European Court of Human Rights

 

 

SECOND SECTION

CASE OF GHIMPU AND OTHERS v. THE REPUBLIC OF MOLDOVA

(Application no. 24791/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

1 February 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Ghimpu and Others v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Jovan Ilievski,
          Diana Sârcu, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 24791/14) 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 two Moldovan and Romanian nationals, Mr Mihai Ghimpu and Mr Dorin Chirtoacă, as well as “The Liberal Party”, a Moldovan political party (“the applicants”), on 18 March 2014;

the decision to give notice to the Moldovan Government (“the Government”) of the complaint under Article 8 and to declare inadmissible the remainder of the application;

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the Romanian Government, who were granted leave to intervene by the President of the Section;

Having deliberated in private on 11 January 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the alleged failure by the domestic courts to protect the applicants’ dignity and reputation from attacks in a video aired by several TV channels.

THE FACTS

2.  The first two applicants were born in 1951 and 1978, respectively, and live in Chișinău. The third applicant was registered in Moldova in 1999. The applicants were represented by Ms T. Iovu, lawyer practising in Chișinău.

3.  The Government were represented by their Agent, Mr O. Rotari.

4.  The facts of the case may be summarised as follows.

5.  Mr Mihai Ghimpu is a Moldovan politician and president of the Liberal Party. Mr Dorin Chirtoacă is also a Moldovan politician and vice-president of the same party. At the time of the events he was the Mayor of the capital city, Chișinău.

        I.   General background of the case

6.  On 5 April 2009 general elections took place in Moldova. The preliminary results of those elections were announced on 6 April 2009. According to them, the ruling Communist Party of Moldova had narrowly won the elections.

7.  On 6 April 2009 growing discontent with the results of the elections and with alleged electoral fraud was felt, notably in various online forums. At 6 p.m. several hundred people, mostly young, gathered in front of the Stephen the Great (Ştefan cel Mare) monument in the centre of Chişinău. Half an hour later there were already 3-4,000 people assembled, who began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and Parliament buildings and then returning to the Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day.

8.  On 7 April 2009 the protest restarted with the participation of some 5‑6,000 people. While the demonstration was peaceful at the beginning, several hundred of the participants gradually became violent. As established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”), two incidents of poorly planned intervention by a fire truck and riot police brought the crowd to a point beyond which massive violent acts could no longer be prevented. Following violent attacks and stone throwing, which met very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and Parliament buildings. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building.

     II.   The airing of the film about these events

9.  Between 5 and 14 June 2009 the private TV channel N.I.T. and other TV channels aired the film “Moldova under attack”, which was also available on the internet. The film analysed the events that followed the general election held on 5 April 2009, notably the violence that ensued on 7 April 2009 and which resulted in the storming of the Presidential palace and the Parliament building. The film was called a documentary and started with the phrase “How it all happened”.

10.  On 12 June 2009 the applicants lodged a court action against V.V. (the Moldovan President), A.R. (the head of the security service) and V.G. (Prosecutor General), who all occupied their respective posts in April 2009, and against N.I.T. and several other TV stations. They claimed that the defendants had defamed them and affected their honour, dignity and professional reputation by making the following statements in the film without any factual basis:

“– “the Moldovan right-wing political entities do not want to be in opposition for the third time in a row and they spend for [avoiding] this lots of money, while foreign experts work in their electoral staff”;

– since the Communist Party was projected to win a majority of seats in Parliament “these items of news are equivalent to a catastrophe for the liberal opposition and thus, in this moment, plan B is being put into action”;

– “in the evening of 6 April the leaders of opposition parties appear in the central stage in Chișinău; probably they did not come there having received an SMS, moreover all at once; this means that they prepared and coordinated this with each other. Under their approving gaze a Romanian flag is raised above the square. Already the next day it will fly above the Presidency of the Republic of Moldova”;

– “the opposition leaders personally led the crowd to the buildings of the Parliament and the Presidency. As planned, people were primed for violence.”;

