FOURTH SECTION

CASE OF RUSU v. ROMANIA

(Application no. 25721/04)

JUDGMENT

STRASBOURG
8 March 2016

This judgment will become final in the circumstances set out in Article 44 2 of the
Convention. It may be subject to editorial revision.

RUSU v. ROMANIA JUDGMENT

In the case of Rusu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Andrs Saj, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Egidijus Kris,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Fato Arac, Deputy Section Registrar,
Having deliberated in private on 9 February 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 25721/04) against Romania
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by a
Romanian national, Mr Sergiu-Cristian Rusu (the applicant), on
3 May 2004.
2. The applicant was represented by Ms A. S. Tudor, a lawyer practising
in Suceava. The Romanian Government (the Government) were
represented by their Agent, Ms C. Brumar, from the Ministry of Foreign
Affairs.
3. The applicant alleged, in particular, that by ordering him to pay
non-pecuniary damages as a consequence of publishing an article in a local
newspaper, the national courts had infringed his right to freedom of
expression.
4. On 25 November 2010 the application was communicated to the
Government.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1979 and lives in Suceava. At the relevant
time, he was a journalist for a local newspaper Monitorul de Suceava
(hereafter the newspaper).

RUSU v. ROMANIA JUDGMENT

A. The disputed newspaper article

6. On 26 August 2003 the applicant published an article under the title
An inhabitant of Verneti is wanted by police across the country, having
been accused of breaking into the headquarters of the local branch of the
Social Democratic Party (the PSD).
The article, accompanied by a photograph of S.A., a suspect at the time,
read as follows:
S.A, aged 35, is accused of having stolen two television sets and approximately
17,000,000 Romanian lei (ROL) from the local headquarters of the PSD. As he has
fled in order to avoid criminal investigation for the offence of aggravated theft, a
general search has now been launched by the police (a fost dat n urmrire general)
and his photograph is now on the desk of the policemen of the judicial service [Biroul
Judiciar] throughout the country.
An inhabitant of Verneti is wanted by police officers throughout the country, as he
is the main suspect in a case of breaking and entering at the headquarters of the PSD
in Suceava. S.A., aged 35, is suspected of being one of the organisers of the burglary
of the local headquarters of the governing party committed at the end of last year. The
night before Christmas Eve 2002 was marked by bad luck for the PSD in Suceava, as
thieves visited their headquarters. On the morning of 24 December some of the
members of this party arrived at the headquarters located in the centre of Suceava ...
[and] noticed that the headquarters had been ravaged. After checking inside, they
realised there had been a burglary and that the thieves had stolen two televisions and
approximately ROL 17,000,000. While searching for valuables, the thieves vandalised
the offices, breaking all the doors, and yanking the televisions from the electric
sockets. Following an investigation by the Suceava police, the main suspect was
identified as S.A., who has been missing from his place of residence since that date.
S.A. (see photo) fled in order to avoid criminal investigation for the offence of
aggravated theft and so a general search has been instituted and his photograph has
been sent to judicial service police officers throughout the country. In a case where
someone tries to avoid getting nicked [prnaie] by fleeing, despite being sought by
the police, a countywide search is launched. If the person is not found within ninety
days, the police launch a national search. In a case where there is information that the
person has left the country, an international arrest warrant is issued, and the arrest of
the fugitive is only a matter of time.

7. Following the publication of the article, the father of S.A. sent a letter
to the newspaper, which read as follows:
To the editor of Monitorul de Suceava,
The undersigned A.D. found out from your newspaper that there was a national and
local search order for my son, A.S., for the offence of aggravated theft. Regarding the
[content of the] article, I can tell you that [at the time] my son was neither in the
country nor in Suceava county as he was in Italy. The employees of the Suceava
County Police Inspectorate promptly informed me that there had been a mistake and
that the general search for my son had been called off. The document confirming this
information is available to the public from the Suceava judicial service.
My wish would be to have the article retracted.

