Judgment (Merits and Just Satisfaction) of Court (First Section), June 27, 2000 (case CASE OF CONSTANTINESCU v. ROMANIA)

Judge:N\/A
Defense:ROMANIA
Resolution Date:June 27, 2000
Issuing Organization:Court (First Section)
SUMMARY

Violation of Art. 6-1 No violation of Art. 10 Non-pecuniary damage - financial award Costs and expenses partial award - Convention proceedings

 
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FIRST SECTION

CASE OF CONSTANTINESCU v. ROMANIA

(Application no. 28871/95)

JUDGMENT

STRASBOURG

27 June 2000

In the case of Constantinescu v. Romania,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

             Mrs              W. Thomassen, President,              Mr              L. Ferrari Bravo,              Mr              Gaukur Jörundsson,              Mr              R. Türmen,              Mr              J. Casadevall,              Mr              B. Zupančič, judges,

             Mr              Ş. Beligrădeanu, ad hoc judge,and Mr M. O'Boyle, Section Registrar,

Having deliberated in private on 21 March and 6 June 2000,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

  1. The case was referred to the Court by a Romanian national, Mr Mihail Constantinescu (“the applicant”), on 27 July 1999 and by the European Commission of Human Rights (“the Commission”) on 11 September 1999 within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

  2. It originated in an application (no. 28871/95) against Romania lodged by the applicant with the Commission on 4 April 1995 under former Article 25 of the Convention. The applicant complained of an infringement of his freedom of expression, contrary to Article 10 of the Convention, on account of his conviction for defamation; of the unfairness of the related proceedings, contrary to Article 6 § 1 of the Convention; and of an infringement of his freedom of association, contrary to Article 11 of the Convention.

    On 23 October 1997 the Commission declared admissible the complaints of an infringement of freedom of expression and of the unfairness of the proceedings, but declared the remainder of the application inadmissible. In its report of 19 April 1999 (former Article 31 of the Convention) [Note by the Registry. The report is obtainable from the Registry], it expressed the unanimous opinion that there had been a violation of Article 6 § 1 and held, by twenty-one votes to seven, that there had not been a violation of Article 10.

  3. The applicant was granted legal aid.

  4. After the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with Article 5 § 4 thereof combined with Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber determined on 7 July 1999 that the case should be examined by a Chamber constituted within one of the Sections of the Court.

  5. In accordance with Rule 52 § 1, the President of the Court, Mr L. Wildhaber, subsequently assigned the case to the First Section. The Chamber constituted within that Section included ex officio Mr C. Bîrsan, the judge elected in respect of Romania (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr J. Casadevall, who took over the presidency of the Section and hence of the Chamber (Rules 12 and 26 § 1 (a)) at the deliberations of 21 March 2000. The other members appointed by Mr Casadevall to complete the Chamber were Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr R. Türmen, Mrs W. Thomassen and Mr R. Maruste (Rule 26 § 1(b)).

    Subsequently Mr Bîrsan, who had taken part in the Commission's examination of the case, withdrew from sitting in the Chamber (Rule 28). The Romanian Government (“the Government”) accordingly appointed Mr Ş. Beligrădeanu to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). On 6 June 2000 Mrs Thomassen took over the presidency of the Section and hence of the Chamber (Rules 12 and 26 § 1(a)). Mr Maruste, who was unable to take part in the further consideration of the case, was replaced by Mr B. Zupančič, substitute (Rule 26 § 1(c)).

  6. The applicant and the Government each filed a memorial on 6 and 9 November 1999 respectively.

  7. In accordance with the decision of the Chamber, a hearing took place in public in the Human Rights Building, Strasbourg, on 21 March 2000.

    There appeared before the Court:

    (a) for the GovernmentMrs              R.Rizoiu,               Agent,Mrs              C. Tarcea, Ministry of Justice, Mr              T. Corlăţean, Ministry of Foreign Affairs,               Advisers;

    (b) for the applicantMr              C. Dinu, of the Bucharest Bar,              Counsel.

    The Court heard addresses by Mr Dinu, Mrs Rizoiu and Mrs Tarcea.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  8. On 8 June 1992 the General Assembly of the Primary and Secondary School Teachers' Union of the second district of Bucharest (“the union”) elected a new leadership. The applicant was elected General Secretary.

