Professionals
II. RELEVANT DOMESTIC LAW 19. The relevant domestic provisions of the Civil and Criminal Codes concerning defamation and liability for compensation, in force at the material time, as well as the subsequent developments in the legislation, are described in the case of Timciuc v. Romania (( dec. ), no. 28999/03, §§ 95 ‑ 97, 12 October 2010). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 20. Relying on Article 6 § § 1 and 2 and Article 8 of the Convention, the applicant complained that the publication of the article in question and accompanying pictures had damaged his reputation, which the domestic courts had subsequently failed to protect. The Court considers that the present complaint falls to be examined solely under Article 8 of the Convention which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 21. The Government disputed the admissibility of the application on the grounds that the applicant had made serious accusations and insulted national judges; an attitude which was not in conformity with the right to individual petition before the Court. 22. In particular, the Government pointed out that, in his submissions to the Court, the applicant had mentioned that the judges dealing with his case at the domestic level were corrupt, having deliberately misinterpreted and misapplied the law and taken unlawful decisions. 23. The Court reiterates that an application may be rejected as abusive if it is knowingly based on untruths (see Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996 ‑ IV; I.S. v. Bulgaria ( dec. ), no. 32438/96, 6 April 2000; and Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X). In addition, persistent use of insulting or provocative language by an applicant may be considered an abuse of the right of application within the meaning of Article 35 § 3 of the Convention (see Manoussos v. the Czech Republic and Germany ( dec. ), no. 46468/99, 9 July 2002; Duringer and Others v. France ( dec. ), nos. 61164/00 and 18589/02; and Stamoulakatos v. the United Kingdom, no. 27567/95, Commission decision of 9 April 1997). 24. Turning to the present case, the Court notes that the statements made by the applicant as quoted by the Government reflect his emotional attitude towards the behaviour of the authorities in his case. Admittedly, some of the applicant ’ s allegations were provocative and inappropriate and thus regrettable, but in sum the Court finds that they do not meet the threshold of offensiveness and frequency that would make them an abuse of petition (see Omerović v. Croatia (no. 2), no. 22980/09, § 33, 5 December 2013). 25. Further, the Court notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 26. The applicant asserted that the article of 8 September 2001 made untrue and defamatory statements about his private life, such as the fact that he was involved in child sex abuse, statements which had damaged his reputation on both a personal and professional level. In addition, the applicant submitted that in assessing his complaint, the domestic courts had failed to verify the truthfulness of the facts contained in the article and to analyse all his allegations. 27. Referring to the Court ’ s decision in Pipi v. Turkey (( dec. ), no. 4020/03, 12 May 2009), the Government contended that the information published in the current case did not concern purely personal details and were not an intolerable and continuous intrusion into the applicant ’ s life. The applicant ’ s reputation may have been affected, but this did not exceed the limits of the journalist ’ s right to freedom of expression. 28. The Government submitted that the applicant ’ s complaint had been thoroughly examined by the national courts, which had applied the law in force at the relevant time to the particular circumstances of the case. They emphasised the fact that in its judgment of 8 April 2005, the Craiova District Court had taken into consideration the Court ’ s case-law under Article 10 of the Convention. 2. The Court ’ s assessment 29. What is at issue in the present case is a publication affecting the applicant ’ s reputation. The Court reiterates that it has already been established in its case-law that “private life” extends to aspects relating to personal identity and reputation (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Petrina v. Romania, no. 78060/01, §§ 27-29 and 34-36, 14 October 2008; and Timciuc, cited above, § 143). Moreover, the Court has found the publication of a person ’ s photograph to fall within the scope of his or her private life, even where the person concerned is a public figure (see Von Hannover v. Germany, no. 59320/00, § 34, 24 June 2004 ). Article 8 therefore applies, and this is not disputed by the parties. 30. The Court notes that the applicant did not complain about any action by the State, but rather that the State had failed to protect his reputation against interference by third parties. In this connection, the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life, even in the sphere of the relations of individuals between themselves (see Odièvre v. France [GC], no. 42326/98, § 40, 13 February 2003 and Dickson v. the United Kingdom [GC], no. 44362/04, § 70, 4 December 2007). The Court therefore considers that the present case engages the State ’ s positive obligations arising under Article 8 to ensure effective respect for the applicant ’ s private life, in particular his right to protection of his reputation. 31. The main question in the present case is whether the State has, in the context of its positive obligations under Article 8, achieved a fair balance between the applicant ’ s right to protection of his reputation, which is an element of his “private life”, and the other party ’ s right to freedom of expression guaranteed by Article 10 of the Convention (see Von Hannover, cited above, § 57, with further references, and Pfeifer, cited above, § 38). 32. The Court reiterates that 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 MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06, 28964/06, § 57, 12 September 2011; and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012). In balancing the right to freedom of expression against the right to respect for private life in the present case, the Court will take into account the following relevant criteria laid down in its case-law. 33. An initial essential criterion is the contribution made by articles or photographs published in the press to a debate of general interest involving issues such as politics, crime, sport or the performing arts (see Von Hannover, cited above, § 60; White v. Sweden, no. 42435/02, § 29, 19 September 2006; and Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012, with further references). The rumoured marital problems of the president of a Republic or the financial difficulties of a famous singer have not been deemed to be matters of general interest (see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009, and Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 43, 23 July 2009). In addition, the Court has previously found no public interest justifying the publication of data concerning a person ’ s health or reference to her sex life, which have been held to be of a purely private nature therefore falling within the protection of Article 8 of the Convention (see Biriuk v. Lithuania, no. 23373/03, §§ 39-42, 25 November 2008). 