THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applica tion no. 20121/04 by Victor TRUŢĂ against Romania

The European Court of Human Rights (Third Section), sitting on 31 August 2010 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura , Corneliu Bîrsan , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Luis López Guerra , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 3 March 2004,

Having deliberated, decides as follows:

THE FACTS

1 . The applican t, Mr Victor Truţă , is a Romanian national who was born in 1943 and lives in Galaţ i .

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

3 . From 1990 to 1997 the applicant was the leader of the drivers ' trade union of a bread-making company in Galaţ i . He was also a member of the National Christian-Democrat Agrarian Party (“ PNTcd ”, Partidul Naţional Ţărănesc creştin şi democrat ). On 3 February 1997 his work contract was terminated on disciplinary grounds.

4 . In the February-March 1998 issue of the monthly local journal Opinia P.C. published an article under the heading: “The snake within the PNTcd – because of him, Galaţ i was almost left without bread” ( Sarpele din sânul PNTcd – din cauza lui Galaţi ul era să rămână fără pâine ) in which he accused the applicant mainly of maintaining an ungrounded conflict with the company ' s management, of harassing and defaming its director, of having repeatedly neglected his work duties alleging trade union needs and of having jeopardised bread distribution in Galaţ i in pursuit of his personal goals.

The relevant parts of the article read as follows:

“... Through his actions – lying, defaming and falsifying – he does nothing but undermine the PNTcd ' s credibility... That is why Victor Truţă may be called, without hesitation:

The snake within the PNTcd

Paradoxically, sometimes bad faith comes from within the trade unions. I say this because the conflict between an uninspired trade union leader and the management of [the bread-making company in Galaţi ] jeopardised the bread supply of the inhabitants of Galaţi on several occasions.”

The article was accompanied by the applicant ' s photograph and several documents issued by the employer or the trade union concerning the applicant ' s activity.

5 . On 30 April 1998 the applicant lodged a criminal complaint with the GalaÅ£ i District Court against A.Z., the director of Opinia , and P.C., its chief editor. He accused them of having damaged his reputation by publishing that article. He sought 400,000,000 Romanian Lei (ROL) in respect of non ‑ pecuniary damage.

6 . Between 19 October 1998 and 28 October 1999, the Galaţ i District Court held several hearings in the case. However, it could not examine the case, as P.C. had not been properly identified and summoned (according to the applicant, another person with the same name had been summoned to appear in court instead). In addition, t he applicant claimed that on 20 April 1999 the court had informed him that the next hearing would take place on 11 May, whereas in reality the court had met on 6 May, and thus he was not able to participate in the court hearing. He was present at the other hearings.

7 . On 28 October 1999 the court sent the case to the Prosecutor ' s Office and asked it to identify the accused P.C.

8 . On 17 March 2000 the prosecutor sent the case back with the information requested and it was registered in the District Court ' s list of cases again.

9 . The applicant complained six times against the judges or prosecutors, asking them to step down. His requests were all dismissed.

10 . The parties were heard and documents were adduced. The applicant claimed that the court had refused to hear his witness and had not asked for additional evidence.

11 . The court gave judgment on 3 June 2002. It acquitted the journalists and dismissed the applicant ' s claim for damages. It also ordered the applicant to pay ROL 2,500,000 to the State in respect of costs incurred in the proceedings.

12 . It noted that P.C. had written the article in good faith, had based it on documents provided by A.Z. and information available in other press articles previously published on the subject, and had checked the facts by means of a journalistic investigation. Furthermore, the applicant had failed to prove that the journalists had acted with the intent to defame him.

13 . The applicant appealed, arguing notably that the court ' s decision contradicted the evidence in the file, that the court had not examined the offensive language used in the article, had not given reasons for rejecting the civil claims and had unlawfully ordered him to pay the costs incurred by the State. He also requested that the court declare null and void an interlocutory judgment by means of which the District Court upheld a request by one of the judges to be allowed to step down from the case.

