Arhiva tag-ul pentru: Rule 9 submission

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DGI Directorate General of Human Rights and Rule of Law

Department for the Execution of Judgments of the ECtHR

F-67075 Strasbourg Cedex

FRANCE

Email : DGI-Execution@coe.int

 

COMMUNICATION

In accordance with Rule 9.2. of the Rules of the Committee of Ministers of the Council of Europe regarding the supervision of the execution of the judgment Ghiulfer Predescu v. Romania case

(application number no. 29751/09, Judgment 27/06/2017)

By APADOR-CH

1. Introduction

This Rule 9.2 submission is made by the Association for the Defense of Human Rights in Romania (APADOR-CH) in accordance with Rule 9.2. of the Rules of the Committee of Ministers of the Council of Europe regarding the general measures required for the implementation of the Ghiulfer Predescu group of cases. The present submission sets out information about recent developments at the national level concerning defamation cases, as well as the applicable legislation.

APADOR-CH is a non-governmental, not-for-profit organization, established in 1990. The organization primarily protects and promotes the civil rights enshrined in the European Convention on Human Rights. It is a key promoter of access to information of public interest, freedom of association and assembly legislation, as well as freedom of expression and right to private life. The organization is also working for the development of efficient legal and institutional mechanisms for respecting human rights and monitoring relevant institutions and the development of practices and institutional mechanisms for increasing transparency and good governance.

2. Case Summary

This case concerns the unjustified interference with the freedom of expression as a result of court decisions delivered in 2008 holding the applicant (a journalist) liable in tort for defamation for statements made on matters of public interest (violations of Article 10). In Ghiulfer Predescu, the European Court held that not only had the interference with the applicant’s freedom of expression not been necessary in a democratic society, but the domestic courts had also failed to convincingly justify how the extremely high amount she had been ordered to pay in compensation was proportionate to the impugned acts. Since the Ghiulfer Predescu judgment was delivered by the Court in 2017, nine more repetitive judgments on the same issue have been handed down by the Court.

III. The need to take into account Council of Europe standards on countering the use of strategic lawsuits against public participation

 

The specific national context of civil defamation proceedings against journalists, activists and regular citizens is marked by an increasing number of Strategic Lawsuits against Public Participation (SLAPPs).

According to the Council of Europe’s Recommendation CM/Rec (2024) on countering the use of strategic lawsuits against public participation (SLAPPs), SLAPPs as legal procedures designed to intimidate or silence critical voices on matters of public interest.^[1] SLAPPs manifest themselves in different ways and various indicators can be used to identify them. Such indicators include, but are not limited to, the exploitation by claimants of an imbalance of power, such as their financial advantage or political or societal influence, to put pressure on the defendant;  the partially or fully unfounded nature of arguments put forward by the claimant are; the disproportionate, excessive or unreasonable of the remedies requested by the claimant are; the fact that the claims amount to abuse of laws or procedures; the engagement of the claimant in procedural and litigation tactics designed to drive up costs for the defendant;  legal action deliberately targeting individuals rather than the organizations responsible for the challenged action; etc. These indicators are present in the majority of the repetitive cases in the Ghiulfer Predescu group, as well as in the examples described in the section below.

The rationale behind the Council of Europe’s Recommendation CM/Rec (2024) relied, inter alia, on the following considerations, which are also highly relevant in the Romanian context:

• The positive obligation of national authorities to ensure a safe and favorable environment for participation in public debate by everyone, without fear, even when their opinions run counter to those defended by official authorities or significant parts of the public;
• The grave concern at the persistence throughout Council of Europe member States of a wide range of intimidation and threats against individuals or organizations acting as public watchdogs, and at the chilling effect that those threats have on public participation;
• The chilling effect on freedom of expression, public debate and public participation caused by legal actions that are threatened, initiated or pursued as a means of harassing or intimidating their target, and which seek to prevent, inhibit, restrict or penalize free expression on matters of public interest and the exercise of rights associated with public participation, which are often referred to as strategic lawsuits against public participation (“SLAPPs”).

Based on these considerations, the Council of Europe, recognizing the urgency of devising comprehensive and effective strategies to counter SLAPPs that further strengthen existing legislative and policy frameworks and practices, recommended that the governments of the member States implement, as a matter of urgency and through all branches of State authorities within their competence, the guidelines set out in the recommendation, in particular regarding structural and procedural safeguards, remedies, transparency, support for targets and victims, education, training, awareness raising as well as capacity building, and pay specific attention to SLAPPs in the context of their reviews of relevant domestic laws, policies and practices. States should also regularly review the status of implementation of this recommendation with a view to enhancing its impact, in particular improving support mechanisms for targets and victims, and inform the Committee of Ministers about the measures taken by member States and other stakeholders, the progress achieved and any remaining shortcomings.

Therefore, Romania should also implement, as a matter of urgency the guidelines set out in the recommendation, in particular regarding structural and procedural safeguards, in order to combat strategic lawsuits against public participation and their chilling effect on freedom of expression, public debate and public participation.

Concretely, according to the Recommendation, measures which states should take for the implementation of this recommendation include necessary legislative or other measures to prevent legal actions that are threatened, initiated or pursued to prevent, inhibit, restrict or penalize the free expression of any legal or natural persons on matters of public interest and the exercise of rights associated with public participation; effective case management measures, namely procedural safeguards that include systems for early dismissal of claims against public participation; security measures for procedural costs and damages; legal and other procedural costs (such as acknowledgement of SLAPP victim status; Capping of damages for the claimant; dissuasive measures; as well as appropriate measures to ensure full transparency and publicity around cases which are found by national judicial and other authorities to constitute SLAPPs, including by providing the possibility for the publication of courts’ findings.

