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FOURTH
SECTION
CASE OF FLUX v. MOLDOVA (No. 5)
(Application
no. 17343/04)
JUDGMENT
STRASBOURG
1
July 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Flux v. Moldova (no. 5),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 10 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17343/04) 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 Flux (“the applicant newspaper”),
a newspaper based in Chişinău, on 5 April 2004.
- The
applicant newspaper was represented by Mr V. Gribincea, a lawyer
practising in Chişinău and a member of the non-governmental
organisation Lawyers for Human Rights. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant newspaper alleged, in particular, a breach of its right to
freedom of expression on account of having been found guilty of
defamation of a former Deputy Prosecutor General.
- On
14 September 2006 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
15 November 2002 Flux published an article entitled “The
criminal case file of Eugenia Duca, like five kilograms of waste
paper”. It reported on the evolution of a high-profile criminal
case against a business woman, who was convicted at the time but was
later acquitted and compensated for illegal prosecution and
detention, and published in italicised script extracts from an open
letter sent by her daughter to the President of the country,
President of the Parliament, Prime Minister, Council of Europe, OSCE
Mission in Moldova and other organisations. In the letter she
complained of alleged abuses committed by the prosecution and by the
judiciary against her mother. The letter contained, inter alia,
the following sentence:
“On 10 July 2001, the Deputy Prosecutor General
V.S. (subsequently dismissed for dubious affairs), signed the
indictment in Eugenia Duca's criminal case... and sent it to the
Râşcani District Court without her even having seen it.”
- On
an unspecified date Mr V.S., who in the meantime was demoted, brought
civil proceedings for defamation against the newspaper, arguing that
the statement about his dismissal for dubious affairs was not true
and that it was defamatory of him.
- On
12 February 2003 the Buiucani District Court ruled in favour of Mr
V.S., finding the statement that Mr V.S. had been dismissed for
dubious affairs to be untrue and defamatory. It also found that V.S.
was employed at the time at the Prosecutor's Office attached to the
Court of Appeal and ordered the newspaper to issue an apology within
fifteen days and pay V.S. 2,700 Moldovan lei (178 euros (EUR)).
- The
applicant newspaper appealed against this judgment, arguing, inter
alia, that the article was in fact a dissemination of statements
made by Ms Duca's daughter in her open letter. Relying on Jersild
v. Denmark, judgment of 23 September 1994, Series A no. 298, the
applicant newspaper argued that it could not be punished for
disseminating statements made by third parties.
- On
29 April 2003 the Chişinău Court of Appeal dismissed the
appeal and upheld the judgment of the first-instance court. It did
not examine the arguments advanced by the applicant newspaper
concerning the dissemination of statements made by others. The
applicant newspaper lodged an appeal on points of law and submitted
that the expression “dubious affairs” had been a value
judgment.
- On
19 November 2003 the Supreme Court of Justice dismissed the appeal,
finding that Mr V.S. had been dismissed from his position by a
decision of the Parliament without any reasons being given. It did
not examine the applicant newspaper's arguments about the
dissemination of statements made by a third person.
II. RELEVANT DOMESTIC LAW
- 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 the withdrawal of
statements which are damaging to his or her honour and dignity if the
person who made such statements cannot prove that they are true.
(2) Where such information was made public by
a media body, the court shall compel the publishing office of the
media body to publish, not later then 15 days after the entry into
force of the judicial decision, a withdrawal 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
“(1) Damage caused to a person as a
result of circulation of statements which do not correspond to
reality and are damaging to his or her honour or dignity shall be
compensated by the responsible natural of legal person.
(2) The amount of the award shall be
determined by the court in each case as an amount equal to between 75
and 200 months' minimum wages if the information has been circulated
by a legal person and between 10 and 100 months' minimum wages if the
information has been circulated by a natural person.”
THE LAW
- The
applicant newspaper complained under Article 6 of the Convention that
the domestic courts had failed to give sufficient reasons in their
judgments. The relevant part of Article 6 reads:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a fair ...
hearing ...”
- The
applicant newspaper complained under Article 10 of the Convention
that the domestic courts' decisions had entailed interference with
its right to freedom of expression that could not be regarded as
necessary in a democratic society. Article 10 reads:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
I. ADMISSIBILITY OF THE CASE
- In
its initial application, the applicant newspaper also submitted a
complaint under Article 1 of Protocol No. 1 to the Convention and
under Article 13 of the Convention. However, in its observations
on admissibility and merits it asked the Court not to proceed with
the examination of this complaint. The Court finds no reason to
examine it.
- In
so far as the applicant newspaper's other complaints are concerned,
the Court considers that they raise questions of fact and law which
are sufficiently serious that their determination should depend on an
examination of the merits, and that no grounds for declaring them
inadmissible have been established. The Court therefore declares them
admissible. In accordance with its decision to apply Article 29 §
3 of the Convention (see paragraph 4 above), the Court will
immediately consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
A. The arguments of the parties
1. The applicant newspaper
- The
applicant newspaper agreed that the interference was prescribed by
law and had pursued a legitimate aim. However, it was not necessary
in a democratic society because the impugned article had merely
disseminated statements made by a third party and had been part of a
debate on an issue of public interest. The impugned statement was a
quote from an open letter sent to the President of the country, the
Prime Minister, the Council of Europe, the OSCE Mission in Moldova,
the Moldovan Centre for Human Rights and the United States Embassy in
Chişinău. Beside Mr V.S., the letter referred to at least
five other judges and prosecutors involved in the criminal case. Mr
V.S. had never asked the newspaper for a retraction of the statement
or for a right to retort. The article had been written on the basis
of detailed research. The journalist had contacted the author of the
open letter and interviewed her. The journalist had also obtained a
legal opinion from a lawyer and studied the verbatim record of a
debate in Parliament on the criminal proceedings against Ms Duca. Mr
V.S. had indeed been dismissed from his position in June 2002 and
appointed as a simple prosecutor. The reasons for the demotion had
never been made public; however, the investigation conducted by the
journalist and the fact of the demotion of Mr V.S. could have
reasonably made the journalist believe that the information in the
open letter was reliable.