34. In the current case, the article published on 8 September 200 1 in the Republica Oltenia newspaper described in detail an incident in the applicant ’ s sex life which happened nineteen years before, as well as crimes allegedly committed by him in connection with his job as a university professor nine years before. The article included pictures of the applicant nude and having sex. It also included serious accusations against him, such as the fact that he was involved in “bribery, blackmail, child sex abuse and sexual deviance”. Lampooning statements about his character were also made by the journalist, such as: “Sex pervert, criminal, blackmailer”. The Court observes that the domestic courts did not make a serious assessment as to whether the entire material published contributed to a debate of general interest, or whether what was published was true. For example, the public interest at the moment of publishing of matters dating back to nine or even nineteen years ago, was not analysed. Furthermore, the domestic courts did not discuss at all whether the photographs themselves contained information related to an event of contemporary society or contributed to a debate of public interest. 35. In this connection, the Court also considers that the act of making such serious accusations against a person identified by their name and occupation, such as the applicant, involves an obligation on behalf of the journalist to provide a sufficient factual basis for his statements (see Polanco Torres et Movilla Polanco v. Spain, no. 34147/06, § 47, 21 September 2010). The Court had previously attached serious importance to whether the domestic courts analysed whether the journalist concerned had obtained his information legally, verified it with the applicants before publishing and whether he had also given the applicants the right to reply within the same article ( ibid., §§ 50-52). On the contrary, in the current case, failing to identify and subsequently correctly summon the journalist who wrote the article, the domestic courts automatically regarded his sources as credible and assumed that he had acted in good faith (see paragraphs 13 and 16 above). In this respect the Court notes that, in the course of the proceedings before the domestic courts, no material was produced in order to support the allegations made in the article and no witnesses testified that the applicant was involved in the activities described by the journalist (see Lavric v. Romania, no. 22231/05, § 44, 14 January 2014). 36. The role or function of the person concerned and the nature of the activities that form the subject matter of the article constitute another important criterion, which relates to the previous one. In this connection, the Court has previously held that a fundamental distinction needs to be made between reporting factual matters capable of contributing to a debate in a democratic society, such as those relating to politicians in the exercise of their official functions, and reporting details of the private life of an individual who does not exercise such functions, with the sole aim of satisfying public curiosity (see Von Hannover, cited above, §§ 63 and 65, and Standard Verlags GmbH, cited above, §§ 47 and 53). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, § 66, and Hachette Filipacchi Associés (ICI PARIS), cited above, § 40). 37. The Court observes that the applicant in the present case was a university professor unknown to the larger public. It also notes that the domestic courts did not make any assessment which could lead to the conclusion that he was a public figure, but merely assumed that his position as university professor rendered him more exposed to criticism. 38. There can be little doubt that the disputed article and accompanying photographs seriously prejudiced the applicant ’ s honour and reputation and was harmful to his psychological integrity and private life (see, mutatis mutandis, A. v. Norway, no. 28070/06, § 64, 9 April 2009, Mikolajová v. Slovakia, no. 4479/03, § 55, 18 January 2011 and Roberts and Roberts v. the United Kingdom, ( dec. ), no. 38681/08, §§ 40-41, 5 July 2011). In view of the above, the Court is therefore not convinced that the national courts attached the required importance to the questions whether the article contributed to a debate of general interest and whether the applicant should have been regarded as a public figure. It considers therefore that the national courts did not carefully balance the journalist ’ s right to freedom of expression against the applicant ’ s right to respect for his private life. 39. The foregoing considerations are sufficient to enable the Court to conclude that there has thereby been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41. The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage, consisting of loss of income owing to the fact that the article in dispute had prevented him from accessing a higher position in his occupation. He also claimed EUR 100,000 in respect of non-pecuniary damage, submitting that the publication of the article and serious accusations therein had exposed him and his family to public shame. 42. The Government submitted that the amounts claimed were excessive and unsubstantiated. They contended that the finding of a violation would constitute sufficient just satisfaction for the applicant in the current case. 43. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it accepts that the failure to protect the applicant ’ s reputation against the defamatory article must have caused him feelings of distress. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 in compensation for non-pecuniary damage. B. Costs and expenses 44. The applicant also claimed EUR 1, 000 for the costs and expenses incurred before the Court, without submitting any supporting documents. 45. The Government requested the Court to dismiss the applicant ’ s claims as unsubstantiated. 46. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the lack of relevant documents justifying the payment of the requested expenses and in the light of its case-law, the Court rejects this claim (see Alkaya v. Turkey, no. 42811/06, § 48, 9 October 2012). C. Default interest 47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the Romanian courts had not carefully balanced the journalist’s right to freedom of expression against the applicant’s right to respect for his private life. In particular there could be little doubt that the disputed article and accompanying photographs had seriously prejudiced the applicant’s honour and reputation and had been harmful to his psychological integrity and private life. The Court was further not convinced that the national courts had attached the required importance to the questions whether the article had contributed to a debate of general interest and whether the applicant should have been regarded as a public figure.