8. This letter was published in the newspaper on 29 August 2003.

RUSU v. ROMANIA JUDGMENT

B. First-instance proceedings
9. On 15 September 2003 S.A. lodged with the Suceava District Court a
criminal complaint against the applicant for the offence of defamation, as
prescribed at the time by Article 206 of the Romanian Criminal Code. After
explaining that at the time of the theft he was in Italy and thus it was
impossible for him to have participated in the alleged offence, he mentioned
that once his father had found out about the article, he had written to the
newspaper, asking that it be retracted. The letter was published unedited, but
nothing else was done since then.
S.A. considered that the article contained serious allegations which
considerably affected his public image, causing him personal suffering.
He therefore requested that those responsible be convicted and ordered to
pay him non-pecuniary damages in the amount of ROL 100,000,000.
10. In his defence the applicant submitted that the information
concerning the general search for S.A., as well as the photograph of S.A.,
were given to him on 25 August 2003 by the Suceava judicial service and
thus there had been no reason for him to doubt it. He contended that at the
time of the publication, the general search order issued in respect of S.A.
was valid.
He further argued that he did publish a retraction in the newspaper,
namely the letter of S.A.s father.
11. On 17 October 2003, the head of the Police Department of Suceava
informed the first-instance court that:
In response to your letter in which you enquire whether on 25 August 2003 a
general search order was outstanding against S.A. ... I wish to inform you that on
31 December 2002 by Order no. 124000 of the General Inspectorate of the Romanian
Police a general search order was issued in respect of this person as he was attempting
to avoid criminal investigation while under suspicion of theft. The measure was
revoked by Order no S/150522 of the General Inspectorate of the Romanian Police on
3 September 2003, after clarification of S.A.s situation.

12. On 19 November 2003 the court acquitted the applicant of the

charge of defamation; however it ordered the applicant to pay, jointly with
the newspaper, the sum of ROL 10,000,000 to S.A. The relevant excerpts
from the judgment read as follows:
Taking into account the fact that the applicant obtained information concerning the
suspect from the judicial office within the General Police Inspectorate, he cannot be
found to have deliberately (mens rea) defamed the plaintiff ...
Under the civil limb of the action, defamation concerns public communication of a
distorted, negative image of a person, which is likely to cause him or her personal
suffering and damage to reputation, leading to changes such as social embarrassment
and injury to self-esteem. The first-instance court considers that publishing the article
in the newspaper caused damage to the standing of the civil party ...

RUSU v. ROMANIA JUDGMENT

Moreover, it must be noted that although the civil partys father notified the
newspaper that the facts published about his son were false, the newspaper did not
publish a retraction of the article written by the defendant.

C. Appeal proceedings
13. By a final judgment of 23 January 2004 the Suceava County Court
rejected an appeal by the applicant and upheld the first-instance courts
judgment.
The court stated in its reasoning the following:
Even though there is no mens rea as far as the offence of defamation provided for
in Article 206 of the Criminal Code is concerned, given the source of information at
the date of the publishing of the article, the defendants obligation to pay
compensation to the civil party cannot be set aside. This is because following the
discovery of the error he did not publish a retraction in order to try to rectify it. The
article caused non-pecuniary damage to the civil party which can be repaired only in
the manner established by the first-instance court.

II. RELEVANT DOMESTIC LAW

14. The relevant provisions of the Civil and Criminal Codes concerning
insult and defamation and liability for damage, in force at the material time,
as well as the subsequent amendments to them, are described in Cumpn
and Mazre v. Romania ([GC], no. 33348/96, 55-56, ECHR 2004-XI)
and Timciuc v. Romania ((dec.), no. 28999/03, 95-97, 12 October 2010).
15. The Romanian Press Act (Law no. 3/1974), as modified on
19 January 1978 and on 23 May 2000 (the latter amendment being repealed
on 28 August 2001), was in force until 9 July 2012 and stated in its relevant
parts:
Section 72
Any natural or legal person defamed by statements made in the press which he or
she considers untrue may request, within thirty days, that the press publishes or
broadcasts an answer in the form of a reply, retraction or declaration.
The answer must be objective and seeking to re-establish the truth (...).
Section 73
The answer must be published by the press free of charge and within fifteen days
upon its receipt, if it is a daily paper [...]
Section 74
The refusal to publish or to broadcast an answer in compliance with Section 73 must
be communicated to the defamed person within fifteen days upon receipt.
Failure to publish or to broadcast the answer within the above delays is considered
refusal, even if this was not communicated as prescribed above.

RUSU v. ROMANIA JUDGMENT

Section 75
In the circumstances described in Section 74 above, the defamed person may ask the
court to oblige the press to publish or to broadcast the answer.
If the court concludes that the refusal was unfounded, it obliges the press to publish
or to broadcast the answer within fifteen days from the moment when the judgment
becomes final (...).

