Submission before the Committee of Ministers on the implementation of general measures in respect to the cases of Ciorhan v. Romania (repetitive case) and Ghiulfer Predescu v. Romania (leading case)
Date: 16/09/2020
Submission before the Committee of Ministers on the implementation of general measures in respect to the cases of Ciorhan v. Romania (repetitive case) and Ghiulfer Predescu v. Romania (leading case)
The cases of Ciorhan v. Romania (No. 49379/13) and Ghiulfer Predescu v. Romania (No. 29751/09), placed under enhanced supervision before the Committee of Ministers of the Council of Europe, concern the unjustified State’s interference with the right to freedom of expression.
In each of these cases, Romania submitted an action report in relation to the individual and general measures taken in which the Government concluded that there is no problem with the national legislation regarding freedom of expression and therefore there is no need for any change.[1] Moreover, it stated “the lack of appropriate justification from the judges of the sanctions imposed and the failure to ensure a fair balance between relevant rights that were considered as excessive by the European Court in the case at hand.”[2]
Through the present submission APADOR-CH would like to provide the Committee of Ministers with additional information on this issue.
APADOR-CH considers that there is a need for more predictable provisions regarding the human rights restriction, the freedom of expression in this case. For this reason, more concrete limits/criteria should be provided.
First of all, it is necessary to amend the legislation in the sense that it provides criteria or limits for assessing whether restriction of freedom of expression is necessary in a democratic society.
Currently, there are no criteria or methods to determine whether restricting freedom of expression in one case was necessary in a democratic society. Thus, the decisions of the courts in this field are subject to unpredictability in terms of establishing the circumstance that gave rise to the prejudice. The Civil Code provides in a general way the restriction limits of the rights regarding the privacy and dignity of the human person (that includes freedom of expression) without offering concrete criteria.[3] In other words, the courts must take into account the international provisions, but this obligation for the courts exists anyway, despite the Civil Code provision. Therefore, it is necessary to provide concrete criteria regarding the proportionality test that should be carried out by the domestic courts whenever they have a case that violates a human right or freedom.
Secondly, there must be more precise criteria for establishing the quantum of damages.
According to the current legislation, there is an absolute free will of the judge when establishing the moral damages. A court is not obliged to take into account the previous decisions of another domestic court regarding the reasonable amount of damages awarded in similar cases. Each judge may award any damages he considers as there are no objective criteria or any limit for establishing the compensation in a certain case. This lack of legislation has a very strong inhibitory effect on freedom of expression, because the author of statements on controversial topics of public interest is exposed to a total unknown / unpredictability regarding the amount of damages to which he could be obliged to.
The provisions of the Civil Code regarding the establishment of damages do not set concrete criteria.[4] The court must have a margin of appreciation, but the limits within this margin must be clearly set. Thus, the Civil Code must provide more precise criteria regarding the amount of damages.
APADOR-CH recommends that a possible solution would be capping the moral damages at a number of average salaries per economy with the possibility of exceeding it only in exceptional cases, e.g. when the author is of obvious bad faith and has acted repeatedly.
Another solution could be providing into legislation of criteria imported from the doctrine and jurisprudence for assessing the gravity of the moral prejudice and implicitly of the moral damages. This will lead to a standard practice and therefore to predictability of the trials.
Nevertheless, the judge could grant pecuniary moral damage up to a certain amount and after that, if the prejudice is not totally repaired, he could add other means of compensation that are not of a monetary nature (e.g. public apology, public denial, publication of a statement, etc.).
APADOR-CH considers that there is a problem with the quality of the legislation in this field, therefore it recommends that the Ministry of Justice initiate consultations with the Superior Council of Magistracy and the High Court of Cassation and Justice in order to modify / complete the legislation accordingly. It is necessary for this issue to be debated and brought to public attention by the judges in order for the authorities to take action.
In light of the above, APADOR-CH recommends that the Committee of Ministers highlights this issue to the Romanian Government and continues working together in order to find reliable solutions.
[1] Government’s Action Report in the case of Ciorhan v. Romania, p. 2, https://rm.coe.int/09000016809eb7d7
[2] Government’s Action Report in the case of Ghiulfer Predescu v. Romania, p. 3, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016808cb359
[3] Civil Code, Art. 75 – The limits of the rights restriction:
(1) The violations that are allowed by law or by the international human rights conventions and pacts to which Romania is a party do not constitute a violation of the rights provided in this section (the respect for the privacy and dignity of the human person).
(2) The exercise of constitutional rights and freedoms in good faith and in compliance with the international pacts and conventions to which Romania is a party does not constitute a violation of the rights provided in this section.
[4] Civil Code, art. 253 – Means of defense:
(1) The person whose non-patrimonial rights have been violated or threatened may request at any time the court:
- a) the prohibition of committing the illicit deed, if it is imminent;
- b) cessation of the violation and prohibition for the future, if it still lasts;
- c) the ascertainment of the illicit character of the committed deed, if the produced disturbance subsists.
(2) By exception from the provisions of par. (1), in case of violation of non-patrimonial rights by exercising the right to free expression, the court may order only the measures provided in par. (1) b) and c).
(3) At the same time, the person who has suffered a violation of such rights may request the court to oblige the perpetrator to perform any measures deemed necessary by the court to reach the restoration of the violated right, such as:
- a) obliging the author, at his expense, to publish the conviction decision;
- b) any other measures necessary for the cessation of the illicit deed or for the reparation of the damage caused.
(4) Also, the plaintiff may request compensations or, as the case may be, a patrimonial reparation for the damage, even non-patrimonial, if the damage is imputable to the author of the prejudicial deed. In these cases, the right of action is subject to the extinctive prescription.
Civil Code, Art. 255 – Provisional measures:
(1) If the person who considers himself damaged makes credible proof that his non-patrimonial rights are the object of an illicit, current or imminent action and that this action risks causing him a damage difficult to repair, he can ask the court to take provisional measures.
(2) The court may order in particular:
- a) prohibition of the violation or its temporary cessation;
- b) taking the necessary measures to ensure the preservation of evidence.
(3) In case of damages brought by the written or audiovisual media, the court may not order the cessation, provisionally, of the prejudicial action unless the damages caused to the plaintiff are serious, if the action is not obviously justified, according to art. 75, and if the measure taken by the court does not appear to be disproportionate in relation to the damages caused. The provisions of art. 253 para. (2) remain applicable.
(4) The court shall resolve the request according to the provisions regarding the presidential ordinance, which shall be applied accordingly. If the request is made before the introduction of the substantive action, the decision by which the provisional measure was ordered will also set the term in which the action on the merits must be introduced, under the sanction of legal cessation of that measure. The provisions of par. (6) are applicable.
(5) If the measures taken are likely to cause harm to the adverse party, the court may oblige the plaintiff to provide a bail in the amount set by it, under penalty of cessation of the measure ordered.
(6) The measures taken according to this article prior to the introduction of the lawsuit for the defense of the infringed non-patrimonial right shall cease by right, if the plaintiff has not notified the court within the term set by it, but not later than 30 days after the taken measures.
(7) The claimant is obliged to repair, at the request of the interested party, the damage caused by the provisional measures taken, if the substantive action is rejected as unfounded. However, if the plaintiff was not at fault or had a slight fault, the court, in relation to the actual circumstances, may either refuse to oblige him to pay the damages claimed by the adverse party, or order their reduction.
(8) If the adverse party does not request damages, the court will order the release of the bail, at the request of the plaintiff, by decision given with the summoning of the parties. The application shall be judged in accordance with the provisions of the Presidential Ordinance, which shall apply accordingly. If the defendant opposes the release of the bail, the court will set a deadline for filing the action, which may not be longer than 30 days from the date of the decision, under penalty of cessation of the measure of bail unavailability.