CASE OF DANEŞ AND OTHERS v. ROMANIA (No. 2)

FOURTH SECTION

CASE OF DANEŞ AND OTHERS v. ROMANIA (No. 2)

(Applications nos. 32368/19 and 2 others)

JUDGMENT
 

STRASBOURG

6 February 2024

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

In the case of Daneş and Others v. Romania (no. 2),

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

 Faris Vehabović, President,
 Anja Seibert-Fohr,
 Anne Louise Bormann, judges,
and Ilse Freiwirth, Section Registrar,

Having regard to:

the applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on 9 February 2017;

the decision to give notice of the applications to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the complaints concerning Article 8 of the Convention and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 16 January 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged failure by the domestic courts to protect the applicants’ reputation from attacks in the online media. They complain under Article 8 of the Convention.

2.  The applicants are the heads of the College of Veterinary Medicine of Romania (CVM). On 13 March 2013, the online publication Cotidianul.ro published an article by G.M. entitled “Danger to the Lives of Romanians: How the CVM’s Actions May Compromise Public Health.” The article concerned the CVM’s legal challenge on procedural grounds against a directive issued by the head of the National Sanitary Veterinary and Food Safety Authority (“NSVFSA”), a directive aimed at increasing the scrutiny over the distribution of veterinary pharmaceuticals.

3.  The author of the article argued that the applicants’ actions seemingly prioritised the interests of pharmaceutical companies over public health imperatives and raised concerns that overturning the directive could result in the unregulated circulation of antibiotics and antiparasitic agents, a scenario at odds with prevailing European standards.

4.  Additionally, the author ventured into conjectures regarding potential corrupt practices, questioning whether Mr Harbuz and Mr Andronie (the second and third applicants) had been motivated by pecuniary incentives. The author finally mentioned rumours that Mr Daneș (the first applicant) had initially attempted to exert undue influence through bribery, followed by threats of dismissal from office, directed at the head of the NSVFSA in a bid to obstruct the issuance of the disputed directive.

5.  The article contained, inter alia, the following passages:

[...] “The heads of the CVM are endangering the health of the population.” [...]

[...] “The leadership of the CVM is endangering the health of Romanians by blocking in court Directive No. 41 from 3 May 2012.” [...]

[...] “[The applicants] serve the huge commercial interests of the producers and distributors of veterinary pharmaceuticals.” [...]

[...] “[The applicants] did not have the mandate of veterinary doctors to challenge in court Directive No. 41/2012.” [...]

[...] “[The applicants] show criminal contempt for the recommendations of the European Commission.” [...]

[...] “Viorel Andronie, Liviu Harbuz, Mihai Daneş and the other members of the organized group at the head of the CVM disregard, with criminal contempt, all the signals, warnings, and recommendations made by the Federation of Veterinarians of Europe and by the European Commission.” [...]

[...] “[Was there] pressure in euros on Andronie and Harbuz?” [...]

[...] “The decision of the CVM leadership might make one believe that there was a very high pressure from the producers and distributors of veterinary drugs, without however making it possible to measure the figure in euros to which this pressure could amount!” [...]

[...] “According to some rumours, Daneș and a few other gurus of the Romanian veterinary medical education have exerted extraordinary pressure on the author and signatory of Directive No. 41/2012, the former president of NSVFSA, Dr. R.R., ranging from large sums of money offered for refraining from issuing the said order to threats of dismissal from office.” [...]

[...] “The gang at the head of the veterinary medical profession puts itself in the service of the producers and distributors of veterinary drugs, with total contempt for the health of consumers in Romania and the rest of the European Union.” [...]

[...] “The irresponsible leadership of the CVM slavishly serves the venal interests of drug producers.” [...]

6.  On an unspecified date, the applicants initiated defamation proceedings against G.M. and the publication, arguing, inter alia, that the above phrases were defamatory of them.

7.  In a judgment of 17 October 2014, the Bucharest District Court granted the applicants’ action in part, having determined that the article was defamatory.

8.  On 10 May 2016 the Bucharest Regional Court overturned the above judgment and dismissed the applicants’ action. In reaching its decision, the court placed significant weight on the fact that the applicants were public figures and the impugned article pertained to their professional activities. Additionally, the court noted that the subject matter of the article was a matter of public interest which had sparked a public debate. Moreover, the defendants were deemed to have acted in good faith as the evidence did not indicate any ulterior motives beyond the intention of contributing to a public debate. Finally, the court concluded that the publication in question did not result in any detriment to the plaintiffs, as it did not impinge upon their honour, dignity, or professional standing.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

9.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

10.  Having carefully examined the materials of the cases at hand, the Court notes, in the first place, that the impugned statements pertaining to Mr Harbuz and Mr Andronie bear a substantial resemblence to those already examined by the Court in Daneş and Others v. Romania (no. 44332/16 and two others, 7 December 2021), a case in which the same applicants complained under Article 8 about alleged defamation in a different publication in an article concerning exactly the same factual circumstances. In that case the Court found that the attack on the applicants’ professional reputation reached a level of severity bringing it within the scope of Article 8 of the Convention (ibid., §§ 23-24).

