THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28999/03
by Constantin TIMCIUC
against Romania
The European Court of Human Rights (Third Section), sitting on 12 October 2010 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Constantin Timciuc, is a Romanian national who was born in 1956 and lives in Satu Mare.
2. The present application consists of complaints lodged at different times by the applicant, each complaint concerning individual sets of domestic proceedings in respect of which he addressed the Court.
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Background of the case
4. From 31 October 1996 the applicant occupied the post of director of the Administration of Markets in Satu Mare, an administrative body under the authority of the mayor. At that time the mayor of Satu Mare was H.A. The applicant was also working as a part-time legal advisor for the Satu Mare Town Hall. After his arrest (see paragraph 7 below), he was released from his duties as director by a decision of the Local Council of 24 April 2003 and was dismissed from the post of legal advisor by a decision of the Mayor's Office of 9 May 2003.
5. From 2002, a series of articles was published in Gazeta de Nord Vest (“GNV”), a local daily newspaper, in which the applicant and the mayor were accused of having accepted bribes in their professional capacity.
6. On 13 January 2003 at 6 a.m. two police officers paid the applicant a visit and invited him to the police station in order to make a statement. On the same day he was taken from Satu Mare to Bucharest along with other individuals and questioned through the night, concerning alleged acts of corruption. The mayor was also under investigation.
7. On 14 January 2003 in the morning the prosecutor issued an arrest warrant in connection with the crimes of accepting bribes over a period of time and abuse of office (“luare de mită în formă continuată” and “abuz în seviciu în dauna intereselor publice”).
The applicant was released on 17 November 2003 by an order of the Oradea Court of Appeal.
8. Throughout the criminal investigations, several articles were published in GNV concerning the mayor's and the applicant's alleged acts of corruption. Most of the articles appeared in the gossip column entitled Gura Târgului, where petty facts about local public figures were published without mention of the author. The director of GNV explained to the courts dealing with the defamation claims brought by the applicant against the newspaper that those articles were the creation of all the editors, thus could not be attributed to a particular individual.
9. On 23 and 24 February 2005 the newspaper published a “note” claiming that it was as a result of its whistle blowing that the mayor and the applicant had been arrested.
B. Criminal trial against the applicant
10. On 22 September 2003 the Prosecutor's Office against Corruption (Parchetul Naţional Anticorupţie) decided to close the criminal proceedings concerning certain counts of bribery while nevertheless continuing them on other counts.
11. On 17 October 2003 the prosecutor committed the applicant, the former mayor and five other persons to trial on several counts of corruption during the mayor's mandate. The applicant was indicted for abuse of office and giving bribes (dare de mită).
12. The prosecutor noted that the applicant had occupied the post of director without the legal formalities - competition for the post, decision of the Local Council confirming the nomination - having been completed. It also noted that the post of legal advisor did not appear in the Town Hall's organisational chart, and that nobody in the local administration knew that the applicant was occupying it.
13. Furthermore, in 1999 the applicant and the mayor had agreed that the former would get his law degree in 2000 and that the latter would keep a legal advisor post blocked for him until then. In exchange, the applicant promised H.A. that he would convince his mother and uncle to sell the mayor a plot of land. On 14 March 2003 the mayor bought that land for a small price, which he never paid.
14. The prosecutor also noted that the applicant had leased a booth in the market to a company administered by him and owned by his son and another person, and paid for the repair of the booth from the local budget.
15. The Alba County Court examined the case and rendered its 79-page long decision on 28 February 2008.
The court dismissed as unfounded the accusations that the applicant had occupied his two posts in the local administration unlawfully. The court also considered unfounded the allegations concerning the sale of land to the mayor; it found that the price paid corresponded to the quality of the land and to the prices in the area, and noted that the applicant had never owned the plot in question therefore could never have offered it as a bribe; it reiterated that as the applicant had occupied his posts in the administration lawfully there was no causal link between them and the impugned sale.
Lastly, the court considered that the applicant had not broken any regulations when attributing the space in the market to his son's company.
16. The applicant and the co-defendants were acquitted on all counts.
17. The judgment was upheld, by a decision of 5 March 2009 of the Alba Iulia Court of Appeal, and by a final decision of 19 November 2009 of the High Court of Cassation and Justice (the latter decision was rendered upon an appeal on points of law lodged by the applicant and the co‑defendants).
C. Criminal complaints for defamation
1. Article in Academia Caţavencu, the 20-26 August 2002 issue
18. I.C. published an article in the 20-26 August 2002 issue of the satirical weekly magazine Academia Caţavencu. The article mainly concerned the mayor's alleged dubious business practices, and in this context it touched upon the relationship between the mayor and the applicant.
19. The applicant complained about a statement in that article which read that he “was made chief of the Administration of Markets, from where meat, eggs, milk and wool rain on him every month” and that the mayor sold some booths in the market at double their value and shared the money with the applicant and another individual.
