Open letter against intimidation tactics used against free speech
Dozens of Romanian organisations, citizens and journalists asked the Ministry of Justice to provide those who defend the rights of their communities with genuine protection against existing judicial intimidation.
A group of 30 civil society organisations, citizens and journalists sent an open letter to the Ministry of Justice, requesting that the draft law transposing the Anti-SLAPP Directive extends its scope of application to national cases, not only cross border cases.
Judicial actions aimed at intimidating those who act in the public interest have been taking place for years in Romania. The targets of SLAPPs are ordinary citizens, journalists, legal experts and non-governmental/civic organisations. APADOR-CH has identified three intimidation tactics used against public interest activists and journalists: through SLAPP suits, through the obligation to pay court costs in very high amounts as well as through the initiation of criminal proceedings.
Studies at the European level show that over 90% of SLAPP suits are brought before national courts. Thus, the overwhelming majority are not cross-border cases. In light of these observations, and in order to uphold the principle of equal rights and to refrain from discriminating against individuals who may be intimidated by legal proceedings in national cases, it may be beneficial for Romania to consider extending the scope of the safeguards outlined in the Anti-SLAPP Directive.
The signatories of this letter ask the Ministry of Justice and the Parliament to be invited to all debates that will take place concerning the draft law transposing the Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protection against manifestly unfounded claims or abusive legal proceedings against persons involved in public mobilisation (“Strategic lawsuits against public participation”).
Signatories:
APADOR-CH
Asociația AER Muntenia Sud
Fundatia Eco-Civica
Maxim-Samuilă Aristide, grupul de cetățeni Valea Putnei
Diana Ionescu, avocat coordonator SCA Plopeanu&Ionescu
Grupul Floreasca Civică
Defapt.ro
Asociația Rădăuțiul Civic
Societatea Academică din România
Mihai Goțiu (România Curată)
Asociația MozaiQ LGBT
Centrul de Resurse Juridice
Freedom House România
Miliția Spirituală
Asociația Human Rights Research Centre
Comunitatea Declic
Centrul Independent pentru Dezvoltarea Resurselor de Mediu (CIDRM)
Rețeaua Mining Watch România
Asociația Bankwatch România
CeRe: Centrul de Resurse pentru participare publică
Fundația Greenpeace CEE România
Agent Green
Emilia Șercan, jurnalistă
PressOne
Asociația de Investigații Media în Balcani (BIRN Romania)
Context.ro
Asociația LiderJust
Free Press for Eastern Europe
Fundația pentru Dezvoltarea Societății Civile
Asociația Eurolife
Full text of the letter:
To,
THE ROMANIAN MINISTRY OF JUSTICE
To the attention of political parties in the Romanian Parliament
We are writing to you concerning the transposition into national law of Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protection against manifestly unfounded claims or abusive legal proceedings against persons involved in public mobilisation (“Strategic lawsuits against public participation”).
According to the communicated timetable, by the end of January 2025, the Ministry of Justice will draft the law transposing the Anti-SLAPP Directive.
In this context, we ask you to include in the draft transposition law a provision to the effect that the procedure and safeguards provided for in the Directive (essentially, cases where the purpose of legal action is to intimidate those who raise issues of public interest) should also apply to national civil litigation, not just cross-border civil litigation.
Although the Anti-SLAPP Directive provides that it only applies to cross-border disputes, Article 3(1) expressly provides that the safeguards set out in the Directive are a minimum standard. To this end, each Member State has the right to regulate a higher standard of protection and to extend the application of the safeguards provided by the Directive to national cases. Thus, also for cases where the domicile of the parties is in the same country as the seat of the court (e.g. also for cases that are heard by Romanian courts, where the plaintiff and defendant have their domicile/seat in Romania).
Article 3(1) of the Directive provides:
Member States may introduce or maintain provisions that are more favourable to protect persons engaged in public participation against manifestly unfounded claims or abusive court proceedings against public participation in civil matters, including national provisions that establish more effective procedural safeguards relating to the right to freedom of expression and information.”
It is clear that as long as the safeguards of the Anti-SLAPP Directive are not extended to national cases, freedom of information and expression are not efficiently protected. People involved in public mobilisation actions will continue to be threatened, intimidated, and subjected to pressures specific to SLAPP-type actions in national cases.
According to a study by the Coalition Anti-SLAPP in Europe (CASE), for the period 2010-2022, the vast majority of SLAPPs, around 90.5% of them, are triggered at the national level (parties and courts are in the same country). However, a tiny proportion of SLAPPs, around 9.5%, are cross-border cases (at least one party is not domiciled in the country where the court is located).
