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FOURTH
SECTION
CASE OF
PETRENCO v. MOLDOVA
(Application
no. 20928/05)
JUDGMENT
STRASBOURG
30 March
2010
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 Petrenco v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 9 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20928/05) 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 national, Mr Anatol Petrenco (“the
applicant”), on 25 May 2005.
- The
applicant was represented by Mr Vlad Moga, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr Vladimir Grosu.
- The
applicant alleged that his rights had been breached by the
publication of defamatory statements in a Government-owned newspaper
and by the failure of the Moldovan courts to protect his reputation.
- On
28 August 2007 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1954 and lives in Chişinău.
He was, at the time of the events to which the present application
pertains, the Chairman of the Association of Historians of the
Republic of Moldova and a university professor and is the author of
the 1996 school curriculum on “Universal History”.
- On 4 April 2002 the official newspaper of the Moldovan
Government, Moldova Suverană (“Sovereign
Moldova”), published an article written by a historian and
former deputy minister for education, S.N., headed “Commentary
on Mr Petrenco's reply on the Internet” (Comentariul
la răspunsul de pe Internet al domnului Petrenco).
The article made negative remarks about the applicant's competence as
a historian. It went on to suggest that the applicant's university
place as a postgraduate student and his subsequent career as a
historian were the result of his cooperation with the Soviet secret
services. In particular, the article contained the following
statements:
“That is, Mr Petrenco, it is not a political
question but has to do with your 'feeble' memory or the lack of
professional dignity.”
“But, you see, they did not properly understand
this exorcising priest ...”
“... for his special merit (confirming the
confidence of the AUCP (b)
– KGB),
[the applicant] was sent for postgraduate studies ...”
“... as a student, he excelled ... due to his
'special accomplishments' (he was a well-educated person who knew how
to knock politely and respectfully at his superiors' doors:
knock-knock-knock?!? [stuk-stuk-stuk]),
and he became a member of CPSU
– AUCP (b) during his student years ...”
“...the Party once sent a 'Volga' especially for
[the applicant] (how much faith did those from the CC – KGB
have in comrade Petrenco Anatolii Mihailovici!!) to take him to
Chişinău ...”
- On 18 April 2002, the applicant brought defamation
proceedings against S.N. and the newspaper, seeking the publication
of a retraction and compensation for non-pecuniary damage.
- During the proceedings before the Centru District
Court, the court heard evidence from a witness who was questioned
about the allegation that, as a student, the applicant had
collaborated with the Soviet secret services. The witness was unable
to confirm whether the applicant had been involved with the secret
services and merely stated that the KGB had been operating
undercover.
- In its judgment of 30 April 2003 the Centru District
Court granted the applicant's claims in part. The court found that it
had been confirmed that the applicant had been a member of the
Communist Party. However, it held that the reference to the
applicant's links with the secret services (“confirming the
confidence of the AUCP (b) – KGB”) was defamatory as it
had not been proved that he was an agent of the KGB. The
court's judgment stated, inter alia:
“... S.N.'s assertion that A. Petrenco 'was sent
for postgraduate studies' ... only for his 'special accomplishments'
for the KGB and 'confirming the confidence of the AUCP (b) –
KGB', cannot, in the court's opinion, be interpreted other than as
meaning that the applicant had collaborated with the KGB, which is
recognised as having been a repressive organisation during the Soviet
period. Any such collaboration is seen as highly reprehensible by
civil society. Taking into consideration that this fact has not been
confirmed, the statements seriously affect the
applicant's honour and dignity and cause him non-pecuniary
damage and, therefore, should be retracted ...”
- The court ordered the newspaper to publish a
retraction, within 15 days, of some of the statements in the
article of 4 April 2002, including the statement “confirming
the confidence of the AUCP (b) – KGB”. It further ordered
S.N. and the newspaper to pay the applicant 900 Moldovan lei (MDL)
(the equivalent of 57 euros (EUR) at the time) and MDL 1,800
(EUR 114) respectively.
- The
court also found in favour of S.N. in a counter-claim in respect of
an article allegedly published by the applicant. The applicant
appealed the judgment.
- On
23 December 2003 the Chişinău
Court of Appeal quashed the judgment of the Centru District
Court on grounds of procedural error and remitted the case for a
fresh judgment by the Centru District Court.
- Pending the re-hearing of the case, on 1 April 2004,
Moldova Suverană published an article headed “Moldova
Suverană does not tolerate accusations and primitivisms”,
which stated, inter alia, that:
“... S.N.'s article of 4 April 2002 ... and
the inappropriate language used do not represent the editorial policy
of this newspaper. Epithets like 'feeble memory' or 'lack of personal
dignity' [sic], 'exorcising priest' used by the scientist [S.]N.
towards the scientist Petrenco are alien to us.
Moreover, we recall that the article was published two
years ago and since then, the editorial board has changed, starting
with its editor at the time, I.G., and continuing with the political
department of the newspaper.
Therefore, we regret the disparaging remarks and
immoderate language directed at the historian Mr Petrenco, even if we
assume our right not to share his political opinions and ideas.”
- In the subsequent proceedings before the Centru
District Court, S.N. stated that during the Soviet era nobody would
have been sent to Moscow for postgraduate studies without the support
of the Communist Party and the KGB. However, he accepted that not all
those sent for postgraduate studies had been KGB agents.
- On 12 May 2004 the Centru District Court dismissed the
applicant's action, finding, inter alia:
“... According to the author of the article, he
published it in good faith and had no intention to humiliate or
defame his former colleague [Mr Petrenco]. On the contrary, he said
in evidence that, in his personal opinion, Mr Petrenco had been a
brilliant student and a committed activist, who was well-mannered and
respected his elders. The fact that he had become a member of the
CPSU was not a secret and did not disclose any intention to defame,
because everyone has the right to become a member of a political
party ...
... the court finds that both [the author and the
applicant] were former colleagues at the history faculty and had
published articles in the press without any intention to defame the
other.”
- The
applicant appealed.