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
16. The applicant complained that the obligation imposed on him by the
domestic courts to pay non-pecuniary damages to S.A. amounted to a
breach of his right to freedom of expression. He further complained under
Article 6 of the Convention of the unfairness of the trial, its outcome being
based on judgments which lacked reasoning.
The Court considers that the applicants complaints are to be assessed
under Article 10 of the Convention, which reads as follows:
1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.

A. Admissibility
17. The Court notes that this complaint 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
18. The Government accepted that the court decisions rendered against
the applicant constituted interference with his right to freedom of expression

RUSU v. ROMANIA JUDGMENT

but argued that the interference was provided for by law, notably
Articles 206 of the Criminal Code and 998-999 of the Civil Code, and had
pursued the legitimate aim of protecting the victims reputation.
The Government further argued that the issue raised by this case was the
failure of the applicant and the newspaper to publish any rectification or
retraction concerning the disputed article once they became aware pending
the criminal proceedings started by S.A. against the applicant that the
police had provided erroneous information and that the general search order
had been revoked. In their view, in line with the reasoning of the domestic
courts, the publication of the letter written by S.A.s father did not qualify
as a proper rectification in so far as it had been afforded only very limited
space in the newspaper and the readers could not have made a connection
between the first article and the letter. Furthermore, since the applicant had
not provided any explanation for his omission to publish an appropriate
rectification, the Government contended that he could not be considered to
have acted in good faith.
The Government further pointed out that the civil sanctions imposed on
the applicant by the courts were proportionate.
19. The applicant reiterated that when publishing the disputed article, he
had relied, in good faith, on official information which he had had no
obligation or possibility of verifying (he cited Selist v. Finland,
no. 56767/00, 16 November 2004 and Colombani and Others v. France,
no. 51279/99, 65, ECHR 2002-V); and the article had not included any
value judgments nor any personal opinions concerning the criminal liability
of S.A.
The applicant further argued that by publishing S.A.s fathers letter only
a few days after the publication of the defamatory article and in so far as the
letter contained explicit details, sufficient to clarify the situation of the
aggrieved party, the obligation to rectify the article had been fulfilled.
He further claimed that the relevant Romanian legislation was not very
precise in defining what form an appropriate retraction would take,
therefore the domestic courts conclusions that he had failed to publish a
retraction were ungrounded and arbitrary.
The applicant further submitted that by publishing the impugned article,
he contributed to the clarification of S.A.s situation, in so far as had it not
been for the article, the general search warrant issued by mistake would
have still been maintained. The applicant estimated that in such
circumstances, it was the police and the investigative authorities who were
responsible for the moral damage sustained by S.A.
Lastly, the applicant contended that the obligation imposed on him by the
domestic courts to pay non-pecuniary damages of approximately 270 euros
(EUR) had been excessive in view of his monthly revenue at the relevant
time of about EUR 50, and thus had a significant chilling effect.

RUSU v. ROMANIA JUDGMENT

2. The Courts assessment

20. The Court notes that the parties agree that there had been an
interference with the applicants right to freedom of expression. It is further
satisfied that the interference pursued the legitimate aim of protection of the
rights of others, namely of S.A.s right to reputation.
It remains to be ascertained whether the interference was necessary in a
democratic society.
(a) General principles

21. The Courts general principles on the application of the requirement

in Article 10 2 of the Convention that any interference must be necessary
in a democratic society were restated recently in Perinek v. Switzerland
[GC], no. 27510/08, 196, 15 October 2015), as follows:
(ii) The adjective necessary in Article 10 2 implies the existence of a pressing
social need. The High Contracting Parties have a margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with European supervision,
embracing both the law and the decisions that apply it, even those given by
independent courts. The Court is therefore empowered to give the final ruling on
whether a restriction can be reconciled with freedom of expression.
(iii) The Courts task is not to take the place of the competent national authorities
but to review the decisions that they made under Article 10. This does not mean that
the Courts supervision is limited to ascertaining whether these authorities exercised
their discretion reasonably, carefully and in good faith. The Court must rather
examine the interference in the light of the case as a whole and determine whether it
was proportionate to the legitimate aim pursued and whether the reasons adduced by
the national authorities to justify it were relevant and sufficient. In doing so, the Court
has to satisfy itself that these authorities applied standards which were in conformity
with the principles embodied in Article 10 and relied on an acceptable assessment of
the relevant facts.

