Dalban v. Romania

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28 Sep 1999


28 September 1999, Application No. 28114/95 (European Court of Human Rights)

Theme: Defamation
Sub-Issues:Criminal defamation; Public figures and bodies; Defence of opinion and value judgment
Test:Importance of FOE
Penalty: Criminal conviction
Decision:Violation of right to freedom of expression (Article 10 ECHR); unanimous
Jurisdiction:European Court of Human Rights: Romania



The applicant was the widow of a journalist, Mr Dalban. Dalban had written several articles in a local magazine he ran, alleging fraud by G. S., the chief executive of a State-owned agricultural company. In addition, Dalban made allegations against senator R.T. who sat on the board of the agricultural company, stating that he had improperly benefited from his position on the board. Dalban was convicted of criminal defamation, and received a suspended sentence, was ordered to pay costs and was banned from practising his profession. On appeal, the ban was set aside. On further appeal by the Procurator-General, the Supreme Court acquitted Dalban's conviction in respect of G.S. on the ground that he had acted in good faith. In respect of the libel of R.T., the Supreme Court, quashed Dalban's conviction and, while holding that he had been rightly convicted, decided to discontinue the proceedings in view of his death. As Dalban's widow, the applicant continued with the application to the Commission in view of a violation of Article 10, seeking compensation.



There was an interference by a public authority with the applicant's right to freedom of expression; it was prescribed by law, and pursued a legitimate aim, namely the protection of the rights of others. On the question of necessity, the Court noted that the articles in issue concerned matters of public interest, namely the management of State assets and the manner in which politicians fulfil their mandates.


Importance of FOE

The Court noted the essential function the press fulfils in a democratic society. Whilst it must not overstep certain bounds, the press has a duty is to impart information and ideas on all matters of public interest. Journalistic freedom also covers recourse to a certain degree of exaggeration or even provocation. The national margin of appreciation is circumscribed by the interest of democratic society to enable the press to act as a 'public watchdog' in imparting information of serious public concern. The Court further stated:

It would be unacceptable for a journalist to be debarred from expressing critical value judgments unless he or she could prove their truth. (para. 49)

Defamation Defences

Journalists should not be debarred from expressing critical value judgements unless she or he could prove their truth. There was no evidence that Dalban's allegations were untrue and designed to fuel a campaign against G.S. and Senator R.T. The Government did not challenge the Commission's conclusion that the interference was not necessary in a democratic society. The Court concluded that convicting Dalban of a criminal offence and sentencing him amounted to a disproportionate interference with the exercise of his freedom of expression as a journalist.

The case raised an important issue concerning the applicant's victim status in respect of the right to freedom of expression. The Court noted that a decision favourable to an applicant is not in principle sufficient to deprive him of his status as a victim unless the national authorities have acknowledged either expressly or in substance and then afforded redress for, breach of the Convention. The Supreme Court's quashing of Dalban's conviction on the ground that he acted in good faith and on the basis of official documents concerning G.S., could be seen as an acknowledgement, in substance, that the right to freedom of expression had been unduly restricted. However, the Supreme Court did not provide adequate redress. With regard to Supreme Court's finding relating to Senator R.T., the finding that Dalban had been rightly convicted and the decision to discontinue proceedings due to his death did not constitute any sort of acknowledgement that there had been a violation of Article 10.


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