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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
20121/04
by Victor TRUŢĂ
against Romania
The
European Court of Human Rights (Third Section), sitting on 31 August
2010 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Santiago
Quesada, Section
Registrar,
Having
regard to the above application lodged on 3 March 2004,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Victor Truţă, is a Romanian national who was
born in 1943 and lives in Galaţi.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- From
1990 to 1997 the applicant was the leader of the drivers' trade union
of a bread-making company in Galaţi. He was also a member of the
National Christian-Democrat Agrarian Party (“PNTcd”,
Partidul Naţional Ţărănesc creştin şi
democrat). On 3 February 1997 his work contract was terminated on
disciplinary grounds.
- In
the February-March 1998 issue of the monthly local journal Opinia
P.C. published an article under the heading: “The snake within
the PNTcd – because of him, Galaţi was almost left without
bread” (Sarpele din sânul PNTcd – din cauza lui
Galaţiul era să rămână fără
pâine) in which he accused the applicant mainly of
maintaining an ungrounded conflict with the company's management, of
harassing and defaming its director, of having repeatedly neglected
his work duties alleging trade union needs and of having jeopardised
bread distribution in Galaţi in pursuit of his personal goals.
The
relevant parts of the article read as follows:
“... Through his actions – lying, defaming
and falsifying – he does nothing but undermine the PNTcd's
credibility... That is why Victor Truţă may be called,
without hesitation:
The snake within the PNTcd
Paradoxically, sometimes bad faith comes from within the
trade unions. I say this because the conflict between an uninspired
trade union leader and the management of [the bread-making company in
Galaţi] jeopardised the bread supply of the inhabitants of
Galaţi on several occasions.”
The
article was accompanied by the applicant's photograph and several
documents issued by the employer or the trade union concerning the
applicant's activity.
- On
30 April 1998 the applicant lodged a criminal complaint with the
Galaţi District Court against A.Z., the director of Opinia,
and P.C., its chief editor. He accused them of having damaged his
reputation by publishing that article. He sought 400,000,000 Romanian
Lei (ROL) in respect of non pecuniary damage.
- Between
19 October 1998 and 28 October 1999, the Galaţi District Court
held several hearings in the case. However, it could not examine the
case, as P.C. had not been properly identified and summoned
(according to the applicant, another person with the same name had
been summoned to appear in court instead). In addition, the applicant
claimed that on 20 April 1999 the court had informed him
that the next hearing would take place on 11 May, whereas in reality
the court had met on 6 May, and thus he was not able to participate
in the court hearing. He was present at the other hearings.
- On
28 October 1999 the court sent the case to the Prosecutor's Office
and asked it to identify the accused P.C.
- On
17 March 2000 the prosecutor sent the case back with the information
requested and it was registered in the District Court's list of cases
again.
- The
applicant complained six times against the judges or prosecutors,
asking them to step down. His requests were all dismissed.
- The
parties were heard and documents were adduced. The applicant claimed
that the court had refused to hear his witness and had not asked for
additional evidence.
- The
court gave judgment on 3 June 2002. It acquitted the journalists and
dismissed the applicant's claim for damages. It also ordered the
applicant to pay ROL 2,500,000 to the State in respect of costs
incurred in the proceedings.
- It
noted that P.C. had written the article in good faith, had based it
on documents provided by A.Z. and information available in other
press articles previously published on the subject, and had checked
the facts by means of a journalistic investigation. Furthermore, the
applicant had failed to prove that the journalists had acted with the
intent to defame him.
- The
applicant appealed, arguing notably that the court's decision
contradicted the evidence in the file, that the court had not
examined the offensive language used in the article, had not given
reasons for rejecting the civil claims and had unlawfully ordered him
to pay the costs incurred by the State. He also requested that the
court declare null and void an interlocutory judgment by means of
which the District Court upheld a request by one of the judges to be
allowed to step down from the case.
- In
addition, on 26 June 2003 he also lodged a constitutional complaint
against the order to pay costs. On 8 July 2003 the complaint was
dismissed as unfounded by the Constitutional Court, on the ground
that justice was not free of charge and that court fees did not as
such restrict or deny access to court, as in any case the authorities
were bound to investigate and decide on the case even when the
parties refused to cover the expenses.
- In
a final decision of 17 September 2003 the Galaţi County Court
upheld the judgment.
- The
County Court had examined the applicant's arguments one by one. In
essence, it found that the first-instance court had correctly
interpreted the facts and the evidence in the file and considered
that the reasons given for acquitting the journalists constituted
relevant justification for dismissing the civil claim. It also
considered that the complaints against the interlocutory judgment and
against the obligation to reimburse the costs were unfounded.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention that
the proceedings in the case had been unfair, had lasted too long and
had not been public; and that the judges had not been independent and
impartial. In particular he argued that the courts:
– had favoured the journalists to his detriment;
– had not been active in seeking evidence;
– had not secured his rights in that they had failed
to nominate counsel for him when he was not in a position to pay for
a lawyer;
– had dismissed or protracted his requests for
evidence;
– had interpreted superficially and in favour of the
authorities his constitutional complaint about the obligation to
reimburse the costs (complaint against the Constitutional Court's
decision).
