Full case report

Cumpana and Mazare v Romania

Reference (2005) 41 EHRR 200
Court European Court of Human Rights

Judge Wildhaber (President), Rozakis, Costa, Ress, Bratza, Barreto, Straznicka, Birsan, Lorenzen, Casadevall, Zupancic, Hedigan, Pellonpaa, Baka, Maruste, Ugrekhelidze, Hajiyev (Judges), Mahoney (Registrar)

Date of Judgment 17 Dec 2004


Summary

Human rights – Freedom of expression – Defamation – Criminal defamation – Sentence – Articles 8, 10 ECHR


Facts

The applicants were journalists who had published an article in a local newspaper (of which the second applicant was the editor) alleging that a former deputy mayor of Constanta (DM) and a former legal adviser to Constanta City Council (RM) had accepted bribes in return for signing an unlawful agreement between the Council and a private company for the towing away of illegally parked cars. The article was accompanied by a cartoon depicting DM with a bag of money, with RM on his arm. RM instituted proceedings for insult and defamation, offences under the Criminal Code. The applicants were found guilty of both, and were sentenced to 7 months imprisonment, barred from exercising certain civil rights and from working as journalists for 12 months from their release, and ordered to pay damages to RM. Their appeals were dismissed, although they were granted a pardon in respect of their prison sentence, and their disqualification from exercising civil rights was also waived.


Issue

Whether the applicants’ convictions were an unjustified interference with their right to freedom of expression, as guaranteed by Article 10 ECHR.


Held

Finding a violation of Article 10, the applicants’ convictions clearly amounted to interference with their right to freedom of expression, and had been prescribed by law. As to whether the interference was necessary in a democratic society, the Court considered the public watchdog function of the press: the information the article contained was indisputably a matter of general interest to the local community which the applicants were entitled to bring to their attention through the press. However, the article contained allegations of specific conduct, rather than value judgments, and so required a factual basis: the national court found that the article was distorted and not based on facts, and the applicants’ duty to protect their sources did not enable them to avoid the need to substantiate their allegations. The reasons of the court had been relevant and sufficient. However, aside from the payment of damages, all of the penalties had been severe and disproportionate.


Comment

The Grand Chamber has reversed the judgment of the Chamber given on 10 June 2003. This decision reiterates the important distinction between facts and value judgments (see judgment paras 98-102), and further cements the status of personal reputation as a matter protected by Article 8. The Court held that as part of its role in determining whether the interference had been “necessary in a democratic society”, it had to ascertain whether the measures taken struck a fair balance between Article 10 and Article 8, the latter including protection of reputation (see judgment para 91, citing Chauvy v France; para 113; see also <A
href=”http://www.5rb.com/casereports/detail_redirect.asp?case=292″ target=_parent>Radio France v France). In relation to sentencing, the Court stated that only in exceptional circumstances would a prison sentence be justified for a press offence, notably in cases such as hate speech or incitement to violence which breached other fundamental rights.


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