– the narrator’s voice stated that the opposition “organised pupils from schools to go to the street, with the implication of the Chișinău administration, which supervises the educational departments of the capital’s regions.”; then a part of an interview with V.G. was shown, according to whom “various methods were used, such as threats that if they do not go to the main square, they will have problems with their exams, and even plain payment for the service of going to that square”

– the pupils “were sent to the gathering point in the main square [Piața Marii Adunări Naționale], and then were led by the liberal parties to the buildings of Parliament and Presidency. The mechanism of coup d’état had been put into motion and could no longer be stopped.”;

– in a part of the interview with V.V. the latter stated “in the front columns marched 12-14 year old children, they were reinforced with youth from professional schools and colleges, and then marched the criminal authorities, their local accomplices, plus revolutionaries from Romania.”;

– the opposition was baselessly linked in the film with A.M., who “was clearly observed instigating and provoking; according to some information he was the first who took a stone and threw it into the window of the President’s residence”;

– “the majority of those detained in the night of 7 to 8 April were examined and many of them were found to be under the influence of narcotic or alcoholic substances, or both in some cases, so these actions were joined by persons under the influence of narcotic or alcoholic substances, a fact which has been fully confirmed”;

– “not all leaders of the opposition parties were at that moment near the Presidency, they preferred being away from the events and to find out the news over the phone” and “a man with a voice similar to that of Dorin Chirtoacă, apparently does not know that the crowd moved from the main square to the Parliament, but knows that glass is broken, and refuses to call back the people since they are not to be influenced and know themselves what they must do; this demonstrates that he knows more than what he allows himself to say.”;

– “the president of the Liberal Party, Mihai Ghimpu, does not regret the vandalization of the buildings of Parliament and the Presidency”

– V.V. stated “it is evident why, if there is no President and no governing of the country, it means that the revolution reached its aim, it succeeded”;

– “but these plans were not destined to succeed: the revolution, which in all dictionaries is defined as a coup d’état, did not attain its goal. Let us return two years back in time, to 27 March 2007. A group of young pro-Romanians led by several liberal politicians organise a march to pay yet another tribute to the unification between Bessarabia and Romania. They clash with the police, several are detained, this affects the rating of the young liberal candidate to the position of Mayor of Chișinău municipality. He wins the election and several days later he goes with his first official visit to Bucharest and makes a symbolic gesture: makes a gift of a pot with Moldovan land to the Romanian President. The temptation to repeat the scheme is great, the date of 27 March approaches again on the eve of the election.”;

– A.R. stated “We knew that both provocations and violence were being prepared ... we knew that special groups were readied in Romania which were well prepared, instructed in special camps in order to provoke mass disorder; these groups were meant to be the first wave who were coming on 27 March and under that pretext were to start mass disorders.”;

– “The second wave, according to the head of the security service, was to include the massive arrival of Moldovan students who were studying in Romania and who were to join the action on 27 March. ... At the end of March we registered an increase in the activity of foreign specialists under the cover of monitoring democracy and transparency of elections. Most of them represented countries where the so-called coloured revolutions had already happened.”;

– “How can a lorry driver determine the level of democracy of the elections in Moldova? These facts raised question marks, these ‘experts’ went to special schools, they represented organisations such as ‘Otpor’ and other organisations with experience in destabilising the situation after elections in Serbia, Georgia and Ukraine.”;

– “these specific experts were to enter the country on 30 March but they failed. Access to Moldova was closed for them. But this could no longer change anything, the process had started, the election day was ahead. Supporters of the opposition parties, heated by an ample propaganda campaign, of an inevitable rigging of elections, and on 7 April happened what the law enforcement authorities qualify as a tentative of a coup d’état.”;

– “Why do we say that there was a tentative of a coup d’état? The next action taken at the same time with the assault on the Presidency and Parliament buildings was to declare a provisional government, the so-called committee of national salvation similar to that created in Romania in 1989. This committee or the so-called provisional government was to assume all the power.”;