- On 28 September 2004 the Chişinău
Court of Appeal dismissed the appeal, finding that S.N. could
not be held responsible for expressing his opinions. It considered
the distinction between statements of fact and value judgments and
stated:
“... [the Court of Appeal] considers that the
phrases written in the article represent the author's own subjective
opinion of Mr Petrenco ...
In a democratic society a person cannot be held
responsible for expressing his own views ...
The notion of a 'value judgment' has also to be taken
into consideration, which means that a person cannot be held
responsible for his opinions or his views on certain events or
circumstances ..., the veracity of which cannot be proved.”
- The applicant lodged an appeal on points of law. He
mainly contended that:
“... the said article was published by the
newspaper in bad faith and the first-instance court wrongly found
that S.N. publishes articles in the press without any intention to
defame the applicant. The defendants knowingly published the article
with the aim of damaging the applicant's honour, dignity and
professional reputation.
... the applicant does not object to the author's right
freely to express his views, but he objects to the derogatory remarks
in the article, which are not true and, in substance, damage the
applicant's honour, dignity and professional reputation.
The courts disregarded the fact that the defendants had
disseminated information which was damaging to [the applicant's]
honour and did not apply the provisions of sections 7 and 7/1 of the
Civil Code...”
- The applicant attached to his appeal a linguistic
report on the author's statements prepared by the National Centre of
Terminology of the Department of Interethnic Relationships. The
report concluded that S.N. had directly insulted the applicant and
that the article had damaged his honour, dignity and professional
reputation.
- On 1 December 2004 the Supreme Court of Justice held
that the applicant's appeal was inadmissible as it reiterated the
arguments advanced at first instance and before the Court of Appeal.
The court nonetheless briefly considered the issues arising in the
case and found, inter alia, that:
“... Article 10 of the European Convention on
Human Rights and Article 32 of the Moldovan Constitution guarantee
the right to freedom of expression, including the right to
communicate information and ideas.
Under these circumstances, by dismissing the applicant's
action, the courts have correctly found that a distinction must be
drawn between facts and 'value judgments'.
As the lower courts found in their judgments in the
present case, the author's statements must be treated as 'value
judgments', a circumstance which excludes liability on the part of
the newspaper Moldova Suverană for the opinion it has
expressed on certain events and circumstances, the veracity of which
is impossible to prove.
In the light of the above and taking into consideration
that the impugned statements are, in substance, 'value judgments' ...
the appeal on points of law must be dismissed.”
- The
Court made no comment on the report attached to the appeal.
- According
to the applicant, he was not summoned to attend the hearing before
the Supreme Court of Justice.
II. RELEVANT DOMESTIC LAW
A. Freedom of expression and the right to reputation
- Article
32 of the Constitution guarantees freedom of expression and provides,
in so far as relevant, as follows:
“(1) The freedom of expression of all
citizens ... is guaranteed.
(2) Freedom of expression must not damage the
honour, dignity or rights of others ...
(3) Defamation ... is prohibited by law and
incurs sanctions.”
- The
relevant provisions of the Civil Code in force at the material time
read:
Article 7 Protection of honour and dignity
“(1) Any natural or legal person shall
be entitled to apply to the courts to seek [an order for] the
retraction of statements which are damaging to his or her honour and
dignity and do not correspond to reality, as well as statements which
are not damaging to honour and dignity, but do not correspond to
reality.
(2) When the media organisation which
disseminated such statements is not capable of proving that they
correspond to reality, the court shall compel the publishing office
of the media organisation concerned to publish, not later then 15
days after the judicial decision becomes effective, a retraction of
the statements in the same column, on the same page or in the same
programme or series of broadcasts.”
Article 7/1 Compensation for non-pecuniary
damage
“The non-pecuniary damage caused to a person as a
result of the dissemination through the mass media or by
organisations or natural persons of statements which do not
correspond to reality, or statements concerning his or her private or
family life without his or her consent, shall give rise to an award
of financial compensation in an amount to be determined by the court.
The amount of the award determined by the court in each
case shall be equal to between 75 and 200 times the minimum wage if
the information has been disseminated by a legal entity and between
10 and 100 times the monthly wage if it has been disseminated by a
natural person.
The immediate publication of an apology or retraction
... before a judgment is handed down in the matter constitutes a
reason to reduce the value of any compensation or to exempt the party
from the requirement to make a payment.”
- On
12 June 2003 a new Civil Code entered into force, Article 16 of which
reads as follows:
“(1) Everyone shall have the right to
respect for his or her honour, dignity and professional reputation.
(2) Everyone shall have the right to seek [an
order for] the retraction of statements which are damaging to his or
her honour, dignity and professional reputation, if the person who
disseminated them is unable to prove their truthfulness.
...
(8) Anyone whose honour, dignity or
professional reputation has been damaged as a result of disseminated
information shall have the right to claim compensation for pecuniary
and non-pecuniary damage ...”
B. Provisions concerning the Moldova Suverană
- The
relevant provisions of Government decision no. 305 of 17 May
2004 on the launch of the Government newspaper, Moldova Suverană,
read as follows:
“(1) The Government newspaper Moldova
Suverană shall be launched with effect from 1 July 1994.
The editor of the Government newspaper shall be
appointed by a decision of the Government ...”
- The
relevant provisions of Government decision no. 587 of 20 June
2005 on the winding up of Moldova Suverană read as
follows:
“With the purpose of fulfilling the State's
obligation to prevent and to limit a State monopoly in media ...
(1) The State newspaper Moldova Suverană
... shall be wound up with effect from 1 July 2005 ...”
C. Provisions relating to the procedure before the
Supreme Court
- The Code of Civil Procedure of 12 June 2003 set out
the procedure before the Supreme Court. Article 440 provides, in so
far as relevant, as follows:
“Procedure for the examination of the
admissibility of an appeal
(1) Once the court has established the
existence of one of the reasons cited in Article 433, a chamber
of three judges shall decide, in a non-reasoned and non-appealable
judgment, on the admissibility of the appeal. In such cases, a report
on the inadmissibility shall be prepared which, together with a copy
of the appeal and the judgment, shall be held by the court in the
relevant case file.
