FOURTH SECTION
DECISION
Applications nos. 13091/17 and 13277/17
Nechita-Adrian OROS against Romania
and Ion-Alin BÎRŢOIU against Romania
The European Court of Human Rights (Fourth Section), sitting on 6 December 2022 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the applications (nos. 13091/17 and 13277/17) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 February 2017 by two Romanian nationals, Mr Nechita-Adrian Oros and Mr Ion-Alin Bȋrţoiu (“the applicants”), who were born, respectively, in 1965 and 1963 and were represented by R.I. Ciocaniu, a lawyer practicing in Bucharest;
the decision to give notice of the applications to the Romanian Government (“the Government”) represented by their Agents, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASES
1. On 13 March 2013 the journalist M.S. published an article on the online page of the newspaper Cotidianul.
2. Under the title “Danger for the life of Romanians – The managers of the Veterinary College of Physicians [the VCP] threaten the health of the population.”, the article read:
“The management of [the VCP] puts at risk the health of Romanians by blocking in court Order [no.] 41 of 3 May 2012 of the president of the Agency ... for Food Safety ... which ... regulates strictly the circulation of veterinary ... antibiotics. The president of the [VCP] ..., together with the fist vice-president ..., ... [the applicants] and the [VCP] secretary ..., serve as a result the major commercial interests of the manufacturers and distributors of veterinary medication, led by the businessman S.P.S. ... [The latter] and his partners want ... the veterinary ... antibiotics to be traded freely, without an approval by ... physicians, even though this results in increased resistance of infections to antibiotics and, implicitly, [the] alarming increase of deaths among the population, and especially children! ... According to the experts consulted by cotidianul.ro, this Order is ... essential for regulating ... veterinary medication ... Moreover, the experts argue that this decision of [the VCP] management – who should have the ... mandate of those who pay contributions to be ... a member – ... to contest, on its own motion, an Order which ... allows the veterinary physician ... to be the only user of this medication ... is very surprising and ... odd, [given that] [the VCP] is a professional organization which ... belongs to the veterinary physicians, represents them and ... must defend their professional interests! ... [W]hat is extremely serious, [going] beyond affecting the interests of the guild, is that ..., by acting to suspend the Order ..., the ... members of the organised group leading [the VCP] ignore with criminal contempt all ... warnings and recommendations of the European Veterinary Physicians’ Federation and of the European Commission, to fully interpose the veterinary physician ... between [the] manufacturer or distributor of veterinary medical products and [the] owner as far as antibiotics ... are concerned ... The veterinary physicians argue that by this action the [VCP] management pursues ... only one goal: clearly favoring the ... manufacturers and distributors, whose interest is to sell however [much], whomever and wherever, to the detriment of the veterinary physicians ... [T]hese matters are well-known ... by the president ... and the first vice-president of the [VCP] ... so the decision of the [VCP] management may lead [one to] think about very serious pressure from the manufacturers and distributors of medication ..., without a possibility to commensurate though also ‘the number in Euros’ to which this pressure could reach! ... [O]ne of [S.]P.S.’s direct representatives within the [VCP] is ... [D.], the secretary of the [VCP] ... According to market sources [D.] and a few other ‘gurus’ of the Romanian veterinary ... education system had exerted extraordinary pressure on the author ... of the Order ... varying from large sums of money promised for not issuing the Order ... to threats of being fired ... [B]y the war lead by ... the members of the organised group leading [the VCP] against the Order ... the gang at the head of the guild of veterinary physicians places itself in the service of the manufacturers and distributors of ... antibiotics ... in total disdain to the health of the consumer from Romania ...! ... While the irresponsible management of the [VCP] serves the immoral interests of the ... manufacturers, the public health experts worldwide ... warn: the increased resistance of infections to antibiotics has become an extremely serious phenomenon ...”
3. On 23 July 2013, after the newspaper failed to respond to a request by the VCP managers for a public apology for the alleged misinformation in the article, the applicants brought tort law proceedings against M.S. before the Bucharest District Court. They argued that M.S.’s statements in the article lacked a factual basis, intentionally defamed them and grossly violated their right to honour and reputation. Moreover, the publication of the article in the context of numerous media debates about various food safety problems amplified its negative effects.
4. By a final judgment of 10 May 2016 (made available on 12 August 2016) the Bucharest County Court allowed M.S.’s appeal against the District Court’s judgment, quashed it and dismissed the applicants’ action as ill‑founded. The court took account of the parties’ arguments, of the relevant national and international framework protecting the rights to respect for private life and freedom of expressions, and of the obligation incumbent on courts to provide reasons for their judgments. The court acknowledged that the applicants’ right to honour and reputation had to be balanced against M.S.’s right to freedom of expression.
5. The court further noted that journalists were allowed immoderate statements when making value judgments about matters of public concern. It also took the view that according to the Court’s case-law its assessment could not focus exclusively on the objective truth of a disputed statement. If a statement’s accuracy could not be fully proven, the court had to determine whether the journalist making it had intended to merely offend or to inform public opinion about matters of public interest and contributed to a public debate.