20. On 15 March 2004 the Satu Mare District Court acquitted the journalist and dismissed the applicant's claim for damages.
It found that the article had been written in the habitual style of a satirical paper and that the fact that the applicant had been arrested and committed to trial afterwards was a good indication for the journalists that he might have committed the alleged offences. On this point, it noted that the applicant had been arrested based on the evidence in the prosecution's file, and not exclusively on that article, as he had argued in his complaint.
Lastly, the court considered that the author of the article, through journalistic means, had aimed to make public certain negative aspects of the work of civil servants, and not to defame the applicant.
21. The journalist did not participate in the proceedings, despite several summonses being delivered to him by the police with an order to appear in court (mandat de aducere).
22. In a final decision of 11 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's reasoning and found, in addition, that the journalist had based his article on previously published material and on a press release issued by the Prosecutor's Office concerning the mayor and the applicant.
23. The applicant lodged his complaint with the Court on 20 September 2004.
2. Article published on 27 November 2002
24. On 27 November 2002 an article was published in GNV about the mayor's personal real estate acquisitions during his mandate, including the construction of a villa on land bought from the applicant.
25. The latter lodged a criminal complaint against V.M., the director of GNV.
26. V.M. did not participate in the trial.
27. On 13 December 2004 the Satu Mare District Court dismissed the criminal complaint and the civil claim for damages. It considered that even if the mayor had in fact bought that land from the applicant's mother, and not from the applicant himself, as the evidence proved, there was nothing defamatory in the impugned statement.
28. In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and added that the fact that V.M. had not participated in the trial and that he had refused to publish the applicant's comments (“dreptul la replică”) had no bearing on the case. It also dismissed the applicant's arguments of a violation of his right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, as it noted that in the case under examination he had not been accused of any criminal act.
29. The applicant lodged his complaint with the Court on 17 May 2005.
3. Article published on 13 December 2002
30. On 13 December 2002 F.C. published an article in GNV reporting on the sale of land by the applicant's mother to the mayor, which he described as a present from the applicant to the mayor in return for the applicant's post of director.
31. On 16 December 2002 the applicant made a criminal complaint against the journalist.
32. On 20 October 2005 the Satu Mare District Court acquitted F.C. and dismissed the civil claim for damages. On 20 January 2006 the Satu Mare County Court upheld the judgment, while nevertheless giving its own interpretation of the facts and evidence in the file. In particular, it noted that all the statements of fact made in the article were proven by the evidence in the file and that not even the applicant contested them. It considered that the following value judgments had been made: that the mayor had wanted a trustworthy person on his side; and that the applicant had paid the favour back by selling the plot of land to him. The court noted that F.C. had reported on matters of public interest and that a certain degree of exaggeration was acceptable. It also noted that he had acted in good faith and had not intended to defame the applicant. Lastly, the court pointed out that the applicant had in fact been sent to trial for acts of corruption concerning the sale of that plot of land.
For all these reasons it acquitted the journalist. The court also rejected the civil claims for damages, as it considered that the applicant had not suffered any prejudice as a result of the publication.
The decision was final.
33. The applicant complained to the Court on 28 June 2006.
4. Article of 9 January 2003
34. On 9 January 2003 an article appeared in the “Gura târgului” column in GNV. The relevant parts read as follows:
“Gura Târgului says that Timciuc would like to offer [the place in the market] to a favoured trader who would give him, probably as many others do, a present-fee (taxă tip cadou) of 500 euros. We do not know how this sum will appear in the balance sheets and we do not even think this will happen, but we would like to know for how much longer the traders in the market will keep the silence.”
35. The applicant lodged a criminal complaint against M.V. and D.C., director and editor-in-chief respectively of GNV at that time.
36. On 25 March 2004 the Satu Mare District Court considered that the information published was based on reliable sources and concerned acts presumably committed by the applicant; the information had been verified by the journalists before publication and their investigation was likely to have convinced them of its veracity. It also noted that shortly after, the applicant was arrested under the same suspicions.
The court also considered that information on the applicant's activity was of interest to the public at the time. The journalists' intention had not been to defame the applicant but to bring those facts to public attention. It concluded that the journalists had not acted in bad faith.
37. In a final decision of 28 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's arguments and added that the fact that the applicant had later been released from custody and committed to trial only on certain counts did not have an incidence on the alleged offence of defamation committed though the publication of that article.
38. The applicant lodged his complaint with the Court on 20 September 2004.
5. Article published on 6 January 2004
39. On 6 January 2004 another article was published in GNV that the applicant found defamatory. On 27 September 2004 he lodged a criminal complaint against the director and the editor-in-chief of the newspaper.
40. On 13 December 2004 the Satu Mare District Court noted that the applicant had not respected the time-limit set by the Code of Criminal Procedure for lodging his complaint. It therefore ended the criminal proceedings.