14 . In addition, on 26 June 2003 he also lodged a constitutional complaint against the order to pay costs. On 8 July 2003 the complaint was dismissed as unfounded by the Constitutional Court, on the ground that justice was not free of charge and that court fees did not as such restrict or deny access to court, as in any case the authorities were bound to investigate and decide on the case even when the parties refused to cover the expenses.

15 . In a final decision of 17 September 2003 the Galaţ i County Court upheld the judgment.

16 . The County Court had examined the applicant ' s arguments one by one. In essence, it found that the first-instance court had correctly interpreted the facts and the evidence in the file and considered that the reasons given for acquitting the journalists constituted relevant justification for dismissing the civil claim. It also considered that the complaints against the interlocutory judgment and against the obligation to reimburse the costs were unfounded.

COMPLAINTS

17 . The applicant complained under Article 6 § 1 of the Convention that the proceedings in the case had been unfair, had lasted too long and had not been public; and that the judges had not been independent and impartial. In particular he argued that the courts:

– had favoured the journalists to his detriment;

– had not been active in seeking evidence;

– had not secured his rights in that they had failed to nominate counsel for him when he was not in a position to pay for a lawyer;

– had dismissed or protracted his requests for evidence;

– had interpreted superficially and in favour of the authorities his constitutional complaint about the obligation to reimburse the costs (complaint against the Constitutional Court ' s decision).

He also alleged unfairness on account of the outcome of his complaints about the costs.

18 . Under Article 13 of the Convention, he complained that he had not had an effective remedy at his disposal, in so far as the appeal had been decided by a “local” court ant not by a “national” court.

19 . He also considered that because he had not had a fair trial, he had been discriminated against on the basis of his social origin and wealth. He relied on Article 14 of the Convention.

20 . Lastly, he complained that the press campaign against him and the courts ' attitude during the proceedings were aimed at discrediting him as a politician and trade union leader.

THE LAW

A . A lleged violation of Article 6 § 1 of the Convention

21 . The applicant complained about several aspects of the domestic proceedings, alleging a violation of the principles enshrined in Article 6 § 1 of the Convention, which reads as follows in so far as relevant:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

22 . The Court will examine the applicant ' s allegations in the following paragraphs.

1. Access to court (legal aid and costs)

23 . The applicant complained in substance of an alleged infringement of his right of access to court, given the manner in which the courts dealt with his various procedural requests.

24 . However, the Court notes that the applicant did not submit any information indicating that he had requested and been refused legal aid. In any case, the Court notes that the applicant ' s case was heard on the merits at two levels of jurisdiction, therefore his access to court does not seem to have been affected by the lack of legal representation (see Gnahoré v. France , no. 40031/98, § § 39-41 , ECHR 2000 ‑ IX ).

25 . Lastly, the Court notes that the applicant ' s complaint about the obligation to reimburse the costs was examined both by the County Court and by the Constitutional Court , and nothing in the file indicates that the decisions taken in this matter were not based on a thorough interpretation of the evidence and the domestic legislation.

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

2. Access to court (examination of the appeal by the county court)

27 . The applicant complained that he had not had an effective remedy at his disposal, insofar as his appeal had been decided by a “local” court and not by a “national” court. He relied on Article 13 of the Convention.

28 . The Court nevertheless understands this complaint as referring to the fact that the applicant ' s appeal was examined by the County Court and not by the Supreme Court of Justice and considers that it raises primarily an issue of access to court, under Article 6 § 1. In this connection, it reiterates that the Court is master of the characterisation to be given in law to the facts and can decide to examine the complaints submitted to it under another Article than that quoted by the applicant (see Guerra and Others v. Italy , 19 February 1998, § 44 , Reports of Judgments and Decisions 1998 ‑ I ) . Furthermore, the requirements in Article 13 are less strict than, and absorbed by, those in Article 6 § 1 (see KudÅ‚a v. Poland [GC], no. 30210/96, § 146 , ECHR 2000 ‑ XI ).