22. The nature and severity of the sanctions imposed are factors to be
taken into account when assessing the proportionality of the interference. As
the Court has previously pointed out, interference with freedom of
expression may have a chilling effect on the exercise of that freedom. The
relatively moderate nature of the fines do not suffice to negate the risk of a
chilling effect on the exercise of freedom of expression (see Morice
v. France [GC], no. 29369/10, 127, 23 April 2015).
23. Although the press must not overstep certain bounds, regarding in
particular protection of the reputation and rights of others, its duty is
nevertheless to impart in a manner consistent with its obligations and
responsibilities information and ideas on all matters of public interest.
Thus, the duty of imparting information necessarily includes duties and
responsibilities, as well as limits which the press must impose on itself of
its own accord (see Couderc and Hachette Filipacchi Associs v. France
[GC], no. 40454/07, 89, 10 November 2015).

RUSU v. ROMANIA JUDGMENT

24. In this respect, the Court reiterates that the protection afforded by
Article 10 of the Convention to journalists is subject to the proviso that they
act in good faith in order to provide accurate and reliable information in
accordance with the tenets of responsible journalism; this concept pertains
to, inter alia, the contents of information which is collected and/or
disseminated by journalistic means. In this context, journalists who exercise
their freedom of expression undertake duties and responsibilities. It will
be recalled in this connection that paragraph 2 of Article 10 does not
guarantee a wholly unrestricted freedom of expression even with respect to
media coverage of matters of serious public concern (see, mutatis mutandis,
Pentikinen v. Finland [GC], no. 11882/10, 90-91, 20 October 2015 and
the case-law cited therein).
25. The Court further reiterates that a legal obligation to publish a
retraction or a reply is a normal element of the legal framework governing
the exercise of freedom of expression by the print media and it cannot, as
such, be regarded as excessive or unreasonable. Such an obligation makes it
possible, for example, for the person who feels aggrieved by a press article
to present his or her reply in a manner compatible with the editorial practice
of the newspaper concerned (see Kaperzyski v. Poland, no. 43206/07, 66,
3 April 2012).
26. Lastly, in cases which require the right to respect for private life to
be balanced against the right to freedom of expression, the Court considers
that the outcome of the application should not, in theory, vary according to
whether it has been lodged with the Court under Article 8 of the Convention
by the person who was the subject of the news report, or under Article 10 by
the publisher. Indeed, as a matter of principle these rights deserve equal
respect. Accordingly, the margin of appreciation should in theory be the
same in both cases (see, among many other authorities, Couderc and
Hachette Filipacchi Associs, cited above, 91).
(b) Application of those principles to the present case

27. The Court notes at the outset that in the case at hand the applicant
reported on a matter of public concern, that is to say the criminal
investigation of a theft for which the suspect was wanted throughout the
country and for which he allegedly attempted to avoid prosecution by
fleeing.
28. As this information proved to have been erroneous and defamatory
and in so far as no proper retraction was published, criminal proceedings
were lodged against the applicant for defamation, at the request of the
aggrieved party, S.A.
However, the domestic courts ultimately cleared the applicant of the
charge of defamation. In so finding, they relied on the fact that the
information published had been provided by official sources, specifically by
the judicial service, a department of the local police. This authority

RUSU v. ROMANIA JUDGMENT

confirmed before the courts that at the time of publication the facts
presented in the article had been accurate, in the sense that at that time S.A.
had been wanted, an order which had been revoked at a date subsequent to
the publication of the article (see paragraph 11 above).
29. Noting that the mens rea was found to be missing, the domestic
courts considered that the applicant was responsible for the damage caused
to the third party by the publication of the article. In so doing, the courts
referred to the fact that a retraction should have been published once the
applicant had become aware of the error contained in the article.
30. The Court would refer to the circumstances of the case, as reflected
in paragraphs 7-8 above, noting that the letter of S.A.s father, pointing out
the error committed in respect of his son, was promptly published in the
newspaper; however, in spite of the explicit request that a retraction be
published in the newspaper, this was never done.
Referring to the newspapers failure to publish the necessary retraction,
S.A. filed the above-mentioned criminal complaint in which he requested
that the applicant be punished in criminal proceedings and ordered to pay
civil damages (see paragraph 9 above).
31. In this context, the Court notes that the pertinent domestic legislation
does not clearly lay out the terms for an appropriate retraction, thus leaving
the matter at the discretion of the editor, initially, and ultimately of the
judge (see paragraph 15 above). It is in these circumstances that the
applicant argued that the prompt publication of the letter written by S.A.s
father constituted an appropriate retraction.
32. However, the Court notes that the domestic courts arguments for
rejecting the applicants defence and ordering the payment of non-pecuniary
damages to S.A. focused mainly on the fact he did not publish a retraction
once he had become aware of the defamatory information (see paragraph 13
above).
While considering it regrettable that the domestic courts did not give
more details thereto, the Court cannot ignore the fact that the applicant has
never confirmed or made it clear in the newspaper that the impugned
information previously published was indeed erroneous and defamatory, not
even after the respective error was officially acknowledged by the judicial
service of the local police on 17 October 2003, thus more than one month
prior to the delivery of the first instances judgment (see paragraphs 11 and
12 above). In fact, it was the applicants constant submission, both before
the domestic courts and before this Court (see paragraphs 10 and 19 above)
that by publishing the letter written by S.A.s father, his obligation to retract
had been fully complied with.
Furthermore, the Court considers that there is nothing in the case file to
suggest that the applicant may have attempted to publish a proper retraction
but was prevented by the editor to do so (see also paragraph 10 above).

