European Court of Human Rights

THIRD SECTION

Application no. 38566/04
Daniel and Estera NICOLESCU
against Romania
lodged on 10 August 2004

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Daniel Nicolescu (“the first applicant”) and Ms Estera Nicolescu (“the second applicant”), are Romanian nationals who were born in 1939 and 1946 respectively and live in Bacau.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  Background

The first applicant was the headmaster of a high school in Bacau. The second applicant, his wife, worked as a teacher in the same high school. The first applicant submitted that in December 2000, he became aware that the high school’s senior administrator, S.L., had committed certain unlawful acts, namely issuing fake school papers, such as certificates and baccalaureate diplomas. The first applicant therefore notified the competent authorities of the alleged irregularities. By a final decision of 4 February 2002 S.L. was convicted of forgery and bribery, the Bacau County Court establishing that in exchange for bribes she had issued several false school certificates and diplomas. From the case file, it does not appear that the applicant was under criminal investigation in connection with these irregularities.

The applicants submit that due to the first applicant’s decision to shed light on this alleged corruption, a press campaign was initiated against him by one of the local newspapers, Desteptarea (the Awakening), as an act of revenge. Desteptarea published different articles in the period from 1 to 15 February 2001 concerning the alleged irregularities at the high school led by the first applicant.

The first applicant claims that the impugned articles were meant to lead readers to believe that he was responsible for the alleged irregularities that had taken place in the high school and to subject him and his wife to public scorn.

2.  Articles

An article published on 1 February 2001 under the title “Charges of issuing false diplomas: Scandal at the Stefan the Great High School” presented the case of an unnamed person who had received a graduation certificate from the high school in question, even though that person had not actually attended all the necessary classes at that high school. The article mentioned that the high school’s senior administrator had been suspended from her functions and that if the allegations were to be proven true, then this would necessarily also imply the involvement of staff members of the Schools Inspectorate (an executive agency of the Ministry of Education in charge of school inspections and monitoring the management of educational establishments). It then stated that there were also allegations that the false certificate might have been signed by the first applicant, who had denied this. Reference was then made to the fact that the first applicant and the senior administrator were not available for interviews, as the headmaster had been hospitalised immediately after the start of the scandal and S.L. was on medical leave. In the final section of the article, it was mentioned that a special panel of inquiry had been set up and that further information would follow.

An article published on 2 February 2001 under the title “The Scandal at Stefan the Great High School grows” referred again to allegations that fake diplomas were being issued by the school. No copy of this article was supplied with the case file.

Another article was published on 3 February 2001 with the title “Things get complicated at the High School: Serious accusations against headmaster N, the Police and the Prosecutor’s Office”. The article indicated that new information seemed to point to the fact that the applicants were also involved in the scandal related to the fake diplomas. It was also mentioned that some police officers and staff from the Prosecutor’s Office might have been involved, as they had tried to cover up an older investigation concerning the headmaster. It was claimed that they would try to do the same with the investigation concerning the diplomas. It was then mentioned that the headmaster had been summoned to give an explanation concerning several issues. The article concluded with the promise that further information would be provided in the future.

On 5 February 2001 another article was published with the title “Corruption within the County Inspectorate”. The article started with a long statement from S.L., who alleged that the first applicant had ordered her to issue false certificates and diplomas. In addition, it was stated that the first applicant could not remember the name of the pupil who had been issued a graduation diploma and that he had declared that, taking into account that hundreds of pupils had graduated over the years, it was difficult to remember the name of a particular pupil. The article mentioned that the headmaster strongly contested the administrator’s allegations and that according to an unconfirmed source, the signatures appearing on the first page of the fake diploma had been written with the same pen with which the diploma had been signed on the back by the headmaster. The article concluded that even though the investigation was just beginning, there were indications that the irregularities had been committed with the support of the Schools Inspectorate.

Two articles published on 8 and 15 February 2001 covered two different stories concerning the first applicant. The first article reported on the first applicant’s decision to redeploy a teacher, I.L., instead offering her the position of night janitor. It was further reported that I.L. had contested the measure, the Schools Inspectorate had investigated the complaint and that the first applicant had issued a new decision keeping I.L. in her previous position. The article also included a statement from an employee of the Schools Inspectorate who was dealing with the case, who declared that the contested decision had been improper. The second article reported on the shutting down, in 1992, of a pig farm attached to the high school. The first applicant had been deputy headmaster at the time and he had been in charge of the management of the farm. The article raised questions as to whether it had really been necessary to shut down the farm and where all the animals had gone. In addition, it referred to the conclusion of an investigation conducted by the Schools Inspectorate with regard to alleged accounting irregularities and a decision taken in 1999 to apply administrative sanctions to a few of the high school’s employees, including the first applicant. The article further indicated that in the end this decision had been reversed by the Ministry of Education.

