CONVICTING A JOURNALIST OF A CRIMINAL OFFENCE AND SENTENCING HIM TO IMPRISONMENT HAD AMOUNTED TO DISPROPORTIONATE INTERFERENCE WITH THE EXERCISE OF HIS FREEDOM OF EXPRESSION AS A JOURNALIST

In a judgment delivered at Strasbourg on 28 September 1999 in the case of Dalban v. Romania (application no. 28114/95), the European Court of Human Rights held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights .
Principal facts

The case concerned an application lodged with the European Commission of Human Rights by a Romanian national, Mr. Ionel Dalban, who was born in 1928 and lived in Romania. Mr. Dalban was a journalist and ran a local weekly magazine, Cronica Romaşcană. He died on 13 March 1998. In September 1992 Mr. Dalban published an article in his magazine about a series of frauds allegedly committed by Mr. G.S., the chief executive of a State-owned agricultural company, FASTROM of Roman. The article, and a later one, also cast suspicion on Senator R.T. in that connection. The applicant claimed that the information published was based on Fraud Squad reports. The Romanian courts found Mr. Dalban guilty of criminal libel and sentenced him to three months’ imprisonment (suspended). He was also ordered to pay G.S. and R.T. 300,000 Romanian lei. Despite his conviction, the applicant continued to publish information concerning the alleged fraud.
In April 1998 the Procurator-General applied to the Supreme Court of Justice to have the applicant’s conviction quashed on the grounds that the offence of criminal libel had not been made out. In a judgment of 2 March 1999 the Supreme Court allowed the application. With regard to the applicant’s conviction for libelling G.S., it acquitted the applicant on the ground that he had acted in good faith. In respect of the libel of R.T., the court quashed the conviction and, while holding that the applicant had been rightly convicted, decided to discontinue the proceedings in view of his death. The Court noted, first, that the applicant had been convicted by the Romanian courts of libel through the press. It considered that Mr. Dalban’s widow had a legitimate interest in obtaining a ruling that her late husband’s conviction had constituted a breach of his right to freedom of expression.

Decision of the Court

The Court consequently held that Mr. Dalban had standing to continue the proceedings in the applicant’s stead. The Court dismissed the Government’s argument that the applicant had ceased to be a “victim” as a result of the Supreme Court of Justice’s decision, which the Government saw as having been in his favor. The Court reiterated that a decision or measure favourable to an applicant was not in principle sufficient to deprive him of his status as a “victim” unless the national authorities had acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. The Court concluded that the applicant’s widow could therefore claim to be a “victim” for the purposes of Article 34 of the Convention.
The Court noted that the articles in issue concerned a matter of public interest: the management of State assets and the manner in which politicians fulfil their mandate. In cases such as the present one, the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its essential role of “public watchdog” and to impart information of serious public concern. It would be unacceptable for a journalist to be debarred from expressing critical value judgments unless he or she could prove their truth. In the instant case there was no proof that the description of events given in the articles was totally untrue and was designed to fuel a defamation campaign against G.S. and Senator R.T.
The Government did not challenge the Commission’s conclusion that even having regard to the duties and responsibilities incumbent on a journalist who avails himself of the right set out in Article 10 of the Convention, the applicant’s conviction could not be considered as “necessary in a democratic society”. The Court took notice of that and decided that, in relation to the legitimate aim pursued, convicting Mr. Dalban of a criminal offence and sentencing him to imprisonment had amounted to disproportionate interference with the exercise of his freedom of expression as a journalist. There had accordingly been a violation of Article 10.
The Court held that Greece was to pay the applicants 250,000,000 Romanian lei in respect of non-pecuniary damage, namely loss of reputation resulting from her late husband’s conviction, and of pecuniary damage in the form of losses allegedly resulting from the closure of Cronica Romaşcană.

Source: ECHR press release

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