10

RUSU v. ROMANIA JUDGMENT

33. While reiterating the importance of the right of a person who feels
aggrieved by a press article to a rectification, with a corresponding
obligation on the journalist or newspaper, the Court considers that in the
present case, the applicant has failed to act in accordance with the principles
governing journalistic ethics, requiring of him to clearly and explicitly
correct any published information which has proved to be erroneous or
defamatory.
34. Furthermore, looking into the severity of the sanction imposed on
the applicant, specifically the obligation to pay non-pecuniary damages of
approximately EUR 270, the Court considers that such an obligation does
not appear excessive in view both of its amount and of the fact that the
newspaper is bound to pay it jointly with the applicant.
35. Therefore, in the overall circumstances of the instant case, the Court
finds that the solution of the domestic courts struck a fair balance between
the competing interests of the claimant and those of the applicant, and the
reasons given to justify their decisions were relevant and sufficient and
met a pressing social need. The Court also has regard to the award of
damages made against the applicant in the context of a civil action and did
not find it to be disproportionate. Therefore, the Court does not see any
serious reason to substitute its own assessment for that of the domestic
courts, which examined the question at issue in line with the principles laid
down by the Courts case-law (see, mutatis mutandis, Medlis Islamske
Zajednice Brko and Others v. Bosnia and Herzegovina, no. 17224/11,
35, 13 October 2015).
36. There has accordingly been no violation of Article 10 of the
Convention.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;
2. Holds, by five votes to two, that there has been no violation of Article 10
of the Convention.
Done in English, and notified in writing on 8 March 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Fato Arac
Deputy Registrar

Andrs Saj
President

RUSU v. ROMANIA JUDGMENT

11

In accordance with Article 45 2 of the Convention and Rule 74 2 of

the Rules of Court, the separate opinion of Judges Saj and Tsotsoria is
annexed to this judgment.

A.S.
F.A.

12

RUSU v. ROMANIA JUDGMENT SEPARATE OPINION

JOINT DISSENTING OPINION OF JUDGES

SAJ AND TSOTSORIA
To our regret we have to disagree with our colleagues in the majority.
We take the view that the applicants Article 10 rights were violated in this
case.
On 26 August 2003 the applicant, a journalist, published an article
concerning a police investigation on the basis of information which he had
received from the police about S.A. being suspected of aggravated theft and
of absconding. Following the publication of the article, S.A.s father sent a
letter to the newspaper. In the letter the father stated that his son was out of
the country and that the police had informed him that there had been a
mistake and the search had been called off. In the letter the father claimed
that the document confirming this information was available at the judicial
service. Furthermore, the father requested the articles retraction. The letter
was published three days after the original publication of the article.
On 15 September 2003, as the journalist had taken no further action, S.A.
lodged a criminal complaint against the applicant for criminal defamation.
Thirty-two days later, on 17 October 2003 the police informed the local
court that the search order had been revoked on 3 September 2003, that is to
say after the publication of the fathers letter. The applicant was held liable
for civil defamation. The domestic courts attached importance to the fact
that although the injured partys father had notified the newspaper that the
facts published about his son were false, the newspaper had not published a
retraction of the article written by the defendant. This consideration was
held by the Court to show that the applicant had failed to correct the
erroneous and defamatory information.
While we disagree with the judgment primarily because we find that the
Court has departed from its clear case-law that protects freedom of
expression and journalism, we have disagreements with regard to the
reconstruction of the facts, and also to the domestic proceedings. In
particular, we find that the injured partys father was immediately granted
the right to reply (although he was not a directly concerned party and
apparently had no power of attorney).
Moreover, it is unclear whether under Section 72 of the 1974 Press Act a
defamed person is entitled to request both reply and retraction.
Thirdly, at the time of the non-specific request for retraction the search
had not been called off. There was nothing to retract. The search was called
off later, and this was not known to the applicant until the police provided
the information during the criminal proceedings. The plaintiff never
provided the relevant official information that could have served as a basis
for retraction. The Court itself accepts that at the time it was written the
facts presented in the article were accurate ( 28). The Court claims,
however, that the courts referred to the fact that a retraction should have