In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment.
41. The applicant lodged his complaint with the Court on 17 May 2005.
6. Article published on 3 February 2004
42. On 3 February 2004 the “Gura Târgului” column in GNV carried an article entitled “Murgul mânat de Costică” (“Murgul led by Costică”) in which it was alleged that the applicant had advised someone from the Administration of Markets on how to undermine the authority of the new director who had replaced the applicant in that function, and that the applicant himself was interested in undermining the new director. The applicant lodged a criminal complaint against the director of the newspaper.
43. On 13 May 2005 the Satu Mare District Court dismissed the complaint and the claim for damages. The court considered that it did not need to hear the defendant, who refused to participate in the trial. On the merits it found that the imputations were not serious enough to expose the applicant to a criminal sanction or to public contempt. It relied on the Court's case-law on Article 10, notably in order to ascertain the degree of exaggeration allowed to journalists. As the applicant's public image had not been damaged, the court dismissed the civil claims for damages.
44. In a final decision of 7 October 2005, the Satu Mare County Court dismissed the applicant's appeal.
45. The applicant lodged his complaint with the Court on 28 November 2005.
7. Article published on 24 July 2004
46. On 24 July 2004, another article was published in the “Gura Târgului” column in GNV, entitled “One more mogul to go” (“Cu un baron în plus”).
The following remarks were made about the applicant:
“Former chief of markets arrested and then released, having dirtied his hands with some 'dough' (fost pieţar şef arestat şi apoi eliberat... s-a murdărit pe mâini cu oareşce verzişori) ... complains that he is being politically persecuted. He crows wherever he can that all barons are free, but he is not. So, our man thinks he is so important that he acts as if he really were in the shoes of a mogul.”
47. The applicant lodged a criminal complaint against the director and the editor-in-chief of GNV.
48. On 16 December 2004 the Satu Mare District Court considered that the remarks in the article were not capable of defaming the applicant and the mention of his arrest and subsequent release did not expose him to any criminal consequence.
49. On 26 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and it added that the mere fact that the applicant had not been sent to trial for some of the crimes he was arrested in connection with was not enough to prove bad faith on the part of the journalists. It also noted that “Gura Târgului” was a satirical column in the newspaper where pieces were published concerning public figures from the county. The decision was final.
50. The applicant lodged his complaint with the Court on 15 August 2005.
8. Complaints lodged against witness G.N.
(a) Complaint of 14 November 2005
51. On 14 November 2005 the applicant lodged a criminal complaint against G.N., who had declared in the context of a criminal trial involving the mayor and the journalist V.M. that he had heard that the applicant had requested bribes from the traders in the market. G.N. had repeated those affirmations to the press and on national TV. The applicant considered the remarks defamatory.
52. On 16 October 2006 the Satu Mare District Court noted that the offence of defamation had been decriminalised by Law no. 278/2006 amending the Criminal Code and acquitted G.N. Consequently, it did not decide on the civil claims for damages.
53. On 12 October 2006 the applicant sent a letter to the President of the District Court, asking him to order that the civil claims be decided. He considered that in choosing not to examine the civil claims, the court had denied him access to court, in violation of Article 6 of the Convention.
His letter was considered to be an appeal against the judgment and was therefore sent to the county court for examination.
54. On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that while the criminal court was not competent to examine the civil claims, the applicant could lodge them with the civil courts.
55. It appears from the documents in the file that the applicant did not do so. However, after the Constitutional Court's decision nr. 62/2007 (see paragraph 97 from the “Relevant domestic law” part below), the applicant again brought an action for defamation against N.G. and sought damages. It seems that on 13 November 2006 the Satu Mare District Court acquitted G.N. because the act complained of was not punishable by the criminal law and the judgment was upheld on 12 January 2007 by the County Court. The applicant did not submit copies of those decisions to this Court.
It appears that the applicant did not lodge a complaint with the civil courts.
56. The applicant submitted his complaint to the Court on 8 January 2007.
(b) The second complaint
57. On 15 May 2006 the applicant filed a criminal complaint for defamation against the same G.N., whom he accused of having called him “dumb” (tâmpit) in his address to the court in a criminal trial where G.N. appeared as a witness.
58. On 13 November 2006 the Satu Mare District Court acquitted the defendant as the facts were no longer punishable by the criminal law. Accordingly it did not decide on the civil claims. The judgment was upheld on 26 January 2007 by the Satu Mare County Court.
The applicant did not provide the full text of those decisions. It appears, however, that he did not seek damages with the civil courts.
59. On 15 February 2007 the applicant lodged his complaint with the Court.
9. Other complaint
60. The applicant complained in 2004 about several articles published in GNV which he found defamatory. He lodged his complaint against C.D., the director of the newspaper at that time.
61. On 16 October 2006 the Satu Mare District Court noted that defamation had been decriminalised by Law no. 278/2006 and therefore acquitted C.D. and left the civil claims unresolved.