He
also alleged unfairness on account of the outcome of his complaints
about the costs.
- Under
Article 13 of the Convention, he complained that he had not had an
effective remedy at his disposal, in so far as the appeal had been
decided by a “local” court ant not by a “national”
court.
- He
also considered that because he had not had a fair trial, he had been
discriminated against on the basis of his social origin and wealth.
He relied on Article 14 of the Convention.
- Lastly,
he complained that the press campaign against him and the courts'
attitude during the proceedings were aimed at discrediting him as a
politician and trade union leader.
THE LAW
A. Alleged violation of Article 6 § 1 of the
Convention
- The
applicant complained about several aspects of the domestic
proceedings, alleging a violation of the principles enshrined in
Article 6 § 1 of the Convention, which reads as follows in so
far as relevant:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law...”
- The
Court will examine the applicant's allegations in the following
paragraphs.
1. Access to court (legal aid and costs)
- The
applicant complained in substance of an alleged infringement of his
right of access to court, given the manner in which the courts dealt
with his various procedural requests.
- However,
the Court notes that the applicant did not submit any information
indicating that he had requested and been refused legal aid. In any
case, the Court notes that the applicant's case was heard on the
merits at two levels of jurisdiction, therefore his access to court
does not seem to have been affected by the lack of legal
representation (see Gnahoré v. France, no.
40031/98, §§ 39-41, ECHR 2000 IX).
- Lastly,
the Court notes that the applicant's complaint about the obligation
to reimburse the costs was examined both by the County Court and by
the Constitutional Court, and nothing in the file indicates that the
decisions taken in this matter were not based on a thorough
interpretation of the evidence and the domestic legislation.
- 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.
2. Access to court (examination of the appeal by the
county court)
- The
applicant complained that he had not had an effective remedy at his
disposal, insofar as his appeal had been decided by a “local”
court and not by a “national” court. He relied on Article
13 of the Convention.
- The
Court nevertheless understands this complaint as referring to the
fact that the applicant's appeal was examined by the County Court and
not by the Supreme Court of Justice and considers that it raises
primarily an issue of access to court, under Article 6 § 1. In
this connection, it reiterates that the Court is master of the
characterisation to be given in law to the facts and can decide to
examine the complaints submitted to it under another Article than
that quoted by the applicant (see Guerra and Others v. Italy,
19 February 1998, § 44, Reports of Judgments and
Decisions 1998 I). Furthermore, the requirements in
Article 13 are less strict than, and absorbed by, those in
Article 6 § 1 (see Kudła v. Poland [GC],
no. 30210/96, § 146, ECHR 2000 XI).
- As
for the substance of applicant's complaint, the Court reiterates that
Article 6 § 1 of the Convention does not compel the Contracting
States to set up courts of appeal or of cassation. Nevertheless, a
State which does institute such courts is required to ensure that
persons amenable to the law shall enjoy before these courts the
fundamental guarantees contained in Article 6 (see Delcourt v.
Belgium, 17 January 1970, § 24, Series A no. 11). The
Court has concluded that the applicant benefited from all the
guarantees of a fair trial during the proceedings under examination
(see paragraphs 31 44 below). It therefore considers that
the system provided for by the respondent State as applied in
practice was not incompatible with Article 6 of the Convention,
despite it not opening access all the way to the Supreme Court.
- This
part of the complaint is thus also manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
3. Fairness of the proceedings
- The
applicant complained that the proceedings were unfair, given the
manner in which the courts assessed the evidence.
- The
Court notes at the outset 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).
- In
the present case, 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.
- In
particular, the applicant complained that the domestic courts were
not active in seeking evidence and dismissed his requests for
evidence. However, the Court is satisfied that the domestic courts'
decisions took into account the evidence adduced. It further notes
that the applicant did not complain before the domestic courts,
notably in his appeal, about the alleged dismissal of his requests
for evidence and the Court finds no evidence in the file that the
principle of equality of arms was disregarded by the domestic courts.
- 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.
4. Length of the proceedings
- The
proceedings started on 30 April 1998 and ended on 17 September
2003. They lasted thus five years and four months at two levels of
jurisdiction. However, the Court notes that for the first eighteen
months the first-instance court was not able to identify one of the
accused and in the end had to send the case to the prosecutor for
investigations into that matter. The Court considers that the
applicant cannot be relieved of responsibility for this protraction.
