THIRD SECTION

DECISION

Application no. 14621/06 by Marin STÄ‚NCIULESCU against Romania

The European Court of Human Rights ( Third Section ), sitting on 22 November 2011 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Egbert Myjer , Ineta Ziemele , Luis López Guerra , Mihai Poalelungi , Kristina Pardalos , judges, and Marialena Tsirli , Deputy Section Registra r ,

Having regard to the above application lodged on 11 February 2006 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Marin Stănciulescu , is a Romanian national who was born in 1952 and lives in Piteşti .

A. The circumstances of the case

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

3 . The applicant worked as a legal advisor to a private company, T. On 7 December 2001 his employer terminated his work contract on disciplinary grounds. Before being signed by the general director, the dismissal decision was also endorsed by another legal advisor, namely M.N.

4 . The applicant lodged a judicial complaint against the dismissal decision, which he eventually won. During these proceedings, his former employer was represented by M.N.

5 . When the applicant found out that M.N. had acquired a criminal conviction in 1996 for taking bribes while she was working as a public servant, he started bringing up this issue on every available occasion, mainly by making handwritten additions to various documents, such as his employer ’ s register of visitors, copies of the decision to terminate his employment contract, and so on, in which he wrote “no convicted persons”, “convicted of taking bribes”, “practising corruption”, “unworthy convict” and other similar remarks. In the various submissions made by him in the proceedings against his employer, he constantly referred to M.N. in terms which included “notorious accused”, “notorious criminal”, “convicted of taking bribes”, “deported by citizens for corruption”, “not knowing anything”, “citizen of doubtful morality”.

6 . On 1 October 2003, M.N. lodged a criminal complaint against the applicant for defamation, also submitting a civil claim for compensation for non-pecuniary damage. The case was referred to the PiteÅŸti District Court.

7 . In his defence, the applicant argued that his employment contract had been unlawfully terminated by the plaintiff and that he had been forced to go to trial against a person not holding a law degree. He further submitted that he had a legitimate interest in referring to M.N. in this way and that in any event he could prove that the statements he made were true.

8 . In a first-instance judgment of 24 June 2004, the PiteÅŸti District Court found the applicant guilty of defa mation and fined him 10,000,000 Romanian lei (ROL), approximately 246 euros (EUR). He was also ordered to pay M.N. ROL 25,000,000, approximately EUR 615, in compensation for non-pecuniary damage. The district court indicated that it was applying the minimum sentence for defamation to the applicant, considering that this sentence represented a sufficient warning for him to cease making such remarks about the plaintiff.

9 . The district court found that the applicant had transferred the work litigation to a personal level and attempted to discredit M.N. on every available occasion. It looked at the various documents submitted by the parties, in which he made the references to M.N. It also noted that in the proceedings before it the applicant continued to use the same expressions and words about M.N.

10 . As regards the applicant ’ s claims that he had provided proof that the statements were true, the district court noted that the applicant had failed to show what was the legitimate interest in obsessively repeating the statements, his only purpose being to cause distress to M.N every time they met: at her workplace, in court, in the street and even when she was with her family.

11 . The applicant lodged an appeal, arguing that his statements were true and that M.N. by her own conduct had subjected herself to public contempt. The appeal was assigned to Hunedoara County Court. In a hearing of 22 November 2005, the applicant raised a constitutional challenge to Articles 206 and 207 of the Romanian Criminal Code (CC). The county court postponed its ruling on whether to refer the case to the Constitutional Court to 20 December 2005.

12 . The Hunedoara County Court, in a decision of 20 December 2005 (drafted on 31 January 2006) dismissed his appeal. The county court concluded that the facts were correctly determined by the district court and that his argument that his statements were true was not valid, taking into account that he failed to show a legitimate interest in making those statements. It also took note that the applicant continued to make the same remarks about M.N. even when in court for the review of the criminal case against him.

B. Relevant domestic law and practice

13 . Article 206 of the CC, as in force at the time of events, was worded as follows:

“Anyone who makes any statement or allegation in public, by any means, concerning a particular person, which if true would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public contempt shall be liable to shall be imprisonment for between three months and three years or to the payment of a fine ....”

14 . Article 207 of the CC read as follows:

“Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation will have been committed.”