These necessary measures are required in the national context in Romania as well. The silencing of journalists and activists (leading even to closures and indebtment of civil society organizations as a result of SLAPPs) continue to occur in the absence of appropriate safeguards, shrinking civic space in a manner that is contrary to the spirit of the Convention.

While in some cases, superior courts may be able provide an effective remedy to dismiss SLAPPs, this is not the case across the board and it would not be sufficient to ensure the protection of journalists and citizens against such abusive proceedings, in line with the Council of Europe Recommendation. In the absence of further measures and safeguards to protect journalists and critical voices against SLAPPs, as the Recommendation CM/Rec (2024) requires, the core issue identified by the Court in the Ghiulfer Predescu group of judgments persists, creating and prolonging the chilling effect on freedom of expression and public participation.

Therefore, APADOR-CH argues that both the standards of the Recommendation CM/Rec (2024) for countering the use of SLAPPs, as well as the current situation of SLAPPs in Romania should be taken into account for the full and effective implementation of the Ghiulfer Predescu group of judgments and specifically for addressing the core issue identified in these judgments, namely the chilling effect. In the absence of further measures and safeguards to protect journalists and others against SLAPPs, the chilling effect on freedom of expression (and in particular on environmental activism and investigative journalism) would persist beyond the closure of supervision of this judgment.

1. Situation on the ground: persistent chilling effect

Through a final decision by the Suceava Court of Appeals, on 13 June 2024, the applicant, a local civil society activist, was sued by the mayor of her locality and by the mayor’s personal counsellor for critical statements of the locality’s governance and for expressing suspicions of fraud. The judiciary ordered her to pay her moral damages, although she presented elements indicating a factual basis of her statements.[1]

Despite the fact that the applicant has even invoked the relevant ECtHR case law in all levels of jurisdiction, the proportionality test of Articles 10 and 8 was not properly applied, and all levels of jurisdiction considered her statements to be defamatory of the mayor and his personal counsellor. After exhausting domestic remedies, the decision became final (see Annexes 1 and 2).

According to the research conducted by APADOR-CH, there are three types actions meant to intimidate: a) Intimidation through SLAPPs; b) Intimidation by claiming disproportionate court costs; and c) Intimidation through criminal complaints. The examples below will address only cases concerning intimidation through SLAPPs, which falls within the scope of implementation of the Ghiulfer Predescu group. However, Annex 3 contains information against the other two types of actions meant to intimidate, which are relevant for the general context of implementation.

 

 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 neighborhood 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, journalist:

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 requested 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.

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.

Most of these cases are not final.

1. Relevant developments at national level: efforts to enact anti-SLAPP legislation

The EU Anti-SLAPP Directive sets out similar standards as the Council of Europe’s Recommendation CM/Rec (2024) on countering the use of strategic lawsuits against public participation (SLAPPs), but for cross-border lawsuits. The Romanian authorities have the obligation to transpose the EU Anti-SLAPP Directive until 2026, 2025 being entirely dedicated to the legislative process.

In November 2024, in the context of the calendar for the transposition of the EU Anti-SLAPP Directive, APADOR-CH, together with dozens of organizations wrote an open letter to the Ministry of Justice demanding real protections for journalists against SLAPPs^[2].

According to the initially communicated timetable, by the end of January 2025, the Ministry of Justice would subject to public debate a first draft law transposing the Anti-SLAPP Directive. This legislation will be key to the full and effective implementation of the Ghiulfer Predescu judgment, addressing also the root cause of the chilling effect of defamation cases against journalists.

APADOR-CH has requested 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. This would bring the draft legislation in line with the Council of Europe recommendation on countering the use of SLAPPs as well, and it would address the core issue of the problems identified in the Ghiulfer Predescu group.

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 favorable 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.”

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. Journalists, activists and citizens involved in public mobilization actions will continue to be threatened, intimidated, and subjected to pressures specific to SLAPP-type actions in national cases.^[3]

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 organized 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 mobilization actions’).

Currently, roundtable discussions organized by civil society are scheduled at the end of February 2025 to kickstart the discussions between the authorities and civil society on the upcoming Anti-SLAPP draft law, on which the Ministry of Justice is currently working on.

1.      Conclusions and recommendations

Having in mind the general context regarding strategic lawsuits against public participation in Romania, the standards set out by the Council of Europe’s Recommendation CM/Rec (2024) on countering the use of strategic lawsuits against public participation (SLAPPs), and the ongoing work carried out by the national authorities and civil society to prepare an Anti-SLAPP draft law, APADOR-CH considers that ending the supervision of the execution of the Ghiulfer Predescu v. Romania judgment would be premature.

Furthermore, APADOR-CH requests that the Committee of Ministers take into account the standards set out by the Recommendation CM/Rec(2024)2 on countering the use of strategic lawsuits against public participation (SLAPPs)  in the implementation of this judgment.

APADOR-CH also kindly requests the Committee of Ministers to continue monitoring the implementation of the Ghiulfer Predescu judgment, as well as the efforts of national authorities enact anti-SLAPP legislation.

^[2] Open letter against intimidation tactics used against free speech – APADOR-CH

^[3] 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).

[1] Information from Luca Ciubotaru, adviser on constitutional affairs and researcher.