11.  The Court notes next that the language employed by the journalist, albeit occasionally harsh, did not, in its view, transgress the boundaries of acceptable journalistic exaggeration and provocation. In addition, the approach adopted by him in articulating suspicions concerning potential corrupt activities (see paragraph 5 above) is such that it cannot be construed as a categorical accusation against the two applicants. The author merely expressed a viewpoint that their actions might reasonably prompt inquiries into the possibility of corruption being a factor.

12.  Considering the foregoing and the fact that the impugned article concerned a matter of high public interest and was written by a journalist and also considering its findings in the case of Daneş and Others (cited above, §§ 40-64), the Court discerns no reason to call into question the solution reached by the domestic courts in respect of the defamation complaints made by Mr Harbuz and Mr Andronie. The domestic courts appear to have struck a fair balance between the journalist’s and the publication’s freedom of expression under Article 10 and these applicants’ right to have their honour and reputation respected under Article 8. It follows that the applications lodged by them are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

13.  In so far as the application lodged by Mr Daneș is concerned, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

14.  The general principles concerning protection afforded by Article 8 to the right to reputation as part of the right to respect for private life have been summarized in Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-99, ECHR 2012, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-84, 7 February 2012, and Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007). In cases that concerned allegations of criminal conduct the Court also took into account that under Article 6 § 2 of the Convention, individuals have a right to be presumed innocent of any criminal offence until proved guilty (see, among other authorities, Worm v. Austria, 29 August 1997, § 50, Reports of Judgments and Decisions 1997‑V; and, mutatis mutandis, Du Roy and Malaurie v. France, no. 34000/96, § 34, ECHR 2000-X).

15.  A careful distinction is to be made between factual statements on the one hand, and value judgments on the other. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof (see Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Erla Hlynsdόttir v. Iceland (no. 2), no. 54125/10, § 66, 21 October 2014).

16.  Turning to the facts of the present case, the Court notes that unlike in the case of the other two applicants, the journalist articulated an explicit accusation of corrupt activities specifically targeting Mr Daneș. In particular, he stated that according to rumours, Mr Daneș had attempted to bribe the head of NSVFSA, to determine him not to issue the disputed directive. Such alleged conduct attributed to Mr Daneș corresponds to the offence provided for in Article 290 of the Criminal Code. Therefore, the accusation against him was serious enough to have adversely impacted his reputation and to have exposed him to public contempt.

17.  The Court agrees with the Regional Court’s assessment that the impugned article addressed a matter of public interest. It also concurs with the finding concerning the special protection enjoyed by the defendants in their capacity as media representatives. At the same time, the Court is mindful of the fact that freedom of expression carries with it “duties and responsibilities” that also apply to the media, even with respect to matters of serious public interest (Erla Hlynsdόttir, cited above, § 62). Those “duties and responsibilities” are significant when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, Björk Eiðsdóttir v. Iceland, no. 46443/09, § 70, 10 July 2012; McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR 2002-III; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999‑III; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI.

18.  The Court notes next that the impugned statement concerning Mr Daneș’s involvement in attempted bribery is a clear statement of fact whose truthfulness was necessary to be verified by the courts in the course of the proceedings. Nevertheless, the Regional Court did not classify it accordingly and did not require the defendants to substantiate its truthfulness in any way. Furthermore, it does not appear from the materials in the Court’s possession that any such substantiation was voluntarily furnished by the defendants in the course of the proceedings. Additionally, in dismissing Mr Daneș’s action, the Regional Court did not rely on any special grounds which would have dispensed the defendants from their obligation to verify factual statements that are defamatory.

19.  In such circumstances, the Court considers that the reasons relied upon by the domestic courts to protect the defendants’ right to freedom of expression were insufficient to outweigh Mr Daneș’s right to respect for his reputation. Hence, there has been a violation of Article 8 of the Convention. The Court does not consider it necessary to examine the other aspects of the case, including the other impugned statements concerning this applicant.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The first applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

21.  The Government contested the aforementioned amount and argued that it was excessive.

22.  The Court considers that, in view of the violation found above, an award of compensation for non-pecuniary damage is justified. Consequently, it awards the first applicant EUR 7,500, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the first applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 6 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Ilse Freiwirth Faris Vehabović
 Registrar President

APPENDIX

List of applications:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

1.

32368/19

Daneş v. Romania

09/02/2017

Mihai DANEŞ
1957
Bucharest
Romanian

Robert-Ionuț CIOCANIU

2.

32369/19

Harbuz v. Romania

09/02/2017

Liviu HARBUZ
1962
Piatra Neamț
Romanian

Robert-Ionuț CIOCANIU

3.

32370/19

Andronie v. Romania

09/02/2017

Viorel ANDRONIE
1963
Bucharest
Romanian

Robert-Ionuț CIOCANIU