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FOURTH
SECTION
CASE OF
FLUX AND SAMSON v. MOLDOVA
(Application
no. 28700/03)
JUDGMENT
STRASBOURG
23
October 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Flux and Samson v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28700/03) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan newspaper, Flux (“the
applicant newspaper”) and Ms Aurelia Samson (“the second
applicant”), on 13 May 2003.
- The
applicants were represented by Mr V. Gribincea from “Lawyers
for Human Rights”, a non-governmental organisation based in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent at the time, Mr V. Pârlog.
- The
applicant newspaper alleged, in particular, that its right to freedom
of expression had been violated as a result of judicial decisions in
defamation proceedings brought against it. The second applicant
complained about a violation of her right to reputation, contrary to
Article 8 of the Convention.
- The
application was allocated to the Fourth Section of the Court. On
9 February 2006 the President of the Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- On
13 December 2001 the applicant newspaper published an article based
on a story by Mrs Z. Samson about her daughter (the second
applicant). The article described the second applicant's problems
with her neighbour, G.C., former Minister of Construction.
- G.C. initiated court proceedings claiming damages for
defamation. He did not specify which parts of the article he found to
be defamatory. Before the first-instance court adopted its judgment,
the applicant newspaper published an apology to G.C. at the request
of the second applicant and G.C.
- On
17 October 2002 the Buiucani District Court partly accepted G.C.'s
claim due to the publication of the apology and ordered the newspaper
to publish a retraction on the same page as the original article and
to pay damages and court fees in the total amount of 1,404 Moldovan
lei (MDL), equivalent to 105 euros (EUR).
- The court found that the following “information”
from the article did not “coincide with the truth”:
“a former State official builds himself castles”,
“the neighbours say that he rents them to earn a fortune”,
“the ex-Minister of Construction G.C. decided to get rich off
the back of the misery of others”, “through various
methods he forced the elderly who lived in the same neighbourhood as
[the second applicant] to leave their houses in exchange for paltry
sums of money”, “he told [the second applicant] that he
would achieve his aim at any price” and that “he would
make her life impossible”.
- The article also made the following statements, none
of which was found to be untrue by the courts:
“one of G.C.'s 'attractive little houses' was
built next to [the second applicant's] house” and “towered
above it”; “in order to extend his assets G.C. destroyed
[the second applicant's] shed”; “the fact that [G.C.]
owns three apartments does not mean that he cannot get a fourth”.
The
article also discussed [the second applicant's] lack of faith in the
ability of the justice system to protect her against a much wealthier
neighbour. A picture of the second applicant's and G.C.'s house was
published. The article ended with G.C.'s opinion on the matter which
he had given by phone and a summary of several documents he sent by
fax which suggested that the second applicant had breached some of
her obligations under the law.
- The court found that the repeated mention of G.C.'s
former position as a minister increased the harm caused to him and
found that there was no proof that he had used his former position in
any illegal way.
- On appeal, the applicant newspaper argued that the
statements made were value-judgments not susceptible of proof. It
also complained that the court had taken a proactive approach in
favour of G.C. in identifying of its own motion specific
expressions as defamatory even though G.C. had not singled any out.
Moreover, it pointed out that there had been no reaction to the fact
that Mrs Z. Samson had confirmed in court her statements.
- On
14 January 2003 the Chişinău Regional Court upheld the
judgment, rejecting a number of the newspaper's arguments and finding
that “...the information in the article was a ground for an
eventual proposal for the dismissal of [G.C.]”. The argument
that the article reproduced the opinions of G.C.'s neighbours was
rejected because the newspaper had published them. The court also
assumed that two statements (namely, “he told [the second
applicant] that he would achieve his aim at any price” and that
“he would make her life impossible”) could only have been
made by the second applicant.
- In a further appeal (on 30 January 2003 and 3 March
2003), the applicant newspaper submitted that several of the second
applicant's neighbours had been evicted from their houses, that one
of them was left without a place to live and that G.C. had become the
owner of those houses. It also argued that, according to domestic
law, G.C. had to prove the fact that the second applicant had made
the two statements in question, whereas the court simply assumed that
she had made them.
- On 20 March 2003 the Court of Appeal upheld the
judgment. It rejected the newspaper's appeal as unfounded and as out
of time, without giving any details as to the latter conclusion.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in Busuioc v. Moldova
(no. 61513/00, § 39, 21 December 2004).
THE LAW
- The
applicant newspaper complained of a violation of its rights
guaranteed by Article 10 of the Convention, which reads:
“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. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
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, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
I. ADMISSIBILITY
- The
Court notes that in its observations of 4 September 2006 the
applicant newspaper asked the Court not to examine its complaints
made under Articles 6 and 13 of the Convention or under Article 1 of
Protocol No. 1 to the Convention. In the same observations, the
second applicant asked the Court not to examine her complaint lodged
under Article 8 of the Convention since she had, in the meantime,
settled the dispute with her neighbour. Accordingly, the Court will
not examine these complaints.
- The
Court considers that the applicant newspaper's complaint under
Article 10 of the Convention raises questions of law which are
sufficiently serious that their determination should depend on an
examination of the merits. No grounds for declaring this complaint
inadmissible have been established. The Court therefore declares it
admissible. In accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider the merits of this complaint.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- It
is common ground between the parties that there was an interference
with the applicant newspaper's freedom of expression in the present
case, that it was “prescribed by law” and pursued a
legitimate aim within the meaning of Article 10 § 2 of the
Convention. The Court's task is to establish whether the interference
was “necessary in a democratic society”.
- The
Court refers to the applicable general principles as established in
its jurisprudence regarding freedom of expression (see, among many
other authorities, Sunday Times v. the United Kingdom
(no. 1), judgment of 26 April 1979, Series A
no. 30; Busuioc v. Moldova, no. 61513/00,
21 December 2004; and Savitchi v. Moldova,
no. 11039/02, 11 October 2005).
- The
Court notes that the applicant newspaper was fined for being unable
to prove the truth of several statements made in its issue of
13 December 2001 (see paragraph 9 above). The applicant
newspaper argued before the domestic courts that most of the
statements represented value-judgments which could in principle not
be proved. On appeal, it referred to several additional facts
supporting, in its view, the value-judgments made (see paragraph 14
above).
- The
Court notes that none of the domestic courts responded to these
arguments by verifying whether any of the statements could be
considered value-judgments or by verifying the truth of the
additional facts referred to by the applicant newspaper. The Court
reiterates that the existence of facts can be demonstrated, whereas
the truth of value-judgments is not susceptible of proof. The
requirement to prove the truth of a value judgment is impossible to
fulfil and infringes freedom of opinion itself, which is a
fundamental part of the right secured by Article 10 (see Jerusalem
v. Austria, no. 26958/95, § 42, ECHR 2001 II,
and Busuioc, cited above, § 61), although opinions
insufficiently based on facts can also be excessive (see Oberschlick
v. Austria (no. 2), judgment of 1 July 1997, Reports of
Judgments and Decisions 1997-IV, p. 1276, § 33).
- The
Court considers that the phrases “a former State official
builds himself castles” and “the ex-Minister of
Construction G.C. decided to get rich off the back of the misery of
others” are value-judgments, expressing as they did the
newspaper's opinion about the building activities of G.C. and their
effects on his neighbours. These opinions were, moreover, based on
facts which have not been shown to be untrue, some mentioned in the
article itself (see paragraph 10 above) and some referred to during
the proceedings (see paragraph 14 above). In such circumstances, the
Court considers that the newspaper could not be expected to prove the
truth of its value-judgments and that, moreover, its opinions were
not without a factual foundation.
- The
Court also notes that the domestic courts did not react to the
confirmation made by the second applicant's mother of her own
statements made to the newspaper. The Court considers that, in
requiring the applicant newspaper to prove the truth of its
statements, while at the same ignoring the evidence adduced to
support its statements and thereby show their truthfulness, the
finding of the Moldovan courts that the statement was defamatory
could not be justified as necessary in a democratic society (see
Jerusalem v. Austria, no. 26958/95, § 45-46,
ECHR 2001 II; Savitchi, cited above, § 59; and
Busuioc, cited above, § 88).
- The
Court also takes into account the balanced tone of the article.
