In the case of Bugan v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section
Registrar,
Having deliberated in private on 22 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
13824/06) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Sorin Bugan (“the applicant”), on 3
April 2006.
The applicant was represented by Mr Ciprian
Panaitescu, a lawyer practising in Sinaia. The Romanian Government (“the
Government”) were represented by their Agent, Ms Irina Cambrea, from the
Ministry of Foreign Affairs.
The applicant alleged, in particular, a violation
of his right to freedom of expression by the fact that he had been ordered to
pay damages to the director of a public hospital because of an article he had
written concerning mainly flaws in the management of that hospital.
On 15 June 2010 the application was communicated to
the Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
As Mr Corneliu Bîrsan, the Judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of the Rules of
Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as an ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
The applicant was born in 1968 and lives in Sinaia.
I. THE CIRCUMSTANCES OF THE CASE
In February and March 2005 the applicant, a
journalist and editorial director of the weekly magazine Ziar de Sinaia,
wrote four articles about the director of the town’s public hospital, Dr C.P.,
complaining about his managerial technique, the alleged intimidation into
silence of the hospital’s doctors, the closure of the intensive care department
- allegedly because he had harassed the doctor previously in charge of that department
- and about his attempts to obtain social housing despite not meeting the
requirements. Dr C.P.’s connections to the Social Democratic Party (PSD)
were also a point of criticism, as the applicant wrote that politically favoured
managers were “moulded from the same dough as Doctor Mengele” (plămada
din care era construit şi doctorul Mengele).
Some of the terms employed by the applicant
regarding Dr C.P., as noted by the domestic court, read as follows: “an
arrogant person, sure of himself, who talks in a low voice with a superior
smile”; “prone to intimate behaviour commonly considered strange”; someone who
“pretended that he did not know how big his wife’s fortune was”; “who pulled
many strings to become director”; who “aspires to the title of the most
dreadful social climber in Sinaia” (“aspiră la titlul de cel mai
incrâncenat parvenit din Sinaia”); and who “started a campaign of terror
against the former director, whom he verbally attacked for two years until he
made her resign”. The applicant also accused Dr C.P. of having instituted “a law
of silence” by nominating himself as the hospital’s spokesperson.
Dr. C.P. field a criminal complaint against the
applicant, accusing him of defamation.
On 31 August 2005 the Sinaia District Court
acquitted the applicant and dismissed the civil claims. It found that some of
the applicant’s statements were value judgments concerning the plaintiff’s
moral and professional standing. As for the statements of fact, the court
considered that the applicant had proved their veracity. The court also
considered that the applicant’s statements had corresponded to a pressing
social need and had been proportionate to the aim pursued. As for the civil
action, the court noted that the applicant had not committed an unlawful act
capable of triggering his civil liability. It held as follows:
“The court considers that ... the applicant’s deed was not
unlawful, as he was merely exercising his freedom of expression, a subjective
right guaranteed by Article 30 of the Constitution and one of the fundamental
freedoms protected by the European Convention on Human Rights in its Article
10.”
Lastly, the court considered that the applicant had acted with
a view to informing the public on matters of public concern and had not had the
intention to defame the victim.
On 11 November 2005
the Prahova County Court quashed the District Court’s decision in part. It
upheld the applicant’s acquittal but nevertheless ordered him, together with
the newspaper, to pay 6,000 Romanian Lei (RON) in damages under Articles
998-999 of the Civil Code. He was also ordered to pay court fees of RON 60
to the State and RON 5,500 to the victim.
The court considered that the terms used by the
applicant in his articles had infringed the victim’s honour and reputation,
noting that the victim was a public figure and had therefore suffered damage as
a result of the articles. It based its decision on the evidence in the file and
the oral submissions of counsel. The applicant was only allowed to address the
court at the end of the hearing.
The County Court held as follows:
“The first-instance court’s reasoning was correct and adequate
in finding that the defendant, through the published articles, exercised his
freedom of expression and informed the public on a matter of public concern.
...
However, he is accountable from a civil law point of view...
It is important that journalists act with ... professionalism
and [in an] educat[ed] [manner].