62. On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that the applicant could have pursued the civil claims before a civil court, which he chose not to do. The decision was final.
63. On 8 January 2007 the applicant brought the complaint to the Court.
D. Other criminal complaints
1. Criminal complaint against an expert
64. On 10 October 2002 the applicant lodged a criminal complaint against an expert accountant who had been appointed by the court in the criminal trial against the applicant to assess some investments made by the local authorities.
65. On an unspecified date the prosecutor dismissed the complaint. The applicant objected, but the courts upheld the prosecutor's decision. The final decision in the case was that of 1 October 2004 by the Satu Mare County Court.
66. The applicant did not provide information on whether he sought civil damages in the proceedings.
67. He lodged his complaint with the Court on 17 November 2004.
2. Criminal complaint against S.T., the current director of the Administration of Markets
68. The applicant filed a criminal complaint against S.T., the current director of the Administration of Markets in Satu Mare, accusing him of several illegalities in his activity. On 27 February 2007 the Chief Prosecutor attached to the Satu Mare District Court upheld the prosecutor's decision not to prosecute S.T. The applicant complained to the courts, but his complaint was dismissed on 15 June 2007 by the Satu Mare District Court as out of time. The appeal was also rejected on 9 August 2007 by the County Court (final decision).
69. The applicant lodged his complaint with the Court on 15 September 2007.
3. Complaint of false testimony against two witnesses
70. G.N. and S.I. were witnesses in the criminal trial against the applicant. In the proceedings before the courts they withdrew the initial statements they had made to the prosecutor, which were unfavourable to the applicant.
In the autumn of 2003, the applicant filed a criminal complaint of false testimony against them.
It appears that on 7 February 2006 the prosecutor attached to the Satu Mare County Court decided not to prosecute and that his decision was upheld by the Prahova County Court in a final decision of 29 October 2007. The applicant did not submit copies of the court decisions delivered in the case.
71. He lodged his complaint with the Court on 15 January 2008.
4. Criminal complaint against judges
72. On 10 October 2005 the applicant lodged a criminal complaint against three judges from the Satu Mare County Court. He accused them of having arrested him and extended his detention unlawfully and of having behaved abusively towards him, in the knowledge that he had not committed any crime.
73. On 21 February 2008 the prosecutor attached to the High Court of Cassation and Justice decided not to prosecute as he considered that the judges had not committed any of the alleged crimes.
74. The applicant objected and brought his case before the courts.
75. On 19 September 2008 the Oradea Court of Appeal upheld the prosecutor's decision, and on 12 December 2008 the High Court upheld the judgment (final decision).
76. The applicant lodged his complaint with the Court on 11 May 2009.
5. Criminal complaint against the journalist V.M.
77. The applicant lodged a criminal complaint against V.M., who had allegedly threatened him with “physical correction” during a court hearing on 10 February 2005. The applicant claimed that he had understood this remark to be a threat that V.M. would beat him up. There is no indication in the file as to whether the applicant sought civil damages from V.M.
78. On 6 May 2005 the Negreşti Oaş District Court dismissed the complaint, as it considered that the deed committed by V.M. was not severe enough to create in the applicant a “legitimate and serious fear”, the element required in order for the deed to constitute the offence of threatening behaviour. It also noted that there was a pre‑existing conflict between the applicant and V.M. caused by the numerous criminal proceedings they were both involved in.
79. In a final decision delivered on 7 October 2005 the Satu Mare County Court upheld the judgment.
80. On 28 November 2005 the applicant lodged his complaint with the Court.
E. The applicant's employment conflicts
1. Action of reinstatement
81. On an unspecified date, the applicant filed an action against the Mayor's Office, seeking reinstatement to his former positions: part-time legal advisor at the Town Hall and Director of the Administration of Markets, and payment of his salary for 13 January 2003 to 30 January 2006.
82. On 31 May 2006 the Satu Mare County Court noted that the administrative decision ordering the applicant's dismissal from the post of legal advisor was null and void as it had not been issued in conformity with the legal requirements.
83. However, it noted that during his preventive detention he was not entitled to receive a salary, and that for the damage allegedly suffered during that time he could lodge an action against the State for unlawful detention. Therefore he was not entitled to payment of his salary for that period.
84. The court also considered that from 17 November 2003, when he was released from detention, until 30 January 2006, when he lodged his present action, the applicant had been inactive and had not returned to work. Therefore, he was not entitled to payment of salary for that period.
85. Lastly, the court noted that the applicant had been released from the post of director by a decision of the Local Council of 24 April 2003 and that it was therefore for the administrative court to deal with that part of the request.
86. In sum, the court ordered the Mayor's Office to reinstate the applicant as legal advisor and to pay his salary from 30 January 2006 until effective reinstatement and sent his complaint seeking to be reinstated to his former position as director to the administrative section of the Satu Mare County Court.