(2) The admissibility of an appeal is decided
without summoning the parties.”
- Article 442(1) provides that:
“In examining the appeal introduced ... the court
shall verify, on the basis of the material in the case, the legality
of the decision against which the appeal has been lodged, without
taking any new evidence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention of
procedural unfairness, arguing that the domestic courts had applied
the law incorrectly and had failed to comment on the report he had
submitted in evidence. He also alleged that he had not been properly
summoned by the Supreme Court of Justice to attend the hearing on 1
December 2004.
- Article 6
§ 1 of the Convention, in so far as relevant, provides:
“1. In the determination of his civil rights
and obligations ... everyone is entitled to a fair hearing ... within
a reasonable time...”
- The
Government disputed that there had been any violation of Article 6
§ 1 in the domestic proceedings.
A. The parties' submissions
- The
applicant argued that the judicial authorities had misinterpreted and
misapplied the law and had taken illegal decisions. He further argued
that all instances of jurisdiction had demonstrated partiality
towards the defendants in the proceedings before them. As regards the
report of the National Centre of Terminology, the applicant claimed
that this had also been submitted to the first-instance court and had
wrongly not been taken into account by the courts. Finally, he
insisted that he had not been summoned to attend the Supreme Court
hearing.
- The
Government pointed to the fact that the applicant's claim had been
examined by several national tribunals, which had applied the law in
force at the time, interpreted in a reasonable manner justified by
the particular circumstances of the case. They took into
consideration the relevant principles outlined by this Court. The
applicant's general allegation that the law had been incorrectly
applied was, in the Government's view, insufficient to find a
violation of Article 6 § 1 in the absence of any explanation of
the specific complaint. The decisions of the domestic courts were
well-reasoned, with reference to relevant legislation.
- As
to the applicant's complaint about the failure of the Supreme Court
to comment on the linguistic report, the Government insisted that the
report had not been submitted at first instance or before the Court
of Appeal. Under domestic legislation, the Supreme Court was required
to consider the matter without the submission of new evidence (see
paragraph 29 above). The fact that the court did not reach the
conclusion sought by the applicant did not mean that it had wrongly
assessed the evidence in the case. Further, according to the
applicable regulations, the National Centre of Terminology was not
granted competence to prepare expert reports to be produced in court
proceedings. In any event, from a procedural perspective, the report
did not comply with the relevant requirements, including requirements
regarding its signature.
- In
respect of the applicant's complaint that he was not summoned to the
hearing before the Supreme Court, the Government highlighted that
under the legislation governing civil procedure, the admissibility of
an appeal to the Supreme Court was to be assessed without the
presence of the parties (see paragraph 28 above).
- In
conclusion, the Government considered that there was no violation of
Article 6 § 1 in the present case.
B. Admissibility
1. General principles
- The
Court reiterates that, in accordance with Article 19 of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with a complaint alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (see, for example, Schenk v. Switzerland, 12
July 1988, § 45, Series A no. 140; and Laaksonen v. Finland,
no. 70216/01, § 20, 12 April 2007). In particular, while
Article 6 guarantees the right to a fair hearing, it does not
lay down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law (see Schenk,
cited above, § 46; Jalloh v. Germany [GC],
no. 54810/00, §§ 94-96, ECHR 2006-IX; and Bykov v.
Russia [GC], no. 4378/02, §
88, ECHR 2009 ...).
- The
Court recalls that an oral, and public, hearing constitutes a
fundamental principle enshrined in Article 6 § 1. However, the
obligation to hold a hearing is not absolute. According to the
Court's established case-law, in proceedings before a court of first
and only instance the right to a “public hearing” in the
sense of Article 6 § 1 entails an entitlement to an “oral
hearing” unless there are exceptional circumstances that
justify dispensing with such a hearing (see, for example, Håkansson
and Sturesson v. Sweden, 21 February 1990, § 64, Series
A no. 171 A; and Fredin v. Sweden (no. 2), 23
February 1994, §§ 21 to 22, Series A no. 283-A). However,
the manner of application of Article 6 § 1 to proceedings before
courts of appeal depends on the special features of the proceedings
involved. In this respect, account must be taken of the entirety of
the proceedings in the domestic legal order and of the role of the
appellate court therein (see Helmers v. Sweden, 29 October
1991, § 31, Series A no. 212 A). Provided that a
public hearing has been held at first instance, the absence of such a
hearing before second or third instance courts may be justified by
the special features of the proceedings at issue. Thus,
leave-to-appeal proceedings and proceedings involving only questions
of law, as opposed to questions of fact, may comply with the
requirements of Article 6, although the appellant was not given
the opportunity to be heard in person by the appeal or cassation
court (Helmers, cited above, § 36). The overarching
principle of fairness embodied in Article 6 is, as always, the key
consideration (see, mutatis mutandis, Pélissier and
Sassi v. France [GC], no. 25444/94, § 52,
ECHR 1999-II; and Sejdovic v. Italy [GC],
no. 56581/00, § 90, ECHR 2006-...).
2. Application of the general principles to the present
case
- The
Court notes that the applicant complained that the law had been
wrongly applied in his case. However, he did not provide any further
details of the alleged misapplication of the law and in particular
did not explain how any alleged error might have resulted in a
possible violation of the rights and freedoms set out in the
Convention. Accordingly, the Court considers that this part of the
complaint is unsubstantiated.
- As
regards the applicant's complaint that the courts failed to have
regard to the report of the National Centre of Terminology, the Court
observes at the outset that the fact that the courts did not directly
refer to the report in their judgments cannot of itself support the
allegation that it refused to take the report into account at all. It
is not clear in the present case whether the report was expressly
excluded from evidence by the domestic courts. However, even if the
courts did refuse to consider the report, the Court recalls that
questions related to the admissibility of evidence are primarily a
matter for regulation under national law. The question for the Court
is whether the proceedings as a whole, including the way in which the
evidence was obtained, were fair (see Bykov, cited above,
§ 89). In the present case, there is no evidence that the
failure of the courts to have regard to the report of the National
Centre of Terminology led to unfairness in the proceedings as a
whole.