RUSU v. ROMANIA JUDGMENT SEPARATE OPINION

13

been published once the applicant had become aware of the error contained
in the article ( 29). We do not find such a limited approach in the
domestic judgments quoted, where the main reference is to the notification
by the father. At the time of that notification, as the present judgment
clearly states, the contested information was correct. Moreover, the plaintiff
in the domestic proceedings at no point requested rectification, even though
he had thirty days to avail himself of that remedy. Instead he asked for
damages for the defamation contained in the original publication which
informed about the position of the police. The injured party initiated an
action for damages as the original publication had allegedly damaged his
reputation. During the proceedings it was shown that the police made a
mistake. The injured party did not alter his plea and did not request
rectification. Nevertheless, the journalist was ordered to pay damages for
reputational injury for what he had failed to do during the proceedings,
where he had not even been asked to act in any given manner. Furthermore,
we also entertain serious doubts about the assumption that journalists have a
duty of rectification whenever they become aware of an error in their article,
especially if that error is not of their making. Such a duty is even more
problematic in the absence of any request for a rectification when the error
becomes known (if it really is an error on the part of the journalist, a very
big if in this case).
However, our major concern is that the judgment, which seems to
endorse the above-mentioned position, departs from the clear case-law of
this Court. In the present case, the Court allegedly relies on a concept of
responsible journalism with reference, mutatis mutandis, to Pentikinen
v. Finland [GC], no. 11882/10, 90, 20 October 2015 and the case-law
cited therein). More specifically, the Court refers to the duty of the
journalist (or newspaper) to enable a defamed person to present his or her
reply in a manner compatible with the editorial practice of the newspaper
concerned (see Kaperziski v. Poland, no. 43206/07, 66, 3 April 2012).
Needless to say, in the present case the right of reply was allowed, so the
Kaperziski requirement of responsible journalism was satisfied. But
perhaps there is something else in the general principles of Pentikinen
(even if it is quoted without going into specifics, mutatis mutandis) that
justifies the non-violation of Article 10. The case-law cited in Pentikinen
is Bladet Troms and Stensaas v. Norway [GC], no. 21980/93, 65,
ECHR 1999-III; Fressoz and Roire v. France [GC], no. 29183/95, 54, and
so on.
Fressoz and Roire 54 reads as follows:
In essence, that Article [Article 10] leaves it for journalists to decide whether or not
it is necessary to reproduce such documents to ensure credibility. It protects
journalists right to divulge information on issues of general interest provided that
they are acting in good faith and on an accurate factual basis and provide reliable and
precise information in accordance with the ethics of journalism (see, in particular, the
Goodwin judgment cited above, p. 500, 39; the Schwabe v. Austria judgment of

RUSU v. ROMANIA JUDGMENT SEPARATE OPINION

14

28 August 1992, Series A no. 242-B, p. 34, 34; and, as an example of a finding to
the contrary on the facts, Prager and Oberschlick v. Austria, 26 April 1995, Series A
no. 313, p. 18, 37).

It is true that Pentikinen ( 90) uses a formula that may be seen as a

slight and most unfortunate departure from the traditional position of this
Court in matters of journalistic responsibilities1.
The Court also reiterates that the protection afforded by Article 10 of the
Convention to journalists is subject to the proviso that they act in good faith in order
to provide accurate and reliable information in accordance with the tenets of
responsible journalism (see, mutatis mutandis, Bladet Troms and Stensaas v. Norway
[GC], cited above, 65; Fressoz and Roire v. France [GC], no. 29183/95,
54,...etc.)

