THIRD SECTION
CASE OF
SOMEŞAN AND BUTIUC v. ROMANIA
(Application no.
45543/04)
JUDGMENT
STRASBOURG
19 November 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Someşan and Butiuc v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 22 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
45543/04) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Romanian nationals, Mr Claudiu-Horaţiu Someşan
(“the first applicant”) and Ms Gina-Ioana Butiuc (“the second applicant”), on
30 November 2004.
The applicants were represented by Mr A. Ş.
Koloji, a lawyer practising in Oradea. The Romanian Government (“the
Government”) were represented by their Agent, Mr R.-H. Radu, from the Ministry
of Foreign Affairs.
The applicants alleged a violation of their right
to reputation guaranteed by Article 8 of the Convention.
On 5 July 2010 the application was communicated to
the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1969 and 1971
respectively and live in Oradea.
The first applicant is a journalist, and at the
time of the publication of the article which forms the object of the current application
he was the editor in chief of the local newspaper Afaceri bihorene and
was married to the second applicant.
On 29 May 2002 another local newspaper, Bihoreanul,
published on the front page and on several other pages an article entitled ‘Sex
scandal involving VIPs’ son’ (Scandal sexual cu fiu de VIP-uri). The
article referred to an extramarital relationship being conducted by the first applicant
with a woman, D.M. The author, G.L., wrote that D.M. wanted to put an end to
the relationship but that the applicants were harassing her. Details were given
about an incident allegedly set up by the applicants to get the wife of C.I.,
the son of a football club director (the alleged VIP), to catch him cheating on
her with D.M. Large photographs of the applicants and of D.M., as well as of all
the other people mentioned in the article, were posted on each of the five
pages of the article.
The article contained banner headlines such as: ‘A
scandal never seen in Oradea! Because of the obsession with his lover
developed by a well-known journalist from Oradea, C.I., the son of the
technical director of the national football team, has now got to explain
himself to his wife’ and ‘A marriage which started off on the right foot was placed
in jeopardy by a rather bothered journalist’ posted under a photograph of the
applicant. Another headline, which filled a whole page, read: ‘The son of E.I.
fell victim to a flagrant set-up by a journalist obsessed with his former lover’.
Under a photograph of the applicants was the caption: ‘The Someşans. She
the cock, he the hen, together two eagles’.
Under the title ‘D.[M.] on Claudiu [the first applicant]’
the following remarks were made about the applicant:
“D. [M.] says about Claudiu that he is a weak person who doesn’t
know what he wants. Because on the one hand he wants to escape from a failed
marriage, and on the other, he stays stuck in it.”
The article also included several statements
from D.M. in quotes, the relevant parts reading as follows:
“I told him not to get a divorce for my sake, but only to
divorce if this is what he feels is right. So many terrible things have happened
in his house. In the Someşan family, Gina [the second applicant] is the
boss. Claudiu came to me several times with his back covered with bruises and
scratches He told me that she beats him every time she gets angry. And she is the
one he stayed with! And when I think that Gina called me once ... to tell me to
go back to Claudiu, because he is suffering, and she does not want him to be in
this state because of me. She said she did not want someone else’s leavings. I
see that she has changed her mind now ... I fell in love with him. Maybe
because I felt he was a captive in an unhappy marriage.”
Under the title ‘Treatment for venereal diseases’
the article contained statements allegedly given by the first applicant but without
quotes, as follows:
“Claudiu claims that as a result of the sexual relationship he
had with his former lover, D.[M.] he caught a venereal disease which he
transmitted to his wife, and he had to pay ten million lei for treatment.”
Under the title ‘Businessmen from Bihor...’ (Afacerişti
bihoreni) it was mentioned:
“Ex-reporter at Morning Journal until it was closed in
1994, Claudiu Someşan worked for a while at TVS. Accused of unfair competitive
practices, because he produced his own advertising, he went back to his old
editorial office. In 1999 he set up ... Afaceri Bihorene. The newspaper,
whose editorial director he is, contains exclusively economic news and
advertising articles, the type Someşan specialised in before ...”
The applicants lodged a criminal complaint
against both D.M. and the journalist G.L. for slander and defamation under
Articles 205 and 206 of the Criminal Code. The applicants claimed that the
article was published by a competitor publication in order to destroy the first
applicant’s image and reputation and the reputation of his newspaper. They requested
compensation for non-pecuniary damage in the amount of 500,000,000 Romanian lei.
On 12 May 2003 the Oradea
District Court rejected the applicants’ complaint and their claim for damages.
The court held that the journalist’s statement indicated that she had not intended
to insult or defame the applicant, and had published only matters she had previously
verified as fact in discussions with the applicant Claudiu Someşan, as
well as with D.M. With respect to D.M., the court quoted relevant parts of her
statement, from which it appeared that the journalist had contacted her to
verify information allegedly obtained from Claudiu Someşan, and that everything
she had told the journalist was true.
