Information Note on the Court’s case-law 70

December 2004

Cumpănă and Mazăre v. Romania [GC] - 33348/96

Judgment 17.12.2004 [GC]

Article 10

Article 10-1

Freedom of expression

Disproportionate nature of sanctions imposed on journalists for defamation of a public official: violation

Facts : The applicants, a journalist and the editor of a local newspaper, had written an article about the management of the local city council’s finances, accusing a council official and the deputy mayor of certain criminal offences and depicting them in a cartoon as rejoicing in their misdeeds. The article attributed a series of illegal acts to these public figures, accusing them by nam e of fraud, corrupting subordinates and accepting bribes, and portrayed them with a bag full of money, congratulating themselves on having misappropriated public funds. The official in question lodged a criminal complaint alleging insult and defamation. Th e journalists were found guilty of having disparaged her honour, dignity and public image. The criminal court considered that both the written allegations and the insinuations made through the cartoon that the two had committed criminal offences were not b ased on established facts and instead constituted false accusations. During the proceedings, the applicants, despite being duly summoned, did not attend the hearings or file defence submissions. As well as being ordered to pay damages to the claimant, the applicants were sentenced to seven months’ immediate imprisonment, disqualified from exercising certain civil rights for a specified period and prohibited from working as journalists for one year. The Procurator-General applied to have the conviction quash ed, submitting that even if the applicants had committed a criminal offence, there was no evidence that they were incompetent to continue practising their profession. The applicants did not serve their prison sentence as they were granted a presidential pa rdon, which also waived the penalty of disqualification from exercising civil rights. They continued to practise their profession after their conviction had become final and binding. One of them was elected mayor of the city council to which the article ha d related.

Law : Article 10 – Scope of the Grand Chamber’s jurisdiction : The Government argued that the scope of the case should be limited to the complaint by the applicant who had signed the request for referral to the Grand Chamber. However, any case whi ch the Court had accepted for referral necessarily embraced all aspects of the application as declared admissible by the Chamber. Furthermore, although the referral request in the present case had been signed by the first applicant alone, the second applic ant had later expressly joined the request, thereby indicating, albeit retrospectively, his intention to pursue the complaint.

Respect for journalists’ freedom of expression and protection of the reputation of others : The interference had been prescribed b y law and had pursued the legitimate aim of protecting the rights of others, namely the reputation of a city-council official who had become a judge by the time of the publication of the article in question. The subject of the article – the management of p ublic funds by certain local elected representatives and public officials – had been of interest to readers from the local community, who had been entitled to receive such information. The role of investigative journalists was to inform and alert the publi c about such undesirable phenomena in society as soon as the relevant information came into their possession; the means by which they obtained their sources fell within the scope of the freedom of investigation inherent in the practice of their profession. The article had contained assertions referring to the council official by name and conveying the message, in virulent terms, that she had been involved in fraudulent dealings. It had alleged specific conduct on her part (signing illegal contracts and acce pting bribes), and the applicants’ statements had given readers the impression that the person in question had behaved in a dishonest and self-interested manner, and were likely to lead them to believe that the “fraud” of which she and the former deputy ma yor were accused and the bribes they had allegedly accepted were established and uncontroversial facts.

While the press had a duty to alert the public where it was informed about presumed misappropriation on the part of local elected representatives and p ublic officials, the fact of directly accusing specified individuals by mentioning their names and positions placed journalists under an obligation to provide a sufficient factual basis, particularly in the case of accusations so serious as to render the p erson in question criminally liable. In the present case the national courts had found that the applicants’ allegations against the council official had presented a distorted view of reality and had not been based on actual facts. Before reaching that conc lusion, the courts had given the applicants the opportunity to substantiate their allegations, but the applicants had displayed a clear lack of interest in their trial, neither attending the hearings, despite having been duly summoned, nor stating any grou nds for their appeal, nor adducing any evidence to substantiate their allegations or provide a sufficient factual basis for them, thereby depriving the national courts of the possibility of making an informed assessment of whether they had overstepped the limits of acceptable criticism. The applicants had not even indicated that their article had been based on an official report, which moreover was not confidential. In any event, nothing was said in the report, or even suggested, as to the alleged dishonest y of the persons referred to in the article or as to their having accepted bribes. In short, the grounds that the courts had relied on to justify the applicants’ conviction for insult and defamation had been relevant and sufficient, and the conviction had met a “pressing social need”.

The sanctions imposed on the applicants had been very severe. Although the Contracting States were permitted, or even obliged, by their positive obligations under Article 8 of the Convention to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputations, they should not do so in a manner that unduly deterred the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power. Inves tigative journalists were liable to be inhibited from reporting on matters of public interest if they ran the risk, as one of the standard sanctions imposable for unjustified attacks on the reputation of private individuals, of being sentenced to prison or to a prohibition on the exercise of their profession. The chilling effect that the fear of such sanctions posed on the exercise of journalists’ freedom of expression was likewise a factor to be taken into account in assessing the proportionality, and thus the justification, of the sanctions imposed.

In the circumstances of the present case – a classic case of defamation of an individual in the context of a debate on a matter of legitimate public interest – there had been no justification for the imposition of a prison sentence. Such a sanction, by its very nature, inevitably had a chilling effect, and the fact that the applicants had not served the sentence did not alter that conclusion, seeing that the individual pardons they had received were measures subject to the discretionary power of the Preside nt of Romania; furthermore, while such an act of clemency was designed to dispense convicted persons from having to serve their sentence, it did not expunge their conviction. Furthermore, the prison sentence imposed on the applicants had been accompanied b y an order disqualifying them from exercising certain civil rights. Although the applicants had not suffered the practical consequences of that secondary penalty, which had been waived as a result of the presidential pardon, such a disqualification – which in Romanian law was automatically applicable to anyone serving a prison sentence, regardless of the offence for which it was imposed as the main penalty, and was not subject to review by the courts as to its necessity – had been particularly inappropriate in the present case and had not been justified by the nature of the offences for which the applicants had been held criminally liable. Furthermore, the order prohibiting the applicants from working as journalists for one year, which, moreover, had not bee n remitted, was a prior restraint and as such could be justified only in exceptional circumstances. Although the sanction in question had not had any significant practical consequences for the applicants, it had been particularly severe and could not in an y circumstances have been justified by the mere risk of their reoffending. By prohibiting the applicants from working as journalists as a preventive measure of general scope, albeit subject to a time-limit, the domestic courts had contravened the principle that the press must be able to perform the role of a public watchdog in a democratic society. Although the interference with the applicants’ right to freedom of expression might have been justified by the concern to restore the balance between the various competing interests at stake (the right to impart ideas and facts and the protection of the reputation of representatives of the public authorities), the criminal sanction and the accompanying prohibitions imposed on them had been manifestly disproportion ate in their nature and severity to the legitimate aim pursued.

Conclusion : violation (unanimously).

Article 41 – The Court considered that the respondent State did not have to reimburse the damages which the applicants had had to pay the victim of their offences of defamation and insult, since its finding of a violation was based on the fact that their conviction could have been regarded as “necessary in a democratic society” to restore the balance between the various competing interests at stake if the s anctions imposed (the prison sentence and the orders disqualifying them from exercising certain rights and practising their profession) had not been manifestly disproportionate.

© Council of Europe/European Court of Human Rights This summary by the Regist ry does not bind the Court.

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