- Finally,
in so far as the applicant complained about the failure to summon him
to attend the hearing before the Supreme Court, the Court notes that
the applicant's appeal to the Supreme Court was on points of law only
and that the hearing in question was an admissibility hearing. In
respect of such hearings, Moldovan Law stipulated that the decision
whether an appeal to the Supreme Court was admissible was taken on
the basis of the written submissions in the case without the parties
being summoned (see paragraph 29 above). In the circumstances, the
Court concludes that, having regard to the fact that the applicant
had enjoyed an oral hearing at first instance (see paragraphs 8 to 10
and 14 to 15 above) and the fact that the impugned hearing was a
leave-to-appeal hearing concerning an appeal on points of law only,
the failure to summon the applicant to the hearing did not give rise
to any violation of Article 6 § 1.
- In
conclusion, the Court considers that, having regard to the above, the
court proceedings in the applicant's case, taken as a whole, were
fair. It therefore finds the applicant's complaints under Article 6 §
1 to be manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. They must therefore be declared inadmissible in
accordance with Article 35 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- Although
originally invoking Article 10, the applicant complained, in
substance, of a breach of his right to protection of his reputation
as a result of the article published in the Moldova Suverană.
The Court recalls that it is the master of the characterisation to be
given in law to the facts of the case submitted for its examination
(see inter alia, Scoppola v. Italy (no. 2)
[GC], no. 10249/03, § 54, ECHR
2009 ....). It has, moreover, previously found that the right to
protection of one's reputation, as an element of “private
life”, is a right which falls under Article 8 of the Convention
(see Petrina v. Romania, no. 78060/01, § 19, 14 October
2008), which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government refuted the applicant's allegations that his right to
protection of his reputation had been violated.
A. The parties' submissions
- The
applicant asserted that the article of 4 April 2002 had damaged his
honour and dignity and his professional reputation as a historian. He
emphasised that, at the time the article was published, he was the
Chairman of the Association of Historians of Moldova (see paragraph 5
above) and that the allegations that his career as a historian was
the result of his collaboration with the former Soviet secret
services had been made with the purpose of undermining his
professional reputation. He refuted the suggestion that he was, at
the time of the publication of the article or during the relevant
domestic proceedings, a member of any political party or the
president of any political body, although subsequently, in October
2006, he was elected president of the “European Action”
movement, a minor political party in Moldova.
- The
applicant further contended that the domestic courts had wrongly
characterised the impugned statements as value judgments. In his
view, the truthfulness of the statements in the article had not been
established and the domestic courts had omitted to comment on his
argument that, by publishing the retraction on 1 April 2004 (see
paragraph 13 above), the newspaper Moldova Suverană
had acknowledged that it had exceeded the boundaries of freedom of
expression.
- Referring
to the Court's case-law in Pfeifer v. Austria (no. 12556/03,
ECHR 2007 ...), the Government accepted that a person's
reputation was protected under Article 8, even if that person was
criticised in the context of a public debate.
- As
to whether there had been a violation of Article 8, the Government
explained at the outset that the Moldova Suverană had an
independent editorial policy at the time the article was published.
Accordingly, they submitted, since the author of the article was a
private individual, the State was not directly responsible for the
impugned statements. Further, they highlighted that the State was not
a defendant in the domestic proceedings and that the applicant had
not insisted on his argument of direct State responsibility for the
publication of the article before the national courts.
- As to the alleged failure of the courts to protect the
applicant's reputation, the Government considered the key question to
be whether the courts had struck a fair balance between the
applicant's right to respect for his reputation and the freedom of
expression of S.N. and the Moldova Suverană. Emphasising
the State's margin of appreciation in such matters, the Government
argued that the domestic courts' finding that the impugned statements
were value judgments which had a sufficient factual basis was
reasonable. Further, the Government submitted that the case had to be
considered within the wider context in which the statements were made
and the longstanding dispute between S.N. and the applicant, which
had arisen as a result of a professional disagreement but which had
become a more personal disagreement with the passage of time.
Finally, the Government emphasised that the article in question had
been published as part of a topical political debate on questions of
general interest concerning the history of Moldova, in particular
regarding the content and quality of history textbooks and the
assessment to be made of various historical events. The contributions
made by S.N. and the applicant to the debate had provoked further
contributions from others in the field. The Government contended that
the applicant was a political figure well-known in the field: he had
unsuccessfully stood for election to parliament in 1998 and 2001 and
was from 2000 the president of the “Mouvement de Sauvegarde
Nationale” (“National Safeguard Movement”).
Accordingly, the opinions expressed in the context of the debate were
of particular public interest. Referring to the importance of
ensuring freedom of expression in the context of political debate on
questions of general interest, the Government invited the Court to
conclude that the applicant's complaint was inadmissible as
manifestly ill-founded or, alternatively, that there had been no
violation of Article 8.
B. Admissibility
- It
is clear from the Court's case-law, and the respondent Government
accepts, that Article 8 is applicable in the circumstances arising in
the present case (see Chauvy and Others v. France, no.
64915/01, § 70, ECHR 2004 VI; Pfeifer v. Austria,
cited above, §§ 53 to 55; and Petrina v. Romania,
cited above, § 28). The applicant's
allegation that his right to protection of his reputation was
infringed as a result of the publication of the article of 4 April
2002 raises serious issues of law and fact which require examination
on the merits. The Court accordingly concludes that the complaint is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
C. Merits
1. General principles
- The
Court recalls that, although the object of Article 8 is to protect
the individual against arbitrary interference by the public
authorities, it does not merely compel the State to abstain from such
interference. In addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect
for private and family life. These obligations may involve the
adoption of measures designed to secure respect for private and
family life even in the sphere of the relations of individuals
between themselves (see Odièvre v. France [GC], no.
42326/98, § 40, ECHR 2003 III; and Dickson v. the United
Kingdom [GC], no. 44362/04, § 70, ECHR 2007 XIII).
