Resolution CM/ ResDH (2011)73 [1]

Execution of the judgments of the European Court of Human Rights

in five cases against Romania concerning criminal convictions of journalists for insult and/or defamation

(see details in Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the criminal convictions of journalists for insult and/or defamation and the disproportionate nature of the sanctions imposed to them (violations of Article 10); the automatic ban on the exercise of parental rights imposed on persons sentenced to imprisonment and the absence of effective remedies in this respect (violations of Article 8 and Article 13) and the unfairness of criminal proceedings (violation of Article 6, paragraphs 1 and 3 (d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)73

Information on the measures taken to comply with the judgments

in five cases against Romania concerning criminal convictions of journalists for insult and/or defamation

Introductory case summary

These cases concern the criminal conviction of the applicants on charges of insult and/or defamation, between 1994 and 2003, under Articles 205 and 206 of the Criminal Code for having published articles criticising various public authorities and officials for acts performed in their official capacity. In all cases, the European Court found that by their nature and the severity of the sanctions imposed (prison sentences or criminal fines), the criminal convictions amounted to disproportionate interference with the applicants ’ right to freedom of expression (violations of Article 10).

In the case of Sabou and Pîrcălab , the European Court also found a violation of the first applicant ’ s right to respect for family life on account of a ban exercising his parental rights following the imposition of the prison sentence. The European Court noted that under Articles 71 and 64 of the Criminal Code, the ban applied automatically whenever a prison sentence was imposed, regardless of the nature of the offence or of the children ’ s interest and was not subject to judicial review (violation of Article 8). Moreover, domestic law did not provide an effective remedy against such interference (violation of Article 13).

Lastly, the case of Băcanu and SC "R" SA also concerns the unfairness of criminal proceedings. The European Court found that the domestic courts had dismissed most of the applicants ’ requests for leave to adduce evidence without giving relevant reasons, which resulted in particular in the impossibility for the applicants to examine or have witnesses examined and prejudiced their entire defence in a manner incompatible with the requirements of a fair trial (violation of Article 6, paragraphs 1 and 3 (d)).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

D ă lban (28114/95), [GC] judgment of 28/09/99, Interim Resolution ResDH (2005)2

-

-

20 000 French francs

Paid on 15/12/1999

Cumpănă and Mazăre (33348/96), [GC] j udgment of 17/12/2004

-

-

-

-

No just satisfaction awarded.

Sabou and Pîrcălab (46572/99), judgment of 28/09/2004, final on 28/12/2004

1582.42 EUR

6000 EUR

4000 EUR

11582.42 EUR

Paid on 05/04/2005 (interests waived in view of small amount)

Barb (5945/03), judgment of 7/10/2008, final on 7/01/2009)

1000 EUR

1781 EUR

2800.88 EUR

Paid on 06/04/2009 (interests waived in view of small amount)

Băcanu and SC "R" SA (4411/04), judgment of 3/03/2009, final on 3/06/2009)

3150 EUR

5000 EUR

-

8150 EUR

Paid on 03/09/2009

b) Individual measures

1) D ă lban : The applicant died on 13 March 1998. By the time the European Court gave its judgment, his conviction had been overturned by the Supreme Court of Justice, following an extraordinary appeal lodged by the Prosecutor General. Under Article 41, the European Court awarded the applicant ’ s widow just satisfaction in respect of non-pecuniary damage.

2) Cumpănă and Mazăre : The European Court noted that on the 22 November 1996, the applicants were granted a presidential pardon which exempted them from serving their prison terms and terminated the ban on the exercise of some of their civil rights. As regards the one-year ban on the exercise of their profession imposed as security measure, the European Court found that it had not been enforced, since the applicants continued working as journalists after their conviction. Subsequently, the authorities indicated that the convictions had been expunged from the applicants ’ criminal records on the expiry of the statutory time-limit for rehabilitation.

Apart their criminal convictions, the applicants were ordered to pay civil damages to the injured party and sought to recover the corresponding amount together with other heads of damage under Article 41. In dismissing the applicants ’ claim for pecuniary damage, the European Court relied on its findings that their convictions could have been regarded as “necessary in a democratic society” had the criminal sanctions and additional prohibitions not been manifestly disproportionate (paragraph 129) . As regards non-pecuniary damage, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction.

3) Sabou and Pîrcălab : As regards the first applicant, the European Court noted that after being imprisoned from 20 august to 5 October 1998, he was granted a suspension of the execution of his prison sentence. A presidential pardon granted on 2 February 1999 exempted him from serving the remainder of his sentence and ended the ban on the exercise of his parental rights. The convictions were expunged from the applicants ’ criminal records on the expiry of the statutory time-limit for rehabilitation.

The European Court awarded the applicants just satisfaction in respect of pecuniary damage, corresponding to the amount of the civil damages the applicants were obliged to pay to the civil party in the proceedings at issue, non-pecuniary damage and costs and expenses.

4) Barb: The European Court awarded the applicant just satisfaction in respect of pecuniary and non ‑ pecuniary damage and costs and expenses. It was open to the applicant to request the reopening of the criminal proceedings at issue, in conformity with Article 408 1 of the Code of Criminal Procedure. According to the information at the authorities ’ disposal, no such requested had been made. In any event, the applicant ’ s conviction was expunged from his criminal record following the repeal of Articles 205 and 206 of the Criminal Code (see infra under “General measures”).

5) Băcanu and SC "R" SA: In the proceedings at issue, criminal sanctions were inflicted only on Mr. Băcanu , author of the article in question. As publishing company, the applicant SC "R" SA was held jointly liable in tort for the amount of the civil damages. The European Court awarded them jointly just satisfaction in respect of pecuniary and non-pecuniary damage.

As to the criminal conviction, i t was open to Mr. Băcanu to request the reopening of the proceedings, in conformity with Article 408 1 of the Code of Criminal Procedure. According to the information at the authorities ’ disposal, no such requested had been made. In any event, the conviction was expunged from the first applicant ’ s criminal record following the repeal of Articles 205 and 206 of the Criminal Code (see infra under “General measures”).

In the circumstances presented above, no further individual measure was considered necessary by the Committee of Ministers.

II. General measures

a) Violations of Article 10

1) Legislative measures :

Following the European Court ’ s judgments in the first three cases, Emergency Regulation No. 58/2002 and Law No. 160/2005 abolished prison sentences for insult and defamation respectively. Subsequently, Law No. 278/2006, which entered into force on 11 August 2006, repealed Articles 205 to 207 of the Criminal Code and, as a consequence, both insult and defamation were decriminalised. In January 2007, however, the Constitutional Court found the decriminalisation of insult and defamation to be unconstitutional.

The Constitutional Court ’ s decision generated some uncertainty as to its effects on the decriminalisation of insult and defamation. In order to clarify this issue, the Prosecutor General lodged an appeal in the interest of the law ( recurs in interesul legii ) with the High Court of Cassation and Justice. In its ruling of 18 October 2010, the High Court of Cassation and Justice confirmed that notwithstanding the Constitutional Court ’ s decision, insult and defamation are no longer criminal offences. Under Article 414², paragraph 3 of the Code of Criminal Procedure, this ruling is henceforth binding for all domestic courts.

Lastly, as a result of the decriminalisation of insult and defamation, the ban on the exercise of certain rights under Articles 71 and 64 of the Criminal Code and the security measures provided therein can no longer be imposed in similar cases.

2) Publication and dissemination: Translations into Romanian of the European Court ’ s judgments in all these cases were published in the Official Journal in 2000, 2005 and 2009. Several conferences, training courses and seminars for judges and public prosecutors have been organised since 2001, specifically dealing with issues related to the freedom of expression, as guaranteed under Article 10. These measures were aimed at raising awareness of the European Court ’ s case-law and at ensuring that the relevant domestic law is construed in accordance with the principles set by the European Court .

The authorities provided examples of court decisions given in 2003 – 2004, which show that the domestic courts, often by reference to the European Court ’ s case-law, acquitted defendants of charges of insult and defamation, not least in view of their intention to make public information and ideas on issues of public interest.

b) Violation of Articles 8 and 13

The European Court found that under Article 71 of the Criminal Code, the ban on the exercise of parental rights provided by Article 64 of the Criminal Code automatically applied as a consequence of the imposition of a prison sentence.

Article 71 of the Criminal Code was amended by Law No. 278/2006. According to the provisions currently in force it shall be for the courts to ban or not the exercise of parental rights. When exercising their power, courts must take into account the nature and seriousness of the offence, the circumstances of the cause, the personality of the offender and the best interest of the child. The imposition of such a ban is subject to appellate courts ’ review within the ordinary framework of appeals.

As regards the bans on the exercise of parental rights applied prior to the European Court ’ s judgment in the case of Sabou and Pîrcălab and still in force, the government indicated that it is open to the affected persons to apply for judicial review in the light of the criteria set out by Article 71 as currently in force, by way of an objection to the execution to be lodged under Article 461 d) of the Code of Criminal Procedure. The government recalled that in the case of Iordache against Romania (No. 6817/02, judgment of 14/10/2008, final on 14/01/2009), the European Court found that this procedure constitutes an effective remedy in respect of continuing violations arising from the automatic application of the ban under the previous law (paragraph 60 of the judgment).

c) Violation of Article 6, paragraphs 1 and 3 (d)

For the authorities, the violation found by the European Court in the case stems from the failure of the domestic courts to observe the legal provisions compelling them to take all relevant and instrumental evidence and give reasoned decisions when dismissing requests of the parties for leave to adduce evidence (Article 67 of the Code of Criminal Procedure). Recalling that the judgment was translated and published in Official Journal No. 0484 of 13 July 2009, the government considers that, in view of the direct effect of the Convention and of the case-law of the European Court in Romanian law, the requirements of Article 6, paragraph 1 and 3 (d) resulting from this judgment will be taken into account by the domestic courts and that, consequently, similar violation will be prevented.

III. Conclusions of the respondent state

The government considers that no further individual measure, apart from those presented above, is required in these cases, that the general measures taken will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies