02.03.2010

Press release issued by the Registrar - Chamber judgment1
Antică and Company “R” v. Romania (no. 26732/03)

INFRINGEMENT OF THE FREEDOM OF EXPRESSION OF A PUBLISHING HOUSE HELD LIABLE FOLLOWING PUBLICATION OF AN ARTICLE ON A CASE INVOLVING POLITICIANS AND SENIOR OFFICIALS

Unanimously:
Violation of Article 6 § 1 (right to a fair trial) and Article 10 (freedom of expression) of the European Convention on Human Rights

Principal facts
The applicants are Mr Andreea Florin Antică, who was born on 2 September 1971 and lives in Bucharest, and the public company “R”, a publishing house which has its registered office in Bucharest and which employed Mr Antică as a photo-journalist at the relevant time.

On 13 January 1999 the newspaper Romania liberă published an article on a case that was receiving considerable media coverage in Romania at the time, namely the “Megapower” case, in which several politicians and senior officials were implicated in the bankruptcy of an American company to which the Romanian State had made financial contributions.

On 1 March 1999, R.D., whose role had been particularly questioned in the article, made a criminal complaint to the prosecutor’s office at the Bucharest Court of First Instance, accusing the signatories of the article and the editor-in-chief of Romania liberă of insult and slander.

On 11 March 2002 the Bucharest Court of First Instance acquitted the first applicant on the criminal charges but found him civilly liable and ordered him to pay R.D. 100,000,000 former Romanian lei in damages. The applicant company was held civilly liable, jointly with the first applicant, whom it employed. The applicants appealed unsuccessfully against that judgment.

Complaints, procedure and composition of the Court

Relying on Article 6 § 1 of the Convention, the applicants alleged, in particular, that the courts had not examined their case fairly and complained of the excessive length of the criminal proceedings. Under Article 10, they alleged that the fact of being found civilly liable had been an unjustified and disproportionate infringement of their freedom of expression.

The application was lodged with the European Court of Human Rights on 28 July 2008.

Judgment was given by a Chamber of seven judges, composed as follows:
Josep Casadevall (Andorra), President,
Elisabet Fura (Sweden),
Corneliu Bîrsan (Romania),
Boštjan M. Zupančič (Slovenia),
Egbert Myjer (the Netherlands),
Luis López Guerra (Spain),
Ann Power (Ireland), Judges,
and Stanley Naismith, Deputy Section Registrar.

Decision of the Court

Article 6 § 1
The Court reiterated that while it was not its task to take the place of the competent national authorities, it had to review under Article 11 whether the decisions they delivered in the exercise of their power of appreciation complied with the requirements of Article 6.

Thus, the Court noted that the Bucharest court had not explained its reasons for setting aside a finding by the prosecutor’s office that the first applicant was not the author of the article and that it had not ruled on the evidence for Mr Antică’s lack of liability. Thus, reasons had not been given for holding him liable, or for finding the applicant company liable, a decision that had resulted from the former finding. Accordingly, the Court concluded that there had been a violation of Article 6.

Article 10
It was not for the Court to determine whether the first applicant was indeed the author of the article and whether there had been a violation of Article 10 with regard to Mr Antică. Nonetheless, as the applicant company’s responsibility for publishing the article had not been contested, the Court examined whether there had been a breach of the latter’s freedom of expression.

The interference in the applicant company’s right to freedom of expression, which was what the County Court’s decision in its case amounted to, had been in accordance with the law (civil liability in tort). As to whether this interference had been necessary in a democratic society, the Court noted that the disputed article concerned a subject of general interest, namely the management of the State’s property through the granting of direct loans to companies. In addition, the decision to find the applicant company civilly liable had not been based on its responsibility as publisher, but on its status as employer, since it had been explained solely by the finding, itself unjustified, that Mr Antică was liable (see the finding of a violation of Article 6 § 1).

Finally, the Court noted that the amount of damages represented thirty times the average monthly salary in Romania at the relevant time and was three times higher than the maximum sum imposable as the fine for the criminal offence of defamation.

In consequence, the Court concluded that there had been a violation of Article 10 in respect of the applicant company.

***

The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).
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Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30)
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Nina Salomon (tel: + 33 (0)3 90 21 49 79)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959
to deal with alleged violations of the 1950 European Convention on Human Rights.


1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.