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FOURTH
SECTION
CASE OF
FLUX v. MOLDOVA
(Application
no. 28702/03)
JUDGMENT
STRASBOURG
20
November 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 v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28702/03) 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”), on 10 July 2003.
- The
applicant newspaper was 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
application was allocated to the Fourth Section of the Court. On
13 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
19 July 2001 the Parliament of Moldova amended the 2001 Budget Act to
allow the Customs Department to postpone by up to three months the
levying of taxes on fuel imported into Moldova. In the evening of the
same day, the leader of the communist majority in Parliament
(Mr V. Stepaniuc) met with the deputy Speaker of Parliament
(Mr V. Mişin) for a meal in the
restaurant of a luxury hotel in Chişinău. According to the
applicant newspaper, sources which preferred to remain anonymous
confirmed that the meal had been paid for by “L.”, a
major importer of fuel into Moldova.
- On 24 July 2001 the applicant newspaper published an
article entitled “On L.'s money, communists V. Stepaniuc and V.
Mişin had a big-time party (chiolhan)
at 'Jolly Allon'”. The article, which included pictures of the
two MPs next to the text, informed readers about the changes to the
Budget Act and about the profits which those changes would bring to a
few big fuel importers who had links with the Customs Department,
thus allowing unfair competition. The article claimed that the
postponement of tax payments constituted a form of credit by the
State without interest or guarantees and rejected the explanation for
the amendment given by a member of Parliament.
One
paragraph in the article read:
“One needs to note that, in the evening of the
same day, at the 'Jolly Allon' (...) hotel, the communists V.
Stepaniuc and V. Mişin, putting aside
all proletarian decency [pudoare], had a big-time party on the
money of the sharks from 'L.'. Could this party be a simple
coincidence? We do not know.”
The
article went on to expose the legislative plans of the communist
party and the resulting benefits to big fuel importers at the expense
of ordinary workers.
- On
8 July 2002 Mr Stepaniuc, the leader of the Communist parliamentary
faction which had, at the time, 71 votes out of a total of 101 in
Parliament, lodged an action against the applicant newspaper,
identifying the paragraph cited above as defamatory. He did not pay
any court fee when lodging his complaint, nor did he appear in court
at any stage of the proceedings or delegate any person to represent
him.
- On
1 August 2002 Judge I.M., the then President of the Buiucani District
Court, found that the applicant had essentially stated that
Mr Stepaniuc “had voted for laws in the interest of some
private companies and then had a party on their money”. It
denounced the use of pure rumour as a basis for journalism and found
that the applicant newspaper had acted in bad faith. The court took
note of the “vehement attack” on Mr Stepaniuc, the
large readership of the newspaper and the “degree of moral and
psychological suffering” caused. In addition, the court found
that Mr Stepaniuc's position as a member of Parliament and
leader of a parliamentary faction “increased the degree of
moral damage” which led to the imposition of maximum liability.
- The court accepted Mr Stepaniuc's claim and ordered
the applicant newspaper, pursuant to Articles 7 and 7 § 1 of the
Civil Code, to publish an apology and to pay the plaintiff the
maximum damages allowed by law and the court fees (a total of 3,690
Moldovan lei (MDL), equal to 278 euros (EUR) at the time). According
to the applicant newspaper, the court had conducted one hearing which
lasted less than 15 minutes and no questions had been put to the
applicant newspaper.
- In its appeal the applicant newspaper submitted that
the impugned phrases had amounted to value-judgments which could not
be proved and that these opinions had been based on facts, namely the
party which had taken place at the hotel in question on the date
mentioned in the article, which was not disputed, and the
modifications to the law adopted by Parliament. Moreover, in view of
the length of time that had passed after the publication of the
article, it had been impossible for the applicant to prove that the
persons had been seen at the hotel restaurant, where they had had a
party, or verify the source of payment for it. The applicant
newspaper also argued that Judge I.M. lacked independence and
impartiality because he was a friend of Mr Stepaniuc and had been
appointed President of the Buiucani District Court by the Communist
Party parliamentary group. The majority of the defamation cases
between Flux and Mr Stepaniuc had been examined by him
personally and his decisions were stereotyped and did not give
sufficient reasons. In other defamation cases between Flux and
representatives of the Government, Judge I.M. had always ruled in
favour of the latter and had awarded them the maximum amount provided
for by law.