The applicants appealed against this
decision before the Bihor County Court, and on 2 June 2004 their appeal was
rejected and the judgment of the Oradea District Court was upheld. Judge M.A.C.
joined a separate dissenting opinion to the judgment on the appeal, stating
that the first-instance court had wrongly evaluated the evidence, and that the material
published revealed the journalist’s intention to affect the reputation of the
applicants, since the article did not make any positive contribution to society.
The judge noted:
“ ... the explicit scope of the article in question does not contribute
to debate on a matter of public interest, but contains assertions concerning
the private and family life of some individuals; this is targeting private individuals
who do not hold public office, thereby overstepping the limit of tolerance allowed
for politicians or those in public life ...”
On an unknown date after the publication of the
article the applicants divorced.
II. RELEVANT DOMESTIC LAW
The relevant domestic provisions of the Civil
and Criminal Codes concerning slander and defamation and liability for paying
damages in force at the material time, as well as the subsequent developments
in the legislation, are described in Timciuc v. Romania (no. 28999/03,
§§ 95-97,
12 October 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
Citing Articles 6 § 1, 8 and 10 of the
Convention, the applicants complained that the publication of the article in
question breached their right to reputation, which the domestic courts
subsequently failed to protect. The Court reiterates that it is master of the
characterisation to be given in law to the facts, and therefore notes that the
complaint falls to be examined within the ambit of Article 8 of the Convention
(see Timciuc, cited above,
§ 140).
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.”
A. Admissibility
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicants submitted that the article
published on 29 May 2002 in the Bihoreanul newspaper made untrue
and defamatory assertions about their private lives which damaged their
reputations. In addition, when assessing their complaint the domestic courts had
failed to take into consideration the fact that they were not in public life, and
the allegations made in the article were not of public interest.
The Government contended that the domestic
courts had thoroughly assessed the applicants’ complaint and the other evidence
available and, weighing the applicants’ right to protection of their private
life against the right to freedom of expression, had given priority to the latter.
The Court notes that the applicants did not
complain about any action by the State, but rather that the State had failed to
protect their reputation against interference by third parties. In this context
the Court reiterates that, although the object of Article 8 is essentially that
of protecting the individual against arbitrary interference by public
authorities, it does not merely compel the State to abstain from such
interference: in addition to this primarily negative undertaking there may be
positive obligations inherent in effective respect for private and family life.
These obligations may involve the adoption of measures designed to secure
respect for private and family life, even in the sphere of the relations of
individuals between themselves (see Odièvre v. France [GC], no. 42326/98,
§ 40, 13 February 2003 and Dickson v. the United Kingdom [GC], no.
44362/04, § 70, 4 December 2007).
The Court considers that the present case
engages the State’s positive obligations arising under Article 8 to ensure
effective respect for the applicants’ private life, in particular their right
to protect their reputation. In this respect, the Court reiterates that it has
already been established in its case-law that ‘private life’ extends to aspects
relating to personal identity and reputation (see Pfeifer v. Austria,
no. 12556/03, § 35, 15 November 2007; Petrina v. Romania, no. 78060/01,
§§ 27-29 and 34-36, 14 October 2008; and Timciuc, cited above, § 143).
The main issue in the present case is whether
the State has, in the context of its positive obligations under Article 8,
achieved a fair balance between the applicants’ right to protection of their
reputation, which is an element of their ‘private life’, and the other party’s
right to freedom of expression guaranteed by Article 10 of the Convention (see Von
Hannover v. Germany, no. 59320/00, § 57, 24 June 2004, with further
references and Pfeifer, cited above, § 38). The Court reiterates
that where the balancing exercise has been undertaken by the national
authorities in conformity with the criteria laid down in the Court’s case-law,
the Court would require strong reasons to substitute its view for that of the
domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Palomo Sánchez and Others v. Spain
[GC], nos. 28955/06, 28957/06, 28959/06, 28964/06, § 57, 12 September 2011, and Von Hannover v.
Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012). In balancing the right to freedom of
expression against the right to respect for private life in the present case,
the Court will take into account the following relevant criteria laid down in
its case-law.
An initial essential criterion is the contribution
made by articles or photographs published in the press to a debate of general
interest such as political issues, crimes, sporting or performing arts issues (see
Von Hannover, cited above, § 60; White v. Sweden, no. 42435/02, §
29,
19 September 2006; and Axel Springer AG v. Germany [GC], no. 39954/08,
§ 90, 7 February 2012, with further references). The rumoured marital problems of
a president of the Republic or the financial difficulties of a famous singer
were not deemed to be matters of general interest (see Standard Verlags GmbH
v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009, and Hachette Filipacchi
Associés (ICI PARIS) v. France, no. 12268/03, § 43, 23 July 2009). In
addition, the Court has previously found no public interest justifying the
publication of data concerning a person’s health or reference to her sexual
life, which were held to be of a purely private nature and therefore fell
within the protection of Article 8 of the Convention (see Biriuk v.
