SECOND SECTION
DECISION
Application no. 40631/14
AUSAD VALIMISED MTÜ
against Estonia
The European Court of Human Rights (Second Section), sitting on 27 September 2016 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 22 May 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ausad Valimised MTÜ, is a non-profit association registered in Estonia, and its authorised representative is a member of its management board, S. Kotka. It is represented before the Court by Mr K.‑K. Sepper, a lawyer practising in Tallinn.
2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
A. The applicant association’s poster campaign and the ensuing misdemeanour proceedings
3. Between 18 March 2013 and 7 April 2013 the applicant association organised an outdoor poster campaign in Tallinn, Estonia. It commissioned the display of posters on advertising columns in sixty-eight different locations across the city.
4. The upper part of these posters depicted a stylised version of a human head with a black fedora and dark glasses on a red background. The middle part contained a slogan in white letters on a black background. Depending on the poster, the slogan read either “They can give your vote to whom they want!”, or “They can erase your vote!” On the lower part of the posters was a slogan in black letters on a red background. It said “Each e-vote can be a threat to Estonia’s independence.” Under this, the name of the applicant association was printed in a smaller font.
5. By a decision of 3 June 2013 the Consumer Protection Board (“the Board”) fined the applicant association 1,600 euros (EUR) for a misdemeanour under the Advertising Act. The Board found that the statements on the applicant association’s advertisements had disparaged electronic voting and participation in the elections by electronic voting. The applicant association’s advertisements had therefore been in breach of the requirement that advertising must not disparage lawful behaviour. The Board further found that the statements on the advertisements had, at least indirectly, also denigrated electronic voting as an activity. The advertisements had therefore breached the requirement that advertising must not, either directly or by implication, disparage or in some other manner denigrate an activity, among other things.
6. On 18 June 2013 the applicant association lodged an appeal against the decision of the Consumer Protection Board with the Harju County Court.
7. The county court delivered its judgment on 1 October 2013. It confirmed the decision of the Board in substance, but reduced the fine to EUR 800.
8. On 31 October 2013 the applicant association lodged an appeal against that judgment with the Supreme Court. On 8 January 2014 the Supreme Court declined to examine the appeal.
B. Disclosure of the friendly-settlement negotiations before the Court to the media
9. By a letter of 19 January 2016 the applicant association was informed of the Court’s decision to give notice of the case to the Government. Together with that letter, the applicant association was sent an information note on the proceedings following the communication of an application, and declarations prepared by the Registry, aimed at securing a friendly settlement of the case. Point 5 of the information note provided that there was a requirement of strict confidentiality in respect of friendly-settlement negotiations.
10. On 27 January 2016 a member of the applicant association’s management board sent a press release entitled “The European Court has granted Ausad Valimised MTÜ a victory over the Estonian state” by email to seventy-three addressees. These included Estonian and Russian-language paper and online media publications, as well as State-owned and private television channels operating in Estonia. Among other things, the press release explained that the European Court of Human Rights had decided to admit Ausad Valimised MTÜ’s application, and had proposed to the parties a settlement under which the State should pay the association EUR 9,000.
11. On 27 January 2016 a news item containing this information from the applicant association could be found on the websites of BNS, the largest Baltic news agency, the newspaper Äripäev and, on 29 January 2016, the newspaper Virumaa Teataja. After the publication of the news, comments were also sought from the Ministry of Foreign Affairs (“the Ministry”). The Ministry explained that it was an ongoing court case, the material relating to which the Court had sent to them only on 19 January 2016, and therefore the Ministry had not yet formed their opinion. In addition, it explained that friendly-settlement proceedings were confidential, that is neither the State nor the applicant association was allowed to disclose any facts or opinions in relation to the settlement proceedings. The news of the Ministry’s comments was published by BNS, Äripäev and the news portal Delfi.
12. On the same day the applicant association published a revised news item on the news portal of the Tallinn municipal newspaper. This article contained the comment by the Ministry. The applicant association’s board member once again stated “this means a victory for Ausad Valimised MTÜ over the Estonian State”. The next day the same news portal published another article, but without reference to the Government’s comments. The article noted that the applicant association’s board member S. Kotka had said in a news programme on the Tallinn municipal television channel that the European Court of Human Rights had found that the European Convention on Human Rights had been violated, and that the Estonian State should pay compensation of EUR 9,000 in respect of this.
