(Application no. 75300/01)
24 November 2009
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 Ieremeiov v. Romania (No. 1),
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,
Having deliberated in private on 3 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre.”
“Scandal in the medical world in Timişoara
Dr. [P.] accused of sexual harassment
The president of the Interns Association in Timiş County, Dr [D.D.], says that 'Dr [P.] behaves in certain ways that we all know'
A medical intern from Timişoara, whose name we shall not yet make public, declared on Friday, in front of the prefect [L.B.], that the director of the Timiş Public Health Direction, Dr [P.], had attempted to sexually blackmail her. 'Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre' declared the intern. The president of the Interns Association in Timişoara, Dr [D.D.], declared that he had not known about this case of sexual harassment, which he learned of only at the meeting with the prefect. 'Dr [P.] behaves in certain ways that we all know' said Dr [D.D.] ...
Although we tried to get his comments on the accusations brought against him, Dr [P.] was unavailable.”
A photo of P. featured in the article.
On 18 May 2001 the court was addressed by the parties' counsels, who defended orally the grounds for their respective appeals. P.'s lawyer asked for the applicant's conviction. The applicant's lawyer and the company's representative requested that P. be compelled to pay court fees. The applicant was invited to speak only before the end of the hearing (ultimul cuvânt al inculpatului). In his address he asked that P.'s appeal be dismissed.
“[the journalist] did not confine himself to merely providing information about the criticisms [expressed against P.] but added his own appreciation, which went beyond [C.M.O.]'s statements.
Through its title and content, the article contains untrue statements and allegations and personal appreciations by [the applicant] which, if true, would render the victim liable to a criminal penalty or expose him to public opprobrium.
By publishing the victim's photo, and by presenting the information that a scandal had been caused in the Timişoara medical world by [P.]'s behaviour ... [the applicant] acted with intent to denigrate the victim, the article being manifestly defamatory.
The words “sexual blackmail and sexual harassment” cannot be regarded as having stylistic and literary value when an individual's image, dignity and honour are at stake.”
court also found that the conditions had been met for the applicant's
civil liability, and that of the publishing company, in respect of
the prejudice caused to the victim. In consequence, it ordered the
applicant and the company to pay ROL 5,000,000 to P. as compensation
non-pecuniary damage and ROL 2,000,000 for costs. Lastly, it ordered them to pay ROL 50,000 to the State in court fees.
II. RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties' submissions
He contended that, since the County Court delivered the decision on the same day as it held the hearings on the admissibility of the appeal, there had been no proper retrial on the merits. He had not been informed of the quashing of the District Court's judgment and had not therefore been allowed to prepare and present his defence before the County Court.
2. The Court's assessment
For all these reasons, the Court considers that the County Court did not give the applicant an opportunity to present his defence.
There has accordingly been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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.”
1. The parties' submissions
2. The Court's assessment
The Court therefore finds that, given the context and the seriousness of the allegations concerning P.'s behaviour, the article contributed to a debate of public interest.
Without denying the provocative value of these expressions, the Court reiterates that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Dalban v. Romania [GC], no. 28114/95, § 49, ECHR 1999 VI). As for P., the facts of the case indicate that he refused to speak with the applicant. The Court also considers that publishing the photo of a public figure, in the context of an article reporting on his public life, cannot be regarded as overstepping the limits set by the Convention and the case-law on freedom of the press.
Making its own assessment in the light of these findings, the Court considers that nothing in the file indicates that the applicant acted in bad faith, with intent to denigrate P. (see, a contrario, Stângu and Scutelnicu, cited above, § 51).
For the same reasons, although the amounts imposed on the applicant by the domestic courts in respect of a fine, damages and costs were moderate, this fact cannot change the above conclusion.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
the respondent State is to pay directly to the applicant's
representative, within the same three months, EUR 3,000
(three thousand euros) for costs and expenses;
(c) that the above amounts are to be converted into the respondent State's national currency at the rate applicable at the date of settlement;
(d) 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;
Done in English, and notified in writing on 24 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President