87. On 11 October 2006 the Oradea Court of Appeal upheld the judgment, on appeals lodged by both parties.
88. On 7 November 2006 the applicant was reinstated as legal advisor by order of the Mayor's Office.
89. On 4 December 2006 the Oradea Court of Appeal ordered the Ministry of Finances to pay the applicant 500,000 Romanian Lei for illegal arrest and noted that the period spent in detention would count as time spent in work for the purposes of calculating the applicant's pension.
90. On 8 January 2007 the applicant lodged his complaint with the Court. He submitted no further information on the outcome of the case before the administrative courts.
2. Criminal complaint against the mayor for alleged refusal to reinstate the applicant
91. On 20 July 2007 the applicant lodged a criminal complaint against I.I., the current mayor of Satu Mare, for abuse of office, accusing him of not having complied with the decisions ordering the applicant's reinstatement and payment of salary.
92. On 14 March 2007 the prosecutor attached to the Satu Mare District Court decided not to prosecute, noting that the mayor had appealed against the 31 May 2006 judgment ordering the reinstatement and that on 11 August 2006 the Oradea Court of Appeal had suspended the enforcement until the appeal had been examined. Therefore, I.I. had been right not to enforce the decisions.
93. On 27 April 2007 the chief prosecutor upheld the prosecutor's decision. The prosecutor's decisions were upheld by the District Court on 16 November 2007 and by the County Court in a final decision of 11 January 2008, with the same reasoning as that set out in the prosecutor's initial decision. The County Court also noted that on 7 November 2006, after the appeal proceedings had ended, the applicant had been reinstated.
94. The applicant lodged his complaint with the Court on 15 January 2008.
F. Relevant domestic law
95. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008.
96. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (Law no. 278/2006; for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008).
97. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal of the Articles on insult and defamation from the Criminal Code.
COMPLAINTS
A. Complaints concerning the criminal proceedings against the applicant
98. On 1 June 2005 the applicant lodged with the Court a series of complaints concerning the criminal proceedings against him. In particular, he complained under Article 5 of the Convention that he had been unlawfully and abusively arrested. He considered that the prosecutor was not a “judge or other officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention.
99. The applicant also claimed, invoking Article 13 of the Convention, that there was no effective remedy by which he could complain about the prosecutor's abuse in ordering his arrest.
100. The applicant claimed that the prosecutor had told him that he was being arrested and held in detention solely in order to obtain information on the mayor. For this reason, he alleged a violation of Article 14 of the Convention.
101. Relying on Article 6 § 1 of the Convention, the applicant complained that the courts had only extended his preventive detention because of pressure created by a media campaign against him. He therefore doubted their independence and impartiality.
102. Furthermore, the applicant considered that the extension of his detention had violated his right to be presumed innocent, guaranteed by Article 6 § 2 of the Convention.
103. Lastly the applicant complained that the criminal proceedings against him had been unfair and had lasted too long, in violation of Article 6 § 1 of the Convention.
B. Complaints concerning the defamation trials
104. The applicant complained under Article 6 § 1 of the Convention that the defamation proceedings brought by him had not been fair.
In particular, he considered that he had been arrested solely because of the articles published about him, in particular that of 27 November 2002 in GNV. He complained that the courts dealing with his defamation claims had not taken into account as evidence the “note” published on 23 and 24 November 2005 by GNV (see paragraph 9 above).
He also argued that the defendants had failed to prove the veracity of their statements and that the court had either not heard the defendants (article of 20‑26 August 2002 in Academia Caţavencu; articles of 13 December 2002, 9 January 2003, 3 February 2004 and 24 July 2004 in GNV) or when they had heard the journalists, they had refused to ask all the questions that the applicant had raised (article of 27 November 2002).
105. Concerning the article published on 6 January 2004, the applicant complained under Article 6 § 1 of the Convention about the fact that his action was dismissed; in particular he considered that the courts had not calculated the time-limit correctly.
106. Under the same provision he complained that the courts were afraid of GNV because of a series of injurious articles the newspaper had featured on the alleged corruption of the magistrates in Satu Mare. Therefore, he advanced that the courts were not independent and impartial.
107. The applicant further considered that the proceedings in defamation concerning the article published on 13 December 2002 lasted too long, in violation of Article 6 § 1 of the Convention.
108. In connection with the two sets of proceedings against witness G.N. and concerning the other complaint lodged in 2004 about several articles published in GNV, the applicant alleged a violation of Articles 6 § 1 and 13 of the Convention in that the courts had not examined his civil claim, even after the Constitutional Court's decision.
Unsatisfied with the decision adopted by the courts, he made the following remarks about the president of the district court in the first complaint against G.N.:
“... due to his gross inefficiency and shameless abuses I have repeatedly been held in police custody according to the Stalinist principles that he upholds, that is, as long as the man is in police custody we will fabricate evidence against him.” (“... datorită incompetenţei crase sau abuzurilor neruşinate a dispus în repetate rânduri să fiu menţinut arestat preventiv conform principiilor staliniste a căror susţinător este, şi anume să ţinem arestat omul că vom fabrica noi probe împotriva lui.”)
