AURELIAN OPREA v. ROMANIA - 12138/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 85 (19 January 2016)

In the case of Aurelian Oprea v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Vincent A. De Gaetano,
          Boštjan M. Zupančič,
          Paulo Pinto de Albuquerque,
          Egidijus Kūris,
          Iulia Antoanella Motoc,
          Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 15 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 12138/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Aurelian Oprea (“the applicant”), on 29 February 2008.

2. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs.

3. The applicant alleged that his right to freedom of expression had been breached, in violation of Article 10 of the Convention.

4. On 19 May 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1943 and lives in Bucharest.

A. Background to the case

6. At the relevant time the applicant was a member of the teaching staff, as associate professor (“conferenţiar universitar”), of the University of Agronomical Sciences and Veterinary Medicine (hereafter “the University”), which is a State university.

7. Between 2002 and 2005 the applicant submitted many requests to the education authorities of the University and the Ministry of Education for the creation of a position of full professor in his department. He claimed that he met all the required professional criteria for occupying such a position. On 23 March 2005 the rector informed the applicant that for financial and other objective reasons, a new professor position could not be created.

8. The applicant was also a member of a non-profit organisation called the European Association of University Teaching Staff in Romania (“the Association”). Its general aim was to stop the degradation of education and research standards by making known the abuses, unlawful acts and corruption in education.

B. Newspaper articles about corruption at university level

9. On 8 March 2005, a journalist, S.A., had an article published in the newspaper România liberă entitled “Corruption at university level”. The article stated that intellectual theft and plagiarism had been noted at the University of Agronomical Sciences and Veterinary Medicine. The journalist stated in this connection that O.A.A. had published a book, which was mostly (80%) a copy of another book. She nonetheless enjoyed the status of university lecturer under the protection of the deputy rector, Professor N.C.I., who was also the scientific referent of the book.

10. On 7 June 2005 S.A. had another article published in the same newspaper, entitled “University lecturer ostracised because he denounced university corruption”. The article referred to the applicant, who, having noted that his disclosure about O.A.A.’s plagiarism to the dean and the rector of the University had not been followed up by any measures, had informed the press. Instead of benefiting from the protection provided by Law no. 571/2004 for employees who revealed infringements of the law within public authorities and institutions, the applicant had been invited to a meeting organised by the rector on 14 March 2005 and asked why he had informed the press. On 19 April 2005 another meeting was organised by the deputy rector and the dean of the applicant’s faculty. On the pretext of redistribution of the faculty’s space, they cleared the laboratory used by the applicant for research and practical activities with his students.

C. Press conference of 3 August 2005

11. On 3 August 2005 the Association organised a press conference the main topic of which was corruption at university level. Seven cases of alleged corruption were presented. While other members of the Association referred to the corruption existent in other universities, the applicant, in his capacity as secretary-general of the Association, delivered a speech about corruption in his own university. He referred to the cases of O.A.A., a colleague, and of the deputy rector, N.C.I. The former had published a book called The Chemistry of Wine that according to him was mostly (80%) a copy of another book, Oenology, published in 1994 by another author. The applicant also mentioned that the book had been written under the direct supervision and guidance of N.C.I, who had written a eulogistic foreword to the book.

12. The applicant criticised the way in which N.C.I. had managed the AGRAL programme concerning public funding of scientific research stations; he alleged that N.C.I. had offered funding only to stations from which he could make personal gains.

13. The applicant also stated that N.C.I. was benefiting from a preferential regime because of his past as former secretary of the Romanian Communist Party. According to the applicant, N.C.I. was occupying too many positions to be able to handle them properly: professor at several different universities; deputy rector of the University of Agronomical Sciences and Veterinary Medicine; president of the National Office of Wine and Vineyards; and director of the AGRAL programme for public funding of research stations. He was also the head of the Department of Viticulture and Oenology.

14. The applicant also stated that N.C.I. was involved in sabotaging scientific research and that in the department of Viticulture and Oenology led by N.C.I. there was a mafia-type organisation (“încregătură de tip mafiot”).

15. Most of those statements were repeated in an article entitled “Professor at Piteşti University accused of corruption” published in the weekly newspaper Impact în Argeş of 26-30 September 2005.

D. Joint criminal and civil proceedings against the applicant for defamation

16. On 10 November 2005 N.C.I. lodged a joint criminal and civil complaint against the applicant for defamation. He claimed that the newspaper Impact în Argeş had published an article containing the applicant’s views expressed at a press conference on 3 August 2005.

17. The applicant adduced extensive documentary evidence before the Bucharest District Court. He submitted certificates from different universities at which N.C.I. had taught, the statute of the Association, different documents concerning the AGRAL programme, including the composition of the management of the programme, and a few letters issued by the Odobeşti research station at which O.A.A had performed research activity. He also submitted several newspaper articles containing criticism of N.C.I. and O.A.A.

18. N.C.I. gave a statement before the court on 13 February 2006. He acknowledged that he was cumulatively occupying the positions of deputy rector of the University, president of the National Office of Wine and Vineyards and director of the AGRAL programme for public funding of research stations. He also stated that even before the press conference the applicant had made defamatory statements about him in letters addressed to the rector of the University, the dean of the Faculty of Oenology and the Ministry of Education.

19. On 13 March 2006 the court heard as a witness on behalf of the applicant S.A., one of the journalists who had written articles about the alleged corruption in the University (see paragraphs 9 and 10 above). He stated that he had attended the press conference of 3 August 2005. As regards the applicant’s allegation that N.C.I. was responsible for the incorrect manner in which public money had been allocated for scientific research, the journalist pointed out that on the basis of the documents he had seen on that occasion, such as salary slips and reports, it was clear to him that discriminatory treatment had been applied to the researchers working for the research stations and the University. The very high payments received by certain members of the University staff had convinced the applicant that only research stations which had accepted the teaching staff agreed by the plaintiff obtained public funding. The journalist also referred to the fact that the plaintiff was occupying several teaching positions at different universities. Lastly, the journalist stated that he had based his articles about the University not only on the material presented by the Association but also on documents from other sources, which he could not reveal.

20. By a judgment of 17 April 2006, the Bucharest District Court dismissed the criminal complaint. It held that even though the applicant could not prove the veracity of his statements, one element of the crime of defamation was missing, namely an intent to damage the reputation of N.C.I. It also held that the applicant, convinced by the accuracy of his statements, had only intended to present a case of corruption at university level. The most relevant part of the judgment read as follows:

“In the instant case, the defendant did not prove the accuracy of his statements despite the fact that on 13 February 2006 the court (taking into account that the morality and legality of the education system at university level is obviously a topic of public interest, and the interest of informing the public opinion and the authorities is serious and legitimate in accordance with Article 207 of the Criminal Code and the Court’s case-law - the case of Castells v. Spain[1] and the case of Colombani v. France[2]) had admitted all the evidence proposed on his behalf.

...

Moreover, the documents submitted by the defendant (namely, the foreword of the book signed by the injured party (N.C.I.), copies of the book covers of The Chemistry of Wine and of the original Oenology, chapters from the two books) do not prove that the injured party encouraged plagiarism.

Some resemblance in the form and contents of the two works that could be noted by reading in parallel certain chapters cannot lead to the conclusion that the injured party was liable for not denouncing plagiarism. Such a conclusion would mean that the injured party knew perfectly well the previously published book and that he had made a comparative analysis of both works, noting some inconsistencies which he ignored ...

However, the role of that foreword (and of any foreword in general) is to express a point of view about a work ... and does not represent an objective and critical opinion.”

...

“Moreover, the defendant did not prove that the injured party had blackmailed the research stations ...