Pentikinen also adds a new element (not taken into consideration by the
Court, and not even cited in the present case), namely the lawfulness of the
journalists behaviour: the fact that a journalist has breached the law in that
connection is a most relevant, albeit not decisive, consideration when
determining whether he or she has acted responsibly. There can be no
doubt that there is no issue with regard to this most relevant
consideration: the journalist acted lawfully.
It is undeniable that the text of Fressoz and Roire is not fully reproduced
in Pentikinen ( 90). The relevance of an accurate factual basis was
omitted and, in accordance with the ethics of journalism, was replaced
with tenets of responsible journalism. This is regrettable, especially as
there are no reasons given. But in the absence of a specific statement to the
contrary and in view of the direct reference to the earlier texts of the leading
cases we see no reason to assume that the previous standards and case-law
have been abandoned or reinterpreted in any way or sense. The role of the
Court remains the same. It has to:
examine whether the journalist who wrote the impugned article acted in good faith
and in accordance with the ethics of the profession of journalist. In the Courts view,
this depends in particular on the nature and degree of the defamation at hand, the
manner in which the impugned article was written and the extent to which the
applicant newspaper could reasonably regard its sources as reliable with respect to the
allegations in question. The latter issue must be determined in light of the situation as
it presented itself to the journalist at the material time, rather than with the benefit of

The term responsible journalism was used in 2007 in Flux and Samson v. Moldova,
no. 28700/03, 23 October 2007 to explain what is said in Bladet Troms and Stensaas
v. Norway [GC], no. 21980/93, 63, ECHR 1999-III). It was shorthand for judicial respect
for journalistic ethics. In Stoll v. Switzerland [GC], no. 69698/01, ECHR 2007-V, it was
used to emphasise that there is no full immunity for journalists in the name of journalistic
freedom in matters of criminal responsibility. It seems that this idea was transposed to
responsibility in general, and the fact that journalists cannot claim unlimited protection in
criminal cases in the name of freedom of expression is now increasingly understood as
imposing special duties on journalists in reporting in general in the civil context.

RUSU v. ROMANIA JUDGMENT SEPARATE OPINION

15

hindsight (see Bladet Troms and Stensaas, cited above, 66, Flux v. Moldova
(no. 6), no. 22824/04, 26, 29 July 2008).

There can be no question about the good faith of the article, which
provided reliable information on the search and the reasons it was carried
out. This is correct factual information. The only thing added to the
information is that it has assumed that the wanted person was a fugitive.
This was a logical conclusion drawn from the suspects absence, in order to
describe the legal situation. Journalism is not stenography; if such
comments are not allowed, official press communiques will replace the
press.
The source (the police) was to be considered reliable.
In the most controversial Flux v. Moldova (no. 6) judgment even the
majority would have accepted that the publication of a reply is a measure
complying with the responsibilities dictated by journalistic ethics. Further,
the present case does not involve someone being charged with criminal acts
in the absence of a factual basis at the material time (see Bladet Troms and
Stensaas, 66). At the material time the information was correct. It
accurately reported the facts of the police search. The injured party could
have asked the police for a rectification (possibly at their own expense) after
the search had been called off. Arguably he could also have asked the
newspaper after the cancellation of the search, but he failed to do so, even
during the criminal procedure. We cannot see why it should be a matter of
journalistic ethics to provide rectification ex officio and proprio motu where
the police mistake comes to the journalists attention in a criminal case
against him. Of course, we would have given thought to that possibility had
the Court given us reason to believe that such an obligation exists.
The Bladet Troms test requires us to consider the nature of the
defamation. It was grave but inevitable and certainly not caused by the press
which acted as a messenger in a matter of public interest (note that the
burglary had targeted the headquarters of a political party).
The majority position is even more surprising if one compares the facts
and the reasoning in the present case with that of a number of judgments
concerning Romania. See for all Barb v. Romania, no. 5945/03, 7 October
2008 and further case-law cited there.
To our regret we observe time and again that the concept of responsible
journalism (in the present case in the framework of a non sequitur) results in
undermining freedom of the press. And this case is no exception! While
there are responsibilities attached to all professional activities, when it
comes to the press, the reference to responsible journalism is disturbing, just
as when the little adjective socialist was added to democracy.
Responsible journalism is far too often equated with self-censorship, or is
perhaps used as a judicial tool to enforce self-censorship. We do not intend
to use that tool.