Přehled
Rozhodnutí
FOURTH SECTION
DECISION
Application no. 39685/16
Marin ŢULUŞ
against Romania
The European Court of Human Rights (Fourth Section), sitting on 13 December 2022 as a Committee composed of:
Armen Harutyunyan, President,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 39685/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 August 2016 by a Romanian national, Mr Marin Ţuluş, who was born in 1961 and lives in Valea Mare (“the applicant”). He was granted leave to use the Romanian language and to present his own case in the written proceedings before the Court (respectively, Rules 34 § 3 and 36 § 2 in fine of the Rules of Court);
the decision to give notice of the complaint under Article 10 (right to freedom of expression) to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant is a law graduate claiming to be an attorney. On 29 January 2015 the Slatina District Court (“the District Court”) convicted the applicant of practicing law as an attorney without a licence and sentenced him to a stayed prison sentence. On 19 November 2015 the Craiova Court of Appeal (“Court of Appeal”) quashed the conviction upon an appeal by the applicant. The court found, however, that the facts imputed to the applicant had been proven and fined him (for further details, see Ţuluș v. Romania (dec.) [Committee], no. 23562/13, §§ 4 and 7-8, 17 December 2019).
2. On 6 May 2015 the applicant intended to represent G.P. in a criminal case opened by the latter against other private parties. During a hearing held on the same date in G.P.’s absence, a pre-trial judge attached to the District Court, namely I.P.R., informed the applicant that he could not represent G.P. because he had failed to submit a special authority form authorising him to do so. The judge granted the applicant’s request for an adjournment so that he could submit the required authority form.
3. After the hearing had ended, the applicant submitted a written request to the case-file for I.P.R. to abstain in the case. He alleged that the judge in question (i) had delivered an unlawful conviction against the applicant on 29 January 2015 (see paragraph 1 above), (ii) had benefited of unlawful practices involving the attorney of the accused, (iii) had previously allowed a request by the aforementioned attorney to adjourn the proceedings in G.P.’s case unlawfully, and (iv) had had direct or indirect connections to corrupt political persons, including one of the accused.
4. On 27 May 2015, during a hearing held in chambers in the applicant’s and G.P.’s absence, judge I.P.R. rejected the applicant’s request for his withdrawal from the case and adjourned the proceedings so that the applicant could submit the required authority form.
5. On 2 June 2015 the applicant submitted a second written request to the case-file for I.P.R. to abstain. His submissions included statements such as: “no one trusts any longer in a judge who violated [the applicant’s] right to practice law as an attorney” and “who can still trust in judge [I.P.]R.? We, who were his victims, do not!”. In addition, the applicant reiterated his claim of direct or indirect connections between I.P.R. and corrupt political persons, including one of the accused, and pointed to events which in his view suggested that the judges attached to the District Court were prone to corruption. The applicant’s request was accompanied by excerpts of press articles and third-party comments about those articles, including a photograph of I.P.R. attending the swearing in ceremony of a Slatina mayor, which were meant to give weight to his allegations.
6. On 3 June 2015, during a hearing held in chambers in the applicant’s and G.P.’s absence, judge I.P.R. held that the applicant was not G.P.’s legal representative because he had failed to submit to the court the required authority form, even though the case had been adjourned repeatedly for this purpose. In addition, the judge fined the applicant RON 2,000 (EUR 451) for disrespecting the court on the ground that his written submissions were likely to diminish public confidence in the activity of the judiciary.
7. The applicant challenged the fine. He argued that there were grounds for ill-feelings (motive de dușmănie) between judge I.P.R. and him and that the fine had violated the applicant’s right to freedom of expression.
8. On 2 February 2016 the District Court dismissed the applicant’s challenge. It held that in fining the applicant judge I.P.R. had assessed correctly that the expressions used and the allegations made by the applicant to the effect that the said judge had been involved in corrupt practices could diminish public confidence in the activity of the judiciary.
9. The applicant appealed against the judgment and reiterated the arguments he had raised before the first-instance court (see paragraph 7 above). In addition, he argued that the fine was unlawful, that judge I.P.R. was bias and allegedly collaborated with local corrupt politicians and was not abiding by the rule of law. When referring to the judge the applicant also stated that he could not trust “[his] enemies who had deprived him of his rights”.
10. By a final judgment of 24 March 2016 the Court of Appeal dismissed the applicant’s appeal on the ground that the fine was lawful. It held that the applicant’s statements to the effect that judge I.P.R. had been involved in corrupt practices were indeed disrespectful to the court and could diminish public confidence in the activity of the judiciary as long as the applicant had not proven that I.P.R. had committed a reprehensible act and had been punished criminally, disciplinary or otherwise for one.