- On
30 January 2003 the Chişinău Regional Court found that the
applicant newspaper had missed the time-limit for lodging its appeal
against that judgment but went on to examine the substance of the
case. It upheld the lower court's judgment, finding that its decision
had been lawful and reasoned. The court did not respond to the
applicant's complaint about the alleged lack of impartiality of Judge
I.M. The hearing lasted less than 10 minutes and the applicant
newspaper was not asked any questions.
- In
an appeal in cassation the applicant newspaper relied on Article 10
of the Convention and on the distinction which the lower courts had
failed to make between value-judgments and factual statements.
Moreover, the courts had never heard evidence from the plaintiff, and
had not taken into account his public-figure status, which should
have limited the scope of interference with the applicant's freedom
of expression, or the special role played by the press in a
democratic society. Finally, the lower courts had failed to respond
to most of the points raised by the applicant.
- On
1 April 2003 the Court of Appeal upheld the judgments of the lower
courts, finding that they had been lawful and corresponded to the
evidence in the case. No comment was made about Judge I.M.'s alleged
lack of impartiality.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the domestic law have been set out in this
Court's judgment in the case of Busuioc v. Moldova (no.
61513/00, §§ 39-40, 21 December 2004).
THE LAW
- The
applicant newspaper complained under Article 6 of the Convention that
no reasons had been given for the judgments of the domestic courts
and that Judge I.M. of the first-instance court lacked independence
and impartiality. The relevant part of Article 6 reads as follows:
“1. In the determination of his civil rights
and obligations ..., everyone is entitled to a fair ... hearing ...
by an independent and impartial tribunal established by law.”
- The
applicant newspaper also complained under Article 10 of the
Convention that the domestic courts' decisions had entailed
interference with its right to freedom of expression that could not
be regarded as necessary in a democratic society. Article 10 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.”
- The
applicant newspaper finally complained of a violation of its rights
guaranteed by Article 13 of the Convention in conjunction with
Article 10 of the Convention. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
I. ADMISSIBILITY
A. The complaints under Articles 6 and 13 of the
Convention and under Article 1 of Protocol No. 1 to the Convention
- In
its initial application, the applicant newspaper submitted a
complaint under Articles 6 and 13 of the Convention and under Article
1 of Protocol No. 1 to the Convention. However, in its observations
on admissibility and merits it asked the Court not to proceed with
the examination of these complaints. The Government asked the Court
to reject this request as regards the Article 6 complaint and to find
that there has been no violation of the Convention as regards the
alleged lack of independence and impartiality of Judge I.M. In view
of the clear and unequivocal terms of the applicant's request, the
Court finds no reason to examine any of these complaints in the
circumstances of the present case.
B. Complaints under Articles 10 and 6 of the Convention
- The
Court considers that the applicant's complaint under Article 10
of the Convention and the complaint under Article 6 concerning the
insufficient reasons given for the domestic courts' judgments raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and that
no grounds for declaring them inadmissible have been established. The
Court therefore declares the application 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 these complaints.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
A. The arguments of the parties
- The applicant newspaper complained of a violation of
its right to freedom of expression. It relied on the Court's
jurisprudence concerning the distinction between facts and
value-judgments, the special role played by the press in a democratic
society and the wider limits of acceptable criticism to which
politicians knowingly subject themselves. It referred to the gravity
of the penalty imposed by the courts, which was the highest possible
under the law. It also noted that Mr Stepaniuc had lodged his
complaint a year after the publication of the article and that
Moldovan law did not provide for any time-limits in lodging such
complaints, imposing a disproportionate burden on the media to keep
records and evidence of past events long after they had happened. It
finally relied on its good faith in dealing with an issue of genuine
public interest.
- The
Government submitted that the courts had adopted reasoned decisions
in which they had taken account of the two competing values, of
freedom of expression and the protection of reputation, and found
that there had been a “pressing social need” for the
award made against the applicant newspaper. The courts, acting within
their margin of appreciation, had found that the applicant newspaper
had overstepped the limits of admissible criticism by launching
unwarranted attacks on Mr Stepaniuc. While they had conceded that the
press played a special role in a democratic society, they had relied
on the “special duties and responsibilities” attached to
that role.
B. The Court's assessment
- It
is common ground between the parties, and the Court agrees, that the
decisions of the domestic courts and the award of damages made
against the applicant amounted to “interference by [a] public
authority” with the applicant's right to freedom of expression
under the first paragraph of Article 10. Such interference will
entail a violation of Article 10 unless it is “prescribed by
law”, has an aim or aims that are legitimate under paragraph 2
of the Article and is “necessary in a democratic society”
to achieve such aim or aims.
1. “Prescribed by law”
- The
Court notes that the interference complained of had a legal basis,
namely Articles 7 and 7 § 1 of the Civil Code (see paragraph 10
above). In its judgment in Busuioc v. Moldova (no. 61513/00,
§ 52-54, 21 December 2004), the Court found that these
provisions were accessible and foreseeable. Accordingly, the Court
concludes that in this case too the interference was “prescribed
by law” within the meaning of Article 10 § 2.
2. “Legitimate aim”
- It
is not disputed by the parties, and the Court agrees, that the
interference served the legitimate aim of protecting the reputation
of Mr Stepaniuc. It therefore remains to be examined whether the
interference was “necessary in a democratic society”.
3. “Necessary in a democratic society”
(a) General principles
- The
relevant general principles have been summarised in Busuioc
(cited above, §§ 56-62) and Savitchi v. Moldova
(no. 11039/02, §§ 43-50, 11 October 2005).
- In addition to that, the Court recalls that in Lingens
v. Austria (judgment of 8 July 1986, Series A no. 103, §
42) it held that:
“[the politician] inevitably and knowingly lays
himself open to close scrutiny of his every word and deed by both
journalists and the public at large, and he must consequently display
a greater degree of tolerance. No doubt Article 10 para. 2 enables
the reputation of others - that is to say, of all individuals - to be
protected, and this protection extends to politicians too, even when
they are not acting in their private capacity; but in such cases the
requirements of such protection have to be weighed in relation to the
interests of open discussion of political issues.”
(b) Application of the above principles in
the present case
- In
the present case the Court notes that the applicant newspaper was
found liable in damages for being unable to prove the truth of
several statements made in its publication dated 24 July 2001 (see
paragraph 7 above). The applicant newspaper argued before the
domestic courts that the statements represented value-judgments which
could in principle not be proved. The domestic courts made no comment
on those claims.
- The
Court considers that the paragraph singled out by the courts in their
judgments consists of both statements of fact (“in the evening
of the same day, in the 'Jolly Allon' (...) hotel, the communists V.
Stepaniuc and V. Mişin ... had a ...
party on the money of the sharks from 'L.'.”) and
value-judgments (the characterisation of the party as a “big-time”
one, the statement “putting aside all proletarian decency”
and the question “Could this party be a simple coincidence? We
do not know”). It notes that the courts found that the entire
paragraph was untrue, including the above mentioned value-judgments.
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 (Oberschlick
v. Austria (no. 2), judgment of 1 July 1997, Reports of
Judgments and Decisions 1997-IV, p. 1276, § 33). It follows
that the applicant could not have been expected to prove the “truth”
of its own opinions about the published facts, given that the
domestic courts did not find as incorrect factual statements such as
that the party which had taken place at the relevant hotel and that
the law had been amended as described in the article.
- On
the other hand, the Court considers that the statement that a party
had taken place “on the money of the sharks from L.”
amounts to a statement of fact which is susceptible of proof and
which, as the domestic court found, had not been proved by the
applicant newspaper. The Court reiterates that:
“Article 10 of the Convention does not guarantee a
wholly unrestricted freedom of expression even with respect to press
coverage of matters of serious public concern. Under the terms of
paragraph 2 of the Article the exercise of this freedom carries with
it “duties and responsibilities”, which also apply to the
press. These “duties and responsibilities” are liable to
assume significance when, as in the present case, there is a question
of attacking the reputation of private individuals and undermining
the “rights of others”. By reason of the “duties
and responsibilities” inherent in the exercise of the freedom
of expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith in order to provide
accurate and reliable information in accordance with the ethics of
journalism” (see Savitchi v. Moldova, no. 11039/02,
§ 46, 11 October 2005).
