{"id":18131,"date":"2022-03-01T18:54:33","date_gmt":"2022-03-01T18:54:33","guid":{"rendered":"https:\/\/laweuro.com\/?p=18131"},"modified":"2022-03-01T18:54:33","modified_gmt":"2022-03-01T18:54:33","slug":"case-of-rusu-v-romania-european-court-of-human-rights-68373-14","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=18131","title":{"rendered":"CASE OF RUSU v. ROMANIA (European Court of Human Rights) 68373\/14"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF RUSU v. ROMANIA<\/strong>
\n(Application no. 68373\/14)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n1 March 2022<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Rusu v. Romania,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n

Gabriele Kucsko-Stadlmayer, President,
\nIulia Antoanella Motoc,
\nPere Pastor Vilanova, judges,
\nand Ilse Freiwirth, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the application (no.\u00a068373\/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 2 October 2014 by a Romanian national, Ms Cristina Rusu, born in 1973 and living in T\u00eerli\u0219ua (\u201cthe applicant\u201d) who was represented by Ms M.C. Moldovan, a lawyer practising in Bistri\u021ba-N\u0103s\u0103ud;<\/p>\n

the decision to give notice of the complaint under Article 10 (right to freedom of expression) to the Romanian Government (\u201cthe Government\u201d), represented by their Agents, most recently by Ms O. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;<\/p>\n

the parties\u2019 observations;<\/p>\n

the decision to dismiss the Government\u2019s objection to examination of the application by a Committee;<\/p>\n

Having deliberated in private on 8 February 2022,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n

1. The applicant alleged that by failing to provide relevant and sufficient reasons for their decisions the national courts had violated her right to freedom of expression.<\/p>\n

2. On 14 July and 23 October 2011 and 6 March 2012 the applicant discussed issues connected to the activity of the local Inspector of Schools for geography (\u201cthe inspector\u201d) in her capacity as high school geography teacher, respectively, in two articles published on the websites of the local newspapers Bistri\u0163eanul.ro and Bistri\u0163a24.ro and on the local television talk\u2011show \u201cBistri\u0163a in reality\u201d.<\/p>\n

3. The inspector brought civil proceedings against the applicant for damaging her reputation, seeking compensation and the publication of the judgment in a national newspaper.<\/p>\n

4. On 18 June 2013 the Bistri\u0163a-N\u0103s\u0103ud District Court (\u201cthe District Court\u201d) allowed the claim in part. It awarded the inspector RON\u00a02,000 (EUR\u00a0446) in respect of non-pecuniary damage by taking into account the applicant\u2019s attitude, the inspector\u2019s profession and the Court\u2019s case-law, but refused the judgment\u2019s publication because it could undermine the authority the two teachers had to enjoy in relation to students.<\/p>\n

5. It held that on 14 July the applicant had concluded that the inspector should have taken responsibility for the disinformation concerning the May 2011 Geography Scientific Communications competition and its deficient organisation \u201cbecause things had been much worse\u201d than described. Her conclusion followed the statements that \u201cthe efficiency of the system of education was questioned\u201d and that the teachers had been blamed that \u201cthey wallowed in the mud which wrapped up, in some ways, [the system of] education\u201d and her opinion on organisational matters concerning the competition and the circuit of documents within the local inspectorate.<\/p>\n

6. On 23 October the applicant had suggested that by handing out a certain diploma during a geography symposium the inspector had participated in \u201cpilferage\u201d and had aimed \u201cto take advantage of someone\u2019s work\u201d. She also stated that \u201cmadam inspector considered that working on other diplomas was unnecessary\u201d being \u201ceasier to take something that was ready, than making our mind work\u201d.<\/p>\n

7. On 6 March the inspector\u2019s name was mentioned during a discussion about plagiarism concerning the test subjects for the geography Olympiad even though the local Deputy Inspector for Schools (\u201cthe DIP\u201d) specified during that discussion that the rules for the competition had been observed.<\/p>\n

8. Concomitantly with her press statements the applicant had filed petitions with the local inspectorate blaming the inspector for irregularities in the organisation of the inspectorate or of the competitions. A former local DIP testified that these petitions had been mostly unfounded and the statement of a grader for the May 2011 competition had shown that the applicant\u2019s allegations about the organisation of this competition had been unfounded.<\/p>\n

9. The allegations about the fraudulent printing of the diplomas given at the symposium had likewise been unfounded given that the previous year participants had received similar diplomas and the applicant had not proven that intellectual property legislation had been breached.<\/p>\n