6. The court held that the applicants were public figures and that the statements in the article concerned their professional activities. Moreover, the subject discussed was of public interest and generated a public debate given that the facts in issue were covered also by other publications. None of the available evidence had suggested that M.S. acted with ill-intent when publishing the article or that his actions were motivate by any purpose other than informing the public about the subject in question. Furthermore, the applicants did not suffer any damage because of the article.
7. The court concluded therefore that the conditions for civil liability were not met in M.S.’s case and that his actions did not violate the applicants’ rights.
8. On 7 October 2019 Ms Adela Bȋrţoiu, Mr Bȋrţoiu’s wife, informed the Court that the applicant died on 10 July 2017 and that she wished to pursue his application in his stead.
THE COURT’S ASSESSMENT
Joinder of the applications9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly (Rule 42 § 1 of the Rules of Court).
preliminary objection10. The Government considered that Mr Bȋrţoiu’s application was inadmissible ratione personae because he died and his wife could not claim to be a victim of the alleged violations.
11. The Court finds it unnecessary to examine the objection above because the applications are in any event inadmissible for the following reasons.
complaint under article 8 of the convention12. The applicants complained that the County Court failed to protect their right to honour and reputation because it dismissed their case without examining their arguments or granting them compensation for the non‑pecuniary damage suffered by them.
13. The general principles concerning the obligations inherent in an effective protection of the right to respect for private life and the criteria to be applied in the context of a balancing exercise between the rights protected by Articles 8 and 10 of the Convention have been summarized in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 58, 98, 109-13, ECHR 2012), and Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 90-95, 7 February 2012).
14. The Court notes that it has examined similar statements to the ones in dispute in the instant cases concerning the managers of the VCP, including the applicants. They concerned the same facts described in the article above (see paragraph 2) and were made by the same journalist, albeit in different articles published by another publication (see Harbuz and Others v. Romania (dec.) [Committee], nos. 73064/17 and 3 others, § 1, 30 November 2021).
15. The Court acknowledged that such statements attained the requisite level of seriousness capable of undermining the VCP managers’ rights under Article 8. Nonetheless, they concerned a subject of general interest, namely the effects misuse of veterinary antibiotics could have on public health. Also, they regarded public figures subject to wider limits of acceptable criticism than ordinary citizens and touched on issues related exclusively to the VCP managers’ professional life. Moreover, the statements disclosed mainly an opinion about the manner in which the VCP managers performed their duties and did not include injurious expressions. Even though they contained a dose of exaggeration or provocation, the statements were in effect value judgments, were made in good faith and in the context of an ongoing public debate (see Harbuz and Others, cited above, §§ 13-15).
16. In the present cases, having regard to the article seen as a whole (see paragraph 2 above) and the reasons provided by the County Court for dismissing the arguments raised by the applicants (see paragraphs 4-7 above), the Court sees no reason to depart from its findings above or to hold that M.S.’s statements in dispute lacked a sufficient factual basis.
17. It is true that the County Court seems to have considered that M.S. had not succeeded to fully prove the objective truth of his statements. Nevertheless, the truth of value judgments is not susceptible of proof (see Monica Macovei v. Romania, no. 53028/14, § 75, 28 July 2020) and even factual inaccuracies should be tolerated if published in good faith and if the expressions at issue concerned the subject of an ongoing public debate (see Ţiriac v. Romania, no. 51107/16, § 96, 30 November 2021).
18. The Court, like the County Court, cannot therefore discern any specific negative effect the article might have had for the applicants’ professional reputation or life. Even assuming that the impugned article might have affected them to some extent, the Court doubts that those consequences were sufficiently serious to override the public’s interest in receiving the information contained therein (see Țiriac, cited above, § 98).
19. Given the context, the Court is not prepared to attach any weight to the newspaper’s apparent silence to the applicants’ request for an apology (see paragraph 3 above).
20. The Court finds that the County Court conducted a thorough balancing exercise between the competing rights at stake in conformity with the criteria laid down in the Court’s case-law. Having regard to the margin of appreciation available to the national authorities when weighing up divergent interests, it sees no strong reasons to substitute its view for that of the County Court. It could not be said therefore that by dismissing the applicants’ claim, the County Court has failed to comply with the positive obligations incumbent on the national authorities of protecting the applicants’ right to respect for private life under Article 8 of the Convention (see Țiriac, cited above, § 99).
21. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
complaint under article 6 of the convention22. The applicants complained that the proceedings before the County Court were unfair because the said court failed to provide reasons for dismissing the arguments raised by them.
23. The Court notes that this complaint is closely connected to the one above (see paragraph 12). Given its findings in paragraphs 16-21 above, the Court cannot accept the applicants’ view that the County Court failed to provide reasons for dismissing their arguments. This complaint is therefore likewise inadmissible.
24. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 19 January 2023.
Crina Kaufman Faris Vehabović
Acting Deputy Registrar President