Constantinescu v. Romania

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 19

June 2000

Constantinescu v. Romania - 28871/95

Judgment 27.6.2000 [Section I]

Article 10

Article 10-1

Freedom of expression

Conviction for defamation: no violation

Article 6

Criminal proceedings

Article 6-1

Public hearing

Oral hearing

Absence of oral hearing on appeal: violation

Article 34

Victim

Continuing status of victim after acquittal

(Extract from press release)

Facts: The applicant, Mihail Constantinescu, a Romanian national, was born in 1945 and lives in Bucharest (Romania). The case concerns the applicant’s conviction for criminal defamation. He was the president of a teachers’ trade union and was prosecuted following the publication in the press of comments he had made regarding internal disputes in the union and the functioning of the judicial system. He had referred to three teachers, all members of the previous trade-union leadership who had refused to return money belonging to the union after the election of new leaders, as “delapidatori” (receivers of stolen goods). The union had lodged a criminal complaint against them.

The applicant was acquitted by the Bucharest Court of First Instance on 18 March 1994. On appeal, he was convicted on 10 October 1994 by the Bucharest District Court, which held that he had had a defamatory intent since he must have been aware when making his remarks in the presence of journalists that the prosecution had dropped the charges against the three teachers concerned.

The applicant alleged a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. He maintained that he had not been allowed to prove that his comments were true and had not been informed that the charges had been dropped by the prosecution when the article appeared. He also complained that he was denied a fair hearing before the Bucharest District Court and alleged a violation of Article 6 § 1 of the Convention. He maintained that he had not been allowed to give oral evidence by that court, which had relied solely on the file before the first-instance court, and complained that the district court had made no reference in its decision to the statements of the defence witnesses.

Law: Government’s preliminary objections - Whether the applicant was a “victim”: The Court observed that on 4 February 2000 the Supreme Court of Justice had allowed the prosecution’s application for review and quashed the conviction that was the subject-matter of the applicant’s complaints under Articles 6 and 10. It noted that the decision to acquit the applicant – made after the proceedings had been reopened more than five years after his conviction in a final decision – was based solely on the absence of a defamatory intent. No reference was made in the decision to the manner in which the proceedings before the Bucharest District Court had been conducted or to the applicant’s complaints on that point. In the Court’s view, the Supreme Court of Justice’s decision of 4 February 2000 could not be regarded as having expressly or implicitly acknowledged the alleged violation of Article 6 § 1 of the Convention and, in any event, did not constitute adequate reparation, as that expression had been defined by the Court in its case-law. Even if the decision could be regarded as implicitly acknowledging a violation of Article 10, the Court came to a like conclusion with regard to the issue of reparation as, firstly, the applicant had not been awarded any compensation for his conviction and, secondly, the sums he had paid to the three teachers for non-pecuniary damage had not been paid back. With regard to the fine, the Court noted that even though it had been five years since the applicant paid it, the Bucharest Court of First Instance had failed to take into account inflation over that period in its of letter of 6 March 2000 to the Bucharest Third District Tax Office requesting restitution of that amount.

The Court concluded that the applicant could claim to be a “victim” within the meaning of Article 34 of the Convention.

Article 6 § 1 - In order to determine whether there had been a violation of Article 6 it was necessary to consider the role of the Bucharest District Court and the nature of the issues before it. The procedure before the Bucharest District Court was a full one that followed the same rules as proceedings on the merits, the court being required to examine issues of both fact and law. The district court was empowered either to uphold the applicant’s acquittal or to find him guilty after carrying out a thorough review of the issue of his guilt or innocence allowing, if appropriate, the admission of new evidence. The Court noted that after overturning the first-instance court’s decision to acquit, the Bucharest District Court had ruled on the merits of the accusation against the applicant and found him guilty of defamation without hearing evidence from him. The Court could not accept the respondent Government’s argument that the fact that the accused was last in turn to address the Court offered him sufficient protection. While the accused’s right to be the last to address the Court was important, it was not to be confused with his right to give evidence at the trial before the Court.

The Court accordingly found that the Bucharest District Court had ruled on the merits of a criminal accusation against the applicant and found him guilty of defamation without affording him an opportunity to give evidence and defend his case. It considered that the applicant should have been heard by the Bucharest District Court, especially as it was the first court to convict him in proceedings aimed at establishing whether he was guilty of a criminal offence. As that requirement had not been satisfied, the Court held that there had been a violation of Article 6 § 1.

Conclusion: violation (unanimous).

Article 10 - The Court noted that it was common ground that the applicant’s conviction for defamation constituted an interference by the public authorities in the exercise of his freedom of expression within the meaning of Article 10 of the Convention. The issue was whether that interference could be justified under paragraph 2 of that provision. It was therefore necessary to examine whether the interference was “prescribed by law”, pursued a legitimate aim under that paragraph and was “necessary in a democratic society”.

The Court found (the point was not in issue) that the interference was “prescribed by law”. It pursued a legitimate aim under paragraph 2 of Article 10, namely the protection of the reputation or rights of others. The Court’s settled case-law therefore required it to determine whether the interference met a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. The Court therefore had to examine de comments in issue in context, having regard to the circumstances of the case.

The Court noted that there were two aspects to the applicant’s comments: his criticism of the police and the prosecution, whom the applicant accused of not wanting to complete the investigation into the complaint made against A.P., R.V. and M.M., and the applicant’s assertion that the latter three were “delapidatori”. The Court noted that the infringement of the applicant’s freedom of expression related to the second aspect only. The Bucharest District Court had based its conviction on the word – held to be defamatory – used by Mr Constantinescu to describe the three teachers and not on the fact that he had expressed opinions criticising the functioning of the system of justice in trade-union disputes.

Even though the applicant’s remarks had been made in the context of a debate on the independence of trade unions and the functioning of the judicial system and were therefore of public interest, there were limits on freedom of expression. Notwithstanding the applicant’s special role as a trade-union representative, he was required to remain within the limits set, in particular, in the interest of “the protection of the reputation or rights of others”, including the right to be presumed innocent. The Court therefore had to determine whether he had overstepped the bounds of acceptable criticism.

In the Court’s view, the use of the word “delapidatori” to describe people found guilty of the offence of receiving stolen goods was apt to offend the three teachers, as they had not been convicted by a court. The Court considers that the applicant could quite easily have voiced his criticism and contributed to a free public debate on trade-union problems, without using the word “delapidatori”.

Accordingly, the State’s legitimate interest in protecting the reputation of the three teachers did not conflict with the applicant’s interest in contributing to the aforementioned debate. The Court was therefore persuaded that the reasons relied on by the national authorities were “relevant and sufficient” for the purposes of paragraph 2 of Article 10. It also found that in the circumstances of the case the resulting interference had been proportionate to the legitimate aim pursued. The Court also found that the penalty imposed, namely, a fine of 50,000 lei and an award of 500,000 lei to each teacher for non-pecuniary damage, was not disproportionate. Accordingly, it did not appear that the Bucharest District Court had overstepped the margin of appreciation left to the national authorities and there had been no violation of Article 10.

Conclusion: no violation (6 votes to 1).

Article 41 - The Court, clearly, could not speculate on what the outcome would have been if the applicants had had a fair trial, but it was not unreasonable to suppose that he had suffered the loss of a real chance at such a trial. Ruling on an equitable basis, it awarded him FRF 15,000 to be converted into Romanian lei (ROL).

As regards costs and expenses, the Court, ruling on an equitable basis, awarded the applicant FRF 20,000 less the amounts which had already been paid by the Council of Europe by way of legal aid, the balance to be converted into ROL.

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