10. The applicant\u2019s statements had affected the inspector\u2019s image in the students\u2019 and the public\u2019s eyes and her career given that her work was used to illustrate the alleged \u201cmud which wraps up … [the system of] education\u201d.<\/p>\n

11. Even assuming that her campaign had sought only to fix certain alleged irregularities, the applicant should have foreseen that the means used would affect the inspector\u2019s reputation. The penalty imposed could not breach Article 10 of the Convention given that the defamatory statements\u2019 subject \u2013 namely the rules for organising the communications session, the design of the diplomas and the test subjects for the Olympiad \u2013 could not be considered of general interest.<\/p>\n

12. In her appeal against the judgment the applicant argued that her statements\u2019 subject had been of general interest and that the District Court had ignored the evidence and had failed to provide sufficient reasons for its judgment.<\/p>\n

13. On 3 April 2014 the Bistri\u0163a-N\u0103s\u0103ud County Court dismissed the appeal and awarded the inspector RON 1,200 (EUR 267) in respect of costs and expenses. Reiterating the statements and actions noted by the District Court (paragraphs 5-8 above), the court considered that the applicant\u2019s actions had constituted a defamatory campaign against the inspector and that the District Court had assessed the evidence correctly. Each of the competitions\u2019 organisation, albeit not meeting the highest standards as per the applicant\u2019s wishes, had complied with the applicable rules and the replies to her petitions had had to follow a certain administrative path.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n

14. The applicant complained that the courts had failed to provide relevant and sufficient reasons for their decisions and had therefore violated her right to freedom of expression.<\/p>\n

15. The complaint is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7\u00a03 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

16. The Court notes that the courts\u2019 sentence constituted an interference with the applicant\u2019s right to freedom of expression. The interference was lawful and served the protection of the rights and reputation of the inspector. The issue is, therefore, whether it had been \u201cnecessary in a democratic society\u201d.<\/p>\n

17. The Court reiterates the general principles for assessing the necessity of an interference with the exercise of freedom of expression in the interest of the \u201cprotection of the reputation or rights of others\u201d (see Axel Springer AG v.\u00a0Germany [GC], no. 39954\/08, \u00a7\u00a7 78-95, 7 February 2012), including in circumstances involving civil servants or teachers in particular (Mam\u00e8re v.\u00a0France, no. 12697\/03, \u00a7 27, ECHR 2006\u2011XIII; Ferihumer v. Austria, no.\u00a030547\/03, \u00a7 24, 1 February 2007; Fedchenko v. Russia (no. 2), no.\u00a048195\/06, \u00a7 35, 11 February 2010; Mahi v. Belgium\u00a0(dec.), no.\u00a057462\/19, \u00a7\u00a7\u00a030-32, 7\u00a0July 2020; and Balaskas v. Greece, no. 73087\/17, \u00a7\u00a7 36-39, 42, 47\u201148, 56 and 61, 5 November 2020).<\/p>\n

18. The applicant\u2019s statements in issue concerned matters connected to the organisation of public competitions for high-school students and the performance of a public official\u2019s duties. They ultimately sought to raise awareness about deficiencies in the education system and the conduct of the highest local public officials responsible for this field. These statements, albeit attaining the requisite level of seriousness capable of undermining the inspector\u2019s rights under Article 8 of the Convention, concerned therefore a subject of general interest (see Fedchenko, cited above, \u00a7\u00a7\u00a036 and 56). Nevertheless, the national courts construed the applicant\u2019s statements rather narrowly and did not regard the issues raised by her as contributing to a subject of general interest.<\/p>\n

19. It is true that the applicant was bound by special duties and responsibilities incumbent on teachers, applicable also to a certain extent to her activities outside of school, and that as a public servant the inspector enjoyed certain protection as far as the limits of acceptable criticism were concerned.<\/p>\n

20. Nonetheless, the applicant\u2019s media actions were accompanied by or followed apparent unsuccessful attempts of bringing the aspects she considered deficient in the competitions\u2019 organisation to the inspector\u2019s or the inspectorate\u2019s attention and sought to criticise these deficiencies and to bring about some change. It is not in dispute between the parties that the inspector played an important role in the organisation of the competitions and that she had received media attention in connection with the performance of her duties before these events.<\/p>\n

21. The Court reiterates that effective criticism is impossible without reference to specific persons and that having agreed to hold that office, the inspector must have been prepared to tolerate a significant amount of public criticism (see Fedchenko, cited above, \u00a7 59) and therefore show a correspondingly high degree of tolerance.<\/p>\n

22. The courts did not explicitly address these points (see paragraphs\u00a019-21 above) or consider the extent to which the protection which could be afforded to the applicant or the inspector was influenced by their capacity as public servants and their prior conduct.<\/p>\n

