case-law, the “case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, there being no basis for a merely partial referral of the case (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII, and Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003-V). The “case” referred to the Grand Chamber is the application as it has been declared admissible (see, mutatis mutandis, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 63, § 157, and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III), with the parties to the proceedings before the Chamber concerned, including their status on the date on which the application was declared admissible.

That approach is, moreover, in keeping with the spirit and the letter of Article 37 § 1 in fine of the Convention, by which the Court is entitled to continue the examination of an application if respect for human rights as defined in the Convention and the Protocols so requires, including where the circumstances lead to the conclusion that the applicant does not intend to pursue his application, an eventuality expressly provided for in Article 37 § 1 (c) which may be deemed akin to the second applicant’s not having signed the referral request in the instant case (see, mutatis mutandis , Karner v. Austria , no. 40016/98, § 28, ECHR 2003-IX).

Such a conclusion is all the more appropriate in the present case as Mr Mazăre, in his declaration of 17 August 2004, expressly joined the referral request signed on behalf of both applicants by the first applicant (see paragraphs 9 and 13 above), thereby indicating, albeit retrospectively, his intention to pursue the complaint under Article 10 of the Convention as declared admissible by the Chamber and to submit it to the Grand Chamber for examination.

Accordingly, the scope of the case now before the Grand Chamber is not limited in the manner claimed by the Government.

The applicants submitted that the interference with their right to freedom of expression as a result of their conviction by the national courts had not met a “pressing social need” capable of justifying it under the second paragraph of Article 10 of the Convention. They maintained, firstly, that by publishing the impugned article in a local newspaper they had intended to draw public attention to the public and political issues relating to the irregularities committed, in their opinion, by the city authorities in the signing of a public partnership contract with a private company.

Pointing out that they had not made any reference in the article to the private life of the injured party, Mrs R.M., and that this attested to their good faith, the applicants argued that the cartoon which had resulted in their being accused of interfering with the private life of the city council’s former legal expert constituted a purely humorous form of satire and that in such circumstances the exaggeration of certain characteristics of people and situations should be tolerated. In their submission, only Mrs R.M.’s vivid imagination could have led her to believe that the cartoon in question was insinuating that she had had intimate relations with the former deputy mayor, and the Government should not have concurred in this malicious interpretation. They asserted that the national courts had not found anything in the cartoon to suggest that the persons depicted in it had been having an extramarital affair. They added that if they had been aware of any such intimate relations between the two city-council officials, they would have had no hesitation in giving a detailed, explicit and direct description of them in the article.

They further submitted that they should be regarded as having adequately checked the information they had imparted to the public, seeing that they had based it on a report – whose credibility had not been contested – adopted on 17 March 1994 by the Audit Court, the only public institution authorised to review the management of public finances. They stated that they had also had sources within the city council and the Audit Court, whose identities they could not have disclosed without putting them at risk.

The applicants pointed out that the fact that they had not proved the truth of their allegations in the national courts had resulted from objective considerations relating to the principle of protection of sources, and from the attitude of the national courts, which had not actively sought to establish that their allegations were true. They submitted that “journalistic truth” pursued the aim of informing the public speedily about matters of general interest and was accordingly different from “judicial truth”, which the national courts established with a view to determining the responsibility of those who acted illegally. The press could not therefore be required to establish the facts with the same precision as was required of the investigating authorities.

The applicants submitted that the allegations that had resulted in their conviction, concerning the unlawfulness of the public contract signed by the city authorities, had been confirmed by the Audit Court’s report. They justified the fact that they had brought them to the public’s attention two years after the contract had been signed by pointing out that they had not had access to the report in question until that date. They also emphasised that the article in issue had been directed at Mrs R.M. in her capacity as a city-council official at the time of the events described in it and not in any way in her capacity as a judge on the date on which it had been published.

Lastly, they argued that the fact that they had not served their prison sentence did not absolve the Government of responsibility in relation to the interference with their freedom of expression, and submitted that the sanctions imposed on them had been excessive and had been tantamount to subjecting the free discussion of matters of public interest to a form of individual and general censorship. 2. The Government

The Government submitted that the applicants’ conviction had been necessary in a democratic society, seeing that the publication of the article in issue had amounted to a manifest breach of the ethics of journalism. Contending that the applicants had not imparted reliable and accurate information to the public and had not acted in good faith in asserting that Mrs R.M. was corrupt, they observed that the applicants had not maintained in the national courts that they had checked their information, having merely stated that they had taken into account certain decisions by the city council and the mayor and an order by the Government; however, there was nothing in those documents to justify the serious accusations of corruption levelled at Mrs R.M.

The Government further pointed out that in the national courts the applicants had never referred to any other documents or information as a source for their article, despite having been aware that there had been another decision by the city authorities authorising Vinalex to perform the public service to which the partnership contract related. Relying in particular on the evidence given by the second applicant in the Constanța Court of First Instance, the Government asserted that the applicants had not considered it necessary or relevant to publish that document, even though it actually contradicted the message conveyed by the article in issue. They further drew attention to what they regarded as unequivocal references to Mrs R.M.’s private life – such as the use of diminutives in the text accompanying the cartoon – which in their submission were wholly inappropriate contributions to a debate on the matter of general interest being brought to the public’s attention.

The Government went on to argue, firstly, that the applicants had not established the truth of their specific allegations of corruption and complicity on Mrs R.M.’s part in the signing of illegal contracts and, secondly, that they had failed to provide the national courts with even the slightest factual basis for their value judgments as to the morality and competence of the city council’s former legal expert. They noted in that connection that the courts had found the applicants guilty of insult and defamation after establishing that they had acted in bad faith.

With regard more particularly to the Audit Court report, the Government submitted that it could not have formed a basis for the applicants’ allegations, seeing that it had not been issued until 26 May 1994, more than one month after the publication of the article. Furthermore, in the national courts the applicants had not mentioned either the existence of such a report or the fact that reviews by the Audit Court were in progress, thereby depriving the courts of the possibility of requesting the relevant official documents from the supervisory bodies in question.

The Government further maintained that the applicants’ conviction had met a pressing social need, namely the protection of Mrs R.M.’s private life and reputation and, implicitly, the image of the judiciary, since the injured party’s status as a serving judge had repeatedly been emphasised in the article in issue. They considered that the applicants’ allegations, far from concerning a debate on a matter of general interest, had in fact consisted of pers