Romania, Judecătoria Brăila (County Court), decision no. 6635/10.11.2016

Member State
Romania
Topic
Freedom of expression
Sector
Freedom of Expression and Association; Role of Lawyers
Deciding Court Original Language
Judecătoria Brăila
Deciding Court English translation
County Court
Registration N
N/A
Date Decision
10/11/2016
ECLI (if available)
N/A
National Follow Up Of (when relevant)
N/A
EU legal sources and CJEU jurisprudence
N/A
ECtHR Jurisprudence

ECHR (art. 10, art. 8)

ECtHR judgments:  Nikula v. Finland (21.03.2002); Handyside v. United Kingdom (07.12.1976); Cumpănă and Mazăre v. Romania (17.12.2004); Barb v. Romania (07.10.2008); Sabou and Pîrcălab v. Romania (28.09.2004); Sunday Times v. United Kingdom (26.04.1979); Bladet Tromso and Stensaas v. Norway (20.05.1999); Radio France et alii v. France (30.03.2004)

Subject Matter
Freedom of expressions of lawyers - damages – disciplinary procedure – article 10 ECHR
Legal issue(s)
The case addresses the freedom of expression of lawyers in the judicial process. In particular the case illustrates that while this right is not absolute and lawyers must respect the dignity of others parties involved in the process, their contextual role is to inform the Court of relevant aspects for the case and the information they offer may not be interpreted as an expression of bad faith or as an intention to damage someone’s reputation.
Request for expedited/PPU procedures
NO
Interim Relief
N/A
National Law Sources
Romanian Constitution (art. 30)
Romanian Civil Code of 2009 (art. 252, art. 254 (4), art. 1349, art. 1357)
Law no. 51/1995 regarding the organization of the profession for lawyers
Facts of the case
Facts of the case

On 22.04.2016, P.F. brought charges against I.R., a lawyer practising in Brăila Bar, and asked the Court for moral damages based on a violation of his right to dignity.   

In fact, the respondent I.R. had represented the plaintiff’s former wife in another trial initiated by the same plaintiff. In that previous trial, while acting as a lawyer, the respondent said during the oral proceedings that “there were proofs showing that the plaintiff had assaulted his former wife and that the latter informed the lawyer about a psychological expertise of the plaintiff, showing that he had been diagnosed with paranoia”. 

The plaintiff accused the respondent of having invented the proofs of physical violence against his former wife and said that the affirmation regarding the diagnostic of paranoia caused him serious moral damage. Moreover, the plaintiff considered as slightly possible for the lawyer to have heard about such expertise from his previous wife, since it did not exist as a matter of fact. The plaintiff argued that he suffered enormously because of the gratuitous and profoundly unjust remarks of the lawyer and considered that the lawyer would have been under the obligation to check the existence of the document he invoked.   

The respondent argued that during the oral hearings in the court were only the parties and no other public. During the hearings, the respondent pleaded according to the information she had been told by her client, the plaintiff’s former wife, without intending to denigrate the plaintiff. Moreover, the responded told the court that such information had been communicated by the former wife and had not been registered in the file as actual documents. 

According to the respondent, should the Court accept the plaintiff’s claim, it would violate art. 10 of the ECHR and her freedom of expression. She mentioned that she had not known previously neither the plaintiff, nor his former wife, and that her pleading could not be considered as intentionally meant to hurt the plaintiff. 

Moreover, the respondent argued that the plaintiff’s requests stigmatized the institution of defence and were therefore contrary to Law no. 51/1995 regarding the organization of the profession for lawyers which clearly institutes disciplinary proceedings as the legal mean to investigate any misconduct attributed to a lawyer; according to law, such alleged misconduct would be investigated by competent authorities within the profession.  

The respondent further mentioned that in a due process of law, the lawyer should be allowed to show to the Court any aspect that might be in his client’s advantage, without having to fear potential sanctions. 

Therefore, the responded asked the Court to dismiss the case, based on the provisions of Law no. 51/1995, based on the EU Deontological code for lawyers and ECHR’s Decision from 21.03.2002, in case Nikula v. Finland
Reasoning (role of the Charter or other EU, ECHR related legal basis)
Legal reasoning

The Court noticed that the proceedings in the current case aimed at obtaining a pecuniary award for moral damage and not at imposing disciplinary sanctions; therefore, they are distinct from any procedures that the plaintiff might start separately, within the respondent’s profession, according to Law. no. 51/1995. Since the plaintiff is entitled to any or both procedures, the Court considered the case admissible and went on to evaluate the merits of the case. 

