FOURTH SECTION

DECISION

Application no. 16582/16 Marcel SÂMPETRU against Romania

The European Court of Human Rights (Fourth Section), sitting on 16 January 2024 as a Committee composed of:

Faris Vehabović, President , Anja Seibert-Fohr, Sebastian Răduleţu , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 16582/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 March 2016 by a Romanian national, Mr Marcel Sâmpetru, born in 1954 and living in Şanţu Florești (“the applicant”) who was represented by Mr G. Papu, a lawyer practising in Bucharest;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged failure by the domestic courts in safeguarding the applicant’s right to reputation after the publication of a defamatory press article concerning him. It raises issues under Article 8 of the Convention.

2. On 16 November 2011 the daily newspaper România Liberă published an article authored by S.G. under the headline “The Superior Council of Magistrates is undergoing reform with prosecutors investigated for corruption”. The article expounded inter alia upon the applicant’s recent appointment as a counsellor to the vice-president of the Superior Council of Magistrates and questioned the merit of his appointment due to his contentious reputation. In particular, the article contained the following assertions with respect to the applicant:

1. “In the case of the high-ranking officers of the Romanian Intelligence Service (SRI), in the indictment of the military section of the National Anti-Corruption Directorate (DNA), it is stated that Sâmpetru is alleged to have engaged in influence peddling at the request of SRI Colonel Gheorghe Dumitrache, who is currently under pre-trial detention and who has been sent to trial alongside several other high-ranking SRI officers.”

[...]

2. “[The applicant] allegedly helped ensure that the criminal complaint filed by a certain D. N. (a front for M. I.) against P. would be handled by prosecutor C. It is claimed that Năstase’s complaint did not go through the General Prosecutor’s Office’s registry as required by law but was directly assigned by the Deputy Prosecutor Sâmpetru to prosecutor C. Subsequently, C. was arrested for accepting a bribe from M. I., while Sâmpetru managed to escape any legal consequences.”

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3. “In the elections for the Superior Council of Magistrates at the end of 2010, Marcel Sâmpetru took care of the electoral campaign for candidate G. B. helping him to gain access to the Council.”

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4. “Rise with the help of the PSD. A simple reading of his biography reveals that Marcel Sâmpetru had a rapid professional ascent during the periods of PDSR-PSD governance.”

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The above phrase was suceeded by a succint summary of the applicant’s professional curriculum vitae, highlighting his advancements during the governance of the Social Democratic Party („PSD”).

5. “[The applicant] allegedly had something to do with the compensation of approximately five billion old lei paid to the former chief prosecutor O. who had previously been acquitted of charges of document forgery and abusive use of the prosecutor’s stamp.”

[...]

6. “In 2004, he was already the deputy Prosecutor General of Romania. He resigned from his position alongside the Prosecutor General Ilie Botoș only after being accused of favouring the release from custody and subsequent escape from the country of Omar Hayssam, sentenced to twenty years in prison for the kidnapping of Romanian journalists in Irak.

[...]

Former prosecutor Ciprian Nastasiu stated to the press that he had acted as a session prosecutor (although there was a different delegated prosecutor) and requested the release of Omar Hayssam (charged with the kidnapping of Romanian journalists in Iraq, arms trafficking, and economic crimes) because he claimed to have received an order from the Deputy Prosecutor General Marcel Sâmpetru. Marcel Sâmpetru denied Nastasiu’s allegations.”

[...]

3. On an unspecified date, the applicant initiated legal defamation proceedings against S.G., the publication and a company which owned the publication, contending, among other things, that the aforementioned statements were defamatory of him as they contained false allegations.

4. In a judgment of 26 September 2013, a Bucharest District Court upheld the applicant’s claim, concluding that the article in question indeed was defamatory of him.

5. On 30 January 2015 the Bucharest Regional Court overturned the aforementioned judgment and dismissed the applicant’s claim.

6. With regard to the first impugned statement, the court considered that it constituted a statement of fact which was based on true facts. In particular, the court made reference to a paragraph from the official indictment document in a case involving senior officers of the Romanian Intelligence Service in which one of the suspects declared that the applicant had purportedly agreed to help him by transferring his case to a more lenient prosecutor. Furthermore, the indictment document contained mention of an intercepted communication between the same suspect and a third party wherein the latter claimed to have had a special meeting with the applicant during which assurances were given that the case would be reassigned to another prosecutor, thereby alleviating any concerns.

7. With respect to the second impugned statement, the court similarly deemed it to be a statement of fact, founded upon factual accuracy. Specifically, the court referred to a paragraph from another official indictment document, wherein a witness named B.D. stated that he had personally visited the applicant in his office and enquired whether it would be feasible for the case to be reassigned to prosecutor C. Following this discussion, the applicant decided to allocate the case to the above-mentioned prosecutor.

8. In so far as the third impugned statement was concerned, the court observed that Mr George Bălan had been heard during the initial proceedings and did not refute receiving assistance from the applicant during the electoral campaign for the position of vice-president of the Superior Council of Magistrates.

9. As to the fourth impugned statement, the court deemed it to be a value judgment supported by sufficient factual basis. Specifically, the court noted that the author of the impugned article presented relevant details from the applicant’s curriculum vitae, thereby substantiating the value judgment made.