23. Moreover, even though the courts considered the impugned statements unfounded given the available evidence, they failed to consider whether they were value judgments or statements of fact. Such an approach is incompatible in itself with the principles emerging from Article 10 (see Gheorghe-Florin Popescu v. Romania, no. 79671\/13, \u00a7 32, 12 January 2021).<\/p>\n

24. Even if viewed as a combination of value judgments and statements of fact, the Court notes that the statements were made in circumstances where some petitions filed by the applicant with the inspectorate were well-founded, the inspector had acknowledged using the design of the diplomas prepared by the applicant without any warning or acknowledgement given to her and that the test subject of the local Olympiad was identical to the one prepared by different examiners in another county.<\/p>\n

25. The Court therefore cannot accept that the impugned statements were made frivolously or lacking a sufficient factual basis. Albeit perhaps polemical, in the absence of manifestly insulting language in the remarks made therein, the statements remained within the limits of admissible exaggeration or even provocations afforded to any individual who takes part in a public debate of general concern (see Mam\u00e8re, cited above, \u00a7 25, and Makraduli v. the former Yugoslav Republic of Macedonia, nos. 64659\/11 and\u00a024133\/13, \u00a7 79, 19 July 2018).<\/p>\n

26. Absent of details provided by the courts in this connection, the Court cannot discern any specific negative impact or effects the applicant\u2019s media actions had for the inspector\u2019s professional life. Assuming that they had some effect, the Court seriously doubts that these effects were sufficiently serious to override the public\u2019s interest in receiving the information in question.<\/p>\n

27. Given the chilling effect that a fear of sanction may have on the exercise of freedom of expression (see Wille v. Liechtenstein [GC], no.\u00a028396\/95, \u00a7 50, ECHR 1999-VII, and\u00a0Nikula v.\u00a0Finland, no.\u00a031611\/96, \u00a7\u00a054, ECHR 2002-II), and that the applicant proved that the penalty imposed on her exceeded her monthly income, the Court is of the view that this penalty was capable of having a dissuasive effect on the exercise of her right to freedom of expression (see\u00a0Lombardo and Others v. Malta, no.\u00a07333\/06, \u00a7\u00a061, 24\u00a0April 2007, and\u00a0Ghiulfer Predescu v.\u00a0Romania, no.\u00a029751\/09, \u00a7\u00a061, 27\u00a0June 2017).<\/p>\n

28. In the light of the above considerations, in particular the fact that the domestic courts did not duly weigh the interests at stake in accordance with the criteria established in its case-law, the Court finds that the interference with the applicant\u2019s right to freedom of expression was not \u201cnecessary in a democratic society\u201d.<\/p>\n

29. There has accordingly been a violation of Article 10 of the Convention.<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

30. The applicant claimed RON 7,100 (EUR 1,492) in respect of pecuniary damage (amount she allegedly had to pay, directly or indirectly, following the judgment of 3 April 2014) and EUR 4,000 in respect of costs incurred before the Court. She left the amount in respect of non-pecuniary damage to the Court\u2019s discretion.<\/p>\n

31. The Government argued that the amounts claimed by the applicant in respect of pecuniary damage and costs and expenses were unsubstantiated. In addition, the mere finding of a violation would constitute sufficient just satisfaction in respect of non-pecuniary damages.<\/p>\n

32. The Court notes a clear link between the sentence imposed on the applicant and the amount claimed in respect of pecuniary damage. Having regard to the available evidence, finds it reasonable to award the applicant EUR\u00a01,000, plus any tax that may be chargeable, in this respect. As to the claim in respect of non-pecuniary damage, the mere finding of a violation is insufficient to compensate for the frustration the applicant must have felt because of the sentence imposed on her. The Court therefore awards the applicant EUR\u00a07,500, plus any tax that may be chargeable, in this respect. It also considers it reasonable to award her EUR 500 covering costs for the proceedings before the Court, plus any tax that may be chargeable.<\/p>\n

33. The Court further 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the application admissible;<\/p>\n

2. Holds that there has been a violation of Article 10 of the Convention;<\/p>\n

3. Holds<\/p>\n

(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:<\/p>\n

(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;<\/p>\n

(ii) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(iii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n

(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;<\/p>\n

4. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 1 March 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Ilse Freiwirth \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Gabriele Kucsko-Stadlmayer
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

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FOURTH SECTION CASE OF RUSU v. ROMANIA (Application no. 68373\/14) JUDGMENT STRASBOURG 1 March 2022 This judgment is final but it may be subject to editorial revision. In the case of Rusu v. Romania, The European Court of Human Rights…<\/p>\n

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