– “I think that it was not by coincidence that on 7 April politicians from the ‘80s and the beginning of the ‘90s appear in the main square, they do not hide their unionist visions and probably wanted to be part of this provisional government in order to carry out their dream.”;

– A.R. stated “We had information that in parallel, for the evening of 7 April, they were preparing the opening of the border with Romania; that is our services stationed there were to be attacked from both sides and for this special groups were created on both sides [of the border], including armed groups which were to simply destroy the border and carry out that way the so-called unification.”;

– in replying to his own question about whether the liberals were prepared for these events, the narrator answered “the liberals Mihai Ghimpu and Dorin Chirtoacă - for sure, they were possibly the only ones who were up to date with all the details of the plan.”

The applicants added that throughout the entire film one common idea was clearly promoted: that Mr Ghimpu and Mr Chirtoacă were the only ones privy to “plan B”; they were thus accused of complicity in having committed particularly serious offences such as mass disorder and an attempt of coup d’état.

11.  On 16 September 2009 the applicants added to the list of defendants the author of the film, the journalist C.S.

12.  On various dates in 2010 most of the defendants lodged counterclaims in which they asked for the protection of their reputation as a result of a film aired on 3 July 2009 and called “Truth about 7 April”.

13.  On 11 October 2012 the Centru District Court dismissed both the applicants’ action and the counterclaims as unfounded. In reaching that conclusion the court found that the film “Moldova under attack” had been based on the events of April 2009, which were notorious facts that did not need to be proved. Referring to the Court’s case-law on Article 10, it noted that the information in the film dealt with a matter of public interest and contained opinions, interviews and conclusions made by officials, politicians and public officers, as well as value-judgments and demonstrated factual statements. It recalled that public persons could be the subject of criticism by the media of their actions and should show increased tolerance towards scrutiny by the public at large; that a distinction had to be made between facts and value-judgments, the latter not being susceptible of being proved but needing to have sufficient factual basis. Moreover, sanctioning a journalist for assisting in the dissemination of statements made by others in an interview would seriously hamper the media’s contribution to discussing issues of public interest. Finally, 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.

14.  The court concluded that both films in question included factual statements and value-judgments about the events of 6-7 April 2009 made during an electoral campaign, events which were of particular importance for society; that this involved a political discussion; that both the plaintiffs and the defendants were politicians or public officers at the time and needed to accept increased criticism of their actions. It found that interfering with the journalists’ freedom of expression in such circumstances would not be “necessary in a democratic society”.

15.  The applicants appealed, noting inter alia that the court had not verified the existence of a factual basis for any value-judgments made by the defendants, and argued that most such statements had in fact been factual in nature, but not proven in any manner. The court’s reference to the European Court’s case-law was general, without showing how it applied specifically to the case at hand.

16.  On 3 April 2012 the Chișinău Court of Appeal upheld the lower court’s judgment, essentially repeating the reasons from that judgment.

17.  In their appeal in cassation the applicants repeated their previous arguments, adding that after the film was aired, on 12 June 2009 Mr Chirtoacă was officially recognised as a suspect in an investigation of the crimes of usurping State power and mass disorders (in November 2009 he was officially relieved of that status).

18.  On 19 September 2013 the Supreme Court of Justice declared the applicants’ appeal inadmissible.

THE LAW

        I.   ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

19.  The applicants complained that the domestic authorities had not fulfilled their positive obligation of protecting their honour and reputation against attacks by the defendants in the domestic proceedings. They relied on Article 8 of the Convention, 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.”

A.    Admissibility

20.  The Court leaves open the issue whether a political party can claim the protection of its reputation under Article 8 of the Convention (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011 in respect of protecting the commercial success of a company, while noting the difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status). In the present case it notes that the only time the third applicant (the Liberal Party) was mentioned directly in the statements highlighted by the applicants was the phrase “the pupils were sent to the gathering point in the main square, and then were led by the liberal parties to the buildings of Parliament and Presidency” (see paragraph 10 above). The Court considers that the impugned statement had limited negative effects on the third applicant and did not cross the threshold of seriousness for an issue to be raised under Article 8 of the Convention (Denisov v. Ukraine [GC], no. 76639/11, § 133, 25 September 2018).

21.  Accordingly, the third applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

22.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     Submissions made to the Court

23.  The applicants argued that their reputation had been tarnished by a number of statements in the relevant film, which directly accused them of specific facts, such as organisation of mass disorders and attempted coup d’état, links to criminal authorities and forcing students to participate in the demonstrations under the threat of “having problems at the exams”, organisation of armed groups to overthrow the border guards as part of “plan B”, of which they were the only ones fully informed according to the film. Moreover, Mr Chirtoacă was the suspect in a criminal investigation for mass disorders and attempted coup d’état.

24.  The Government argued that the domestic courts had balanced the protection of reputation with the freedom of expression and had relied on applicable principles as established in the Court’s case-law, such as the difference that had to be made between statements of fact and value‑judgments, the fact that politicians and public persons had to show an increased level of tolerance towards criticism, and that the film was aired in an electoral context. The courts established that the film reflected factual information, as well as the opinions of various participants in those events.

25.  The Romanian Government submitted an overview of the relevant case-law and invited the Court to take it into account when examining the present case.

2.     The Court’s assessment

26.  The Court reiterates that in cases of the type being examined here, what is in issue is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicants’ private life. While the essential 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 negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 98, ECHR 2012). The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (ibid., § 99).

27.  Where the complaint raised before the Court is that rights protected under Article 8 have been breached as a consequence of the exercise by others of their right to freedom of expression, due regard should be had, when applying Article 8, to the requirements of Article 10 of the Convention (see, for instance, Sousa Goucha v. Portugal, no. 70434/12, § 42, 22 March 2016). Thus, in such cases the Court will need to balance the applicant’s right to “respect for his private life” against the public interest in protecting freedom of expression, bearing in mind that no hierarchical relationship exists between the rights guaranteed by the two Articles (ibid.).

 

29.  In this context, the Court reiterates that, although the press must not overstep certain bounds, regarding in particular protection 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 such 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 Axel Springer AG, cited above, § 79).

30.  In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Axel Springer AG, cited above, § 86). Where the balancing exercise between the rights protected by Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (ibid., §§ 87-88, with further references).

31.  Turning to the facts of the present case, the Court notes that the domestic courts have referred to its case-law. Moreover, the principles they relied on, as developed in that case-law, are highly relevant to the type of case under examination, notably the contribution to a matter of public interest, the fact that both sides of the dispute were politicians or otherwise public figures, that the relevant film was aired in the electoral context, that the applicants were indeed involved in the events and thus provoked scrutiny of their actions, and the distinction that must be made between statements of fact and value-judgements (see paragraphs 13-15 above).

32.  At the same time, it considers that the balancing between freedom of expression and protection of a person’s reputation in applying the relevant principles developed in the Court’s case-law, can only be properly carried out by the domestic courts in the context of the specific facts of a case, given that no hierarchical relationship exists between the rights guaranteed by the Articles 8 and 10 of the Convention (see paragraph 27 above). This, in turn, allows the Court to exercise its supervisory function.

33.  In the present case, it is apparent that some of the expressions in the relevant film were clearly value-judgments which, moreover, had a factual base in the events of April 2009. However, other expressions accused the applicants of specific facts or even serious crimes, such as having instigated mass disorder and a coup d’état, and of being “definitely” aware of all the elements of a “plan B” which, according to the film, consisted in various activities aimed at overthrowing the Government by force and organising of armed groups with the aim of attacking the border authorities (see paragraph 10 above). The Court considers that, notwithstanding the political and electoral context in which the film was aired and the wider limits of acceptable criticism to which politicians knowingly subject themselves, such serious accusations could not be left without specific examination by the domestic courts. In this respect, the Court recalls that  persons, even disputed public persons that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts (see Egill Einarsson v. Iceland, no. 24703/15, § 52, 7 November 2017).