15 . The Constitutional Court , in a decision of 7 February 2002, dismissed a plea of unconstitutionality of Articles 205-207 of the CC. In so ruling, it decided that the possibility of providing evidence that the impugned statements or allegations were true represented a special circumstance for removing criminal liability. It concluded that subjecting this test of truth to the condition that the statements or allegations were made with a legitimate interest was perfectly consistent with the Romanian Constitution, which provided in its Article 30 § 6 that freedom of expression shall not cause prejudice to the dignity, honour and private life of a person.

16 . Section 11 § 3 of Law no 47/1992 on the Organisation and Functioning of the Constitutional Court (“the Constitutional Court Act”) provides that decisions delivered by the Constitutional Court are generally binding and effective for the future.

COMPLAINTS

17 . The applicant complained under Article 6 § 1 of the Convention that the proceedings against him were not fair, as the domestic courts lacked independence and impartiality .

18 . He cited a violation of Article 10 of the Convention, as he had a legitimate interest in proving that the person who endorsed the decision to terminate his employment contract had been convicted of corruption and lacked the moral standing to act as a legal advisor.

19 . He complained under Article 13 of the Convention, that the Hunedoara County Court did not refer the constitutionality challenge that he had raised to the Constitutional Court and failed to take into account his clear arguments in favour of acquitting him.

THE LAW

A. Complaints concerning the alleged unfairness of the proceedings

20 . The applicant complained under Articles 6 § 1 and 13 of the Convention that the criminal proceedings against him were unfair, as the domestic courts lacked independence and impartiality, failed to take due account of his arguments and did not refer his plea of unconstitutionality to the Constitutional Court.

21 . The Court finds that the above complaints fall to be examined primarily under Article 6 § 1 of the Convention, since the requirements of Article 13 are less strict than, and are absorbed by, those of Article 6 (see, for example, ZwiÄ…zek Nauczycielstwa Polskiego v. Poland , no. 42049/98, § 43 , ECHR 2004 ‑ IX ).

22 . As regards the complaint that the domestic courts lacked independence and impartiality, the Court notes that the applicant did not substantiate this allegation with any evidence. Moreover, there is no element in the case file that could raise doubts as to the independence and impartiality of the domestic courts which reviewed the case against the applicant.

23 . As to the complaint concerning the alleged failure of the domestic courts to take into account the arguments raised by the applicant in his defence, in so far as this complaint may be understood to concern the result of the proceedings in the domestic courts, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a domestic 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, 29, ECHR 1999-I).

24 . Furthermore, the Court notes that the domestic courts, in both the first-instance and the appeal proceedings, responded to the arguments raised by the applicant in his defence, according to which his statements were true. The domestic courts dismissed his argument indicating that one of the conditions set by Article 207 of the CC in order to remove criminal liability was not met, as he did not pursue a legitimate interest in making the impugned statements. Moreover, the Court notes that the applicant was given sufficient opportunity to present his arguments and that those arguments, while duly taken into account by the domestic courts, were nevertheless rejected on the basis of reasoning which appears consistent and devoid of arbitrariness (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, ECHR 2001-X).

25 . As regards the applicant ’ s complaint that the Hunedoara County Court had not referred his objection of unconstitutionality to the Constitutional Court, the Court observes at the outset that the Constitutional Court examined previously similar objections of unconstitutionality and declared the impugned provisions to be compatible with the Constitution. It does not appear from the case file that the applicant raised new arguments which had not already been examined by the Constitutional Court . Further examination of the Article was therefore unlikely to achieve anything ( mutatis mutandis , Ivanciuc v. Romania (dec.), no. 18624/03 , ECHR 2005 ‑ XI ).

26 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention .

B. Complaint under Article 10 of the Convention

27 . The applicant complained under Article 10 of the Convention that he had been convicted of defamation.

28 . The Court notes at the outset that the applicant ’ s conviction for defamation under Article 206 of the CC constituted interference by the public authorities with his rights guaranteed under Article 10 of the Convention; and that this interference was in accordance with the law and pursued the legitimate aim of protecting Ms M.N. ’ s reputation.

29 . It remains to be determined whether in the circumstances of the present case, a fair balance was struck between the protection of the applicant ’ s freedom of expression and Ms M.N. ’ s reputation, a right which, as an aspect of private life, is protected by Article 8 of the Convention, (see CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, § § 90-91, ECHR 2004 ‑ XI , and Marchenko v. Ukraine , no. 4063/04, § 44 , 19 February 2009 ). That provision may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of relations hips between individuals (see Von Hannover v. Germany , no. 59320/00 , § 57, ECHR 2004 -VI, and Stubbings and Others v. the United Kingdom , 22 October 1996, §§ 61 ‑ 62 , Reports of Judgments and Decisions 1996 ‑ IV ).