This study shows that more than 90% of all civil actions brought to court to intimidate those who raise public interest issues are carried out at a national level, not transnationally, i.e., in litigations where both the parties and the court are in the same country.
In this context, the protection against SLAPP intimidation, speech and public actions raising issues of general interest cannot be truly effective if it is not applied in more than 90% of such actions at a national level. The Directive allows each Member State to extend its guarantees to national civil litigation.
In the case of Romania, it is all the more necessary to extend the safeguards provided by the Directive to national civil litigation, given that the examples below show that there have been several recent cases of intimidation of those who, either as ‘ordinary’ citizens, legal practitioners or organised forms of civil society, have publicly raised and acted on issues of interest to the whole community (actions referred to in the Directive as ‘public mobilisation actions’).
According to the research conducted by APADOR-CH, there are three types actions meant to intimidate:
1.Intimidation through SLAPPs
A few examples:
ONE United Properties S.A vs. Grupul Floreasca Civică and Others litigation
In 2017, a series of lawsuits began when some citizens from the Floreasca neighbourhood challenged the environmental permits issued by the authorities for some constructions belonging to the real estate developer One United Properties S.A. In the lawsuits, two well-known non-governmental organisations – The Save Bucharest Association and Miliția Spirituală – intervened on the side of the citizens, while the beneficiaries of those constructions intervened on the side of the state authorities. In 2022, the citizens lost the lawsuits, and as a result, one NGO – Miliția Spirituală – was dissolved as they could not cover the court fees.
But the real estate developer did not stop there. In 2023, they filed a new lawsuit in which they are seeking €1 million in damages from some of the citizens in the civic group Floreasca Civică and members of the associations that helped them in previous lawsuits. The developer One United Properties S.A. accused the defendants that they made “unfounded claims” against them on social media, that they petitioned the authorities with unfounded accusations, and that they filed several lawsuits against the developer to harass them.
Cristina Vanea, member of the civic group Floreasca Civică:
We suddenly found ourselves sued as natural persons for exercising our constitutional rights, which is extremely serious. One United Properties accused us of harassing state authorities with petitions, organising protests, fundraising to support the lawsuits, teaching citizens impacted by the project how to address the authorities, saying that all these actions are part of <the sphere of civil wrongdoing>. So, in One United Properties’ view, routine actions of civic initiative groups and non-governmental organisations are unlawful, which is why they should be dissolved and citizens harassed, dragged through the courts and thus discouraged from challenging an administrative act, even though the only way to do so is through the courts.”
AER Muntenia vs. Clean Tech International SRL
The air and water of the 50,000 inhabitants of Slobozia and Ciulnița (Ialomița County) have been disputed in court for years after several citizens formed an association to fight Clean Tech, a factory for the neutralisation of animal waste, which the people say pollutes the area and emits an unbearable smell. Dorina Milea, initiator of the Regional Ecological Association AER Muntenia, says that state institutions have not responded to citizens’ appeals. On the contrary, they have issued new permits for the factory. Therefore, the association had to sue the factory to cancel its environmental permit and the environmental agreement for a new production line it was planning. In 2023, Clean Tech also sent a third-party notice to the AER Muntenia Association to jointly oblige its individual members to pay the amount of 20 million euros, representing damages incurred by the company, if the environmental permit challenged by the Association was suspended. Following this request, the litigation was registered in the land registries pertaining to the properties of the association’s members, preventing them from disposing of their own real estate. The trial is ongoing.
Dorina Milea, founding member of AER Muntenia:
I don’t think a 20 million euros claim was ever made in our country. I can’t even convert that into Romanian lei. Especially since this was not filed against an NGO but against us as natural persons. We should also sue them for causing us so much stress. Some members have quit for fear of losing their homes. We all live from our wages. We have already paid for two significant actions and two appeals and will probably pay for more. I’ve had colleagues who were out of work for a few months; you can’t ask them for money for a lawyer. It’s complicated. And all because we want to have clean air”.
Cristina Trăilă vs. Romanian Academic Society (SAR) and Mihai Goțiu (România Curată)
In August 2024, Romanian MEP Cristina Trăilă sued activist Mihai Goțiu and the Romanian Academic Society (SAR) organisation, asking for €10,000 damages and the deletion of several articles Goțiu wrote and published on the România Curată and Libertatea.ro websites. The articles discuss Ms. Trăilă’s work as a lawyer for the Schweighofer timber company, which would be in a moral conflict of interest with her capacity as a Member of Parliament.
Mihai Goțiu:
I think there is a connection between the lawsuit and the fact that Mrs. Trăilă knew that the new Forestry Law would be discussed in the committees of the Chamber of Deputies. This comes exactly at a moment when time and energy should have been involved in the debate in Parliament, not in the lawsuit against her. More than half of my time in the last two months has been spent preparing for the trial, time that could have been spent on other outstanding projects that I had to give up because I ran out of time. So, it is time wasted, on the one hand, and on the other hand, the legitimate fear of the colleagues in the organisation – considering what is happening in the Romanian justice system – the fear that the organisation will be affected by this lawsuit, by blocking some money that would have been used for the ongoing projects.”
Eco-Civica lawsuits
Eco-Civica, one of the country’s oldest heritage, environmental and urban planning organisations, intervenes in lawsuits alongside or on behalf of citizens fighting for their rights against large real estate developers. Thus, the organisation has been involved in over 400 lawsuits and has 43 pending. The damages or legal costs asked in some of these lawsuits rise to tens of thousands of euros. Dan Trifu, the organisation’s president, says that before 2017, Eco-Civica managed to win over 70% of the lawsuits it was involved in, but in recent years, it barely won 50%, even though the cases are much more straightforward. The damages sought against Eco-Civica in such lawsuits are burdensome. For example, in a lawsuit against a real estate developer which started in 1998 to save 20 hectares of land in the Tineretului Park in Bucharest, they were asked to pay legal costs of up to 30,000 euros. In another lawsuit, with a developer building on the edge of the Văcărești Delta in Bucharest, they were asked to pay €1,000,000 in damages jointly with the Save Bucharest Association and others (representing the material damage caused to the plaintiff due to the hindrance to the completion of the real estate project), plus legal costs of around €20,000. In the lawsuit to save the reclaimed part of the IOR Park in Bucharest, the area owners are asking Eco-Civica for €50,000 in damages because the organisation’s activists trespassed and entered the retroceded area to document the destruction thereof. The developer, Greenfield Băneasa, also sued Eco-Civica for allegations made in several articles about the real estate development and the access road leading to a residential area, asking for damages of 300,000 lei and deleting the press articles. The latter case was won by Eco-Civica.
Dan Trifu, President of Eco-Civica:
Developers generally work with the most prominent law firms and they are drawing up huge expense bills. Things took a turn for the worse when two other big real estate developers appeared in Bucharest, and these problems arose with the dissolution of NGOs which were unable to cover legal costs. It’s a legislative ambiguity, because since you are an NGO, a non-profit organisation, how can you be dissolved for non-payment, right? These things are at the limit of the law. And we have 3-4 lawsuits on tortious liability as well. In addition to asking us to dissolve our association, they are suing us for tortious liability for damaging their image.”
Ameco Renewable Energy SRL vs. Agent Green
Ameco, a Swiss-owned company based in Joseni, which produces pellets and wood briquettes, has taken the environmental organisation Agent Green to court following an article in the New York Times, which was documented with the help of several members of the environmental organisation, according to Gabriel Păun, founder of Agent Green. The article mentioning Ameco says Romania is sacrificing its primaeval forests for energy. According to Agent Green, Ameco is requesting that the NYT articles be deleted, as well as 200,000 euros in damages from Agent Green and 3 million euros in material damages for the losses incurred as a result of the article being published, and an additional 6,000 euro per day until the NYT article is deleted and issues an apology.
Gabriel Păun, President of Agent Green:
I must admit I’ve never been so stressed out because I’ve also seen who the shareholders behind Ameco are. Some very dangerous people who have a lot of businesses on the planet. It’s scary, it’s a lawsuit that the court shouldn’t have accepted because we had nothing to do with it. It makes no sense. It’s clearly bullying. The organisation is in financial trouble because we have a lot of lawsuits, and the rate of recovery of court costs is less than 1%. We have spent over 1 million euros; all our money for the last 5 years has gone on lawsuits. It’s very serious, this is money we could have done something else with”.
One United Properties SA. vs. Defapt.ro
In April 2024, the media website www.defapt.ro was sued by the company One United Properties, a real estate developer, which asked for three articles to be removed from the site by presidential order. Among them were an investigation into one of the company’s shareholders and two informative articles about the lawsuits in which the company was involved with several NGOs, citizens living in the Floreasca neighbourhood, and residents challenging one of the real estate developer’s projects. Cătălin Prisăcariu, one of the founders of the media site, says that Defapt.ro won the first lawsuit (merits and appeal), but the company One United Properties has opened a second lawsuit, asking for the deletion of the articles and 100,000 euros for image damages that the articles in question have caused. The second trial is still ongoing.
Cătălin Prisăcariu, co-founder of Defapt.ro:
I noticed that they are doing this on an ongoing basis, a couple of other publications are too being sued. What they do is the classic definition of SLAPP- they go straight to court without even trying to settle the matter first, with a rebuttal, etc. They are banking on their financial strength to sustain years of numerous lawsuits when they know very well that publications don’t have the same weapons. Now, I’m waiting to see what the judges’ lottery will have in store for me in this trial. Those at the first trial were obviously unbiased and professional. This lawsuit will probably take several years. But there’s always a risk if we end up having to pay these sums, obviously, as in the case of other NGOs, since there are no such sums in our accounts, they will go against the assets we own, and the most important one is the defapt.ro domain, and so you lose everything you have built.”
Jurgen Faff vs. Context.ro
The investigation website Context.ro has been sued by a businessman from Sibiu, who demanded €3.4 million in damages after a Context.ro investigation revealed that the Romanian state invested €2 million of EU money in a golf course that was never built. After the investigation was published, the National Anticorruption Directorate opened a criminal file to investigate the case but later closed it. Businessman Jurgen Faff claims that one of his companies lost a commercial contract worth more than €3.3 million due to the investigation. Another €100,000 is claimed for “stress caused by journalistic investigations”.
Biro Attila Biro, co-founder and editor-in-chief of Context.ro:
This is a classic SLAPP case, designed to prevent journalists from going after how public funds are spent and to hold those responsible to account for the loss of EU citizens’ hard-earned money. We will continue to work for the benefit of the people and make sure that taxes are appropriately spent and not defrauded.”
BZI.ro vs. Reporter de Iasi
The publication Reporter de Iași has been sued by BZI.ro (Bună ziua Iași) for defamation. The damages claimed amount to €100,000. The lawsuit is not final.
WorldTeach Romania Association vs. Freedom House Romania and PressHUB (presshub.ro)
In 2022, Freedom House Romania, the owner of PressHUB, was sued by the WorldTeach Romania Association for publishing an investigation on the PressHUB website about the existence of a fake centre for victims of human trafficking. The plaintiff claimed 350,000 lei (about €70,000) damages in the lawsuit.
2.Intimidation by claiming disproportionate court costs
Also intimidation actions, similar in purpose to the SLAPP-types, are those whereby citizens or civil society organisations are asked to pay substantial sums of money as legal costs.
A few examples:
Community of Pojorâta vs Suceava County Council
For 17 years, the inhabitants of Valea Putnei – Pojorâta have opposed the construction of a landfill on top of the mountain near the Mestecăniș pass. In the first seven years, the local community has taken numerous steps to get the authorities to stop the landfill being set up a few hundred meters from people’s homes. Neither the petitions nor the articles published in the media nor the citizens’ participation in the local council meetings attracted the attention of the decision-makers, so a handful of local residents mobilised to seek justice in court.
After another ten years of lawsuits (some won, some lost), in which the Suceava County Council spent vast amounts of public money to cover the voices of the protesting citizens, six of the locals who did not give up the fight are now ordered to pay legal costs of about 60,000 euros.
Aristide Maxim, one of the most vocal citizens who opposed the project:
I had the tenacity not to give up. In Romania, justice is optional”.
Popleanu&Ionescu Law Firm vs. Suceava County Council
The law firm has sued the Suceava County Council for the annulment of the zoning urban plan and the building permit issued by the authorities for the Pojorâta landfill. The Suceava County Council allocated funds to pay the law firm that represented it in the lawsuit, amounting to about €70,000, according to public documents accessed by the plaintiff. The action brought by the applicant was dismissed as inadmissible. The Suceava County Council said it will claim the costs separately.
The Bistriței Valley Foundation vs. the Gorj Environmental Protection Agency and Explocarb SRL
Citizens in the commune of Pestișani, Gorj, set-up in a foundation, sued the authorities to cancel the environmental permits granted to a company to build a limestone quarry in the area. After losing the case, the citizens were ordered to pay court costs of around 20,000 lei.
Eco-Civica lawsuits
As mentioned above, the Eco-Civica Organization has been ordered to pay legal costs amounting to 30,000 euros in the lawsuit for the retroceded area of the Tineretului Park, 20,000 euros in the lawsuit with the real estate developer in the area of Deltei Văcărești, 15,000 euro in a lawsuit for the Berceni Greenhouses.
Independent Center for Environmental Resource Development (CIDRM) vs. Deva Gold
In the lawsuit initiated by the CIDRM, as part of the Mining Watch Romania network, against the suspension of the permit for the gold-silver mining project in Certej, the mining company has requested legal costs amounting to 84,000 euros. This amount represents the fees paid by Deva Gold SA to the lawyers representing them. It should be noted that CIDRM is currently involved in litigation seeking the annulment of both the Deva Gold permit and the Roșia Montană mining project permit.
Luminița Dejeu, President of CIDRM:
We have a long history of challenging toxic industrial projects in court. Most of these have been resolved in favour of the organisation I represent and the local communities concerned. In recent years, because of the inconsistent application of the provisions of the Administrative Code, we have been forced, according to the practice of the Cluj courts, to challenge the beneficiaries of the acts issued by the authorities. In this way, the companies concerned use legal costs to deter and punish organisations which act to protect the interests of the general public.”
Agent Green and Bankwatch Romania vs. the Hunedoara Environmental Protection Agency and SC Hidro Clear SRL
In 2021, the plaintiffs requested the annulment of the environmental permit and the dismantling of the hydropower works on the Taia River. In 2017, the Hunedoara Court had already annulled the decision of the classification phase and the environmental permit related to this project. The judgment remained final following the appeal. Following the loss of the new lawsuit in 2023, the plaintiffs were ordered to pay legal costs of approximately 36,000 euros. The Bucharest Court upheld the full amount requested by the defendant
3.Intimidation through criminal complaints
Although the Directive expressly states that it does not apply in criminal matters, there are examples of intimidation, similar in purpose to SLAPPs, where those who raise issues of public interest are threatened with criminal prosecution.
For example, in October 2024, the press reported, based on sources, that the Minister of Energy had filed a criminal complaint against NGOs working to safeguard the environment, natural heritage sites, and fight pollution. The press also reported that the Directorate for the Investigation of Organized Crime and Terrorism (DIICOT) prosecutors have opened a criminal case following this complaint targeting several environmental activists, including Greenpeace. However, there is no official information on the subject as yet. DIICOT refuses to provide information about the existence of this complaint, while the Ministry of Energy and the Minister give contradictory statements and make unfounded accusations against the civil society.
Criminal proceedings meant to intimidate are also initiated against Romanian journalists or publications. According to Context.ro, DIICOT has initiated six criminal files against journalists documenting serious issues in the last 10 years. This demonstrates the prosecutors’ penchant for persecuting reporters who report on corruption or organized crime. In one case, for example, prosecutors determined that a public radio journalist turned whistleblower should be investigated and tried. She had been accused of leaking “secret or non-public information”. Finally, it turned out that it was public information, namely paperwork detailing the costs of business class jet travel of the Public Radio’s president.
Such mechanisms have a real intimidating and discrediting effect on the work of the civil society and journalists, especially when they are non-transparent and involve important state actors such as specialised ministries and prosecutors’ offices.
* * *
In conclusion, we ask you to include in the draft law transposing the Anti-SLAPP Directive a provision that the procedure and safeguards provided in the Directive for SLAPP cases should also apply to national civil litigation, not only to cross-border civil litigation.
We also reiterate our request that the signatories of this open letter be invited to all public debates that will take place concerning the draft law transposing the Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protection against manifestly unfounded claims or abusive legal proceedings against persons involved in public mobilisation (“Strategic lawsuits against public participation”).
Signatories:
APADOR-CH
Asociația AER Muntenia Sud
Fundatia Eco-Civica
Maxim-Samuilă Aristide, grupul de cetățeni Valea Putnei
Diana Ionescu, avocat coordonator SCA Plopeanu&Ionescu
Grupul Floreasca Civică
Defapt.ro
Asociația Rădăuțiul Civic
Societatea Academică din România
Mihai Goțiu (România Curată)
Asociația MozaiQ LGBT
Centrul de Resurse Juridice
Freedom House România
Miliția Spirituală
Asociația Human Rights Research Centre
Comunitatea Declic
Centrul Independent pentru Dezvoltarea Resurselor de Mediu (CIDRM)
Rețeaua Mining Watch România
Asociația Bankwatch România
CeRe: Centrul de Resurse pentru participare publică
Fundația Greenpeace CEE România
Agent Green
Emilia Șercan, jurnalistă
PressOne
Asociația de Investigații Media în Balcani (BIRN Romania)
Context.ro
Asociația LiderJust
Free Press for Eastern Europe
Fundația pentru Dezvoltarea Societății Civile
Asociația Eurolife