34.  However, it is apparent that the domestic courts did not examine in detail any of the statements identified by the applicants as affecting their reputation. By making broad conclusions in respect of the entirety of the statements made, the courts effectively treated on an equal footing all those statements, despite the rather diverse nature and degree of accusations made and of harm allegedly caused. In this connection, the domestic courts have failed to explain which of those expressions were considered as being statements of fact or value-judgments, with the relevant difference in the level of proof that needed to be established.

35.  The Court further recalls that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas (see, for instance, Radio France and Others v. France, no. 53984/00, § 37, ECHR 2004‑II, and Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 4), no. 26826/16, § 38, 23 September 2021). However, in the present case, it is apparent that the journalist who authored the film did not only reproduce what others had stated in interviews but added his own comments (in the form of narrator’s voice) which went further than what those interviewed had stated. The narrator voice had made such statements notably in respect of the existence of a so-called “plan B” and added that two of the applicants were definitely privy to it (see paragraph 10 above), something which no one of those interviewed had directly stated. In this context, the courts did not verify whether the journalist who authored the film had acted in good faith (Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004‑XI).

36.  It is also apparent that the courts did not examine the relevance of the fact that N.I.T. and other defendant TV stations were not the authors of the film and acted as conveyors of the message imparted by a journalist. They did not assess the effect of the form in which the film presented the events (it was called a documentary and started with the phrase “How it all happened”; it effectively did not leave it open to the viewers whether or not to agree that the applicants had prepared and participated in the implementation of “plan B” and were responsible for the violence and devastation that had happened in April 2009, see Pedersen and Baadsgaard, cited above, § 74).

37.  The Court considers that the balancing between the two competing rights which the domestic courts carried out in a rather general manner did not remedy the absence of any analysis in respect of specific statements in the film, notably concerning the most serious accusations of crimes allegedly committed by the applicants (see, mutatis mutandis, Kommersant Moldovy v. Moldova, no. 41827/02, §§ 36-38, 9 January 2007, where a violation of Article 10 was found on account of the failure of the domestic courts to specify which elements of the applicant’s articles were problematic).

38.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.

     II.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  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.    Non-pecuniary damage

40.  The applicants each claimed 50,000 euros (EUR) in compensation for the non-pecuniary damage caused to them as a result of the courts’ rejection of their action, leaving them disparaged in the public’s eyes.

41.  The Government submitted that in the absence of any violation of the applicants’ rights no compensation should be awarded to them. In any event, the sums claimed were unsubstantiated and without any basis in the Court’s case-law.

42.  Ruling on an equitable basis, the Court awards the first two applicants EUR 1,500 each in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicants.

B.    Costs and expenses

43.  The applicants claimed jointly EUR 2,100 in respect of costs and expenses. They relied on a detailed list of hours worked on the case by their lawyer, as well as on the receipts confirming that the above-mentioned sum had been paid to the lawyer. They also claimed 44,517 Moldovan lei (the equivalent of approximately EUR 2,240) for translation and postal services.

44.  The Government maintained their position that no compensation was due owing to the absence of a violation of the applicants’ rights. In any event, in the light of the nature and complexity of the case and of the amount of work required, the sums claimed were excessive.

45.  The Court awards the first two applicants jointly EUR 1,500 for costs and expenses, plus any tax that may be chargeable on the applicants.

46.  The Court considers it appropriate that the default interest rate 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,

1.      Declares the complaint lodged by the third applicant inadmissible, and the remainder of the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the first two applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,500 (one thousand five hundred euros) each to the first and second applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros) jointly, plus any tax that may be chargeable to the first two applicants, 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;

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 1 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Hasan Bakırcı                                                   Branko Lubarda
          Deputy Registrar                                                      President

 

 

APPENDIX

List of applicants:

 

No.	Applicant’s Name	Year of birth/registration	Nationality	Place of residence
1.	Mihai GHIMPU	1951	Moldovan,Romanian	Chișinău
2.	Dorin CHIRTOACĂ	1978	Moldovan,Romanian	Chișinău
3.	PARTIDUL LIBERAL	1999	Registered in Moldova	Chișinău