29 . As for the substance of applicant ' s complaint, the Court reiterates that Article 6 § 1 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (see Delcourt v. Belgium , 17 January 1970, § 24 , Series A no. 11 ). The Court has concluded that the applicant benefited from all the guarantees of a fair trial during the proceedings un der examination (see paragraphs 31 ‑ 4 4 below). It therefore considers that the system provided for by the respondent State as applied in practice was not incompatible with Article 6 of the Convention, despite it not opening access all the way to the Supreme Court.

30 . This part of the complaint is thus also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Fairness of the proceedings

31 . The applicant complained that the proceedings were unfair, given the manner in which the courts assessed the evidence.

32 . The Court notes at the outset that admissibility and assessment of evidence are primarily matters for regulation by national law and the national courts, and therefore it is not its function to deal with errors of fact or law allegedly committed by a national 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, ECHR 1999 ‑ I).

33 . In the present case, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

34 . In particular, the applicant complained that the domestic courts were not active in seeking evidence and dismissed his requests for evidence. However, the Court is satisfied that the domestic courts ' decisions took into account the evidence adduced. It further notes that the applicant did not complain before the domestic courts, notably in his appeal, about the alleged dismissal of his requests for evidence and the Court finds no evidence in the file that the principle of equality of arms was disregarded by the domestic courts.

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

4. Length of the proceedings

36 . The proceedings started on 30 April 1998 and ended on 17 September 2003. They lasted thus five years and four months at two levels of jurisdiction. However, the Court notes that for the first eighteen months the first-instance court was not able to identify one of the accused and in the end had to send the case to the prosecutor for investigations into that matter. The Court considers that the applicant cannot be relieved of responsibility for this protraction. When lodging his complaint, he should have ensured that the domestic court had the means to identify and summon the parties. The Code of Criminal Procedure mentions provision of the parties ' addresses as one of the requirements for lodging such a complaint., The applicant could have asked the police or prosecutor to identify P.C. himself, even before lodging his criminal complaint with the court. Given the circumstances, the Court considers t hat the overall duration of the proceedings did not go beyond the reason able length required by Article 6 § 1 of the Convention.

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

5. Public hearing

38 . The applicant complains of an alleged lack of public hearings. However, the Court notes that the applicant was allegedly absent from the hearing only on one occasion, that is, on 6 May 1999. It notes that before 17 March 2000, when the case returned from the prosecutor and the district court was able to summon all the parties to the next hearing, nothing significant occurred in the case. The applicant himself has however failed to prove that he suffered any adverse consequence from that lapse of time. Moreover, he did not complain about that particular hearing either to the district court or in his appeal proceedings.

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

6. Independence and impartiality of the judges

40 . The applicant complained that the judges were not independent and impartial.

41 . The Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is, on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, which ascertains whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect ( Thorgeir Thorgeirson v. Iceland , 25 June 1992, § 49 , Series A no. 239 ) .

42 . In the case under examination the Court notes that the applicant ' s repeated complaints against the judges were dismissed by the domestic court. Nothing in the file indicates that any of the judges in the case had a personal conviction that could substantiate allegations of bias.

43 . Furthermore, the Court considers that the applicant did not submit any information that would allow the Court to confirm or dispel his doubts as to the judges ' lack of impartiality.

In addition, there is no indication that the judges in the case were not independent and the Court finds that the applicant failed to substantiate his allegation.

44 . Therefore, this part of the complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Alleged violation of Article 14

45 . The applicant further complained that because he had not had a fair trial, he had been discriminated against on the basis of his social origin and wealth.

46 . However, the Court reiterates that it has found no violation of Article 6 § 1 of the Convention and in particular of the principle of equality of arms. Furthermore, it finds no indication in the file that the applicant was in any way discriminated against by the domestic courts.