13. On 3 February 2016 the newspaper Kesknädal published a news item entitled “Ausad Valimised MTÜ achieved a victory over the Estonian State in the European Court of Human Rights”. In the article, the applicant association’s board member maintained that the European Court of Human Rights had established that there had been a violation of the Convention with regard to freedom of expression, and that the Court had proposed to Ausad Valimised MTÜ and the Estonian State that the State should pay EUR 9,000 euros in compensation. The board member also stated that this was a clear victory over the Estonian State. She described the comments made by the Ministry – which were not reproduced in the article – as “disparaging” and reflecting the “distress” of the representatives of the State.
COMPLAINT
14. The applicant association complained that the domestic authorities’ decisions in finding it guilty of a misdemeanour for violating advertising requirements and imposing a penalty on it amounted to a breach of its right to freedom of expression under Article 10 of the Convention.
THE LAW
15. The Government pointed out that the applicant association had disclosed the details of the friendly-settlement process to the domestic media, and had argued that the Court had given it a victory over the Estonian State (see paragraphs 10–13 above). They submitted that the applicant association’s actions constituted an abuse of the right of individual application, and invited the Court to reject the application.
16. The applicant association did not make any specific submissions regarding the Government’s objection to the admissibility of the application.
17. The Court notes that, according to Article 39 § 2 of the Convention, friendly-settlement negotiations are confidential. This rule is repeated in Rule 62 § 2 of the Rules of Court.
18. The rule that friendly-settlement negotiations are confidential is absolute and does not allow for individual assessment of how much detail has been disclosed (Abbasov and Others v. Azerbaijan (dec.), no 36609/08, § 28, 28 May 2013, and Gorgadze v. Georgia (dec.), no 57990/10, § 18, 2 September 2014, and the case-law cited therein). A breach of the rule of confidentiality may, in certain circumstances, justify the conclusion that an application is inadmissible on the grounds of an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, § 66, 15 September 2009; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; and Abbasov and Others (dec.), cited above, § 29). An intentional breach of this rule constitutes an abuse of procedure. However, the Court notes that the direct responsibility of a party for the disclosure of confidential information should be clearly established; a simple suspicion is not enough for an application to be declared inadmissible as an abuse of the right of individual application under Article 35 of the Convention (see Miroļubovs and Others, cited above, § 66; Barreau and Others v. France (dec.), no. 24697/09, 13 December 2011; Mandil v. France (dec.), no. 67037/09, 13 December 2011; and Deceuninck v. France (dec.), no. 67037/09, 13 December 2011).
19. The Court further reiterates that Article 39 § 2 of the Convention and Rule 62 § 2 prohibit parties from making public information concerning friendly-settlement negotiations, either through the media, or by a letter likely to be read by a significant number of people, or by any other means (see Miroļubovs and Others, cited above, § 68; Barreau and Others (dec.), cited above; Mandil (dec.), cited above; Deceuninck (dec.), cited above; Abbasov and Others (dec.), cited above, § 30; and Tsonev v. Bulgaria (dec.), no. 44885/10, § 26, 8 December 2015). The Court has on many occasions rejected applications as abusive where the applicants or their representatives had intentionally disclosed to the public information about friendly-settlement negotiations (see, among others, Benjocki (dec.), cited above; Barreau and Others (dec.), cited above; Abbasov and Others (dec.), cited above; Baucal-Đorđević and Đorđević v. Serbia (dec.), no. 38540/07, 2 July 2013; Gorgadze (dec.), cited above; and Tsonev (dec.), cited above).
20. Turning to the application at issue here, the Court notes, firstly, that the applicant association disclosed to media outlets the Registry’s friendly-settlement proposal and the amount of compensation proposed, and discussed it in the press (see paragraphs 10–13 above). Secondly, the information note enclosed in the Court’s letter of 19 January 2016 had made it clear that friendly-settlement negotiations were strictly confidential (see paragraph 9 above). Thirdly, the applicant association therefore ought to have been aware of that requirement and complied with it. Nonetheless, it did not do so, even after the issue had been brought to its attention by the authorities (see paragraphs 11–13 above). Fourthly, the applicant association has not advanced any justification for not complying with the confidentiality requirement. It has thus intentionally breached the rule that friendly-settlement negotiations are confidential.
21. The Court considers that, in view of its constant case-law (see paragraph 19 above), the applicant association’s conduct amounts to an abuse of the right of individual application.
22. The Court therefore finds it appropriate to reject the application as inadmissible, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 October 2016.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy