The Ministry of Justice (MOJ) has submitted for public discussion draft changes to the Civil Procedure Code (CPC), which provide protection against clearly unfounded claims or abusive legal proceedings in civil and commercial cases. These are strategic cases against public participation – SLAPP cases or so-called. slapstick cases, the MOJ announced.
With the changes to the CPC, a new chapter "Proceedings due to the public participation of the defendant" is introduced in the part on special proceedings. The bill clarifies that "public participation" is a statement or activity of a natural or legal person in exercising the right to freedom of expression and freedom of information, to freedom of the arts and science or freedom of assembly and association, as well as related preparatory and supporting actions, on a matter of public interest. It is also described in detail when there is a “matter of public interest“, including when fundamental rights, public health, safety, environment are affected; activities of public figures; signals or public information about corruption; problems raised before legislative, executive, judicial and local authorities, etc.
As a measure for effective protection in “slap cases“, the possibility of terminating the proceedings at an early stage by a decision on the merits is regulated. This will be done at the request of the defendant - most often these are journalists or civil activists, the Ministry of Justice indicates.
The defendant may request that the claim be dismissed as manifestly unfounded due to his public participation. The court shall rule on the request within one week and, if it finds that the claim is manifestly unfounded, it shall give the plaintiff one week to substantiate his claim. If he fails to do so or the claim is nevertheless manifestly unfounded, the court shall issue a decision in a closed session, dismissing the claim on the merits. And the court proceedings shall end.
The other hypothesis is that the claim in the “slap case“ is duly filed and substantiated. Only after initiating the case can the court establish that the proceedings are not aimed at ensuring the protection of violated legal interests and rights, but are conducted to hinder, limit or sanction the defendant precisely because of his public participation.
The draft law lists certain indicators of “slap cases“, such as inequality between the parties; unfoundedness, disproportionality or excessiveness of the claim or part of it; intimidation, harassment or threats by the plaintiff, including through media publications, economic or political pressure; abuse of procedural rights, including delay of proceedings, choice of court and others.
Another feature in connection with the evidence in the “slap cases“ proceedings is the possibility of presenting evidence by persons who are not parties to the proceedings, but have an interest in assisting the defendant's defense. This will be possible for non-profit legal entities that carry out public benefit activities in the field of protection of fundamental rights and freedoms, and may, with the consent of the defendant, submit documents and other evidence in their possession by written request until the conclusion of the first instance court proceedings.
In its final decision, if it rejects the claim, the court will explicitly rule that the case was filed due to the defendant's public participation.
As a special measure against abuse of rights, the rule is introduced that securing a claim in proceedings due to public participation is not allowed if convincing written evidence is not presented. Other special measures are proposed.
A general rule is also proposed – not only for “slap cases“, but when the court has allowed security for the claim (for example, attachment) and has obliged the person in whose favor the security is to pay a guarantee for the defendant's possible damages. When the claim is rejected, the defendant can demand the guarantee not only if he has filed a specific claim for damages, but also if there are expenses in the concluded case - in order to recover them.
The Ministry of Justice will try to help create better rules that do not turn the court into a tool for attacking the media, the acting minister Andrey Yankulov wrote on Facebook at the end of last week. The problem with the so-called strategic cases against public participation (called “slap cases“), as well as with the interim measures on them, is one of the priorities in the work of my team. Deputy Minister Andrey Georgiev is specifically involved in the issue, Yankulov indicated at the time and informed that actions are planned to resolve the problem within the coming weeks.