Political criticism for the incompatibility as a Member of Parliament and a lawyer. Sentencing for defamation violated the freedom of expression.


Macovei v. Romania 28.07.2020 (no. 53028/14)

see here


The case concerned the applicant being found liable for defaming another politician.

The Court found in particular that the applicant’s statements, whereby she had called the other
politician’s combination of work as a lawyer and as a member of parliament an example of
corruption, had been a mix of value judgment and statement of fact.

She had not intended to make a gratuitous attack on the other politician, who had won a defamation
case against her, but had used her statement to make a general point about corruption in the
context of her support for a law to prevent people working as lawyers and members of parliament at
the same time.

The appeal courts, which had overturned a first-instance judgment rejecting the defamation claim,
had not provided convincing reasons for their conclusions and had not struck a fair balance between
the competing rights at stake. The penalty – damages and an order to pay for the final judgment to
be published in newspapers – had also had a chilling effect on her freedom of expression.


Article 10


The applicant, Monica Luisa Macovei, is a Romanian national who was born in 1959 and lives in
Bucharest (Romania).

On 7 September 2009 two newspapers reported comments by Ms Macovei, a former justice minister
and a member of the European Parliament, about two other politicians.

Speaking at a summer camp of the Democratic Liberal Party to which she belonged, she stated that
two Social Democrat politicians, Chamber of Deputies member V.P. and Senator D.Ş., had in their
work as lawyers signed contracts worth millions of euros with State companies from their
constituencies, which she called a typical act of corruption by political influence.

In one of the articles she also commented that it should not be possible to work as a lawyer and be a
member of parliament at the same time and that a law should be passed to that effect.

In October of that year D.Ş. brought general tort law proceedings, arguing that the applicant’s
remarks had discredited him in the eyes of the public and of his professional and political partners.
In October 2010 the first-instance court rejected his claim, finding that she had been exercising the
right to freedom of expression. On appeal, the Bucharest Court of Appeal upheld the defamation
claim, ordering the applicant to pay damages of about 2,300 euros and to publish the judgment at her own expense in national newspapers.

In November 2013 the High Court of Cassation and Justice dismissed appeals on points of law by the applicant and D.Ş.
It found, among other things, that the applicant had uttered an untruth when she had accused D.Ş.
of corruption in his joint role as lawyer and member of parliament; his reputation had been
damaged; the applicant had overstepped the limits of acceptable criticism, even if politicians had to
accept a higher level of criticism; and it did not consider that the damages awarded against the
applicant would deter her from similar acts, although publishing the judgments would.


The Court considered that the judgment against the applicant had amounted to interference with
her rights under Article 10 and proceeded to examine whether it had been “necessary in a
democratic society”, one of the Convention-compliant reasons for such interference.

Reiterating its case-law, it noted, among other things, that statements could be classed as value
judgments, which were not susceptible of proof, and as statements of facts. As the applicant’s
comments had focussed on D.Ş.’s conduct in his political capacity rather than on his personal life,
the Court found that the authorities had had only limited discretion (“a narrow margin of
appreciation”) when assessing the need for the interference.

It observed that the courts had come to different conclusions: the first-instance court had found that
the applicants’ comments were insinuations, whereas the appeal courts had considered them an
untruthful statement of fact that D.Ş. had acted corruptly as a lawyer and member of parliament.

However, the Court, referring to the limited reasoning by the appeal courts, found that it could not
share their conclusions. It found that the applicant’s statements had been a mix of value judgment
and statement of fact. She had used the two politicians’ conduct as an example of a “typical act of
corruption by political influence”, in the broader context of conflicts of interest, supporting an idea
she had proposed of a law to prevent people combining the role of lawyer and member of

The question was whether there had been a sufficiently accurate and reliable factual basis,
proportionate to the nature and degree of the applicant’s statements and allegations.
On that point, it considered that some of her statements had lacked a sufficient factual basis, such as
the alleged signing by D.Ş. or his law practice of large contracts with State-owned companies in his constituency when he was a lawyer and member of parliament. In fact, no such information could be found in the applicant’s submissions.

However, her statements had been of a collective nature, had concerned both D.Ş. and V.P., and had
illustrated a type of political corruption. They had not intended to accuse the two politicians of
genuine corruption. Furthermore, the available information suggested that V.P. had been both a
member of parliament and an associate of D.Ş.’s law practice when it had signed lucrative
legal-assistance contracts with State-owned companies in V.P.’s constituency.

The Court therefore took the view that the allegations and, in particular, the expressions used, while
perhaps inappropriately strong, could be viewed as polemical and somewhat exaggerated. Given the
circumstances, it found that the statements had not amounted to a gratuitous personal attack on
D.Ş. Indeed, political invective often spilled over into the personal sphere, which was part of the
hazards of politics and the free debate of ideas, which were the guarantees of a democratic society.
The size of the damages and the order to pay for the publication of the final judgment had also been
capable of having a dissuasive effect on her exercise of her right to freedom of expression.

The Court concluded by noting the shortcomings in the appellate courts’ reasoning, their apparent
failure to consider the possible consequence of classifying the applicant’s statements as collective in
nature for the overall context in which they had been made, and the chilling effect of the penalty.
The domestic courts had failed to strike a fair balance between the interests at stake and to establish
a “pressing social need” for protecting D.Ş.’s rights over the applicant’s. The interference with her
rights had not been necessary in a democratic society and there had been a violation of Article 10.

Just satisfaction (Article 41)

The Court held, by five votes to two, that Romania was to pay the applicant 4,505 euros (EUR) in
respect of pecuniary damage, EUR 2,000 in respect of non-pecuniary damage and EUR 3,000 in
respect of costs and expenses.

Separate opinions

Judge Carlo Ranzoni expressed a dissenting opinion joined by Judge Stéphanie Mourou-Vikström.
Judge Stéphanie Mourou-Vikström also expressed a separate dissenting opinion. Judge Krzysztof
Wojtyczek expressed a concurring opinion. These opinions are annexed to the judgment.


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