Although the issues on which the defendant reported do not
amount to an offence and he is thus not criminally responsible for what he
wrote, the manner in which he wrote and the terms he employed aroused feelings
of tension and disgust in the victim. While the defendant fully exercised his
right [to freedom] of expression, the victim also has a right to his
reputation.”
On 10 January 2006 the damages
and legal fees were paid mainly by the company which published the newspaper.
II. RELEVANT DOMESTIC LAW
15. Articles 998
and 999 of the former Civil Code, applicable at the date of the facts of the
present case, provide that any person who has suffered damage can seek redress
by bringing a civil action against the person who has intentionally or
negligently caused it:
Article 998
“Any act committed by a person which causes damage to another
shall render the person through whose fault the damage was caused liable to
make reparation for it.”
Article 999
“Everyone shall be liable for damage he has caused not only
through his own act but also through his failure to act or his negligence.”
In order for the action to be admitted, the interested party
must prove in court that the defendant committed an illicit act with responsibility,
according to the civil law, that the plaintiff incurred a prejudice and that
there is a causal link between the illicit act and the damage sustained.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicant complained under Articles 6 § 2
and 10 of the Convention that his right to freedom of expression had been infringed
by the County Court in its decision of 11 November 2005, in so far as he had
been ordered to pay damages to the director of the local public hospital
because of an article the applicant had written about him.
The Court will examine the complaint solely
under Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of frontiers. This Article shall not prevent states from requiring the licensing
of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are necessary
in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
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
1. Submissions by the parties
The applicant considered that the court of
appeal had disregarded the degree of exaggeration permitted under Article 10
and that the amount he had been required to pay in damages and court fees had had
a deterrent effect on his journalistic activity. He reiterated that Dr C.P. was
a public figure, as he was the director of a public hospital and member of a
political party, and that the articles had referred exclusively to his public
life and not to his private affairs. He also pointed out that both courts had
established that he had reported on matters of general interest, exercising his
right to freedom of expression. He also brought to the Court’s attention the
fact that the same evidence had formed the basis of both court decisions and
that in finding him liable in civil damages the court of appeal had given no
indication of the evidence that had made it reach a different outcome than that
of the lower court.
The Government alleged that the interference
with the applicant’s right to freedom of expression had been justified by the
need to protect the victim’s reputation. The applicant had abused his freedom.
He had begun a campaign aimed at denigrating the victim and had used
expressions that had overstepped the boundaries of permissible exaggeration and
had constituted personal insults, with no relevance for the public interest. He
had used aggressive language by comparing the applicant to the Nazi Josef Mengele.
They considered that the domestic courts had provided relevant and sufficient
reasons to justify the outcome of the case. They also pointed out that the
award of non-pecuniary damages had been reasonable as to its quantum and that the
applicant had not been ordered to satisfy it alone, but together with the
newspaper. Moreover, there was no indication that the applicant had actually
paid the money.
2. The Court’s assessment
The Court makes reference to the principles
established in its case-law concerning freedom of expression guaranteed
by Article 10 of the Convention (see, among many others, Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-93, ECHR 2004-XI).
It reiterates that the press performs a vital role of “public watchdog” in a democratic
society. Although it must not overstep certain bounds, in particular in respect
of the reputation and rights of others, its duty is nevertheless to impart - in
a manner consistent with its obligations and responsibilities - information and
ideas on political issues and on other matters of general interest (see Cumpǎnǎ
and Mazǎre, cited above, § 93).
The Court makes further reference to its
established case-law concerning the protection afforded
to journalists who cover matters of public concern and the limits of acceptable
criticism, which are wider with regard to a civil servant or a politician
acting in his public capacity than in relation to a private individual
(see Cumpǎnǎ and Mazǎre, cited above, §§ 88-91, Björk
Eiðsdóttir v. Iceland, no. 46443/09, §§ 62-65, 10 July 2012; Oberschlick v. Austria (no. 2), 1 July 1997, § 29, Reports of Judgments and Decisions 1997-IV; and
Ieremeiov v. Romania (no. 1), no. 75300/01, § 38, 24 November 2009).