As a consequence, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Alleged violation of Article 8 of the Convention

47 . Lastly, the applicant complained that the press campaign against him and the courts ' attitude during the proceedings were aimed at discrediting him as a politician and trade union leader. Having examined the facts of the case, the Court considers that this complaint falls to be examined under Article 8 of the Convention. It also considers that the conclusion it reached above, under Article 6 § 1, does not prevent the Court from taking into account the interests sought to be protected by Article 6 in the balancing exercise carried out below under Article 8, without, nevertheless substituting its own assessment for that of the domestic courts (see Mamère v. France , no. 12697/03, § 22 , ECHR 2006 ‑ XIII , and A. v. Norway , no. 28070/06, § 47 , 9 April 2009 ).

48 . 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.”

49 . At the outset, the Court makes reference to the principles it has established in its recent case-law concerning the protection afforded by Article 8 to the right to a good reputation (see Karakó v. Hungary , no. 39311/05, § § 17-26 , 28 April 2009 ; Petrina v. Romania , no. 78060/01, § § 27-29 and 34-36 , 14 October 2008 ; and A. , cited above, §§ 63-65). In particular, the Court reiterates that the applicant ' s right to “respect for his private life” under Article 8 has to be balanced against the public interest in freedom of expression, an interest in which journalists play a critical role as public watchdog .

50 . In the case at hand, the Court notes that the incriminated article concerned a subject of public interest, that is, the activity of trade unionists and the distribution of bread in GalaÅ£ i and was part of a larger debate in the press on that subject (see Stângu and Scutelnicu v. Romania , no. 53899/00, § 46 , 31 January 2006 ). Since it was published in a local journal, the impact of the alleged defamation was restricted to the public in GalaÅ£ i , that is, the public concerned with the facts (see, a contrario , Radio France and Others v. France , no. 53984/00 , § 39 , ECHR 2004 ‑ II ) .

Moreover, the article reflected strictly on the applicant ' s activity as a trade union leader and on his professional conduct, making no reference to any aspect of his private life as such. The applicant ' s photograph did not disclose any details of his private life either (see, mutatis mutandis , Standard Verlags GmbH v. Austria (no. 2) , no. 21277/05 §§ 45, 48 and 54 , 4 June 2009 ).

51 . Furthermore, the domestic courts, by means of a trial that met the requirements of Article 6, examined the content of the article and concluded that the journalist had written it in good faith, with no intention to defame the applicant and that the information provided therein had a factual basis (documents, journalistic investigation, information available in previous articles). As for the affirmations specifically identified by the applicant as defamatory, the Court notes that the domestic courts provided reasons as to why they held that the journalists did not act with the intention to defame him. It also notes that, on this point, the present case differs significantly from Petrina , where the domestic courts did not examine in depth either the content of the impugned article or the journalist ' s good faith (see Petrina , cited above, § 8) and the Court concluded that the allegations had no factual basis (idem, § 5 0 ).

52 . It also notes that, in his capacity as a trade union leader, the applicant was a public figure, thus exposed to a wider limit of “acceptable criticism” of his activity. In any case, the Court fails to see any negative consequence that the applicant might have suffered as a result of the publication of that article (see, mutatis mutandis , Grinberg v. Russia , no. 23472/03, § 33 , 21 July 2005 , and Radio Twist, A.S. v. Slovakia , no. 62202/00, § 61 , ECHR 2006 ‑ XV ) .

53 . Lastly, the Court reiterates that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Lindon , Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 56 , ECHR 2007 ‑ XI ) . In this respect, it finds no manifestly insulting language in the remarks about the applicant (see Mamère , cited above, § 25).

54 . In the light of the above, the Court concludes that the domestic courts adduced “relevant and sufficient” reasons to justify their decisions and thus struck a fair balance between the journalists ' freedom of expression under Article 10 and the applicant ' s right to have his honour, reputation and privacy respected under Article 8.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President