ÎCCJ, decizie (scj.ro #86349)

ÎCCJ, decizie (scj.ro #86349) (Înalta Curte de Casație și Justiție)

COUR EUROP

É

ENE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

CASE

OF CUMPĂNĂ AND MAZĂRE v.

ROMANIA

(Application

no. 33348/96)

JUDGMENT

STRASBOURG

17 December 2004

This judgment is final but may be

subject to editorial revision.

In the case of Cumpănă and Mazăre v.

Romania

,

The European Court of Human Rights,

sitting as a Grand Chamber composed of:

Mr

L.

Wildhaber

,

President

,

Mr

C.L.

Rozakis

,

Mr

J.-P.

Costa

,

Mr

G.

Ress

,

Sir      Nicolas

Bratza

,

Mr

I.

Cabral

Barreto

,

Mrs

V.

Strážnická,

Mr

C.

Bîrsan,

Mr

P.

Lorenzen,

Mr

J.

Casadevall,

Mr

B.

Zupanèiè,

Mr      J.

Hedigan,

Mr

M.

Pellonpää,

Mr

A.B.

Baka,

Mr

R.

Maruste,

Mr

M.

Ugrekhelidze

,

Mr

K.

Hajiyev

,

judges

,

and Mr

P.J.

Mahoney

,

Registrar

,

Having deliberated in private on 1

September and

10 November 2004

,

Delivers the following judgment, which

was adopted on the last‑mentioned date:

PROCEDURE

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.

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.

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.

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).

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.

Court changed the composition of its Sections (Rule 25 § 1). This case was

assigned to the newly composed Second Section (Rule 52 § 1).

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

.

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.

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.

Chamber accepted that request on 3 December 2003.

Grand Chamber was determined according to the provisions of Article 27 §§ 2 and

3 of the Convention and Rule 24.

Government filed submissions on the applicants’ referral request.

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.

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

I.  THE CIRCUMSTANCES OF THE

CASE

Constantin Cumpănă and Mr Radu Mazăre, were born in 1951 and 1968 respectively

and live in Constanța.

A.  The circumstances of the

case

(a)  The city authorities’ partnership

contract with the Vinalex company

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.

June 1992 the mayor of Constanța authorised a private company, Vinalex, to

perform the services of removing, towing away and impounding illegally parked

vehicles.

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

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.

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.”

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.

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

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.

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.

against the applicants

(a)  Proceedings at first instance

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.

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.

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.

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.

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.

1994 the court adjourned the case as the applicants were not present.

decision of 21 July 1994 the Supreme Court of Justice ordered the referral of

the case to the Lehliu-Gară Court of First Instance.

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.

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.

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.

of the Bucharest Bar, N.V., agreed to represent the applicants.

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.

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.

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.’”

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.”

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

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

the applicants appealed against the first-instance judgment of 17 May 1995.

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.

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

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.

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 ...”

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.”

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.”

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

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).

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.

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

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

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.

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).

after that judgment he was elected mayor of Constanța, a position he still

holds.

II.  RELEVANT DOMESTIC LAW

A.  The Criminal Code

individual

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.”

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.

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.

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 64.

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 ...”

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.”

criminal responsibility or the effects of a conviction

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)

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.  ...

the limits prescribed by law; ...

classified in law...”

Article 412

“Before applying to have a decision quashed, the

Procurator-General may order a stay of its execution.”

THE LAW

I.  PRELIMINARY ISSUE: SCOPE

OF THE GRAND CHAMBER’S JURISDICTION

reply to the applicants’ request for referral of the case to the Grand Chamber,

the Government submitted that the first applicant had made the request without

the second applicant’s explicit approval. However, the second applicant had not

been represented by the first applicant on the date on which the latter had

sent the request to the Court.

that the scope of the Grand Chamber’s jurisdiction was limited to the first

applicant’s allegation of an infringement of his freedom of expression. They

accordingly requested the Grand Chamber not to examine the second applicant’s

complaints under Article 10 of the Convention.

to that request and asked the Court to examine the case as a whole on the

grounds that their referral request had been lodged on behalf of both of them

and that the Convention did not explicitly state the potential consequences of

the fact that one of them had not signed the document.

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.

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.

Grand Chamber shall decide the case by means of a judgment.”

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.

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

signed the referral request in the instant case (see,

mutatis mutandis

,

Karner

v. Austria

, no. 40016/98, § 28, ECHR 2003-IX).

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.

the case now before the Grand Chamber is not limited in the manner claimed by

the Government.

II.  ALLEGED VIOLATION OF

ARTICLE 10 OF THE CONVENTION

that their conviction following the publication on 12 April 1994 of an article

in a local newspaper amounted to unjustified interference with their right to

freedom of expression within the meaning of Article 10 of the Convention, the

relevant parts of which provide:

“1.  Everyone has the right to freedom of

expression. This right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by public authority ...

carries with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are prescribed by law and

are necessary in a democratic society ... for the protection of the reputation

or rights of others, ... or for maintaining the authority and impartiality of

the judiciary.”

A.  Submissions of those

appearing before the Court

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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