Interim Resolution ResDH(2005 ) 2

concerning the judgment of the European Court of Human Rights of 28 September 1999 in the case of Dalban against Romania

(Adopted by the Committee of Ministers on 8 February 2005 at the 914 th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Dalban case delivered on 28 September 1999 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 28114/95) against Romania, lodged with the European Commission of Human Rights on 20 April 1995 under former Article 25 of the Co n vention by Mr Ionel Dalban, a Romanian national, and that the Commission declared admissible the complaints relating to the unfairness of criminal proceedings conducted against the applicant, the trial court not having examined documents submitted in his defence and to the unjustified interference with his freedom of expression due to the applicant ' s conviction for libel;

Recalling that the case was brought before the Court by the Commission on 27 April 1998 and by the applicant ' s widow on 5 May 1998;

Whereas in its judgment of 28 September 1999 the Court unanimously:

- held that there had been a violation of Article 10 of the Convention;

- held that it was not necessary to examine the case under Article 6, paragraph 1;

- held that the government of the respondent state was to pay the applicant ' s widow, within threemonths, 20 000 French francs in respect of non-pecuniary damage and that simple interest at an annual rate of 3.47% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 28 September 1999, having regard to Romania ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Considering that High Contracting Parties are required rapidly to take the necessary measures to this end, inter alia by preventing new violations of the Convention similar to those found in the Court ' s judgments ;

Having satisfied itself that on 15 December 1999, within the time-limit set, the government of the respondent state paid the a p plicant ' s widow the sum provided for in the judgment of 28 September 1999;

Noting the information provided by the Romanian authorities concerning individual measures as well as the measures which have been taken so far to prevent new, similar violations (this information appears in the Appendix to this resolution);

Noting the explanations given by the Romanian authorities for the time taken to reform the law, the efforts they have undertaken to enhance the direct effect of Strasbourg judgments and the ongoing reflection on ways to improve legislative procedures in the light of Committee of Ministers ' Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights;

Noting in this context that the European Court ' s judgment was promptly published in the Official Journal, to ensure that Romanian courts and authorities give it direct effect in applying existing law so as to avoid, as far as possible, new, similar violations;

Noting also that the Romanian authorities have provided examples of domestic court decisions on criminal libel charges in which the courts, often referring to the European Court ' s case-law, subsequently acquitted the defendants not least in view of their intention to transmit information and ideas on issues of public interest;

Noting that this development has been strengthened by the adoption, in June 2004, of the new Criminal Code, the relevant provisions of which allow those accused of criminal libel to invoke good-faith as a defence, to make more extensive use of the defence of truth and remove imprisonment as a punishment for this offence; these reforms being due to enter into force on 29 June 2005;

Recalling the Declaration on ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels, adopted by the Committee of Ministers on 12 May 2004, at its 114th Session, and the recommendations to the member states referred to therein,

INVITES the Romanian authorities to pursue their efforts further to develop the direct effect of the European Court ' s case-law in domestic law, inter alia in the area of freedom of expression, and to improve legislative procedures and to keep the Committee of Ministers informed of the progress;

DECLARES, after having examined the information supplied by the government of Romania, that it has provisionally exe r cised its functions under Article 46, paragraph 2, of the Convention in this case;

DECIDES to resume consideration of this case at the end of 2005.

Appendix to Interim Resolution ResDH(2005)2

Information provided by the government of Romania during the examination of the Dalban case by the Committee of Ministers

The Romanian government recalls that the violation found by the European Court in the present case concerned the applicant ' s criminal conviction for libel for articles which he had published in the press, without being given by the competent court a proper opportunity to adduce evidence in support of his statements.

As regards individual measures , the government recalls that the applicant died on 13 March 1998. It also points out that Romanian law offers the possibility to request reopening of criminal proceedings on the basis of judgments of the European Court of Human Rights, to obtain the annulment of a conviction contrary to Article 10 as in the present case. In any event, as regards some of the statements published by the applicant and resulted in his conviction, he was acquitted by the Supreme Court of Justice in March 1999, in extraordinary proceedings instituted by the Prosecutor-General.

In response to the Dalban judgment, the Romanian authorities initiated a reflection process concerning the necessary general measures and concluded that criminal law needed to be amended to stress the possibility for those accused of criminal libel to invoke good faith in their defence.

However, recognising that the legislative element in the changes to Romanian law required by the Court ' s judgment would take more time, the amendments to the Criminal Code being incorporated in the overall criminal law reform conducted in the last years, the government in the meantime issued Order No. 58/2002 reducing the penalties for criminal libel.

The government stresses that efforts have been made throughout the legislative process to ensure that judges interpret the relevant legal provisions in line with the Strasbourg standards. In this respect, the government recalls that criminal libel is an offence requiring the defamed party to lodge a criminal complaint directly with the court, thus excluding the public prosecutors ' competence in this field.

Following the publication of the European Court ' s judgment in the Official Journal in June 2000, several conferences, training courses and seminars for judges and public prosecutors have been organised, specifically dealing with issues related to the freedom of expression as guaranteed by Article 10 of the Convention.

Moreover, a course on the “Court ' s case-law” was introduced as early as 2000 into the initial training of new judges and prosecutors conducted by the National Institute of Magistrates. Possible further development of these courses is being considered in the light of the Committee of Ministers ' Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training.

As a result of these efforts, Romanian courts are increasingly taking into account the Strasbourg case-law concerning the freedom of expression when applying domestic law, as reflected in several recent judgments which have been provided to the Committee of Ministers.

In addition, the new Criminal Code was adopted on 28 June 2004, and included provisions stressing that journalists may publish statements of public interest in accordance with the principles enshrined in the European Court ' s case-law. According the new Code, insult is no longer a criminal offence. As for defamation, imprisonment has been removed as a punishment and the possible use of the defence of truth has been widened, particularly by introducing the defence of good faith.

The new relevant provisions are:

Article 225 - Libel

The statement or allegation made in public, by any means, of facts concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose that person to public opprobrium (contempt), shall be punished by 10 to 120 days/fine.

The criminal proceedings can be set in motion at the request of the injured person. The conciliation of the parties excludes the criminal liability.

Article 226 – The proof of truth or of good faith

The statement or allegation of facts in relation to which the proof of truth was made or in relation to which the defendant had reasonable grounds to believe they were true, do not constitute libel.

In case of statements or allegations of facts referring to the private life of a person, the proof of truth or the proof that the defendant had reasonable grounds to believe that they were true are admissible for the defense of a legitimate interest.

In case of statements or allegations of facts referring to the private life of a person that affect that person ' s ability to exercise a public office, the proof of truth or the proof that the defendant had reasonable grounds to believe that the facts are true are admissible without being necessary to prove the existence of a legitimate interest.

In the Romanian government ' s view, the new provisions of the Criminal Code confirm the developing practice of the domestic courts to refrain from applying criminal sanctions to journalists who exercise their freedom of expression in good faith in order to transmit information and ideas of public interest, in accordance with the principles enshrined in Article 10 of the Convention. Therefore, new similar violations of Article 10 of the Convention will be prevented in the future.

Moreover, further measures are being considered, in the light of the Committee of Ministers ' Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights, in order to improve legislative procedures so that laws necessary to ensure Romania ' s compliance with the European Convention on Human Rights are rapidly adopted, particularly if this is necessary to prevent new violations similar to those already found.