Information Note on the Court’s case-law 242

July 2020

Monica Macovei v. Romania - 53028/14

Judgment 28.7.2020 [Section IV]

Article 10

Article 10-1

Freedom of expression

Statements alleging corruption directed at certain of members of parliament made by politician in support of her view of incompatibility of that role with that of lawyer: violation

Facts – The applicant, an active politician, had made some state ments directed at two opposition politicians (D.Ş. and V.P.) which had been reported in the press. The statements concerned some actions (giving legal advice to State companies from their constituencies) on the part of V.P. and D.Ş. which the applicant per ceived as a “typical act of corruption by political influence”. By a final judgment of the High Court of Cassation and Justice, the applicant had been ordered to pay damages to D.Ş. and to publish that judgment at her own expense.

Law – Article 10: The app licant’s statements had been capable not only of tarnishing D.Ş.’s reputation, but also of causing him serious prejudice in both his professional and his social environment. Accordingly, the accusations had attained the requisite level of seriousness to be capable of undermining his rights under Article 8. The Court had therefore to verify whether the domestic authorities had struck a fair balance between the two values guaranteed by the Convention, namely, on the one hand, the applicant’s freedom of expres sion protected by Article 10 and, on the other, D.Ş.’s right to respect for his reputation under Article 8.

The criticism in the applicant’s comments had been directed not at D.Ş.’s private activities but rather at his conduct in his political capacity, th at was, as an elected parliamentary representative. As such, his conduct in that capacity had clearly been of legitimate concern to the general public and the authorities had had a particularly narrow margin of appreciation in assessing the need for the in terference with the applicant’s freedom of expression.

The national courts were, in principle, better placed than an international court to assess the intention behind impugned phrases and statements and, in particular, to judge how the general public woul d interpret and react to them. However, the appellate courts had not provided convincing reasons for their conclusion that the applicant had made an untruthful statement of fact. In view of the limited scope of their reasoning in that respect, the Court wa s not persuaded by their approach and could not share their conclusion.

Given the wording of the applicant’s statements, the explanation contained in the relevant press articles and the contradictory findings of the domestic courts which had examined the m atter, the applicant’s comments had contained a combination of value judgments and statements of fact. The thrust of her statements had been to use the example of specific conduct by D.Ş. and V.P., which she had regarded as tantamount to a “typical act of corruption by political influence”, in the context of the broader concept of conflict of interest as support for an idea that she had been constantly promoting, namely the introduction of a law rendering the functions of lawyer and member of parliament inc ompatible. The question, therefore, was whether a sufficiently accurate and reliable factual basis proportionate to the nature and degree of the applicant’s statements and allegations could be established.

Some of the applicant’s stat ements, such as those concerning D.Ş.’s specific conduct – namely the alleged signing of very lucrative contracts with State-owned companies located in the constituency he was representing in Parliament – could have been considered to lack a sufficient fac tual basis. None of the information relied on by the applicant in her submissions had suggested that D.Ş. or the law practice he had founded had signed contracts with State-owned companies located in the said constituency at a time when he was both a lawye r and a member of parliament. However, that the applicant’s statements and allegations had been of a collective nature, concerning both D.Ş. and V.P., and had merely been aimed at providing an example of a system of political corruption consisting in an aw ard of contracts for legal advice by public companies rather than at accusing either of them of genuine corruption. In addition, the available information suggested that V.P. had been both a member of parliament and an associate of the law practice founded by D.Ş. at a time when the law practice had signed lucrative legal-assistance contracts with State-owned companies located in the constituency represented in Parliament by V.P. In that context, the applicant’s allegations and, in particular, the expressio ns used, albeit perhaps inappropriately strong, could be viewed as polemical, involving a certain degree of exaggeration.

Under those circumstances, given the status of the applicant and D.Ş. as politicians and elected representatives of the people, the c ollective nature of the applicant’s statements and allegations, the overall context reflected by the press reports, namely that of promoting the need for legislation establishing an incompatibility between the functions of lawyer and member of parliament, and the existence of at least a certain factual background to her statements and allegations taken collectively, the applicant’s comments had not amounted to an ill-fated gratuitous personal attack against D.Ş. In that connection it was always necessary to bear in mind that political invective often spilt over into the personal sphere; such were the hazards of politics and the free debate of ideas, which were the guarantees of a democratic society.

Lastly, the applicant had been ordered to pay damages of EU R 2,300 and to publish the last-instance court’s judgment at her own expense in five national newspapers, including three with the widest circulation in the country. Under the circumstances, the sanction imposed had been capable of having a dissuasive effe ct on the exercise of her right to freedom of expression.

In the light of those considerations – the shortcomings in the appellate courts’ reasoning when examining the case and the said courts’ apparent failure to consider what consequences the possible cl assification of the applicant’s statements as being of a collective nature could have had in the overall context in which they were made, taken together with the chilling effect the penalty imposed on the applicant had on her freedom of expression – the do mestic courts had failed to strike a fair balance between the relevant interests and to establish a “pressing social need” for putting the protection of D.Ş.’s reputation protected by Article 8 above the applicant’s right to freedom of expression under Art icle 10. The interference with the applicant’s right to freedom of expression had not been “necessary in a democratic society”.

Conclusion : violation (five votes to two).

Article 41: EUR 3,000 in respect of non-pecuniary damage; EUR 4,505 in respect of pec uniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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