An article published on 12 February 2001, “Headmaster N found guilty by the MEC [Ministry of Education and Culture] Panel: Irregularities at the High School are being revealed”, reported on the findings of an investigative panel set up by the Ministry of Education and Culture in respect of the allegations concerning false diplomas. The article indicated that the panel’s members did not want to give any statement, but that the journalist had obtained a copy of its report, which had been prepared and was going to be submitted to the Secretary of State. The article also quoted the report’s conclusions, such as:

“The diploma for pupil X was unlawfully issued. Responsible persons: school administrator L.S. and headmaster N.D.”

3.  Applicants’ complaint

The two applicants lodged a criminal complaint for insult and defamation, with a joined civil claim, against the two journalists who had written the articles in question. They submitted that the articles were defamatory and insulting, were based on untrue information and sought to convey the image that the first applicant had been involved in the irregularities committed by S.L., whereas he was in fact the person who had become aware of these irregularities and had alerted the relevant authorities in order that they might start the investigation. They pointed to, by contrast, articles published in different newspapers covering the same topic, which they stated had given a correct account of the facts, making it clear that S.L. was the one under investigation for the alleged irregularities. The applicants further complained that the articles in question had included quotations from a number of people incriminating the first applicant, without there being any factual basis for such accusations. They submitted that the allegations in the article of 3 February 2001, which had implied that the second applicant was also involved in the fake diploma scandal, were without any factual basis and that they had had a devastating impact on their private lives and on their son, who was a pupil at the same high school and who had to cope with suspicious looks from his fellow pupils on a daily basis.

After two quashing decisions, the case was referred back to the Bacau District Court for a fresh decision. By a first-instance judgment of 4 March 2004, the district court acquitted the two journalists of all charges and dismissed the applicants’ civil claim. The court noted that the first applicant had raised complaints in respect of the articles published between 1 and 5 February 2001 and the articles published on 8 and 15 February, whereas the second applicant had raised complaints in respect of the article published in the weekend edition of the newspaper covering 3 and 4 February 2001.

As regards the second applicant’s complaint, it was considered that the statements in the impugned articles could not be qualified as insults, taking into account that the tone of the article had been circumspect as a result of its use of the term “it seems”. Considering that the second applicant was the wife of the first applicant and that she was also one of the members of the high school’s management board, and taking into account the fact that the investigation concerned the issuance of fake diplomas, it was normal for public opinion to be suspicious of leading managers who ought to be responsible for any irregularities within an educational institution.

As regards the first applicant, the district court stated that it was well known that an investigation had been initiated concerning the issuance of fake diplomas. It also found that the first applicant had also been under investigation but that in March 2001 a decision not to prosecute him had been taken. The court considered that the press had a legitimate interest in covering this story and in making public any details concerning the involvement of the first applicant in the matter. It then considered that it was normal for the press to react when such irregularities were revealed and for the initial suspect to be the person having the highest responsibility within the school, namely the first applicant.

It was further held that the accusations against the first applicant could not be held to be insulting or defamatory, as, on the one hand, they had not been made with this intention and, on the other hand, they had not harmed the reputation or dignity of the person against whom they were directed, “a person against whom some doubts had anyhow been raised, taking into account the decisions of the competent authorities”.

As to the two articles referring to events that had taken place in the past at the high school, the court held that they had been based on various reports by investigative panels set up by the Ministry of Education and the Schools Inspectorate.

The applicants’ subsequent appeal was dismissed by a final decision of the Bacau County Court delivered on 4 May 2004. The County Court held that the journalists had made public a situation generated by the investigation into the fake diploma allegations and they had not meant to incriminate the applicants. The court considered that the style used in the articles was appropriately journalistic and held that it was the duty of journalists to bring to public attention any wrongdoing in society.

B.  Relevant domestic law

The relevant articles of the Romanian Criminal Code concerning the crimes of defamation and insult are quoted in the decision Tudor v. Romania (no. 6929/04, 15 June 2006).

COMPLAINTS

1.  The applicants complain under Article 6 § 1 of the Convention that the matter was politically motivated and that this is why their complaint was dismissed. They further allege that the domestic courts did not take an active approach in determining the merits of the case and that they misinterpreted the impugned articles, dismissed the applicants’ evidence and wrongfully acquitted the journalists, even though the latter had failed to comply with the code of journalistic ethics.

2.  Also relying on Article 6 § 1 of the Convention, they complain that in the first-instance proceedings they were prevented from making oral submissions and that on appeal on points of law the hearings were limited, resulting in them not being able to properly argue their case.

3.  Relying in substance on Article 8 of the Convention, the applicants complain that the articles published in the Desteptarea newspaper in February 2001 were insulting and defamatory and written in bad faith and for political purposes. They consider that their professional reputation was seriously affected by the publication of these articles.

QUESTION TO THE PARTIES

Has the State complied with its positive obligations under Article 8 of the Convention? In particular, have the domestic courts struck a fair balance between the applicants’ right to protection of their reputation and the journalists’ right to freedom of expression on account of the articles concerning the applicants published in the Desteptarea newspaper during the period from 1 to 15 February 2001 and the rejection of their legal action in this respect?