30 . According to the Court ’ s established case-law, it must therefore be determined whether the interference complained of was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. The Court ’ s task is not to take the place of the national courts but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see Dalban v. Romania [GC], no. 28114/95, § 47 , ECHR 1999 ‑ VI ).

In cases in which the Court has had to balance the protection of private life against freedom of expression, it has stressed the contribution made by the impugned forms of expression to a debate of general interest (for instance, Tammer v. Estonia , no. 41205/98, §§ 66 and 68, ECHR 2001 ‑ I; Von Hannover , cited above, § 60; and Standard Verlags GmbH v. Austria (no. 2) , no. 21277/05 § 46, 4 June 2009).

31 . In the instant case, the Court notes that the domestic courts examined the content of the remarks made by the applicant in respect of M.N. and the context in which they were made, and that they concluded that those remarks were not made in pursuit of a legitimate interest. The domestic courts established that those statements were made in the context of a conflict which had arisen from the work litigation which had set the applicant against his previous employer, and that they were made with the sole intention of discrediting M.N. and subjecting her to public contempt. The Court is satisfied that the applicant ’ s remarks did not therefore form part of an open discussion of a matter of public concern and that they did not involve the issue of freedom of the press, since the applicant was acting as a private individual (see, mutatis mutandis , Janowski v. Poland [GC], no. 25716/94, § 32 , ECHR 1999 ‑ I ).

32 . Even assuming that the applicant ’ s aim was to inform his employer that M.N. had a previous criminal conviction, in order for his employer to decide whether she had the necessary qualifications to work as a legal advisor, the Court notes that such a disclosure should be made in the first place to the person ’ s superior or other competent authority or body. It is only where this is clearly impracticable that the information could, as a last resort, be disclosed to the public (see Guja v. Moldova [GC], no. 14277/04, § 73 , 12 February 2008 ). Nevertheless, it appears from the case file that the applicant made those remarks on every available occasion, at the plaintiff ’ s workplace, in front of the courts, in his written submissions to different courts and authorities and that those remarks were neither legal arguments in support of his work litigation nor official notifications signalling a potential professional incompatibility.

33 . The Court further notes that at the time of the events M.N. was not a public figure or a politician but an ordinary person who had been the subject of criminal proceedings in 1996 (see Schwabe v. Austria , 28 August 1992, § 32, Series A no. 242). At the time of the events in question she was not a public servant and the applicant ’ s remarks did not concern any unlawful act on her part in the exercise of the legal-advisor job she had at the time. The Court considers in this respect that her status as an ordinary person enlarged the zone of interaction which may fall within the scope of private life. The fact that she had been the subject of criminal proceedings cannot deprive her of the protection of Article 8 (see Sciacca v. Italy , no. 50774/99, § § 28-29, ECHR 2005-I).

34 . Having regard to the above considerations, the Court is satisfied that the reasons advanced by the domestic courts were “relevant and sufficient” for the purposes of paragraph 2 of Article 10 to justify the interference with the applicant ’ s right to freedom of expression. The latter could thus be reasonably considered necessary in a democratic society for the protection of the reputation or rights of others (see Böhm v. Germany (dec.), no. 66357/01, 16 December 2003).

35 . In reviewing the proportionality of the impugned measure, the Court also needs to consider the severity of the punishment, that is the amount of money payable by the applicant following his conviction. It reiterates that under the Convention a criminal conviction or an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see, inter alia , Tolstoy Miloslavsky v. the United Kingdom , 13 July 1995, § 49, Series A no. 316-B). The Court notes that the fine the applicant had been sentenced to pay, amounting to approximately EUR 246, was targeted to the minimum threshold set by the CC. It further considers that the civil damages which the applicant was ordered to pay, amounting to approximately EUR 615, could not be considered disproportionate, given the offences he had been convicted of (see, mutatis mutandis , Metzger v. Germany , (dec.) , 56720/00, 17 November 2005).

36 . Consequently, the Court is satisfied that the interference at issue was proportionate to the legitimate aim pursued and that the reasons adduced by the national courts to justify the interference were relevant and sufficient.

37 . This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall              Deputy Registrar              President