ECHR Judgment of 28 July 2020 in the case of Monica Macovei v. Romania" (aplication No. 53028/14).
In 2014, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Romania.
The case successfully considered an aplication against prosecution for statements containing allegations of corruption and directed against certain members of Parliament, made in support of the opinion that the position of a member of parliament is incompatible with the work of a lawyer. The case violated the requirements of article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, an active political figure, made a number of statements directed against two opposition politicians (D. S. and V. P.), and these statements appeared in the press. The statements referred to some actions of V. P. and D. S. (providing legal assistance to state-owned companies from their constituencies), which, in her opinion, was "a typical act of corruption through political influence". In the final judgment of the High Court of Cassation and Justice of Romania, which entered into force, the applicant was ordered to pay D. S. compensation for damages and to publish the decision at her own expense.
Regarding compliance with article 10 of the Convention. The applicant's statements could not only cast a shadow on the reputation of D. S., but also cause serious prejudice against him in both the professional and social spheres. Consequently, her charges have reached the required level of seriousness capable of harming the rights of D. S. guaranteed by article 8 of the Convention. In this connection, the Court had to examine whether the Romanian authorities had struck a fair balance between the two values guaranteed by the Convention, namely, on the one hand, the applicant's right to freedom of expression, guaranteed by article 10 of the Convention, and, on the other, D. S. ' right to respect for his reputation, provided for in article 8 of the Convention.
The criticism in the applicant's statements was not directed at the private actions of D. S., but rather at his actions as a politician, that is, as a representative of the people elected to Parliament. As such, the conduct of D. S. was clearly of legitimate public interest, and the authorities had a particularly limited discretion in assessing whether it was necessary to interfere with the applicant's right to freedom of expression.
The Romanian courts were, in principle, in a better position than the International Court of Justice to examine the intentions behind the contested phrases and statements, and in particular to assess how the public would interpret and respond to them. However, the Courts of Appeal did not provide convincing grounds for their conclusion that the applicant had reported facts that were not true. In view of the limited explanations in this respect, the Court was not convinced by the approach of the Romanian courts and did not agree with their decisions.
Taking into account the wording of the applicant's statements, the explanations from the relevant newspaper articles and the contradictory conclusions of the Romanian courts that examined the dispute, the applicant's comments contained a set of value judgments and statements of fact. The purpose of her statements was to use an example of the peculiarities of the actions of D. S. and V. P., which she considered to be "a typical act of corruption through political influence" in the context of the broader concept of conflict of interest in support of the applicant's constantly promoted idea, namely, the adoption of a law that would make it impossible to combine the functions of a member of Parliament and a lawyer. The question therefore was whether a sufficiently accurate and reliable factual basis could have been established, in proportion to the nature and extent of the applicant's statements and allegations.
Some of the applicant's statements, such as those concerning the peculiarities of D. S. ' conduct, namely the alleged signing of lucrative contracts with state-owned companies located in the constituency that D. S. represented in the Romanian Parliament, could be considered as lacking sufficient factual justification. Nothing in the information provided by the applicant suggested that D. S. or the law firm he founded would have signed contracts with State-owned companies located in the district in question during the period when D. S. He was both a member of parliament and a lawyer. However, the applicant's statements and statements were of a collective nature (addressed to an indefinite circle of persons), in relation to V. P. and D. S., and were intended to give an example of a system of political corruption through the signing of contracts for the provision of legal services with public companies, and not directly accuse V. P. or D. S. of corruption. In addition, the available materials suggested that V. P. He was both a member of Parliament and an employee of a law firm established by D. S. at a time when the firm had signed lucrative contracts for legal services with State-owned companies located in the constituency whose residents were represented in Parliament by V. P. In this context, the applicant's statements and, in particular, the expressions used by her, although perhaps inappropriately categorical, could be considered controversial, including a certain degree of exaggeration.
In such circumstances, given the status of the applicant and D. S. as politicians and elected representatives of the people, taking into account the collective nature of the applicant's statements and statements, the general context of the case reflected in the press publications, namely the calls for the adoption of a law prohibiting the combination of the functions of a lawyer and a member of Parliament, and the existence of at least certain factual grounds for the applicant's statements and statements, considered together, the applicant's comments did not constitute unsuccessful unjustified personal attacks on D. S. In this regard, it is necessary to recall that negative statements in politics often move into the personal sphere, such are the risks and dangers of politics and free debate about any ideas that are guarantees of a democratic society.
Finally, the applicant was ordered to pay compensation in the amount of EUR 2,300 and to publish, at her own expense, the decision of the court of last resort in the case in five Romanian newspapers, including the three most widely read in the country. In the circumstances, the penalty imposed could have had a deterrent effect on the applicant in exercising her right to freedom of expression.
In view of the above, the shortcomings in the reasoning of the courts of appeal in considering the case and the apparent inability of these courts to assess what consequences the possible definition of the applicant's statements as collective (addressed to an indefinite circle of persons) could have in the general context of these statements, together with the deterrent effect of the punishment imposed on the applicant for exercising her right to freedom of expression, allow us to conclude, That the Romanian courts failed to strike a fair balance between the interests involved and to identify an "urgent social necessity" in order to place the need to protect the reputation of D. S., guaranteed by article 8 of the Convention, above the applicant's right to freedom of expression, guaranteed by article 10 of the Convention. Interference with the applicant's right to freedom of expression was not "necessary in a democratic society".
The case involved a violation of the requirements of article 10 of the Convention (adopted by five votes in favour and two against).
In the application of article 41 of the Convention. The Court awarded the applicant EUR 3,000 in respect of non-pecuniary damage and EUR 4,505 in respect of pecuniary damage.