In his letter to the Court of 15 August 2005 he referred to GN as “social scum” (“gunoi social”).
109. The applicant alleged a breach of his right to be presumed innocent, in violation of Article 6 § 2 of the Convention. In particular, he pointed out that the fact that he had been arrested had in itself exonerated the defendants from proving the truth of their defamatory statements (proceedings concerning the articles published on 20/26 August 2002 in Academia Caţavencu and on 9 January 2003 in GNV). Furthermore, he complained that in the courts' view, “the lies of a tramp prosecutor in an indictment drafted without reference to any evidence would mean that [he] had committed those crimes” (“minciunile debitate de o jigodie de procuroare într-un rechizitoriu fără ca să se facă referire la vreo probă ar însemna că eu aş fi comis infracţiunile”; complaint about the proceedings on the article published on 13 December 2002, paragraphs 30-33 above).
110. Under Articles 6 and/or 10 § 2 of the Convention, the applicant complained that he had been defamed by the journalists in all the articles submitted to the courts.
111. In respect of the articles published on 27 November 2002 and 24 July 2004, the applicant invoked a violation of Article 8 of the Convention, in so far as it concerned the right to respect for his private and family life. In particular he complained about the mention in the indictment of the fact that his mother had sold a plot of land to the mayor. He also alleged a violation of Article 8 in respect of the article published on 3 February 2004; he gave no further details on this complaint.
C. Other criminal complaints
112. The applicant considered that he had not had a fair trial by an independent and impartial court, in respect of the criminal proceedings lodged against an expert, the current director of the Administration of Markets, two witnesses, judges and the journalist V.M. He relied on Article 6 § 1 of the Convention. In particular, he complained that the courts had refused to order the Prosecutor's Office to adduce the evidence requested by the applicant in the case brought against the expert, and that the defendant V.M. had not participated in the proceedings. He reiterated his complaint that the courts were afraid of the journalists (see paragraph 106 above).
113. He also complained about the length of the proceedings against the two witnesses.
114. Under Article 14 he complained that he had been discriminated against in so far as although he and the new director had performed their functions in the same manner, no criminal charges had been brought against the new director.
D. Complaints related to the employment litigations
115. The applicant claimed that he did not have a fair trial in the proceedings against the termination of his work contracts or in the proceedings related to the criminal complaint that he had lodged against the new mayor.
In addition, he considered that the courts that had examined the criminal complaint against the mayor had not been independent and impartial.
116. Lastly, the applicant claimed that he had been discriminated against, in so far as another person who had been under investigation in the same case received compensation for unpaid salary.
THE LAW
A. On the complaints concerning the criminal proceedings against the applicant
117. On 1 June 2005 the applicant raised several complaints under Articles 5, 6 § 1 and 2, 13 and 14 of the Convention concerning his arrest and detention pending trial. However, even assuming that there was no effective remedy at the applicant's disposal by which he could complain about his arrest, according to the well-established case-law in the matter, the six-month time‑limit for lodging complaints with the Court starts running from the moment the continuous situation complained of ends, in this case, from the date when the applicant was released from his pre-trial detention. In the case at hand that date is 17 November 2003. More than six months have elapsed between his release from detention and the lodging of these complaints with the Court.
118. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
119. The applicant also complained that the criminal proceedings against him had been unfair and had lasted too long, in violation of Article 6 § 1 of the Convention.
120. The Court notes at the outset that the applicant was informed of the charges against him on 13/14 January 2003 and the final decision was adopted in the case on 19 November 2009 by the High Court of Cassation and Justice. It follows that the proceedings lasted for almost seven years; during this time the case was investigated by the prosecutor and tried at three levels of jurisdiction. Given the complexity of the case (several alleged acts of corruption on the part of high-ranking members of the local administration), and what was at stake, the Court is satisfied that the length of the proceedings respected the requirement set forth in Article 6 § 1 of the Convention.
121. As for the allegations of a lack of a fair trial, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
122. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. On the complaints concerning the defamation trials
1. On the complaints concerning the article published on 6 January 2004
123. The applicant complained under Article 6 § 1 of the Convention about the fact that the complaint he had lodged in respect of the article published on 6 January 2004 had been dismissed; in particular he considered that the courts had not calculated the time-limit correctly.
124. The Court notes that the action lodged by the applicant was dismissed for failure to comply with the time-limit set by the Code of Criminal Procedure for lodging such an action. After having examined the relevant provisions of the Code, and mindful of the principle of subsidiarity that governs its examination of domestic decisions, the Court has no reason to depart from the domestic courts' conclusions in the matter.
125. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. On the complaints concerning the applicability of Law no. 278/2006
126. In connection to the two proceedings against witness G.N. and the other complaint lodged in 2004 concerning several articles published in GNV, the applicant alleged a violation of Articles 6 § 1 and 13 of the Convention, as the courts had not examined his civil claim even after the Constitutional Court's decision.
127. The Court notes at the outset that the applicant failed to submit copies of the relevant court decisions. Therefore it cannot assess, on the basis of the evidence available, the well-foundness of the complaints raised.
However, it notes that once the criminal trial had ended, the only available option left to the applicant was to lodge his complaints with the civil courts. He was advised by the criminal courts to do so. He nevertheless failed to lodge any such action or to adduce evidence that the remedy indicated would not have been effective in his case.
128. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. On the remaining complaints
(a) On the complaints raised under Article 6 of the Convention
129. The applicant raised complaints concerning the fairness of the proceedings in defamation brought by him against the journalists.
130. However, the Court reiterates that admissibility and assessment of evidence are primarily matters for regulation by national law and the national courts, and therefore it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). The Court thus has no jurisdiction to examine the domestic courts' choices in hearing evidence from the journalists or to assess the weight they gave to the “note” published on 23 and 24 November 2005 by GNV. It appears, nevertheless, that the applicant had full opportunities to present his cases before the courts and to bring the evidence he deemed necessary.
131. Bearing in mind the above arguments and in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
132. The applicant further alleged that the courts dealing with his defamation proceedings lacked the independence and impartiality required by Article 6 § 1 of the Convention.
133. The Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is, on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is, ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 49, Series A no. 239).
134. However, nothing in the file under examination by the Court indicates a personal conviction on the part of the judges in the case that could substantiate the allegations of bias. The applicant himself did not submit any information that would allow the Court to corroborate his doubts as to the judges' lack of impartiality.
In addition, the Court does not see any indication that the judges were not independent in the case and considers that the applicant failed to substantiate his allegation of lack of independence.
135. Therefore, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
136. The applicant complained about the length of the proceedings concerning the article published on 13 December 2002 in GNV.
137. The Court notes that the applicant lodged his complaint with the domestic courts on 16 December 2002 and that the final decision was adopted by the county court on 20 January 2006. The proceedings lasted for three years and one month for two levels of jurisdiction. The length is therefore compatible with the Court's requirements.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
138. Lastly, the applicant complained of a breach of his right to be presumed innocent. However, the Court notes that so long as the applicant was not under any criminal accusation in the proceedings for defamation under examination, and those proceedings had no bearing on the criminal trial against him, the guarantees enshrined in Article 6 § 2 of the Convention do not come into play. Moreover, the Court could not find any statement by the authorities during the trials for defamation which could raise an issue under Article 6 § 2 of the Convention.
139. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) On the complaints for defamation
140. The applicant complained under Articles 6 and 10 § 2 of the Convention that he had been defamed by the impugned articles. The Court notes that this complaint falls within the ambit of Article 8 of the Convention. It reiterates that it is master of the characterisation to be given in law to the facts (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, ECHR 2009‑...).
141. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
142. At the outset the Court notes that the conclusion reached above, under Article 6 § 1, does not prevent it from taking into account the interests sought to be protected by Article 6 in the balancing exercise carried out below under Article 8, without, nevertheless, substituting its own assessment for that of the domestic courts (see Mamère v. France, no. 12697/03, § 22, ECHR 2006‑XIII, and A. v. Norway, no. 28070/06, § 47, 9 April 2009).
143. The applicant's complaint raises an issue of protection of reputation. The Court makes reference to the principles it has established in its recent case-law concerning the protection afforded by Article 8 to the right to a good reputation (see Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007‑XII; Petrina v. Romania, no. 78060/01, §§ 27-29 and 34-36, 14 October 2008; and A., cited above, §§ 63-65) and to the Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers' Deputies).
144. Concerning cases in which a violation of the rights guaranteed in Article 8 is asserted and the alleged interference with those rights originates in an uttered or published expression, the Court points out that when protecting the rights guaranteed under Article 8, the State is obliged to have due regard to the rights protected under Article 10. In such cases, the Court will need therefore to balance the applicant's right to “respect for his private life” against the public interest in freedom of expression, an interest in which the journalists play a critical role as public watchdog. In doing so, the Court will keep in mind that no hierarchical relationship exists between the rights guaranteed by both articles.
145. The Court recalls that in cases like the present one, it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, in particular Von Hannover v. Germany, no. 59320/00, § 60, ECHR 2004‑VI; Tammer v. Estonia, no. 41205/98, § 68, ECHR 2001‑I).
146. The Court also reiterates that there is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the forum for the determination of a person's guilt or innocence on a criminal charge, this does not mean that there can be no prior or contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large. However, the limits of permissible comment on pending criminal proceedings may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of justice (see Worm v. Austria, 29 August 1997, § 50, Reports of Judgments and Decisions 1997‑V, and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 56, ECHR 2000‑I).