The Court analysed the case based on the Romanian Civil Code (mainly on provisions regarding the protection of human personality and responsibility for damages), on art. 30 of the Romanian Constitution (freedom of expression), on art. 10 of the ECHR and on the ECHR’s case-law. 

The Court analysed the alleged illicit act in conjunction with freedom of expression, as protected by art. 10 of the ECHR. While acknowledging the fundamental importance of freedom of expression in a democratic society, the ECHR does not consider it an absolute right. It can be restricted when it goes against values that the State is entitled to defend or against democracy itself. Any restrictions of freedom of expression are contrary to the Convention if they do not meet the three cumulative conditions set out in paragraph 2 of art. 10: a) to be provided by law; b) to pursue at least one of the legitimate aims indicated by the Convention; c) to be necessary in a democratic society. Moreover, the law allowing for restrictions on freedom of expression should be accessible and predictable, the restriction should follow a stringent social need, the arguments of the national authorities in favour of such restrictions should be pertinent and sufficient, and the restriction itself should be proportional to the legitimate aims pursued. Therefore, a just balance should be struck between the protection of freedom of expression and the interest of the person alleging against it in a particular case. 

The context related to the actual exercise of freedom of expression is equally important for identifying the limits of such right. The ECHR stresses the importance of assessing all the circumstances surrounding the affirmations. Therefore, the justifiable character of any restriction to freedom of expression must take into account all the factual elements and relevant criteria set out in the ECHR’s case-law. 

Accordingly, the relation between art. 8 and art. 10 leads to the necessity of fair balance between the protection of freedom of expression and the protection of a person’s right to reputation, as an element of private life.

In the current case, the Court noted that the respondent owned her words addressed to the court, in the presence of the plaintiff and his former wife. The respondent’s words were not judgements of value, meaning that they did not express her personal opinion on the plaintiff’s persona or behaviour, and as such they are not protected by art. 10 of the ECHR. 

As to the lawyer’s affirmations regarding the plaintiff’s paranoia diagnosis, the Court noted that the lawyer expressly mentioned during her pleading that she had found out about the existence of a psychological report from the plaintiff’s wife. Therefore, the lawyer did not affirm at any point that she knew in a direct way about the existence of such report and about the diagnostic. Moreover, the lawyer made those affirmation while the case was being heard in private chamber, and not in public hearings; the only persons present during the proceedings were the judge, the bailiff, the parties and their representatives.

The allegations regarding the plaintiff’s physical violence against his former wife, the Court noted that they were sufficiently supported by evidence from other previous cases that involved the plaintiff and his former wife. 

Therefore, the Court considered that the respondent’s words during the oral hearing in private chamber did not violate in any way the plaintiff’s right to dignity, protected by art. 72 of the Civil Code. The respondent’s words did not go beyond an informative character and they do not amount to an illegal act. Moreover, there are no clues as to any bad faith of the respondent in this case and nothing indicates that he acted with the intention of insulting the plaintiff.  

For all these reasons, the court rejected the plaintiff’s claims. 
Relation of the case to the EU Charter
N/A
Relation between the EU Charter and ECHR
N/A
Use of Judicial Interaction technique(s)
consistent interpretation
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
N/A
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
The Romanian Court refers to the ECtHR case law on article 10 of the ECHR in order to interpret the meaning of the freedom of expression of lawyers. In this regard, the Court illustrates the importance of the ECHR at the national level. As the Strasbourg Court had previously recognized, the Romanian Court established this right is not absolute and lawyers must respect the dignity of others parties involved in the process. However, the freedom of expression has to be interpreted contextual and lawyers’ role is to inform the courts of relevant aspects for the case; therefore the information they offer may not be interpreted as an expression of bad faith or as an intention to damage someone’s reputation.
Strategic use of judicial interaction technique (purpose aimed by the national court)
N/A
Impact on Legislation / Policy
N/A
Notes on the national implementation of the preliminary ruling by the referring court
N/A
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
N/A
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
N/A
Did the national court take into account national case law on fundamental rights?
N/A
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
N/A
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
N/A
Impact on national case law from the same Member State or other Member States
N/A
Connected national caselaw / templates
N/A
(Link to) full text
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Author
Diana Botău, Babeș-Bolyai University
 
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