Article 30 of the Romanian Constitution

"Freedom of expression of thoughts, opinions, or beliefs, and freedom of any creation, by words, in writing, in pictures, by sounds or other means of communication in public are inviolable."

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More than 20 years after having fought to see freedom of expression guaranteed by the Constitution, protesters in Romania are forced to fight for it again, this time in front of the courts. This is caused by an outdated law, which, because of the way authorities apply it, restricts the constitutional right of citizens to freedom of expression. APADOR-CH has tried several times, in the past few years, to initiate the amendment of Law 60/1991.

Mircea Toma, a journalist and activist in the field of freedom of speech, participated in a spontaneous gathering, announced on Facebook, in May 2013, together with several of his colleagues from Active Watch. The rally took place in front of the House of the People (Romanian Parliament), near Izvor Park. It was a short and peaceful protest where people voiced their opinions from behind the building's fence; they had not been received inside, where some committee on industry was carrying out its duty. The protesters dispersed after less than thirty minutes. A month after that, Mr. Toma and several of his fellow protesters received, at home, 500 lei (approx. 110 EUR) fines for having “attended an unauthorized public meeting and having refused to leave when the gendarmes asked them to do so.”

What actually happened

Mr. Toma contested the fine at the court with jurisdiction over Bucharest’s fifth district. He told the presiding judge that he can hardly refer to that event as a “public meeting”; what actually happened was that a group of 15 people, looking rather undecided, happened to stop, for a short period of time, on the sidewalk, next to the fence of the House of the People. Indeed, they were all expressing dissatisfaction toward the fact that the representatives of the people who were members of the Chamber of Deputies’ Commission on Industry were carrying out a closed session.

That was a session where amendments to the Mining Law were discussed, amendments through which private companies were about to get greater powers to compel, without involving the state, individuals to conduct mining projects. This happened in May 2013, before the summer when the “United we save Rosia Montana” movement was born, a movement that brought to the streets thousands of people. All that Mircea found when he showed up at the hastily announced protest was the same handful of people who usually gathered to protest environmental issues.

More numerous and more organized than the protesters, the gendarmes immediately started to "negotiate" the fundamental right to freedom of expression: the protesters were told to move to the sidewalk on the opposite side of the street and to stop displaying banners with slogans. There were no explanations as to what was the difference between the two sidewalks or between protesting with or without banners. Mr. Toma, together with one of his colleagues, took a banner and started crossing the street using the pedestrian crossing next to the Parliament (the side facing Izvor Park).

He doesn’t even remember what the banner said - most probably the message was: "30 MPs are expropriating 21 million Romanians." Two gendarmes came to them and asked for their IDs; their identification data was copied into a small notebook and they were told that what they were doing was called “pivoting,” not “crossing a street,” as the last term is defined by the Road Traffic Regulation.

After a few minutes, the group of protesters scattered; the protest ended as it had started: peacefully. The fines came later. They were challenged in court by Nicoleta Popescu, a lawyer from APADOR-CH. She chose to contest the fines not only on the basis of the right to freedom of expression, but also on the basis of procedural flaws. The procedure established by Law 60/1991 had not been followed; according to it the gendarmes, when they want to disperse protesters, they have to repeatedly visually and audibly instruct them to leave the protest site. The strategy proved to be successful - for now, in Mr. Toma’s case.

The court decided to cancel the fine received by Mircea Toma; however, it did so not on the basis of his constitutional right to peacefully express his dissatisfaction with the work of Parliament, but because the gendarmes did not use a megaphone and light signals to disperse the protesters.

Freedom of expression was mentioned only by the lawyers, and by the witnesses that testified; it looks like it was only used for an "artistic impression"; the court did not consider it in any way in its decision.

"This ruling is NOT a victory for democracy!"

After having his fine annulled because the gendarmes failed to follow procedure, Mr. Toma declared: “This ruling is not a victory for democracy; it is extremely disappointing to see that freedom of expression, which was our substantive argument, was ignored by the court. It is true that [Law 60/1991] was vital for reaching this ruling. The law starts well; Article 1 guarantees the citizens’ freedom of speech. It however continues by imposing several conditions that, according to our experience from the streets, are incompatible with the principles set out at the very start. We must mobilize to change Law 60/1991: we need a law that fully protects the citizen's right to free speech.”

Mr. Toma's case, although not a victory for democracy, remains a fortunate one. Andreea Petrut was not so lucky. She lost her trial with the gendarmerie and is now forced to pay a 2,000 lei (approximately 440 EUR) fine for having exercised her right to freedom of expression.