- It
would appear from the case file that, in the present case, the
applicant newspaper did not fully satisfy the requirements mentioned
above in respect of some of the facts alleged in the article.
However, the Court notes the applicant newspaper's contention that it
had been impossible for it to prove, a year after the events, all the
relevant facts (see paragraph 11 above), as well as the lack of any
consideration by the domestic courts of that submission. It considers
that, with the passage of time, not only does it become more
difficult for the media to prove the facts on which they may have
relied, but also the damage to the person allegedly defamed by the
relevant material is bound to fade away (confer Editions Plon v.
France, no. 58148/00, § 53, ECHR 2004 IV).
- The
Court notes that the article was written by a journalist and recalls
the pre-eminent role of the press in a democratic society to impart
ideas and opinions on political matters and on other matters of
public interest (see Sunday Times v. the United Kingdom (no. 1),
judgment of 26 April 1979, Series A no. 30, § 65).
The Court also recalls that States enjoy a narrow margin of
appreciation in cases concerning politicians (see paragraph 27 above)
and notes that Mr Stepaniuc was a very high-ranking politician at the
time of the events.
- The
Court further notes that the article as a whole raised issues of
genuine public interest, namely the alleged use of the legislative
powers to offer tax incentives promoting anti-competitive advantages
to some businesses and plans for further amendments to the law
leading to losses for ordinary workers. The article was, therefore,
published within the framework of an ongoing public debate on the
issue, which gives its content further protection under Article 10 of
the Convention (see Jersild v. Denmark, judgment of
23 September 1994, Series A no. 298, § 33).
None of the other facts published in the article was found to be
untrue, which gives the article as a whole a sufficient factual
basis.
- The
Court finally reiterates that the gravity of the penalty is also a
part of the criteria for verifying whether an interference with
Article 10 was proportionate (see Tolstoy Miloslavsky v. the
United Kingdom, judgment of 13 July 1995, Series A
no. 316 B, § 51; Karatas and Sari v. France,
no. 38396/97, § 53, 16 May 2002). It notes that the
courts awarded Mr Stepaniuc the maximum amount possible under
the law (see paragraph 10 above), despite the fact that they never
heard evidence from him in order to assess the damage allegedly
caused to him.
- Bearing
in mind the importance of the issues raised in the article published
by the applicant newspaper and that most of it was not considered to
be untrue or abusive, that the applicant newspaper faced particular
difficulties in proving events which had happened long before the
proceedings were initiated, that any damage caused to the plaintiff
was substantially diminished with the passage of time, that some of
the statements for which the applicant was held liable constituted
value-judgments not susceptible of proof, and in view of the level of
the award made by the domestic courts, 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. alleged violation of Article 6 § 1 of the
Convention
- The
applicant newspaper also alleged a violation of Article 6 § 1 of
the Convention, arguing that the domestic courts had failed to give
reasons for their decisions. As this complaint does not raise a
separate issue from that examined under Article 10 above, the Court
does not consider it necessary to examine it separately.
IV. 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 278 for pecuniary damage,
corresponding to the amount of damages it had to pay.
- 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 10,000 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 2,500 for the costs and
expenses incurred before the Court. He submitted a detailed
time-sheet according to which he had spent 41.67 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.
- 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'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 referred to the non-profit nature of the organisation Lawyers for
Human Rights.
- 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.
C. 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 admissible the complaint under
Article 10 of the Convention and Article 6 § 1 of the
Convention in so far as it relates to the courts' failure to give
sufficient reasons for their decisions;
- Holds that there has been a violation of
Article 10 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 6 § 1 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 278 (two hundred and seventy eight 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's claim
for just satisfaction.
Done in English, and notified in writing on 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