The documents submitted by the defendant (copies of the pay slips of March 2005 issued by the Odobeşti research station, the records of the salaries paid by the same research station to several collaborators, and the report of an assessment performed at the research station by an authority of the Agriculture Minister on 20 July 2005) could not lead to the conclusion that the injured party had blackmailed the Odobeşti research station”.

...

“In addition, the defendant’s allegations that the injured party obtained undeserved profit by unlawfully occupying several positions have not been proved to be true, as the injured party acknowledged that he had several sources of income by lawfully occupying several public offices.

As regards the defendant’s allegation about the sabotaging by the injured party of scientific research by damaging different types of hybrids and then selling the greenhouse in which the defendant carried out research was not proved by the adduced evidence.

The minute (“proces-verbal”) signed by the Faculty of Horticulture and a private company proved that the latter rented a building and the adjacent greenhouse, in which no plants were cultivated; moreover the minute was not signed by the injured party.

Under these circumstances, after the examination of all evidence, it cannot be concluded that the defendant has proved, beyond any reasonable doubt, that the aspects stated by him are true.”

21. As regards the applicant’s intent to commit defamation, the first-instance court stated the following:

“The court notes that the defendant’s statements were made in the context of a press conference organised by the European Association of University Teaching Staff (of which the defendant is secretary-general), the main topic of which was the corruption and unlawful acts committed at university level, it being well known that the main object of the Association is the monitoring and disclosure of irregularities in the academic system.

Even though the defendant’s speech was shocking and exaggerated, it should be regarded as part of a topic of public interest - namely, corruption among university teaching staff - and the legislative and moral reform of the teaching system, an objective desired by the whole of society.

It should be noted that before the press conference of 3 August 2005, the newspaper România Liberă had published an article concerning the plagiarism of The Chemistry of Wine, and the Association had drafted a report concerning the situation of teaching in Romania. The report denounced the fact that university teachers were simultaneously teaching at several universities (“cu normă întreagă”) and that teachers, guilty of plagiarism and scientific fraud, were maintained in their positions at universities (a report that should have been known by the defendant in his capacity as secretary-general of the Association). These aspects prove that the topic had been previously published and debated in a public context.

At the same time, another important aspect is the fact that at the conference the defendant submitted several documents, such as: time sheets (“fişe de pontaj”), reports, the foreword written by the injured party for The Chemistry of Wine and copies of the alleged plagiarised book ..., documents which the defendant considered as evidence of the alleged acts.

Notwithstanding that these documents did not directly prove that the injured party had committed the acts of which he had been accused, they formed the basis of the defendant’s intimate conviction that the former was guilty of committing certain irregularities.

In this context, even though it is obvious that the honour and reputation of the injured party were objectively harmed, the court considers that this situation was the result of the speech and not an aim in itself, since the speaker had expressed his viewpoint in his capacity as a member of the Association and not as a private person, with the intention of contributing to informing on a topic of extreme public interest, that of corruption at university level, which had already been known by the press.

Consequently, the court considers that the defendant did not act with intent to gratuitously harm the injured party’s reputation, but with the conviction that he was revealing a corruption case.”

22. The court partially allowed the civil complaint, ordering the applicant to pay compensation for non-pecuniary damage amounting to 3,000 Romanian lei (RON) (approximately 860 euros (EUR)). It held that under the applicable civil law the applicant could be held liable for even the slightest level of fault. Therefore, the applicant was ordered to pay compensation to N.C.I. for the way he had brought to the attention of journalists the information regarding his professional activity.

The relevant passages of the decision read as follows:

“The way in which the defendant brought this information to the journalists’ attention, without clear evidence, convinced them that the presented facts were plausible (see in this respect the statements of witness S.A., as well as the articles published in the daily newspapers Impact de Iaşi and Fortune).

Consequently, the presentation of superficial information, with a high degree of suggestibility, constitutes an illicit act.

...

As regards the defendant’s liability, it must be emphasised that the court’s finding concerning the defendant’s good faith has relevance only in connection with the criminal complaint, given the fact that in order to establish civil liability it is enough for the court to find the slightest level of fault.

It is true that according to the ECHR’s case-law, persons acting as whistleblowers can share information concerning topics of public interest, even if shocking and disturbing; however, they should also take into account the protection of the reputation of others, as provided for by Article 10 § 1 of the Convention (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I).”

23. Appeals on points of law lodged by the parties were allowed. By a decision delivered on 11 November 2006 the Bucharest County Court dismissed the criminal complaint, as a direct consequence of an amendment made to the Criminal Code regarding the decriminalisation of defamation. The civil complaint was left unresolved.

E. Separate civil action for compensation against the applicant

24. On 13 December 2006 Professor N.C.I., brought a separate civil action for compensation against the applicant before the Bucharest Civil Court of First Instance. He claimed that certain remarks made by the applicant on 3 August 2005 and other occasions had constituted an attack on his reputation.

25. The applicant produced extensive testimonial and documentary evidence before the court in order to demonstrate the accuracy of his statements. He adduced copies of the books The Chemistry of Wine and Oenology, and underlined the paragraphs he said had been copied by O.A.A. He also proposed that the court hear statements from individuals working for a certain research station in order to prove that the author of the book The Chemistry of Wine, a “protégée” of N.C.I., was registered as an employee and received a salary from the Odobeşti research station, which benefited from funding granted by N.C.I., without ever turning up to work there. He tried to prove that despite the fact that under the applicable law, a professor does not have the right to teach at more than two universities, N.C.I was a professor at at least three universities.

26. On 2 April 2007 the Bucharest Civil Court of First Instance allowed the action and the sum of RON 20,000 was awarded to N.C.I as compensation for non-pecuniary damage. It held that the applicant was liable for the way in which he had presented the above information concerning N.C.I. to journalists, who were convinced of the accuracy of his information and had published it in newspapers. The court endorsed the reasoning of the Bucharest District Court in its judgment of 17 April 2006 by copying most of the paragraphs from the latter judgment. Thus, it held among other things, that the applicant had not proved that N.C.I. had encouraged plagiarism by writing the foreword for the book The Chemistry of Wine as the role of any foreword is to express a point of view about a work and not to represent a critical opinion. The court also held that the applicant had not proved that N.C.I. had obtained undeserved profit by unlawfully occupying several positions.

The applicant was also ordered to pay N.C.I.’s legal expenses.

27. The applicant lodged an appeal on points of law against that judgment. He claimed that he had submitted enough evidence to prove the accuracy of his statements about N.C.I. He pointed out that the court had turned his statement that “in the department of oenology there is a mafia-type organisation (“încregătură de tip mafiot”) into the statement that N.C.I. “is involved in a mafia-type organisation”. On 30 October 2007 the Bucharest County Court dismissed the appeal, upholding the judgment of the first-instance court. The applicant was ordered to pay the N.C.I.’s legal expenses.

28. On 20 March 2008 the University issued a decision by which it ordered the seizure of one third of the applicant’s monthly salary up to RON 27,877 (approximately EUR 7,470), representing compensation for non-pecuniary damage and the legal expenses awarded to N.C.I. by the domestic courts.

F. Criminal complaints lodged by the Association against O.A.A. for plagiarism

29. On an unspecified date the Association lodged a criminal complaint against O.A.A. accusing her of plagiarism. On 20 March 2007 the prosecutor’s office attached to the Bucharest County Court decided not to institute criminal proceedings against O.A.A. on the grounds that the complaint had not been lodged by the aggrieved party. It noted, however, that a significant part of the two books, The Chemistry of Wine and Oenology, was similar.

30. On 6 May 2009 the Association together with the author of the book Oenology lodged another criminal complaint against O.A.A. They also accused N.C.I. of being an accomplice to O.A.A.’s plagiarism in his capacity as scientific coordinator of the book. On 17 November 2010 the prosecutor’s office attached to Bucharest County Court discontinued the investigation on the grounds that the statutory time-limit for prosecuting the offence of plagiarism had expired.

G. Disciplinary proceedings against the applicant

31. On 3 October 2006 the applicant lodged a complaint against the University’s decision to decrease his salary of April and May 2006 on account of his unjustified absence from work. He claimed that the measure was illegal as timesheets for registering presence at work had not been introduced at the University until June 2006. Moreover, he adduced evidence according to which he had been at work on the days in question. Among other aspects, he pointed out that the actual reason for sanctioning him was his conflict with the management of the University because he had made public that the deputy rector had encouraged plagiarism.

32. By a decision of 26 March 2007 the Bucharest County Court - Department of Labour Litigation - allowed the applicant’s complaint and ordered the University to pay him the amounts withdrawn from his salaries of April and May 2006. The court held that under Article 287 of the Labour Code the burden of proof lay with the applicant’s employer but that it had been unable to produce any legal documents which could prove the applicant’s unjustified absence from work.

33. On 19 June 2006 the University issued a decision by which it applied a disciplinary sanction to the applicant consisting in the suspension, for a period of two years, of his right to apply for a higher teaching position, to obtain a teaching degree or take up a management position. The reasons for the sanction were the following: (i) unjustified absences from several classes and teaching activities; (ii) non-compliance with the teaching curriculum; and (iii) contempt and ignorance of the decisions taken by the management of the faculty and of the department concerning the clearance of a space assigned for setting up a research laboratory.

34. The applicant challenged the decision before the Bucharest County Court.

35. On 25 May 2007 the county court noted that the applicant’s action remained without object as the University had decided to revoke its decision of 19 June 2006.

II. RELEVANT LAW AND PRACTICE

36. Under Article 72 of Law no. 128/1997 concerning the status of teaching staff, as in force at the relevant time, an individual cannot cumulate management positions as rector, deputy rector, dean, deputy dean and head of a department or of a research unit.

37. Law no. 1/2011 on national education contains similar provisions under Article 214.

38. The relevant provisions of the Civil and Criminal Codes concerning defamation and liability for paying damages in force at the material time are described in Stângu and Scutelnicu v. Romania, no. 53899/00, §§ 30-31, 31 January 2006, and Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008.

39. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008).

40. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared the removal from the Criminal Code of the Articles concerning insult and defamation to be unconstitutional.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

41. The applicant complained that his right to freedom of expression had been interfered with, in breach of Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”

A. Admissibility

42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

43. The applicant claimed that he had made the impugned statements at the press conference of 3 August 2005 in his capacity as secretary-general of the Association, and not on his own behalf. In this respect he submitted that as could be noted in its statute, the Association’s main aim was to inform the public and the competent authorities about any infringements of the law and of professional ethics by teaching staff at university level. The main reason for organising the press conference on 3 August 2005 was the Association’s concern about the constant decrease in education standards in Romanian universities. The main issues of concern were the rise in the number of cases of plagiarism and the fact that many university professors were teaching at several universities at the same time and were involved in collateral activities, leaving them insufficient time to prepare and perform their teaching activity properly.

44. The applicant also contended that the press had already brought O.A.A.’s case of plagiarism to the public’s attention before 8 March 2005 and that he had not played any role in those disclosures.

45. According to the applicant, the statements he made at the press conference should be regarded as whistleblowing on illegal and immoral conduct in his department. In this connection, he disputed the Government’s allegation that the main reason which had prompted him to make the impugned statements was his frustration concerning the University’s refusal to create a professorship for him.

46. The applicant submitted that his good faith was proved by the fact that he could have brought the aspects he had revealed to the public’s attention without disclosing his identity; he had not hidden because he was convinced by the truthfulness of his statements.

Moreover, relying on the Romanian Whistleblower Act, the applicant claimed that he benefited from the presumption of good faith, and the domestic authorities had not reversed that presumption.

47. The applicant further referred to the evidence on which he had based his allegations against N.C.I.

Firstly, as regards his allegation that N.C.I. had used his position of manager of AGRAL programmes in his own interest, the applicant pointed out that N.C.I.’s protégée, O.A.A., had been paid significant amounts for her contribution to the programme with the approval of N.C.I. The applicant had submitted documents in support of his allegation before the domestic courts.

Secondly, as regards his allegation that N.C.I. occupied several management positions, which by law could not be held cumulatively, the applicant contended that N.C.I. had acknowledged that he had been head of the Oenology Department since 1992, as well as being deputy rector of the University, director of the AGRAL programme and president of the National Office of Viticulture and Oenology.

Lastly, as regards his allegation that N.C.I. had sabotaged his research activity, the applicant maintained that the greenhouse he had been using for research purposes had been rented to a commercial company. He also pointed out that before renting the greenhouse, the hybrids resulting from his research activity had been removed and thrown away.

48. The Government did not contest that the decision by which the domestic court had ordered the applicant to pay non-pecuniary damage to N.C.I. represented an interference with the applicant’s freedom of expression. They further submitted that the interference was based on Articles 998-999 of the Romanian Civil Code, as in force at the material time. The legitimate aim pursued by the domestic authorities was the protection of the reputation and dignity of others, as provided for by the second paragraph of Article 10 of the Convention.

49. The Government also pointed out that even though the applicant was not a journalist, the impugned press article had reflected views expressed by him at the press conference.

50. In the Government’s view, the aspects disclosed by the applicant about his university department during the press conference did not amount to whistleblowing. The Government considered the applicant’s good faith questionable, and asserted that the real motive behind his disclosure about alleged corruption in the university was his frustration that he had not been promoted to the position of university professor in spite of his repeated requests.

51. The Government also submitted that although the applicant’s victim enjoyed certain fame in his capacity as deputy rector and university professor, he was not a politician or a public figure.

52. Lastly, the Government maintained that the domestic court had based their decisions on sufficient and relevant reasons. As regards the procedural guarantees afforded to the applicant in the proceedings, they pointed out that the applicant had been allowed to adduce extensive documentary and testimonial evidence in support of his allegations.

2. The Court’s assessment

53. It is not disputed between the parties that the final judgment given in the case brought by N.C.I. interfered with the applicant’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention (see paragraph 26). Accordingly, the Court considers that the applicant’s obligation to pay N.C.I. the amount of RON 27,877 (RON 20,000 award and RON 7,877 legal expenses) constituted an interference with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

(a) Whether the interference was prescribed by law and had a legitimate aim

54. The interference in question “was prescribed by law” (Articles 998-999 of the Civil Code, as in force at the material time) and pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.

(b) Whether the interference was necessary in a democratic society

55. In the present case what is in issue is whether the interference was “necessary in a democratic society”.

56. The test of whether the interference was “necessary in a democratic society” requires the Court to determine whether it corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision as regards both the relevant rules and the decisions applying them (see, for example, markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165, and Sosinowska v. Poland, no. 10247/09, § 70, 18 October 2011). The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 41, 21 February 2012).

57. Particular attention must be paid in determining the extent to which interference with the applicant’s freedom of expression was proportionate to the public interest in the disclosed information. In this connection, the Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007-XIV, and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 102, ECHR 2013 (extracts)).

58. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts, but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued”. In doing so, the Court has to satisfy itself that the national authorities, basing their decisions on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV, and Mengi v. Turkey, nos. 13471/05, and 38787/07, § 48, 27 November 2012).

59. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Heinisch v. Germany, no. 28274/08, § 63, ECHR 2011 (extracts)). At the same time, the Court is mindful that employees have a duty of loyalty, reserve and discretion to their employer (Marchenko v. Ukraine, no. 4063/04, § 45, 19 February 2009).

60. In addition, in the exercise of the European supervisory duties, the Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in this type of case, namely on the one hand, freedom of expression protected by Article 10 and, on the other, the right of the person attacked to protect his/her reputation, a right which is protected by Article 8 of the Convention as part of the right to respect for private life (Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 90-91, ECHR 2004-XI).

61. Turning to the circumstances of the present case, the Court notes that the topic of the press conference of 3 August 2005 was corruption in Romanian universities. In this connection, the applicant referred to the shortcomings identified in his own university, a State-financed education establishment. He criticised certain aspects of the professional activity of N.C.I., who occupied positions of great responsibility as deputy rector of the University and head of the Department of Viticulture and Oenology.

62. The applicant claimed that under the supervision and guidance of N.C.I., his colleague, O.A.A., had committed plagiarism. Moreover, the applicant was convinced that O.A.A. had been promoted to the position of assistant professor on the basis of the plagiarised book.

63. The applicant also criticised the way in which N.C.I. had managed the AGRAL programme and the fact that he was occupying several management positions, which, he claimed, by law could not be cumulatively occupied (see paragraph 40 above).

64. The Court also notes that the domestic courts situated the applicant’s remarks in a broader context, namely the debate generated by the public concern about the rise in the number of corruption cases in Romanian universities. They acknowledged that his allegations concerned a topic of public interest, namely the legality and morality of education at university level (see paragraphs 20 and 21 above).

65. In the light of the foregoing, the Court finds that the applicant’s statements concerned important issues in a democratic society, about which the public had a legitimate interest in being informed, particularly given the position of the plaintiff vis-à-vis the institution concerned. The Court considers, therefore, that the applicant’s allegations were of public interest.

66. As regards the accuracy of the applicant’s statements, the Court reiterates that freedom of expression carries with it duties and responsibilities, and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III).

67. In the course of the proceedings against him, the applicant endeavoured to demonstrate that his statements had been well-founded by submitting extensive documentary evidence.

68. Although the domestic courts considered that the applicant had not proved the veracity of his allegations, they noted that he had acted not with the intention of harming N.C.I.’s reputation but with the conviction that he was revealing a case of corruption (see paragraph 21 above).

69. As regards the motives behind his actions, the applicant contended that he had acted as a whistle-blower. The Court does not consider the present case as a whistle-blower case (see, for instance, Rubins v. Latvia, no. 79040/12, § 87, 13 January 2015). However, it appreciates that the applicant’s reasons, as presented by the applicant himself, for the impugned statements are relevant for the assessment of the proportionality of the interference in the applicant’s exercise of his freedom of expression.

70. In this respect the Court notes that while the applicant contended that his main motive for making the statements at the press conference was the concern of the Association, of which he was a member at that time, about the constant decrease in educational standards in Romanian universities, the Government maintained that the real motive for the disclosures he had made was his frustration as a result of not being promoted to the position of university professor.

71. On the basis of the materials before it, and even assuming that the applicant’s frustration as a result of not being promoted to a position of professor might have been an additional motive for his actions, the Court has no reason to doubt that the applicant acted in good faith and in the belief that it was in the public interest to disclose the alleged shortcomings in his University to the public. It considers that even if the applicant allowed himself a certain degree of exaggeration and generalisation, his allegations were not entirely devoid of factual grounds and did not amount to a gratuitous personal attack on N.C.I. and O.A.A.

The Court notes that the applicant informed the rector of the University and the Ministry of Education about the shortcomings perceived by him in the management of the department lead by N.C.I. before disclosing them to the press. As his flagging was not followed up by concrete steps to change the situation, the applicant presented the shortcomings at the press conference of 3 August 2005.

72. The Court will further consider the damage, if any, suffered by N.C.I. as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed.

73. The Court observes that the plaintiff in question, N.C.I., was the deputy rector and head of the Department of Oenology of the University. Therefore, at the time the press conference was organised, he occupied important management positions in a State-financed university. He was thus expected to tolerate a greater degree of public scrutiny than a private individual, even though it may have had a negative impact on his honour and reputation, particularly given the context of the subject matter at issue.