147. In the case at hand, the Court notes that the articles in question were part of a series of reports in the local newspaper and in the national satirical magazine Academia Caţavencu about the applicant, in particular about his activity as director of a local administrative body and tangentially on the criminal trial against him and, in general, made no specific reference to any aspect of the applicant's private life as such (see, a contrario, A., cited above, § 70 and mutatis mutandis, Saygılı and Others v. Turkey, no. 19353/03, § 37, 8 January 2008).
148. As the domestic courts pointed out in all the proceedings for defamation, the articles referred to allegations of corruption on the part of local representatives and civil servants (the applicant's case) and concerned matters of public interest (see, a contrario, Radio France and Others v. France, no. 53984/00, § 39, ECHR 2004‑II).
149. Furthermore, by means of a trial that met the requirements of Article 6, the domestic courts examined the content of the articles and concluded that the journalists had written them in good faith, with no intention to defame the applicant and that the information provided therein had a factual basis (statements by the prosecutors, journalistic investigation, information available in previous articles). The Court is satisfied therefore that the domestic courts made a thorough examination of the case and balanced the opposing interests involved, in conformity with Convention standards, relying on grounds which were both relevant and sufficient. It also notes that, on this point, the present case differs significantly from Petrina, cited above, where the domestic courts did not examine in depth either the content of the impugned article or the journalist's good faith (see Petrina, cited above, § 8) and the Court concluded that the allegations had no factual basis (idem, § 50).
150. The Court also notes that, in his capacity as a high-ranking local civil servant, the applicant was a public figure, thus exposed to a wider limit of “acceptable criticism” of his activity. In any case, it fails to see any negative consequence that the applicant might have suffered after the publication of those articles (see, mutatis mutandis, Grinberg v. Russia, no. 23472/03, § 33, 21 July 2005, and Radio Twist, A.S. v. Slovakia, no. 62202/00, § 61, ECHR 2006‑XV).
151. The Court concurs with the domestic courts' reasoning that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 56, ECHR 2007‑XI). It finds no manifestly insulting language in the remarks about the applicant (see Mamère, cited above, § 25). On this point it notes that most of the impugned articles were intended to be satirical.
152. Lastly, the Court reiterates that the documents submitted by the parties in the proceedings before it are public and finds that the applicant's offensive references to the prosecutor, the president of the court and a witness arguably fall short of the standards to be expected in formulation of complaints under the Convention, even given due allowance for legitimate frankness in criticism and the strong feeling that a personal situation may engender (see, for example Duringer and Grunge v. France ((dec.), nos. 61164/00 and 18589/02, ECHR 2003‑II (extracts), where the persistent use of insulting or provocative language by an applicant furnished grounds for striking a case out for abuse of the right of petition).
153. In the light of the above, the Court concludes that the domestic courts struck a fair balance between the journalists' freedom of expression under Article 10 and the applicant's right to have his honour, reputation and privacy respected under Article 8.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(c) On the other complaints under Article 8 of the Convention
154. The applicant invoked a violation of Article 8 of the Convention, in so far as it concerned the right to respect for his private and family life. In particular he complained about the mention in the indictment of the fact that his mother had sold a plot of land to the mayor. He also alleged a violation of Article 8 in respect of the article published on 3 February 2004 but gave no further details on this complaint.
155. The Court notes that the applicant's complaint concerning the fact that the prosecutor indicted him for the sale of the plot of land has been examined by the domestic courts in the criminal proceedings against the applicant. Furthermore, in the proceedings concerning the article published on 13 December 2002 the domestic courts found that the sale of land had occurred and that the applicant had been sent to trial for that matter.
156. Lastly the Court notes that neither the applicant nor his mother raised the alleged infringement of their right of respect for private life with the domestic courts.
157. As for the remaining complaint, the Court notes that the applicant failed to refer to any concrete elements that would substantiate his allegations of a violation of his Article 8 rights.
158. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. On the remaining criminal complaints lodged by the applicant
159. The applicant raised several complaints under Article 6 § 1 of the Convention concerning the remaining criminal proceedings initiated by him with the domestic courts.
160. At the outset, the Court notes that it appears that the applicant did not seek damages in the domestic proceedings or manifest his intention to seek damages after the final decisions had been adopted by the criminal courts. The Court therefore considers that the proceedings were not decisive for the applicant's civil rights and therefore Article 6 is not applicable to these facts (see Perez v. France [GC], no. 47287/99, §§ 65 and 70, ECHR 2004‑I).
161. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
162. As for the complaint raised under Article 14 of the Convention, the Court considers that the applicant failed to raise an arguable claim.
163. It follows that this complaint is likewise incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
D. On the complaints related to the employment litigations
164. The Court has examined the remaining complaints.
165. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy