CASE OF CIORHAN v. ROMANIA

FOURTH SECTION

CASE OF CIORHAN v. ROMANIA

(Application no. 49379/13)

JUDGMENT
 

STRASBOURG

3 December 2019

This judgment is final but it may be subject to editorial revision.

In the case of Ciorhan v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 12 November 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 49379/13) 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 Ștefan Ciorhan (“the applicant”), on 25 July 2013.

2.  The applicant was represented by Ms S.A. Borza, a lawyer practising in Oradea. The Romanian Government (“the Government”) were represented by their Agent, most recently Mr V. Mocanu, of the Ministry of Foreign Affairs.

3.  On 16 September 2014 notice of the application was given to the Government.

4.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1968 and lives in Carei.

6.  The applicant was formerly a member of the Carei branch of the Association for Sport Fishermen and Hunters (Asociația Vânătorilor şi Pescarilor Sportivi, hereinafter “the Carei AVPS”). Among other things, the AVPS represented the interests of all Romanian hunters and fishermen at national and international level, managed national hunting and fishing grounds, and issued hunting and fishing licences.

7.  In 2011 the applicant and fifty-three other members of the Carei AVPS signed a petition notifying the Romanian Ministry of Agriculture about what they considered to be unlawful acts committed by the president of the Carei AVPS and other members of that branch, in particular: the poor management of fishing and hunting grounds, and the claiming of unlawful fees from members of the association.

8.  An investigation report produced on 7 October 2011 by the Romanian Ministry of Agriculture noted several irregularities concerning fees and the management of the relevant fishing and hunting grounds. Consequently, it suspended the association’s activity for three months.

9.  On 28 March 2012 the applicant went to the Carei AVPS to pay the fee for his fishing licence. A disagreement about the amount due developed into a quarrel with the organisation’s accountant. On the same date the applicant lodged a criminal complaint against the accountant with the Carei police department, and informed the local newspaper Informația Zilei about the incident.

10.  On 29 March 2012 the above-mentioned local newspaper wrote an article under the heading “The fishermen’s stream of complaints against the leadership of the Carei AVPS continues”. The article started by informing readers that several complaints against the Carei AVPS had been lodged over the previous year on account of, among other things, the fees which its members were charged. The article then quoted a statement by the applicant which described the incident of 28 March 2012 and informed the public about the complaints made against the management of the Carei AVPS in 2011. The relevant parts read as follows:

“I inform you that in 2011 I was a member of the Carei AVPS. In the autumn of that year, together with other members, I signed a petition against abuses and illegalities on the part of the Carei AVPS management.

...

As a result of [the incident of 28 March 2012] and the numerous petitions and grievances of the fishermen, it would be desirable to initiate an investigation into the activity of this association. The police too would certainly have something to investigate”.

The article also included a rebuttal from the president of the Carei AVPS concerning the applicant’s statement.

11.  On 5 April 2012 the police fined the Carei AVPS accountant for her behaviour during the incident on 28 March 2012.

12.  On 20 April 2012 the Carei AVPS brought civil proceedings against the applicant, seeking compensation in respect of non-pecuniary damage. It argued that the article had tarnished its public image. It also claimed costs and expenses.

13.  In a decision of 14 December 2012 the Carei District Court allowed the action and ordered the applicant to pay the organisation 5,000 Romanian lei (RON – approximately 1,300 euros (EUR)) for
non-pecuniary damage, and RON 611 (approximately EUR 140) for costs and expenses. The relevant parts read as follows:

“The manner in which the defendant formulated his letter to the newspaper suggests that the whole petition was based on real ‘abuses and illegalities’ imputable to the claimant association’s management board. This assertion is defamatory and causes damage to the claimant’s image and good reputation.

...

The available evidence showed that, in addition to the applicant’s petition, there had been only one more press article, published by [E.I.Z.], a former member of the association, therefore it cannot be maintained that there were numerous petitions and grievances.

In addition, the statement that the police would certainly have something to investigate suggests that the claimant association’s management committed criminal offences, thus it is a tendentious statement.

In conclusion, the court considers that these statements are also defamatory towards the claimant association.”

14.  The applicant appealed against the judgment. He argued, among other things, that the Carei AVPS could not claim that its public image had been tarnished, as its membership had increased in 2012.

15.  In a final decision of 16 April 2013 the Satu-Mare County Court dismissed the applicant’s appeal. It held as follows:

“The press article was aimed at raising doubts about the lawfulness of the association’s actions, generating mistrust among its members, and making them want to leave the association.

The applicant consciously made the defamatory statements in question in the press without having concrete and precise data about irregularities or offences on the part of the association.”

16.  On 28 October 2013 the applicant received notification from a bailiff’s office that he had to pay the sum ordered by the courts, as well as enforcement costs of RON 885.10 (approximately EUR 200). The bailiff’s office made an attachment of earnings order in respect of his wages.RELEVANT DOMESTIC LAW

17.  The relevant provisions of the Romanian Civil Code concerning civil liability for damages read as follows:

Article 1357

“(1)  Any person who causes damage to another through an illicit act committed with intent or through negligence is liable to make reparation for it.”

THE LAWALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

18.  Relying on Articles 6 and 10 of the Convention, the applicant complained that the civil sentence imposed on him and the lack of sufficient reasons provided by the domestic courts amounted to a breach of his freedom of expression.

19.  Having regard to the substance of the applicant’s complaints, the Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), will examine the complaint from the standpoint of Article 10 alone (see, for instance and mutatis mutandis, Kincses v. Hungary, no. 66232/10, § 16, 27 January 2015, and Hasan Yazıcı v. Turkey, no. 40877/07, §§ 40-41, 15 April 2014).

Article 10 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.”Admissibility

20.  The Court notes that the application 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.MeritsThe parties’ submissions

(a)   The applicant

21.  The applicant argued that the language he had used in his press statement had not been defamatory, tendentious or incriminating. He had not overstepped the limits of admissible criticism. The facts he had related to the press were of public concern, and as a member of the relevant association, he had been entitled to inform other members and the public about the situation. Moreover, the Carei AVPS had not suffered any damage to its reputation as a result of the press article.

22.  Lastly, the applicant argued that he had paid the damages due to the Carei AVPS and the additional costs for enforcement, and reiterated that even if the amount of compensation awarded had been small, the award had been unlawful, in so far as it had not been based on an actual tort on his part.

(b)   The Government

23.  The Government did not dispute that there had been an interference with the applicant’s right to freedom of expression, but considered that it had been prescribed by law (notably Articles 1349-1372 of the new Civil Code), and had pursued the legitimate aim of protecting the rights of others, notably the Carei AVPS’s reputation.

24.  The Government argued that the applicant had misrepresented the association’s activity in a biased manner. He should have relied on the factual basis provided by the report of 7 October 2011 (see paragraph 8 above). On this point, they reiterated that the association provided a public service. Moreover, the statements concerning the incident of 28 March 2012 (see paragraph 9 above) concerned a purely private matter.

25.  The Government further argued that the applicant had acted with the intention of denigrating the Carei AVPS, and had used disparaging terminology, thus manifestly overstepping the limits of admissible criticism. They also contended that it appeared that the applicant had not paid the amount due to the Carei AVPS.The Court’s assessment

26.  The applicable general principles are set out in Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 78-95, 7 February 2012).

(a)   Whether there has been interference

27.  It is not disputed between the parties – and the Court sees no reason to hold otherwise – that the final judgment given in the compensation case brought by the Carei AVPS (see paragraph 15 above) interfered with the applicant’s right to freedom of expression as guaranteed by Article 10 of the Convention.

(b)   Whether the interference was justified

28.  The Court accepts that the interference in question was prescribed by law, namely Article 1357 of the Civil Code (see paragraph 17 above), and pursued the legitimate aim of protecting the reputation or rights of others within the meaning of Article 10 § 2 (see, mutatis mutandis, Uj v. Hungary, no. 23954/10, § 16, 19 July 2011, and Heinisch v. Germany, no. 28274/08, § 49, ECHR 2011 (extracts)).

29.  It must therefore be examined whether the interference was “necessary in a democratic society”, in particular, whether there was a proportionate relationship between the interference and the aim pursued.

30.  The assertions at issue in the present case concerned alleged irregularities in the management of an association which provided a public service (see paragraph 6 above). The debate thus concerned a matter of public interest. According to the Court’s consistent case-law, there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest, and very strong reasons are required to justify such restrictions (see Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015, with further references).

31.  Moreover, the Court has already stated that the protection of the “dignity” of a legal entity, which is a mere institutional interest, is not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Uj, cited above, § 22, concerning a commercial company, and Kharlamov, cited above, § 29, concerning a university).

32.  That being said, the Court observes that the domestic authorities confined their analysis to a discussion of the damage to the Carei AVPS’s reputation (see paragraphs 13 and 15 above) and the applicant’s guilt in this regard. There is no evidence that the domestic courts performed a balancing exercise between the need to protect the Carei AVPS’s “image and good reputation” and the applicant’s right to impart information on issues of general interest concerning the management of the association. Nor did the domestic courts consider that the “dignity” of an institution cannot be equated to that of human beings (see, mutatis mutandis, Kharlamov, cited above, § 29). On this point, the Court considers that, where an association provides a public service, the public interest in receiving information about alleged shortcomings in such an association’s management of hunting and fishing is important in a democratic society, and thus outweighs the interest in protecting that association’s business reputation and interests (see, mutatis mutandis, Heinisch, cited above, § 90). Moreover, there is no evidence that the publication of the impugned article impacted negatively on the association’s membership. The domestic courts did not establish that the association had suffered economic harm (see paragraph 15 above).

33.  Turning to the content of the applicant’s statements, the Court notes that the domestic authorities did not consider that those statements had been false. They only reproached him for exaggerating the scale of the membership’s discontent and presenting matters in a tendentious manner (see paragraph 13 above). However, the Court cannot but note that the applicant’s assertions were, at least to a certain extent, backed up by the report of 7 October 2011 (see paragraph 8 above). Consequently, it cannot be concluded that his assertions lacked any factual basis or that he acted in bad faith with the intention of harming the association (see Axel Springer AG, cited above, § 93).

34.  The Court reiterates that in a matter of public interest, such as that in the present application (see paragraph 30 above), recourse to exaggeration is accepted as long as it does not overstep the limits of admissible criticism (see, mutatis mutandis, Kharlamov, § 32, and Uj, § 24, both cited above). Turning to the facts of the case, the Court notes that the applicant had recourse to a certain degree of hyperbole and insinuation in his statement (see paragraph 10 above). However, he did not resort to offensive and intemperate language and did not go beyond the generally acceptable degree of exaggeration. Therefore, this matter cannot in itself raise an issue under the Court’s case-law (see, mutatis mutandis, Axel Springer AG, cited above, § 108).

35.  In conclusion, the Court finds that the domestic courts failed to strike a fair balance between the relevant interests, and failed to establish that there was a “pressing social need” to put the protection of the association’s reputation above the applicant’s right to freedom of expression. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them in matters of debate of public interest, and that the interference was not “necessary in a democratic society” (see, mutatis mutandis, Kharlamov, cited above, § 33).

36.  There has therefore been a violation of Article 10 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

37.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

38.  The applicant claimed 1,300 euros (EUR) in respect of pecuniary damage, an amount representing the compensation which he had been ordered to pay by the decision of 14 December 2012 (see paragraph 13 above). He also sought EUR 6,000 in respect of non-pecuniary damage.

39.  The Government argued that there was no causal link between the violation alleged and the amount claimed in respect of pecuniary damage. They also contended that the amount claimed in respect of non-pecuniary damage was excessive, and submitted that the finding of a violation would provide sufficient just satisfaction in the case.

40.  The Court finds that there is a sufficient causal link between the violation found and the amount claimed in respect of pecuniary damage (see, mutatis mutandis, Axel Springer AG, cited above, § 115). Accordingly, it awards EUR 1,300 under this head.

41.  The Court further considers that the applicant must have sustained non‑pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found, and making its assessment on an equitable basis, the Court awards him EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

42.  The applicant also claimed EUR 1,225 for the costs and expenses incurred before the domestic courts, and EUR 415 for those incurred before the Court. These expenses represented mediation and lawyer’s fees, court fees, the costs of the enforcement proceedings brought against him, and translation costs.

43.  The Government contested the claim.

44.  Regard being had to the documents in its possession and to its
case-law, the Court considers it reasonable to award the sum of EUR 1,225 for costs and expenses in the domestic proceedings, and the sum of EUR 415 for the proceedings before the Court.Default interest

45.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible;Holds that there has been a violation of Article 10 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)      EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)     EUR 1,640 (one thousand six hundred and forty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Faris Vehabović
Deputy RegistrarPresident

 

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