10. Concerning the fifth impugned statement, the court took note of the defendants’ failure to mount a defence in relation to it. Nevertheless, the court concluded that a minor factual inaccuracy by the defendant journalist, who overall acted in good faith when writing the impugned article, did not undermine the protection afforded to her under Article 10 of the Convention.

11. Lastly, regarding the sixth impugned statement, the court also deemed it to be a statement of fact and found that it was supported by factual evidence. In particular, the court acknowledged that a similar accusation pertaining to the applicant had previously been published in the press in 2007 and 2009. This accusation was based on the accounts provided in a book by the former prosecutor C.N., the prosecutor who had sought the release of Omar Hayssam.

12. The court concluded that as a public figure the applicant was subject to a broader range of acceptable criticism. On the other hand, the court also took note of the fact that the defendants were representatives of the press and were reporting on a matter of public interest. Additionally, the court found that the defendants had acted in good faith and possessed a reasonable factual foundation for their statements. The language employed by the defendants was deemed by the court as not exceeding the limits of exaggeration and provocation allowed under Article 10 of the Convention and the applicant was considered to have failed substantiating any actual harm caused to him by the impugned statements.

THE COURT’S ASSESSMENT

13. The applicant alleged under Article 8 of the Convention that the domestic courts failed to protect his reputation. The Government disagreed and argued that the complaint was inadmissible.

14. The general principles concerning protection afforded by Article 8 to the right to reputation as part of the right to respect for private life have been summarized in Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-99, ECHR 2012, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-84, 7 February 2012, and Pfeifer v. Austria , no. 12556/03, § 35, 15 November 2007).

15 . The Court’s task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, in particular, the summary of the relevant principles in Perinçek v. Switzerland [GC], no. 27510/08, § 198, ECHR 2015 (extracts)). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Perinçek , cited above, § 198; and Von Hannover (no. 2) , cited above, § 107).

16. Turning to the facts of the present case, the Court concurs with the domestic court’s finding to the effect that the impugned material addressed a matter of public interest, namely the fight against corruption within the judiciary and the reform of the Superior Council of Magistrates. Furthermore, the Court agrees with the domestic court concerning the special protection enjoyed by the defendants who represented the media and with its finding that the applicant was a public figure, being thus exposed to a wider limit of “acceptable criticism” vis-à-vis his activities.

17. With regard to the first and second impugned statements, the Court agrees with the findings made by the Bucharest Regional Court to the effect that they contained statements of fact and that they represented accurate references to official indictment documents, copies of which were included within the casefile of the present proceedings. In this context, the Court reiterates that the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports without having to undertake independent research. Otherwise, the vital public-watchdog role of the press may be undermined ( see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 68, ECHR 1999 ‑ III). Consequently, the Court discerns no reason to call into question the solution given by the Bucharest Regional Court in respect of these particular statements.

18. Likewise, the Court is prepared to endorse the solution adopted by the Bucharest Regional Court in respect of the next three impugned statements. In so far as the third and the fifth statements are concerned, the Court finds itself unconvinced that they were serious enough to have adversely impacted the applicant’s reputation ( Axel Springer AG , cited above, § 83). As for the fourth impugned statement, the Court duly observes that the allegation pertaining to the connexion between the applicant’s professional trajectory and the PSD was accompanied by a concise summary of the applicant’s professional curriculum vitae. In such circumstances and in light of the applicant’s failure to contest the accuracy of the journalist’s presentation of his curriculum vitae details, the Court finds no alternative but to concur with the conclusion reached by the Bucharest Regional Court to the effect that this particular statement constituted a value judgment which had a sufficient factual basis.

19. Lastly, in the sixth impugned statement, it was stated that the applicant used to be suspected of having been involved in a scandal concenring the release from detention of an individual convicted for acts of terrorism, followed by the latter’s absconding.

20. The Court takes note of the defendants’ argument, accepted by the Bucharest Regional Court, that allegations concerning the applicant’s involvement in the case had been made in past written media publications and that they were based on statements made by C.N., the prosecutor who had saught the release of Omar Hayssam. Namely, the prosecutor in question told the press that he did not seek the release of Omar Hayssam on his own initiative and that all of his superiors had been appraised of his intention to release of Omar Hayssam in advance.

21. The Court considers that this allegation, constituting a statement of fact, is serious enough to have had the potential of adversely impacting the applicant’s reputation. However, it observes that the journalist, in making such a statement, merely recalled a past scandal involving the applicant’s name without expressing any opinion regarding his guilt. Aditionally, it is noteworthy that the journalist explicitly mentioned the applicant’s denial of the allegations put forth by prosecutor C.N. In light of these circumstances and considering the subject matter’s importance and the applicant’s status as a public figure, the Court deems the sixth impugned statement as a fair comment on a matter of public concern rather than a gratuitous attack on the applicant’s reputation.

22. In the light of the above considerations, the Court concludes that the Bucharest Regional Court struck a fair balance between the defendants’ freedom of expression under Article 10 and the applicant’s right to have his honour, reputation and privacy respected under Article 8. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 February 2024.

Crina Kaufman, Faris Vehabović Acting Deputy Registrar President