When lodging his complaint, he should have ensured that the domestic
court had the means to identify and summon the parties. The Code of
Criminal Procedure mentions provision of the parties' addresses as
one of the requirements for lodging such a complaint., The applicant
could have asked the police or prosecutor to identify P.C. himself,
even before lodging his criminal complaint with the court. Given the
circumstances, the Court considers that the overall duration of
the proceedings did not go beyond the reasonable length required
by Article 6 § 1 of the Convention.
- 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.
5. Public hearing
- The
applicant complains of an alleged lack of public hearings. However,
the Court notes that the applicant was allegedly absent from the
hearing only on one occasion, that is, on 6 May 1999. It notes that
before 17 March 2000, when the case returned from the prosecutor
and the district court was able to summon all the parties to the next
hearing, nothing significant occurred in the case. The applicant
himself has however failed to prove that he suffered any adverse
consequence from that lapse of time. Moreover, he did not complain
about that particular hearing either to the district court or in his
appeal proceedings.
- 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.
6. Independence and impartiality of the judges
- The
applicant complained that the judges were not independent and
impartial.
- 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, which ascertains 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).
- In
the case under examination the Court notes that the applicant's
repeated complaints against the judges were dismissed by the domestic
court. Nothing in the file indicates that any of the judges in the
case had a personal conviction that could substantiate allegations of
bias.
- Furthermore,
the Court considers that the applicant did not submit any information
that would allow the Court to confirm or dispel his doubts as to the
judges' lack of impartiality.
In
addition, there is no indication that the judges in the case were not
independent and the Court finds that the applicant failed to
substantiate his allegation.
- Therefore,
this part of the complaint is also manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Alleged violation of Article 14
- The
applicant further complained that because he had not had a fair
trial, he had been discriminated against on the basis of his social
origin and wealth.
- However,
the Court reiterates that it has found no violation of Article 6 § 1
of the Convention and in particular of the principle of equality of
arms. Furthermore, it finds no indication in the file that the
applicant was in any way discriminated against by the domestic
courts.
As a
consequence, this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
C. Alleged violation of Article 8 of the Convention
- Lastly,
the applicant complained that the press campaign against him and the
courts' attitude during the proceedings were aimed at discrediting
him as a politician and trade union leader. Having examined the facts
of the case, the Court considers that this complaint falls to be
examined under Article 8 of the Convention. It also considers that
the conclusion it reached above, under Article 6 § 1, does not
prevent the Court 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).
- 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.”
- At
the outset, 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 Karakó
v. Hungary, no. 39311/05, §§
17-26, 28 April 2009; Petrina v. Romania, no. 78060/01,
§§ 27-29 and 34-36, 14 October 2008; and A.,
cited above, §§ 63-65). In
particular, the Court reiterates that the applicant's right to
“respect for his private life” under Article 8 has to be
balanced against the public interest in freedom of expression, an
interest in which journalists play a critical role as public
watchdog.
- In
the case at hand, the Court notes that the incriminated article
concerned a subject of public interest, that is, the activity of
trade unionists and the distribution of bread in Galaţi and was
part of a larger debate in the press on that subject (see Stângu
and Scutelnicu v. Romania, no. 53899/00, § 46, 31 January
2006). Since it was published in a local journal, the impact of the
alleged defamation was restricted to the public in Galaţi, that
is, the public concerned with the facts (see, a contrario,
Radio France and Others v. France, no. 53984/00, § 39,
ECHR 2004 II).
Moreover,
the article reflected strictly on the applicant's activity as a trade
union leader and on his professional conduct, making no reference to
any aspect of his private life as such. The applicant's photograph
did not disclose any details of his private life either (see, mutatis
mutandis, Standard Verlags GmbH v. Austria
(no. 2), no. 21277/05 §§
45, 48 and 54, 4 June 2009).
- Furthermore,
the domestic courts, by means of a trial that met the requirements of
Article 6, examined the content of the article and concluded that the
journalist had written it in good faith, with no intention to defame
the applicant and that the information provided therein had a factual
basis (documents, journalistic investigation, information available
in previous articles). As for the affirmations specifically
identified by the applicant as defamatory, the Court notes that the
domestic courts provided reasons as to why they held that the
journalists did not act with the intention to defame him. It also
notes that, on this point, the present case differs significantly
from Petrina, 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).
- It
also notes that, in his capacity as a trade union leader, the
applicant was a public figure, thus exposed to a wider limit of
“acceptable criticism” of his activity. In any case, the
Court fails to see any negative consequence that the applicant might
have suffered as a result of the publication of that article (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).
- Lastly,
the Court reiterates 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). In this
respect, it finds no manifestly insulting language in the remarks
about the applicant (see Mamère, cited above, § 25).
- In
the light of the above, the Court concludes that the domestic courts
adduced “relevant and sufficient” reasons to justify
their decisions and thus 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep
Casadevall
Registrar President