The Court considers that the present case engages the State's
positive obligations arising under Article 8 to ensure effective
respect for the applicant's private life, in particular his right to
respect for his reputation (see Petrina, cited above, §§
34 to 35). The applicable principles are similar to those arising in
cases involving the State's negative obligations: regard must be had
to the fair balance to be struck between the competing interests, in
this case, the applicant's right to protection of his reputation and
the right of the newspaper and S.N. to freedom of expression.
- The
Court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and that the safeguards
afforded to the press are of particular importance. Although it must
not overstep certain boundaries, in particular in respect of the
reputation and rights of others, its duty is nevertheless to impart –
in a manner consistent with its obligations and responsibilities –
information and ideas on all matters of public interest. Not only
does the press have the task of imparting information and ideas, the
public also has a right to receive them. Were it otherwise, the press
would be unable to play its vital role of “public watchdog”
(see, inter alia, Observer and Guardian v. the
United Kingdom, 26 November 1991, § 59, Series A no.
216; Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, § 59, ECHR 1999-II; and Flux v. Moldova
(no. 6), no. 22824/04, § 24, 29 July 2008).
Accordingly, journalistic freedom covers possible recourse to a
degree of exaggeration, or even provocation (see Von Hannover v.
Germany, no. 59320/00, § 58, ECHR 2004 VI). In this
respect, it is clear from the Court's case-law that the right to
freedom of expression is applicable not only to information or ideas
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb the State or any sector of the population. Such are the
demands of that pluralism, tolerance and broadmindedness without
which there is no “democratic society” (see, inter
alia, Handyside v. the United Kingdom, 7 December 1976,
§ 49, Series A no. 24; and Nilsen and Johnsen v.
Norway [GC], no. 23118/93, § 43, ECHR 1999 VIII).
This freedom is subject to the exceptions set out in Article 10
§ 2, which must, however, be construed strictly. The need for
any restrictions must be established convincingly (see, for example,
Lingens v. Austria, 8 July 1986, § 41, Series A no.
103; Nilsen and Johnsen, cited above, § 43; and Tammer
v. Estonia, no. 41205/98, § 59, ECHR 2001 I).
- The
Court recalls that the choice of the means calculated to secure
compliance with Article 8 in the sphere of the relations of
individuals between themselves is, in principle, a matter that falls
within the Contracting States' margin of appreciation. In this
connection, there are different ways of ensuring “respect for
private life”, and the nature of the State's obligation will
depend on the particular aspect of private life that is at issue (see
Odièvre, cited above, § 46). Further, the Court's
task in exercising its supervision is not to take the place of the
national authorities but rather to review, in the light of the case
as a whole, the decisions that they have taken pursuant to their
margin of appreciation (see, mutatis mutandis, Tammer,
cited above, § 63).
- In
the cases in which the Court has had to balance the protection of
private life against freedom of expression, it has always stressed
the contribution made by articles in the press to a debate of general
interest (see, for example, Tammer, cited above, §§
66 and 68; Von Hannover, cited above, § 60; and Standard
Verlags GmbH v. Austria (no. 2),
no. 21277/05 § 46, 4 June 2009). In cases
concerning debates or questions of general public interest, the
extent of acceptable criticism is greater in respect of politicians
or other public figures than in respect of private individuals: the
former, unlike the latter, have voluntarily exposed themselves to a
close scrutiny of their actions by both journalists and the general
public and must therefore show a greater degree of tolerance (see
Petrina, cited above, § 40).
- Finally,
the Court has distinguished between statements of fact and value
judgments. While the existence of facts can be demonstrated, 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. The classification of a
statement as a fact or as a value judgment is a matter which in the
first place falls within the margin of appreciation of the national
authorities, in particular the domestic courts. However, even where a
statement amounts to a value judgment, there must exist a sufficient
factual basis to support it, failing which it will be excessive (see,
for example, Pedersen and Baadsgaard v. Denmark [GC], no.
49017/99, § 76, ECHR 2004 XI; Timpul Info-Magazin
and Anghel v. Moldova, no. 42864/05, § 37, 27
November 2007; and Petrina, cited above, §§ 40 to
41).
2. Application of the general principles to the present
case
- The
Court observes that the applicant criticised the article published in
the Moldova Suverană on 4 April 2002 on the ground that
it damaged his reputation as it contained humiliating insults and
untrue allegations that he was a member of the Soviet secret
services. The Court notes the general tone of the article and the
nature of the statements it contained. It further observes that the
article contained several references to the applicant's alleged
connections with the Soviet secret services (see paragraphs 6 and 13
above).
- The Court refers to the finding of the Centru District
Court, in its first judgment of 30 April 2003, that the references in
the article could not be interpreted other than as meaning that the
applicant had collaborated with the KGB. The court further noted that
the KGB was recognised as having been a repressive organisation
during the Soviet period and that collaboration was seen as highly
reprehensible by civil society. It concluded that there was no proof
that any such collaboration had occurred and that, as a consequence,
the article was defamatory (see paragraph 9 above). The court ordered
that a retraction of certain phrases, including the phrase which
indicated that the applicant had been sent for postgraduate studies
for his special merit “confirming the confidence of the AUCP
(b) – KGB”, be published. Although the case was
subsequently re-examined by the Centru District Court and appealed to
the Court of Appeal and the Supreme Court, none of the subsequent
court judgments made any findings as to whether the article should be
read as implying that the applicant had collaborated with the KGB.
The Court considers that the national tribunals are, in principle,
better placed than an international court to assess the intention
behind the impugned phrases in the article and, in particular, to
judge how the general public of Moldova would interpret, and react
to, such phrases. It is therefore regrettable that the later court
judgments failed to address this issue. Having regard to the terms of
the article and to the findings of the only domestic court which
examined the matter, the Court is persuaded that the author of the
article intended to imply that the applicant had collaborated with
the KGB. The question, therefore, is whether these allegations fell
within the realm of acceptable criticism or fair comment.
- In
examining whether the comments made in the article were acceptable,
the Court refers, first, to the Government's submissions concerning
the nature of the debate within the context of which the impugned
article was published, namely a discussion of the content and quality
of school history textbooks and the assessment to be made of various
historical events (see paragraph 50 above). This was not contested by
the applicant. The Court therefore concludes that the impugned
article was written as part of a debate which was likely to have been
of significant interest to the general public. Further, the Court
emphasises that the issue of the collaboration with the Soviet secret
services of Moldovan citizens, particularly those holding positions
of power or held in high esteem, was a particularly sensitive social
and moral question in the specific context of Moldova (see, mutatis
mutandis, Petrina, cited above, § 43).
- The
Court observes, second, that the applicant, as Chairman of the
Association of Historians of the Republic of Moldova at the relevant
time, was a public figure. As the author of the 1996 school
curriculum on “Universal History” (see paragraph 5
above), his views and opinions were likely to have been considered
particularly significant in the context of the debate taking place in
2002 on the content of history textbooks. Accordingly, the Court is
of the view that the level of acceptable criticism of the applicant
within the context of that debate was relatively high.
- Third,
the Court notes that the author of the impugned article was also a
historian and former deputy minister for education (see paragraph 6
above). A lively debate between the applicant and S.N., which exposed
and explained their opposing views on the subject, was likely to
contribute to the effectiveness of the general debate and to inform
the general public as to the relevant issues. Indeed, the Government
in their submissions explained that the contributions by the
applicant and S.N. provoked further contributions from others in the
field (see paragraph 50 above).
- Fourth,
the Court also considers it significant that on 1 April 2004, the
Moldova Suverană published a retraction in which it
distanced itself from S.N.'s article of 4 April 2002, explaining that
the inappropriate language used did not represent the editorial
policy of the newspaper and that it did not approve of the use of
terms such as “feeble memory”, “lack of personal
dignity” and “exorcising priest” used by S.N. The
Moldova Suverană concluded by expressing regret for the
“disparaging remarks and immoderate language” directed
towards the applicant.
- In
the circumstances, the Court considers that the general tone of the
article and the insulting language used by S.N., in the context of a
lively debate on the content of historical textbooks and viewed in
light of the subsequent statement published by the Moldova
Suverană, did not in itself give rise to a breach of the
applicant's rights to respect for his reputation.
- However,
different considerations apply to the specific allegations intended
to imply that the applicant had collaborated with the Soviet secret
services. The Court observes that the domestic courts classified the
relevant statements as value judgments and concluded that, as S.N.
had published the article in good faith and with no intention to
humiliate or defame the applicant, the applicant's claim in
defamation should be dismissed (see paragraphs 15, 17 and 20 above).
The Court of Appeal emphasised that, in its view, the phrases
written in the article represented S.N.'s “own subjective
opinion” of the applicant and that a person could not be held
responsible for expressing his opinions or views on certain events
the veracity of which could not be proved (see paragraph 17 above).
This approach was subsequently endorsed by the Supreme Court in its
subsequent decision on admissibility (see paragraph 20 above).
- Unlike
the domestic courts, the Court is not persuaded that the statements
in question can be considered mere value judgments. As the Court has
already found (see paragraph 58 above), the article intended to imply
that the applicant had collaborated with the KGB. In the Court's
view, whether an individual has collaborated with the Soviet secret
services is not merely a matter for speculation but a historical
fact, capable of being substantiated by relevant evidence (see,
mutatis mutandis, Pfeifer v. Austria, cited above, §
47; and Petrina, cited above, § 44). The domestic
courts have provided no convincing reasons as to their conclusions on
the nature of the statements at issue. In the circumstances,
notwithstanding the margin of appreciation afforded to domestic
courts as regards the classification of a statement as a fact or as a
value judgment, the Court concludes that the allegations of
collaboration with the KGB constituted clear statements of fact
(compare and contrast Scharsach and News Verlagsgesellschaft
v. Austria, no. 39394/98, § 41, ECHR 2003 XI).
- The
Court emphasises the damaging nature of the allegation in the present
case, which was likely seriously to discredit the applicant and his
views on the question under discussion. As such, rather than
contributing to the debate, the allegation risked undermining its
integrity and usefulness. The Court recalls that a person's status as
a politician or other public figure does not remove the need for a
sufficient factual basis for statements which damage his reputation,
even where such statements are considered to be value judgments, and
not statements of fact as in the present case (see Petrina,
cited above, §§ 45 and 50). In this respect, the Court
further recalls that, giving judgment on 30 April 2003, the Centru
District Court emphasised that there was no proof that the applicant
was an agent of the KGB (see paragraph 9 above). The subsequent
judgments of the domestic courts did not find otherwise. The Court
notes that there is no indication in the materials submitted by the
parties that the applicant collaborated with the Soviet secret
services. In the context of the proceedings before the Centru
District Court, the defendants did not produce any material judged
sufficient by that court to support the allegation and no witnesses
testified that the applicant was involved in such activities. It is,
in such a case, not appropriate to make reference to the margin for
provocation or exaggeration permitted to newspapers generally where
articles concern public figures. The present case concerned a
distorted presentation of reality, for which no factual basis
whatsoever had been shown by the author (see Petrina, cited
above, §§ 48 and 50). By implying that the applicant
had collaborated with the KGB as though it were an established fact
when it was mere speculation on the part of the author, the article
overstepped the limits of acceptable comments.
- Finally,
the Court recalls that a subsequent retraction was printed by the
Moldova Suverană. However, while the retraction regretted
the insulting tone of the article and the offensive language used, it
is important to note that it made no mention of the allegation that
the applicant had collaborated with the Soviet secret services and,
in particular, did not clarify that there was no basis for any such
allegation.
- In
conclusion, the Court considers that the article of 4 April 2002, in
implying without any factual basis that the applicant had
collaborated with the Soviet secret services, exceeded the acceptable
limits of comment in the context of a debate of general interest.
Taking into account the particular gravity of the allegation in the
present case, the Court finds that the reasons advanced by the
domestic tribunals to protect the newspaper and S.N.'s right to
freedom of expression were insufficient to outweigh the applicant's
right to respect for his reputation. There has accordingly been a
violation of Article 8 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. Damage
- The
applicant claimed the sum of EUR 7,000 for psychological suffering as
a result of the humiliation and indignity incurred following the
publication of the impugned article.
- The
Government considered that no award for non-pecuniary damage was
merited in the present case. They argued that the applicant's claim
was without foundation and exaggerated. It was for him to prove that
he had suffered as a result of the alleged violation but he had
failed to provide any evidence of the alleged harm caused. The
Government invited the Court to take into consideration the conduct
of the applicant and the consequences and duration of the violation,
and to conclude that the finding of a violation constituted adequate
just satisfaction in the present case.
-
The Court is of the view that the applicant must have experienced
feelings of frustration and anguish as a result of the defamatory
article and the failure of the courts to uphold his claim.
Accordingly, the Court grants an award of EUR 1,200 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant presented a detailed claim in the sum of MDL 5,936
(the equivalent of approximately EUR 370 at the time of submission of
the claim) in respect of legal fees before the domestic courts and
this Court, and other related costs.
- The
Government emphasised that only those sums actually and necessarily
incurred and reasonable as to quantum could be claimed by the
applicant. They argued that the applicant had incurred expenses which
were not necessary and that insufficient receipts had been provided
in respect of other costs and expenses allegedly incurred. In any
case, the Government alleged that the applicant's claims were
entirely speculative and invited the Court to reject them.
- The
Court considers that, having regard to the receipts provided by the
applicant, it is reasonable to award the sum of EUR 300 in respect of
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
- Declares unanimously the applicant's complaint
under Article 8 of the Convention admissible and the remainder of the
application inadmissible;
- Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(iii) EUR
300 (three hundred euros), plus any tax that may be chargeable, in
respect of costs and expenses;
(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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 30 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) joint
concurring opinion of Judges Garlicki,
Šikuta and
Poalelungi;
(b) dissenting
opinion of Judge David Thór
Björgvinsson.
N.B.
T.L.E.
JOINT CONCURRING OPINION OF JUDGES GARLICKI, ŠIKUTA
AND POALELUNGI
We
fully agree with the finding that there has been a violation of
Article 8 of the Convention and that, in the circumstances of
the case, protection of reputation had to take priority over freedom
of expression. What prompts us to express a concurring opinion is
that the Petrenco case can be regarded as an illustration of
two problems of a more general nature.
- This
is a case of so-called “wild lustration”: a situation in
which allegations concerning former collaboration with the communist
political police are raised, in the heat of a political debate, by
the press and/or by a private person of some political standing.
Whilst in the process of “regular lustration” the facts
of such collaboration are assessed and established by a public
authority that has access to the necessary documents and is able to
provide procedural guarantees for all those involved (see, for the
requisite standards, the judgment in Ādamsons v. Latvia,
no. 3669/03, § 116, 24 June 2008), the “wild
lustration” takes place outside any organised procedural
framework. With its potential for discrediting the person concerned,
it usually targets politicians or other public figures.
To
avoid such cases of lustration resulting from personal or political
revenge, the Council of Europe Parliamentary Assembly adopted the
Council of Europe Guidelines on Lustration Laws.
According to the guidelines, lustration “can be compatible with
a democratic state under the rule of law, if several criteria are
met”. Among these criteria are:
(a) guilt
must be proven in each individual case;
(b) the
right of defence, the presumption of innocence and the right to
appeal to a court must be guaranteed;
Further,
lustration may not be used for punishment, retribution or revenge.
These principles apply a fortiori when no formal lustration
procedure has been engaged against an applicant.
Political
debate has its own rules and sometimes those rules can be very harsh
for those who decide to actively participate in it. But neither the
press nor political opponents can be granted a licence to kill. That
is why the very fact that “wild lustration” takes place
within a political context is not sufficient to absolve them from the
obligation to protect the reputation and good name of others.
Since
allegations concerning collaboration with the communist political
police must, by their nature, be regarded as statements of fact, the
Court has rightly applied the “sufficient factual basis”
test. Those who publicly raise such allegations must be able to
demonstrate the existence of that basis. This is less than a duty to
deliver absolute proof of collaboration. But what may – and
should – be required is, on the one hand, to show facts and
information that, taken together, could indicate such collaboration,
and, on the other, to display sufficient diligence in addressing the
problem and comparing different sources of information. Mutatis
mutandis, this is the approach to be taken in respect of
allegations of corruption (see – in a context of political
debate – Rumyana Ivanova v. Bulgaria, no.
36207/03, 14 February 2008; Flux v. Moldova (no. 6), no.
22824/04, 29 July 2008; and Mahmudov and Agazade v.
Azerbaijan, no. 35877/04, 18
December 2008).
- The
pre-democratic life of public figures today may be of legitimate
interest to public opinion and may constitute a matter of political
debate. The press must play a prominent role in such debate.
But
the only way to put that debate into a civilised framework is to open
the state archives in which information about past events can be
researched. For as long as access to the archives remains reserved
only for the privileged few it will be very difficult to erase “wild
lustration” from the political debate.
In
its judgment in Turek v. Slovakia (no. 57986/00, ECHR-II), the
Court clearly stated (with reference to lustration proceedings)
that, unless the contrary is shown on the facts of a specific case,
“it cannot be assumed that there remains a continuing and
actual public interest in imposing limitations on access to materials
classified as confidential under former regimes. This is because
lustration proceedings are, by their very nature, oriented towards
the establishment of facts dating back to the communist era and are
not directly linked to the current functions and operations of the
security services. Lustration proceedings inevitably depend on the
examination of documents relating to the operations of the former
communist security agencies. If the party to whom the classified
materials relate is denied access to all or most of the materials in
question, his or her possibilities of contradicting the security
agency's version of the facts will be severely curtailed (§
115)."
We
would, therefore, not exclude the possibility that there may be some
positive obligations of the State in that field. Full disclosure of
archive material may not always be possible (particularly when, as in
the case of Moldova, a significant portion of the material is
controlled by another country). However – as the Court has
already indicated in the Rotaru case – an arbitrary bar
on any reasonable access may constitute a violation of both Article 8
and Article 10 of the Convention.
