Information Note on the Court’s case-law No. 78
September 2005
Ivanciuc v. Romania (dec.) - 18624/03
Decision 8.9.2005 [Section III]
Article 10
Article 10-1
Freedom of expression
Civil and criminal conviction of a journalist for insult and defamation: inadmissible
The applicant, a journalist working for a weekly satirical review, published an article in which he accused a local politician and senior official of having on several occasions abused his position for personal gain. The deputy prefect in question instituted criminal proceedings for defamation and insult against the applicant and the weekly review. Although duly summoned on several occasions, the applicant did not attend any hearings or take any active steps to defend himself. In a judgment of 6 March 2002 the court of first instance acquitted the applicant on the criminal charges, finding that one of the elements constituting the offence was lacking, namely intent. However, the court considered that the applicant was liable in tort, as he had not checked thoroughly the facts set out in his article. It ordered the applicant and the weekly review jointly to pay damages to the plaintiff. All the parties to the proceedings lodged an appeal with the County Court. The applicant’s lawyer raised two objections of unconstitutionality before the court, both of which were dismissed. With regard to the merits, the County Court found the applicant guilty of insult and defamation and ordered him to pay damages to the plaintiff and a fine. It found that the statements made by the applicant in the article at issue had been defamatory, as they had no basis in fact, and that some of the terms used had been insulting.
Inadmissible under Article 10: The applicant’s conviction amounted to interference with his right to freedom of expression. The interference had been prescribed by law and had pursued the legitimate aim of “protection of the rights of others”. As to whether the measure had been necessary, the Court noted that the article in question had related to a subject of general interest, namely the conduct of a local politician and senior official. However, the Court shared the view of the national courts that the assertions in question had lacked any factual basis; furthermore, it was not satisfied that the applicant had acted in good faith. Consequently, it found the reasons given by the domestic courts to justify convicting the applicant to be relevant and sufficient. As to whether the conviction had been proportionate, the fine imposed had been little more than a token amount, and the amount of damages to be paid to the plaintiff had been moderate. In addition, the applicant had displayed a clear lack of interest in the proceedings. Accordingly, his conviction had not been disproportionate to the legitimate aim pursued and could be considered to be “necessary in a democratic society”: manifestly ill‑founded.
Inadmissible under Article 6: The applicant alleged that the court had convicted him without hearing him. However, he had displayed a complete lack of interest in the proceedings and the County Court had not acted in breach of any internal procedure. As to the dismissal of the two objections of unconstitutionality by the County Court, the Convention did not secure the right to refer a question for a preliminary ruling except in cases of arbitrary treatment. That did not apply in this case: the court had given sufficient reasons for its decision on the first objection, and the second objection had not related to a provision which was decisive for the outcome of the case. Hence, the refusal to grant the application for a preliminary ruling had not been such as to adversely affect the fairness of the proceedings: manifestly ill‑founded.
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