THIRD SECTION

Application no. 45558/08 Luminiţ a CHIRIAC against Romania lodged on 6 September 2008

STATEMENT OF FACTS

1. The applicant, Ms Luminiţa Chiriac , is a Romanian national who was born in 1969 and lives in Iaşi .

A. The circumstances of the case

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

3. On 12 April 2004, two individuals, one of whom was the applicant ’ s brother, were taken to a Ia ş i Police station under the charge of disturbance of the public order due to the consumption of alcoholic beverages. The applicant came to the same police station in her capacity as attorney at law in order to represent the two aforementioned individuals.

4. On 23 April 2003 a local journal published an article entitled “Big scandal in the middle of the night between an attorney and the police officers from Station II” ( Mare tărăboi în miez de noapte între un avocat şi poliţiştii de la Secţia II ). The article related the events of 12 April 2004. It included a quote of the deputy to the head of the Police Station II as follows: “[ ... ] both the attorney and her client were under the influence of alcoholic beverages and provoked a scandal in the police station”.

5. On 16 May 2003 the applicant lodged a criminal complaint for defamation against the journalist who wrote the article and the policeman who was quoted in the article. The applicant alleged that as a result of the publication of the article including the declarations about her being under the influence of alcohol, her reputation was damaged. Several clients had rescinded the representation agreements and her family had been negatively affected subsequent to the publication of the article. On 2 December 2003 the applicant joined the proceedings as a civil party claimi ng 25 000 e uros .

6. On 29 November 2004 the Prosecutor attached to the Iaşi Court of Appeal dismissed the applicant ’ s complaint in respect of the police officer for lack of sufficient evidence that he had proffered defamatory statements and in respect of the journalist on the ground that he had not acted with the intention to defame. By a judgment of 12 January 2006 the High Court of Cassation and Justice endorsed the applicant ’ s appeal on points of law and remitted the case for further investigations to the Prosecutor ’ s Office attached to the Court of Appeal. The domestic court reasoned that the applicant ’ s complaint had been dealt with superficially and the investigation should have also extended to the crime of defamation of an attorney as provided under Article 37 § 2 of Legal Profession Act No. 51/1995.

7. During the second procedural cycle, the applicant ’ s complaint was finally dismissed by the High Court of Cassation and Justice judgment of 6 March 2008. The domestic court upheld the reasoning of the previous courts whereby the crime did not fall under the provisions of Law No. 51/1995 as the acts complained of did not occur during the exercise of the applicant ’ s duties. Furthermore, the High Court of Cassation and Justice held that even assuming that the acts complained of would have fallen under the provisions of the Criminal Code regarding defamation, the prosecution of such acts was time barred, as from 2006 to 2007 defamation had been decriminalized, therefore the perpetrators benefited of the application of the more favourable law. No reference was made as to the civil action lodged by the applicant.

B. Relevant domestic law

8. Article 206 of the Criminal Code as in force at the date of the events read as follows:

“ Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium shall be liable to a fine [ ... ].”

9. In 2006, amending certain provision s of the Criminal Code, Law No. 278/2006 repealed the Articles on insult and defamation.

10. However, by its decision no. 62 of 18 January 2007 the Constitutional Court declared the above repeal unconstitutional.

11. Article 346 of the Code of Criminal Procedure in force at the date of the High Court of Cassation and Justice judgment ’ s read as follows:

“ (1) In case of conviction, acquittal or cessation of the criminal limb of the trial, the court delivers the same decision in respect of the civil limb of the proceedings.

( 2) When acquittal has been pronounced for the reason provided in article 10 letter b) (1) or because the court has identified a cause that removes the criminal nature of the act, or because one of the constitutive elements of an unlawful act is missing, the court can award material and moral damage in accordance to the civil law.

(3) Civil damage cannot be paid if the acquittal was decided because the act does not exist or has not been committed by the defendant.

(4) The criminal court does not settle the civil action when it decides to acquit for the reasons provided in art. 10 letter b) or when it decides to cease the criminal proceedings for one of the reasons provided in art. 10 letters f) and j) or in the case of withdrawal . ”

12. According to the provisions of Decree No. 167/1958, the statutory time limit for civil and commercial matters is three years, starting from the date one has gained the right to lodge a complaint pertaining to a particular matter.

13. Article 37 § 2 of Legal Profession Act No. 51/1995, as in force at the date of the events, read as follows:

“(2) Insulting, defaming or threatening an attorney during the exercise of the profession and in connection with the profession shall be punished by imprisonment from 3 months to 2 years or with a fine.”

COMPLAINTS

14. The applicant complains under Article 6 § 1 of the Convention about the excessive length of the criminal proceedings.

15. The applicant also complains under Article 10 § 2 of the Convention that her reputation had been affected and that the courts had failed to remedy the situation.

QUESTIONS

1. Did the applicant exhaust the available domestic remedies in respect of her complaint concerning the alleged breach of her right to reputation?

2. Did the State comply with its positive obligations under Article 8 of the Convention to ensure respect for the applicant ’ s private life (see, inter alia , Pfeifer v. Austria , no. 12556/03, 15 November 2007) ?