74. The applicant’s criticism of the head of his department concerned his behaviour and attitudes in his capacity as an official, rather than his private life. The Court reiterates in this connection that senior civil servants acting in an official capacity are subject to wider limits of acceptable criticism than private individuals (see Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001-III; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 80, ECHR 2004-XI; Mamère v. France, no. 12697/03, § 27, ECHR 2006-XIII; and Dyundin v. Russia, no. 37406/03, § 26, 14 October 2008).

75. The Court considers that the domestic courts did not convincingly establish that the interference caused any particular harm to N.C.I. personally, or that his career was adversely affected.

76. The Court further reiterates that in assessing whether the interference was proportionate to the legitimate aim pursued, an attentive analysis of the sanction imposed on the applicant and its consequences is required (see Fuentes Bobo v. Spain, no. 39293/98, § 49, 29 February 2000).

77. The applicant was ordered to pay to N.C.I. the amount of RON 27,877 (RON 20,000 compensation for non-pecuniary damage and RON 7,877 legal expenses) (approximately EUR 7,470) on account of the statements he had made at the press conference of 3 August 2005.

78. It is true that the criminal proceedings against the applicant were stopped. However, although the applicant did not specify his monthly income at the relevant time, the Court considers that the civil damages he was ordered to pay to the plaintiff were substantial (see paragraphs 26 and 28 above) when compared with the incomes and resources of academics in Romania.

79. Bearing in mind the importance of the right to freedom of expression on matters of general interest (...) and having weighed up the other different interests involved in the present case - the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression was not “necessary in a democratic society”.

80. There has therefore been a violation of Article 10 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

81. Lastly, the applicant complained under Article 6 § 1 of the Convention that the domestic courts had rejected his request for a financial expert report and had not replied to all his arguments. Under Article 11 of the Convention the applicant claimed that he had been held liable for statements made in his capacity as secretary-general of a non-profit organisation and not as a private individual.

82. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

83. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

84. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, representing the amount he had been ordered to pay N.C.I. in non-pecuniary damages and court fees. The applicant also claimed EUR 10,000 in respect of non-pecuniary damage.

85. The Government considered the claims excessive. In their view, the finding of a violation was sufficient compensation for any damage suffered by the applicant.

86. The Court notes that on 20 March 2008 the University issued a decision by which it ordered the seizure of one third of the applicant’s monthly salary up to RON 27,877 (approximately EUR 7,470) (see paragraph 28 above). It therefore awards him EUR 7,470 in respect of pecuniary damage. On the other hand, it awards the applicant EUR 4,500 in respect of non-pecuniary damage.

B. Costs and expenses

87. The applicant also claimed EUR 3,000 for the costs and expenses incurred in connection with lawyers’ fees and translation expenses before the domestic courts and the Court.

88. The Government contested the claim and pointed out that the applicant had failed to adduce relevant documents to justify all the alleged expenses. They contended that he had submitted evidence which justified the reimbursement of RON 3,035 (approximately EUR 720).

89. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 720 covering costs under all heads for costs and expenses in the domestic proceedings and for the proceedings before the Court.

C. Default interest

90. The Court 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.

FOR THESE REASONS, THE COURT:

1. Declares, unanimously, the complaint under Article 10 of the Convention admissible and the remainder of the application inadmissible;

2. Holds, by six votes to one, that there has been a violation of Article 10 of the Convention;

3. Holds, by six votes to one,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,470 (seven thousand four hundred and seventy euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 720 (seven hundred and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı A. Sajó
Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sajó is annexed to this judgment.

A.S.
F.A.

[1] Castells v. Spain, 23 April 1992, Series A no. 236

[2] Colombani and Others v. France, no. 51279/99, ECHR 2002-V

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You are here: BAILII >> Databases >> European Court of Human Rights >> AURELIAN OPREA v. ROMANIA - 12138/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 85 (19 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/85.html Cite as: [2016] ECHR 85