Having presented one party's view, it also informed the reader of the
other party's story and referred to some documents which suggested
that the second applicant had also breached certain legal obligations
(see paragraph 10 above). In view of the above, the Court is
satisfied of the newspaper's good faith and that it had acted in
consonance with principles of responsible journalism (see Bladet
Tromsø and Stensaas v. Norway [GC], no. 21980/93, §
63, ECHR 1999 III), albeit resorting to “a degree of
exaggeration or even provocation”, which had to be protected
(see Prager and Oberschlick v. Austria, judgment of
26 April 1995, Series A no. 313, § 38).
- Finally,
it is to be noted that the article raised issues of genuine public
interest, namely the alleged abuses of a former State official and
the inability of the justice system to properly respond to such
alleged abuse. It also conveyed the views of third parties while
making that clear to the reader. This is of particular relevance to
the phrases in the article “the neighbours say that he rents
them to earn a fortune”, “he told [the second applicant]
that he would achieve his aim at any price” and that “he
would make her life impossible”. The Court reiterates that
“punishment of a journalist for assisting in the dissemination
of statements made by another person ... would seriously hamper the
contribution of the press to discussion of matters of public interest
and should not be envisaged unless there are particularly strong
reasons for doing so” (see Jersild v. Denmark,
judgment of 23 September 1994, Series A no. 298, § 35;
and Thoma v. Luxembourg, no. 38432/97, § 62,
ECHR 2001 III). The Court does not see such strong reasons for
interfering with the newspaper's freedom of expression in the present
case, given the balanced tone of the article.
- In
view of the above, and given that any residual harm to G.C.'s
reputation was removed by the prompt publication of an apology (see
paragraph 7 above), the Court concludes that the interference did not
correspond to a pressing social need and thus that it was not
necessary in a democratic society. Accordingly, there has been a
violation of Article 10 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Pecuniary damage
- The
applicant newspaper claimed EUR 112 for pecuniary damage,
corresponding to the fine and court fees paid by it.
- The
Government submitted that there was no causal link between the
alleged violation and the claims made by the applicant newspaper.
- The
Court considers the applicant newspaper's claim for pecuniary damage
to be well founded and awards it in full.
B. Non-pecuniary damage
- The
applicant newspaper also claimed EUR 5,000 for non-pecuniary damage,
referring to the Court's awards in previous Article 10 cases.
- The
Government disagreed and considered that no evidence of non-pecuniary
damage had been submitted.
- Having
regard to its finding of a violation of Article 10 of the Convention,
the Court considers that an award of compensation for non-pecuniary
damage is justified in this case. Making its assessment on an
equitable basis, the Court awards the applicant newspaper EUR 3,000
(see Savitchi, cited above, § 64; Ukrainian
Media Group v. Ukraine, no. 72713/01, § 75,
29 March 2005, and Kommersant Moldovy v. Moldova,
no. 41827/02, §§ 49 and 52, 9 January 2007).
C. Costs and expenses
- The
applicant newspaper's lawyer claimed EUR 1,665 for the costs and
expenses incurred before the Court. He submitted a detailed
time-sheet according to which he had spent 27.75 hours working on the
case at an hourly rate of EUR 60. The calculation in the
time-sheet did not include the time spent on the complaints under
Articles 6, 8 and 13 and Article 1 of Protocol No. 1 to the
Convention which were subsequently withdrawn by the applicant
newspaper.
- As
to the hourly fee of EUR 60, the lawyer argued that it was within the
limits of the rates recommended by the Moldovan Bar Association which
were EUR 40-150. He also referred to the high cost of living in
Chişinău, giving as examples the prices of accommodation
and petrol.
- The
Government disagreed with the amount claimed for representation. They
considered it excessive and argued that the amount claimed by the
lawyer was not the amount actually paid to him by the applicant
newspaper. They disputed the number of hours worked by the applicant
newspaper's lawyer and the hourly rate he charged. They also argued
that the rates recommended by the Moldovan Bar Association were too
high in comparison to the average monthly salary in Moldova and
pointed to the non-profit nature of the organisation Lawyers for
Human Rights.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred and are
reasonable as to quantum (see, for example, Amihalachioaie v.
Moldova, no. 60115/00, § 47, ECHR 2004 III).
- The
reimbursement of fees cannot be limited only to those
sums already paid by the applicant to his or her lawyer; indeed, such
an interpretation would discourage many lawyers from representing
less prosperous applicants before the Court. In any event, the Court
has always awarded costs and expenses in situations where the fees
were not paid by the applicants to their lawyers before the Court's
judgment (see, among other authorities, Ilaşcu and
Others v. Moldova and Russia [GC], no. 48787/99, § 493,
ECHR 2004 VII, and Christian Democratic People's Party v.
Moldova, no. 28793/02, § 85, ECHR 2006 ...).
- In
the present case, regard being had to the itemised list submitted and
the complexity of the case, the Court awards the applicant
newspaper's lawyer EUR 1,000 for costs and expenses.
D. Default interest
- The
Court considers it appropriate that the default interest 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 UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant newspaper, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 112 (one hundred and twelve euros) in respect of pecuniary
damage, EUR 3,000 (three thousand euros) in respect of non-pecuniary
damage, and EUR 1,000 (one thousand euros) for costs and
expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant
newspaper's claim for just satisfaction.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