. In particular, it reiterates that
freedom of expression is also applicable to “information”
or “ideas” that offend, shock or disturb (Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I). Moreover, although the Court has
established that the right to a good reputation is protected
by Article 8 of the Convention, in order for that Article to come into play, an
attack on a person’s reputation must attain a certain level of seriousness and cause
prejudice to the victim’s personal enjoyment of the right to respect for private
life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009).
Turning to the facts of the present case, it is
to be noted at the outset that the decision complained of constituted an
interference with the applicant’s right to freedom of expression. The
interference was based on Articles 998-999 of the Civil Code and pursued the
legitimate aim of protecting the reputation of others.
. It
thus remains to be ascertained whether it was necessary in a democratic
society. In accordance with its case-law, the Court will examine whether the
reasons adduced by the domestic courts were “relevant and sufficient” and
whether the interference was proportionate to the legitimate aim pursued. In so
doing, the Court will have regard to the domestic courts’ margin of
appreciation.
The Court concurs with the domestic courts’
findings that the applicant reported on matters of public interest, proved the
veracity of the factual statements and acted in good faith. The victim was the
director of the town’s public hospital and a local public figure. His actions
as manager of that institution had a bearing on the local population’s access
to health services. It is therefore acceptable that he was subject to a more
thorough scrutiny of his actions and behaviour in public life. While it is true
that some of the applicant’s comments referred to the victim’s private life,
the overall language remained within the acceptable limits of journalistic
freedom.
The Court notes that, acting as a court of last
resort, the County Court ordered the applicant to pay damages and court fees. The
Court accepts that in doing so, the domestic court acknowledged in its
reasoning, to a certain extent, that the victim incurred prejudice as a
consequence of the words used by the applicant. However, it failed to give
sufficient reasoning for establishing applicant’s civil responsibility, as
required by the general tort law (see paragraph 15
above).
Moreover, no new evidence was adduced before the County Court with
respect to the civil responsibility and the parties did not give fresh
statements before it. The Court reiterates that it is only by giving reasoned
decisions that the domestic courts fulfil the requirements of the proper
administration of justice (see, mutatis mutandis, Suominen v. Finland,
no. 37801/97, § 34, 1 July 2003).
It therefore appears that the County Court failed to adduce
relevant and sufficient reasons for its decision.
In the light of the conclusion reached above,
the Court considers that it is not necessary to examine
the severity of the awards of damages and costs imposed on the applicant (see
Busuioc v. Moldova, no. 61513/00, § 96, 21 December 2004).
The foregoing considerations are sufficient to
enable the Court to conclude that the domestic courts failed to give relevant
and sufficient reasons for the interference with the applicant’s right to
freedom of expression in the present case, and that the interference at issue
was disproportionate and therefore not “necessary in a democratic society”
within the meaning of Article 10 § 2 of the Convention.
There has accordingly been a violation of Article 10 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 applicant claimed, in
respect of pecuniary damage, RON 11,560, representing the amount he had
been ordered to pay to Dr C.P. and the State in non-pecuniary damages and court
fees (see paragraph 11 above). He submitted invoices attesting the payment
of RON 60 in court fees and argued that he had not requested an invoice that
he could produce before the Court for the payment made to Dr C.P., as no such
document was required by domestic law.
He also sought 5,000 euros (EUR) in respect of
non-pecuniary damage.
The Government pointed out that the applicant
had not demonstrated that he had paid the amount of RON 6,000 awarded as non-pecuniary
damages to his victim. They considered that the finding of a violation would constitute
sufficient reparation for the non-pecuniary damage alleged in the case.
The Court notes that the applicant has not
proven that he himself paid the amount sought before it in respect of pecuniary
damages (see paragraphs 14 and 31 above). It therefore awards him EUR 16 under
this head.
It also awards the applicant EUR 4,500 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant also claimed RON 7,000 for costs
and expenses incurred before the domestic courts and EUR 500 for those incurred
before the Court. He produced invoices recording the payment of RON 7,000 to
his lawyer in the domestic proceedings and RON 17.30 for postage in the current
proceedings.
The Government contested the claim and pointed
out that the applicant had failed to adduce all relevant documents to justify
those expenses.
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
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,000 covering costs under all heads.
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 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 16 (sixteen euros), plus any tax that may
be chargeable, in respect of pecuniary damage;
(ii) EUR 4,500 (four thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 February 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