11. In his observations to the Court, the applicant alleged that the country’s representatives to the Court, as well as the national judge, were defending a corrupt country and represented a communist political system, the Government Agent was appointed to her post because of her connections not her professional abilities and was unauthorised to represent the country, and the former Government Agent and the Court judges involved in the adjudication of his previous case before the Court (see paragraph 1 above) had behaved dishonestly or had acted with prejudice.
THE COURT’S ASSESSMENT
12. The applicant complained that the fine imposed on him on 3 June 2015 had violated his right to freedom of expression guaranteed by Article 10 of the Convention.
13. In their observations the Government asked the Court to acknowledge that the right of application had to be exercised in good faith and without using vexatious language in view of the remarks made by the applicant about the national judge and the Government Agent (see paragraph 11 above).
14. In so far as the Government’s submissions above could be considered a preliminary objection concerning an abuse of petition by the applicant, the Court finds that it is not necessary to examine this objection since the application is in any event inadmissible for the following reasons.
15. The Court notes that it has acknowledged that a fine imposed on the applicant in similar circumstances constituted an interference with his right to freedom of expression which was lawful and served the protection of the rights and reputation of others and of the authority of the judiciary (see Ţuluș, cited above, § 24). It sees no reason to hold otherwise in the instant case. The issue is, therefore, whether it had been “necessary in a democratic society”.
16. The Court reiterates the general principles for assessing the necessity of an interference with the exercise of freedom of expression in the interest of the “protection of the reputation or rights of others” and of “maintaining the authority of the judiciary (see Morice v. France [GC], no. 29369/10, §§ 124-31, ECHR 2015).
17. The applicant’s statements in issue were prompted by the judge’s refusal to allow the applicant to legally represent G.P. before the District Court in the absence of a special authority form. They were not disseminated to the general public and did not touch on aspects of judge I.P.R.’s private life as such. Nonetheless, the judge’s refusal in question came in the context of the applicant’s lack of legal standing and of G.P.’s absence from the hearings in the case, and of the applicant being member of an association which operated outside the national system of bars and therefore of not being an attorney or licenced to practice law as one (see for example, a contrario, Pais Pires de Lima v. Portugal, no. 70465/12, § 7, 12 February 2019). Moreover, the refusal was prompted by a requirement for a special authority form for representation in such circumstances and was accompanied by repeated opportunities given to the applicant to submit to the court the required form.
18. Given these circumstances, it cannot be said that the applicant’s statements in issue were made with the aim of criticizing the functioning of the judiciary or of drawing the public opinion’s attention to the professional behaviour of judge I.P.R., of conveying a political or “militant” message, or of targeting the possible misconduct of a public servant (see Ţuluș, cited above, § 26, with further references).
19. Indeed, the applicant himself had indicated in his challenge against the fine lodged before the national courts that he viewed judge I.P.R. as his “enemy” (see paragraph 9 above). The applicant’s conduct appears therefore to be part of a personal quarrel, inspired by the animosity the applicant felt towards judge I.P.R. (see Ţuluș, cited above, § 27, with further references).
20. The Court considers in this context that the applicant’s impugned remarks demonstrated a willingness to harm judge I.P.R.’s image and not an intention to start a broader public debate on matters of public interest.
21. As to the consequences of the applicant’s statements, the Court notes that the Court of Appeal found that they were disrespectful to the court and could have diminished public confidence in the activity of the judiciary given that the applicant had not proven that I.P.R. had committed a reprehensible act or had been punished criminally, disciplinary or otherwise. The Court cannot find any strong reasons to substitute its view for that of the last-instance court.
22. As to the nature and severity of the sanction imposed on the applicant, the Court has established that a fine such as the one in question could neither appear on the applicant’s criminal record, nor be replaced by imprisonment in the event of default of payment (see Ţuluș, cited above, § 30). In addition, the impugned sanction appears not to have been the first of its kind imposed on the applicant for a similar type of conduct and that it was significantly milder than the other previous sanctions (see for further details Ţuluș, cited above, § 30). Therefore, the Court takes the view, that in the circumstances of the applicant’s case, the fine in question was not excessive or capable of having a “chilling effect” on the exercise of his freedom of expression.
23. In the light of the above considerations, the Court considers that the fine imposed on the applicant was proportionate to the legitimate aim pursued and that the reasons given by the national courts to justify such a measure were sufficient and relevant. The interference with the applicant’s exercise of his right to freedom of expression could therefore reasonably be regarded as “necessary in a democratic society” in order to protect the reputation of others and to maintain the authority of the judiciary, within the meaning of Article 10 § 2 of the Convention.
24. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 January 2023.
Crina Kaufman Armen Harutyunyan
Acting Deputy Registrar President