PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

1. I have voted with the majority in finding that there has been a violation of Article 6 § 1 of the Convention. However, my approach is not the same with regard to Article 10, which, in my opinion, has also been violated.

2. Since the Court has concluded that there has been a violation of Article 6 § 1 because the court did not hear evidence from the applicant, a comprehensive analysis of the facts inevitably leads to the conclusion that there has been a violation of Article 10. The part of the judgment concerning the Government's preliminary objection, and particularly paragraph 43, confirm my view.

3. If Article 6 § 1 had not been violated, that is to say, if during the trial in the Bucharest County Court, which convicted him of criminal libel, the applicant had had the opportunity of giving evidence, defending his case, relying on his good faith and, in particular, establishing the truth of his assertions, as any accused can under Article 207 of the Romanian Criminal Code, the outcome of the criminal trial might have been different. Moreover, subsequent events confirm that proposition.

4. As the Court states (paragraph 72 of the judgment), the remarks in question were made in the context of a free debate on the independence of the first trade unions formed in Romania after the fall of the former system and on the functioning of the courts. An assessment of the term “ delapidatori ”, used to describe A.P., R.V. and M.M., must be made in the light of the case as a whole and the context in which the applicant used the word, which was subsequently reproduced and published by a journalist. No one can doubt that a matter of public interest was at stake.

5. The terms used by the applicant cannot be said to be completely unfounded, since the Court of First Instance, when acquitting him, pointed out that the teachers had not returned certain sums of money belonging to the union. Nor has bad faith on the part of the applicant been established since the same court found that the prosecution's decision to discontinue the proceedings had not been sent either to the three teachers concerned or to the applicant (paragraphs 16 and 63 of the judgment) at the time when the remarks in question were made.

Those two factors (remarks not completely unfounded and lack of bad faith) were not disputed by the Bucharest County Court, which nonetheless convicted the applicant without even examining the defence of truth on which he had relied.

I consider that such an interference was not necessary; in particular, the existence of a “pressing social need” – a condition established and consistently reiterated in the Court's case-law – has not been demonstrated. Although speculation cannot be made as to the conclusion which the Bucharest County Court would have reached if it had examined the applicant's offer to prove the truthfulness of his remarks, I consider that the County Court's failure to examine that defence, which is of undeniable importance (according to Article 207 of the Romanian Criminal Code, where the truth of the allegation is proved, no offence of defamation will have been committed for the purposes of Article 206 of that Code), is tantamount to an interference with the applicant's exercise of his freedom of expression which does not satisfy the criterion of necessity.

6. Lastly, it is revealing that, more than two years later, the Bucharest County Court delivered of its own motion a judgment rectifying a number of clerical errors (or, rather, omissions) in the record of the hearing and in the judgment of 10 October 1994 convicting the applicant. It is even more significant that, five years after his conviction, the Supreme Court of Justice, granting an application to set aside lodged by the Procurator-General, again of his own motion, acquitted the applicant on the ground that intent to defame, a constituent element of the offence, had not been made out (paragraph 34 of the judgment). That decision, unprompted by the applicant, and delivered very late in the day (only forty-five days before the hearing at Strasbourg) can only amount to an implicit acknowledgment that there has been a violation of Article 10 of the Convention.

7. Accordingly, unlike the majority, I am not satisfied that the interference was necessary or that the grounds relied on by the national authorities in the instant case were “relevant and sufficient”.