  9. On 29 June 1992 the union lodged a complaint against A.P. and R.V., former managers, and M.M., former Secretary of the union, who were all teachers, alleging theft, misappropriation and fraudulent conversion. The union complained that the individuals in question had refused to return the union's property and accounting documents when the new leadership took up its duties and had used them to form a new trade-union organisation.

  10. In a letter of 2 October 1992 the applicant requested, on behalf of the union, information from the Bucharest public prosecutor's office about the progress of the investigation, but received no reply. In a further letter, of 9 December 1992, he renewed his enquiry of the same public prosecutor's office and also complained about the slowness of the criminal investigation. He received no reply to his letter.

  11. On 8 February 1993 the public prosecutor gave a decision discontinuing the proceedings in respect of the union's complaint lodged against A.P., R.V. and M.M. That decision was sent on 18 January 1994 only to those three individuals.

  12. In 1993 the applicant, in his capacity as representative of the union, took out a summons against R.V. in the Court of First Instance of the second district of Bucharest, seeking an order, under Articles 998 and 999 of the Civil Code governing civil liability, to return to the union 170,000 Romanian lei (ROL) in union subscription fees.

  13. On an unknown date the applicant had a conversation with a journalist during which he expressed his dissatisfaction with the slow pace of the criminal investigation. On 23 March 1993 the following article was published in the Tineretul Liber (“Free Youth”) newspaper:

    “The Primary and Secondary School Teachers' Union of the second district of Bucharest ... is the most militant union because it battles against everyone to ensure respect for the law and teachers' rights. Those are the assertions of Mihail Constantinescu, a teacher at M.S. school, who tells us: 'I have lodged a complaint against the Bucharest Schools' Inspectorate [Inspectoratul] for failure to comply with the collective bargaining agreement; the hearing has been listed for 29 April. We will be lodging a complaint against the police and the public prosecutor's office, who are engaging in anti-union activities by slowing down the criminal investigation in respect of certain delapidatori [persons found guilty of fraudulent conversion] – R.V., A.P., M.M., teachers in the second district; we have at our disposal against them written evidence and confessions by two of them to being in possession of a sum of money belonging to the union, which they have not returned. The anti-union activities are premeditated ...' ”

  14. On 22 April 1993 A.P., R.V. and M.M. instituted criminal libel proceedings against the applicant in the Court of First Instance (judecatoria) of the third district of Bucharest.

  15. The trial took place on 25 February 1994. The single-judge court delivered its judgment on 18 March 1994.

  16. After hearing evidence from six witnesses for the plaintiff and three for the defence, from the applicant and from the three teachers, the judge acquitted the applicant. He noted that on the date on which the article in question had appeared, the three teachers had been the subject of a criminal investigation in connection with a charge of fraudulent conversion and that they had not been informed of the decision discontinuing the proceedings until after the article had appeared, that is, on 18 January 1994. Furthermore, the judge noted, it was not disputed that the teachers had not returned certain sums of money belonging to the union. Accordingly, he considered that the applicant had not had any intention of libelling the teachers, but merely of informing the public that his union was going to lodge a complaint against the police and the public prosecutor's office, accused of slowing down the criminal investigation concerning the three teachers.

  17. A.P., R.V. and M.M. appealed to the Bucharest County Court, which upheld their appeal. The court quashed the decision of 18 March 1994 and decided to re-try the case on the merits.

  18. The trial took place on 26 September 1994. The Court cannot establish from the documents in its possession whether the applicant's lawyer was able to make oral submissions. However, his lawyer submitted in the written pleadings in defence that his client had expressed himself on behalf of the union; that the aim pursued was that of reconstituting the union's assets; and that the new trade-union organisation formed by the three teachers had been declared illegal by the courts. He referred to the evidence given by the witnesses before the Court of First Instance testifying to negligence on the part of the three teachers in the administration of the union's property and to their refusal to return certain sums of money and documents. He added that the article had distorted the applicant's statements to the journalists, but that the applicant did not want to sue the press.

  19. Although the applicant was present at the trial, the court did not hear submissions from him. No evidence was adduced. The record of the hearing did not mention the public prosecutor's submission allegedly requesting the applicant's acquittal, but merely indicated that the parties'...

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