DISSENTING OPINION OF JUDGE DAVID THÓR
BJÖRGVINSSON
- I
disagree with the majority in finding a violation of Article 8 of the
Convention.
- The
majority has come to the conclusion, contrary to the domestic courts,
that the statements made in the article asserting the applicant's
affiliation with the KGB were without any factual basis and that by
associating him with a “repressive organisation” were
damaging to his reputation. As he had not been successful with his
claim before the domestic courts the majority held that the Moldovan
authorities failed in their positive obligations to afford the
applicant the protection of his honour and reputation to which, under
Article 8, he is entitled.
- In
the domestic court's balancing of Article 8 and Article 10 the
balance rightly tilted in favour of Article 10. There are, in my
opinion, no sufficient grounds for overturning the domestic court's
assessment.
- The
applicant, Mr Anatol Petrenco, is Chairman of the Association of
Historians of the Republic of Moldova, a university professor and an
author of a school curriculum “Universal History”. He
has, furthermore, as submitted in paragraph 87 of the Government's
written observations of 10 January 2008, before and after the
publication of the contested article, been actively involved in
politics. He was a member of the Communist Party of the former Soviet
Union and a member of the Democratic Front on behalf of which he ran
for Parliament in 1998. He was also a member of the National Liberal
Party and a candidate for that party in the general elections in
2001. From 2000 he was the leader of the National Movement. Since
2006 he has been the President of the European Action (Acţiunea
Europeană), a political party in Moldova, albeit a minor one.
- Thus
the applicant is not only a well-known scholar in Moldova. He is also
an active contributor to the general political debate. He is a public
figure who, as such, has therefore voluntarily exposed himself to
close scrutiny of his actions, past and present, by journalists,
politicians and other contributors to public debate. The Court has
frequently stated that the extent of acceptable criticism and
commentary is greater in respect of politicians or other public
figures than in respect of private individuals (see Petrina
v. Romania, no. 78060/01, § 19, 14 October 2008, §
40). The applicant, as a participant in a public debate, should
therefore be prepared for harsh, exaggerated and even unfair
commentary on his past and present actions, not only in the form of
so-called value judgments, but also as concerns presentation of
facts. Furthermore, as an active participant in a public debate the
applicant has had every opportunity to answer any insinuations which
allegedly were directed at him. This is how a media-driven public
debate in a democratic society works and should work.
- In
assessing whether the publication of the article overstepped the
limits of acceptable criticism in a democratic society where the
freedom of expression ranks highly, the following points are
relevant:
i. The article was published in the context of a debate on
issues related to Moldovan history and politics. It was therefore of
general interest, though admittedly it took the form of a debate
between the applicant and S.N. that became somewhat personal. The
present case is therefore manifestly distinguishable from a case such
as Biriuk v Lithuania (no. 23373/03, 25
November 2008) which concerned a blatant intrusion into the
applicant's private life. In many cases in which the Court has had to
balance the protection of private life against freedom of expression,
it has always stressed the importance of the contribution made by
articles in the press to a debate of general interest (see, among
others, Tammer v. Estonia, no. 41205/98, § 59, ECHR
2001 I).§§ 66 and 68; Von Hannover v. Germany,
no. 59320/00, § 60, ECHR 2004 VI); and Standard Verlags
GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009).
ii. As
to the content of the contested article (see § 6 of the
judgment), I agree with the majority that the only real issue
concerns the statements about the applicant's alleged association
with the KGB. However I disagree that they should be viewed as direct
allegations of collaboration with the KGB. The KGB is mentioned twice
in the article. However, nowhere is it directly alleged that the
applicant collaborated with the KGB. The first statement simply
implies the confidence that the AUCP (All union Communist party of
Bolsheviks) and the KGB must have had in him and the second that they
must have placed their faith in him. These statements do not by their
wording assert that the applicant was, as a matter of fact, a KGB
collaborator. At best they contain an innuendo that the applicant was
well regarded by the KGB.
iii. It
is also relevant that pending the rehearing of the case on 1 April
2004 the newspaper Moldova Suverană published an
article which can be seen as a retraction of the earlier article and
an attempt to distance the newspaper from its content. It stated
i.a.; “... we regret the disparaging remarks and
immoderate language ...”. The majority has interpreted these
words narrowly (see §§ 62 and 67) as not referring to the
contested statements, or at least not clearly enough. I disagree.
Although the article does not retract specifically the remarks
concerning the applicant's alleged associations with the KGB, the
words “disparaging remarks” are most naturally understood
as including all disparaging remarks in the article, including those
referring to the KGB.
iv. The
applicant does not deny that he was a member of the Communist Party
of the former Soviet Union. Admittedly, membership of the Communist
Party is one thing; association with the KGB is quite another.
However, what is not in dispute is the fact of his association with a
former repressive regime albeit in one of its less oppressive guises.
In such circumstances and particularly in the context of a political
debate on matters of public interest, I do not accept that the mere
suggestion that the applicant was well regarded by the KGB so
increases the level of stigmatisation that it warrants sacrificing
the fundamental right to press freedom for the sake of protecting his
rights under Article 8.
v. The
relevance and seriousness of the statements for the applicant's
reputation must also be assessed in light of the whole social and
political context in which they were made. In many of the former
communist countries, including Moldova, insinuations similar to those
in the present case are not uncommon in everyday political and social
debate. True or false, they should be viewed as an unavoidable part
of the public debate when a new political system is being established
on the ruins of an oppressive regime, with which many of the present
players in the public debate were associated in one way or another.
- With
the above considerations in mind, the publication of a newspaper
article querying the KGB's good opinion of the applicant does not
overstep the limits of what is acceptable in the context of a general
political and historical debate in Moldova. This was no more than the
applicant could be expected to tolerate and respond to within the
framework of a public debate. In these circumstances, refuting the
impugned publication through the instrument of public debate is the
most appropriate form of reply in a democratic society.
- Accordingly,
in my view, there has been no violation of Article 8 of the
Convention.