Lithuania, no. 23373/03, §§ 39-42, 25 November 2008).
In the current case, the article published on 29
May 2002 in the Bihoreanul newspaper was describing the extramarital
relationship of a private newspaper editor, the first applicant, as well as his
relationship with his wife, the second applicant, and included remarks about
their health. The article also included lampooning statements about the
applicants’ characters by the journalist, such as: ‘The Someşans. She the
cock, he the hen, together two eagles’, or qualifying the first applicant as a bothered
journalist who was ‘obsessed with his former lover’. The Court further observes
that the domestic courts did not make any assessment at all as to whether the material
published was of public interest, but focused on other aspects of the case,
such as whether what was published was true, or whether there was an intention
to defame the applicants. Even so, these aspects were not analysed in the general
context of the case, but only in the light of the statement given by the
journalist (see paragraph 14 above).
The role or function of the person concerned and
the nature of the activities that are the subject of the article constitute
another important criterion, related to the preceding one. In that connection,
the Court has previously held that a fundamental distinction needs to be made
between reporting factual matters capable of contributing to debate in a
democratic society, relating to politicians in the exercise of their official
functions for example, and reporting details of the private life of an
individual who does not exercise such functions, with the sole aim of
satisfying public curiosity (see Von Hannover, cited above, §§ 63 and 65,
and Standard Verlags GmbH, cited above, §§ 47 and 53). In the latter
case, freedom of expression calls for a narrower interpretation (see Von
Hannover, cited above, § 66, and Hachette Filipacchi Associés (ICI
PARIS), cited above, § 40).
The Court observes that the applicants in the
present case are the editor in chief of a private local newspaper and his wife.
It also notes that the domestic courts did not make any assessment which could
lead to the conclusion that they were public figures, but confined themselves
to quoting the journalist’s statement that the first applicant was a public
figure. The domestic courts did not mention and did not assess in any way the
situation of the second applicant. On this point, the Court notes the
dissenting opinion of Judge M.A.C. from the Bihor County Court, who made an extensive
analysis of the applicants’ situation and held that they could not be regarded
as people in public life, and that it was not proved in the case that the matters
publicised relating to them, even if true, were of public interest (see
paragraph 15 above).
There can be little doubt that the disputed article
entailed particularly grievous prejudice to the applicants’ honour and
reputations that was harmful to their psychological integrity and to their
private life (see, mutatis mutandis, A. v. Norway, no. 28070/06, § 64, 9 April 2009, Mikolajová v. Slovakia,
no. 4479/03, § 55, 18 January 2011, and Roberts and Roberts v. the
United Kingdom, (dec.), no. 38681/08, §§ 40-41, 5 July 2011). Therefore,
in view of the above, the Court is not convinced that the national courts
attached the required importance to the questions whether the article
contributed to a debate of general interest and whether the applicants should have
been regarded as public figures. It is not the Court’s intention to speculate
on the result of the domestic proceedings in the current case or on whether a
person should have been convicted or not by the domestic courts. However, the
Court considers that the national courts did not carefully balance the right of
the journalist to freedom of expression against the right of the applicants to respect
for their private life.
The foregoing considerations are sufficient to enable the
Court to conclude that there has thereby been a violation of Article 8 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The first applicant claimed 1,600 euros (EUR) in
compensation for pecuniary damage, consisting of loss of income for the sixteen
days that he could not work because he had to prepare and attend the trial
before the domestic courts. In compensation for non-pecuniary damage the
applicants claimed EUR 20,000, each submitting that the publication of the
article in question had led to their divorce, and that their reputations had
been irremediably damaged, as had their relationships with other persons.
The Government submitted that there was no link
between the alleged violation and the requested pecuniary damages. With respect
to the non-pecuniary damages, they contended that the amounts claimed were
excessive, and that the finding of a violation would constitute sufficient just
satisfaction for the applicants in the current case.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, the Court accepts that the failure to
protect the applicants’ reputations against the defamatory article in issue
must have caused them feelings of distress. Making its assessment on an
equitable basis, the Court awards each of the applicants EUR 4,500 in
compensation for non-pecuniary damage.
B. Costs and expenses
The first applicant also claimed EUR 375 for
costs and expenses incurred for legal representation before the domestic courts,
and EUR 2,000 for legal representation before the Court. The first applicant
also claimed EUR 1,218.14 in interest in respect of the above-mentioned costs
and expenses incurred.
The Government requested the
Court to dismiss the applicants’ claims as unsubstantiated, and in any event
excessive and not linked to the alleged violation.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the lack of
relevant documents justifying the payment of the requested expenses and in the light
of its case-law, the Court rejects this claim (see Alkaya v. Turkey, no. 42811/06, § 48, 9
October 2012).
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay each applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 4,500 (four thousand
five hundred euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the
remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 19 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