2. The Government
- The
Government agreed that the facts of the case disclosed an
interference with the applicant newspaper's right to freedom of
expression. The interference was nevertheless justified under Article
10 § 2 of the Convention. The applicant newspaper had been
ordered to pay non-pecuniary damages for defamation on the basis of
Articles 7 and 7/1 of the Civil Code. The interference had thus been
“prescribed by law” and the law was accessible and
foreseeable. It had served the legitimate aim of protecting the
dignity of Mr V.S.; furthermore, the measure had been necessary in a
democratic society.
- The
Government pointed to the national authorities' margin of
appreciation in assessing the need for interference and submitted
that where the Convention referred to domestic law it was primarily
the task of the national authorities to apply and interpret that
domestic law. They contended that in the present case the domestic
authorities had not overstepped their margin of appreciation and had
made use of it in good faith, carefully and reasonably.
- The
Government further submitted that the reasons given to
justify the interference were “relevant and sufficient”.
B. The Court's assessment
- It
is common ground between the parties, and the Court agrees, that the
decisions of the domestic courts and the award of damages made
against the applicant newspaper amounted to “interference by
[a] public authority” with the applicant's right to freedom of
expression under the first paragraph of Article 10 of the Convention.
It is also undisputed that the interference was “prescribed by
law” and pursued a legitimate aim. The Court's task is to
establish whether the interference was “necessary in a
democratic society”.
- The
test of whether the interference complained of was “necessary
in a democratic society” requires the Court to determine
whether it corresponded to a “pressing social need”,
whether it was proportionate to the legitimate aim pursued, and
whether the reasons given by the national authorities to justify it
are relevant and sufficient. In assessing whether such a “need”
exists and what measures should be adopted to deal with it, the
national authorities are left a certain margin of appreciation. This
power of appreciation is not, however, unlimited but goes hand in
hand with European supervision by the Court, whose task it is to give
a final ruling on whether a restriction is reconcilable with freedom
of expression as protected by Article 10 (for the recapitulation of
the relevant principles in more detail, see Giniewski v. France,
no. 64016/00, §§ 43-54, ECHR 2006 ...; Aydın
Tatlav v. Turkey, no. 50692/99, §§ 22-27, 2 May 2006;
Gündüz v. Turkey, no. 35071/97, § 38,
ECHR 2003 XI; and Murphy v. Ireland, no. 44179/98,
§§ 65-69, ECHR 2003 IX (extracts), with further
references).
- The
Court notes that the article was written by a journalist and
reiterates that the pre-eminent role of the press in a democratic
society is to impart ideas and opinions on political matters and on
other matters of public interest (see Sunday Times v. the United
Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30,
§ 65). The impugned article had a bearing on issues such as
allegedly abusive criminal proceedings and the role played therein by
a senior law officer. There is no doubt that this is a very important
matter in a democratic society which the public has a legitimate
interest in being informed about.
- The
applicant newspaper was found liable in damages on the ground that it
was unable to prove the truth of a statement concerning Mr V.S. The
impugned statement was in fact a quote from an open letter written by
the daughter of an alleged victim of abusive criminal proceedings to
different high ranking politicians and international organisations.
- The
Court reiterates that “punishment of a journalist for assisting
in the dissemination of statements made by another person ... would
seriously hamper the contribution of the press to discussion of
matters of public interest and should not be envisaged unless there
are particularly strong reasons for doing so” (see Jersild
v. Denmark, judgment of 23 September 1994, Series A no. 298,
§ 35; and Thoma v. Luxembourg, no. 38432/97, § 62,
ECHR 2001 III).
- The
Court further notes that the complaints in the open letter about the
abuses committed by the prosecuting and judicial authorities against
Ms Duca were not baseless, since Ms Duca was later found by the
domestic courts to be a victim of abuses committed by the
investigating and prosecuting authorities resulting in charging her
with a criminal offence and detention (see Duca v. Moldova
(no. 1579/02), partial admissibility decision, 11 April 2006). It
also notes that it was undisputed during the domestic proceedings
that Mr V.S. was involved in the criminal proceedings against Ms Duca
in his capacity as prosecutor and that subsequently he was demoted.
In such circumstances, and in view of the language of the impugned
statement, the Court is not convinced that there were particularly
strong reasons to punish the applicant newspaper for assisting Ms
Duca's daughter in the dissemination of her open letter.
- Accordingly,
the Court concludes that the interference did not correspond to a
pressing social need and thus that it was not necessary in a
democratic society. Accordingly, there has been a violation of
Article 10 of the Convention.
III. alleged violation of Article 6 § 1 of the
Convention
- The
applicant newspaper also alleged a violation of Article 6 § 1 of
the Convention, arguing that the domestic courts had failed to give
reasons for their decisions. As this complaint does not raise a
separate issue from that examined under Article 10 above, the Court
does not consider it necessary to examine it separately.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The applicant newspaper claimed 185 euros (EUR) for
pecuniary damage, representing the damages paid by it to Mr V.S. and
the court fees which it had to pay for the examination of the
appeals.
- The
Government disagreed with the amount claimed and argued that the
applicant newspaper should not be entitled to recover it because the
proceedings had been fair and ample reasons had been given for the
judgments. They asked the court to dismiss the applicant newspaper's
claim in respect of pecuniary damage.
- The
Court considers the applicant's claim in respect of pecuniary damage
to be well-founded and awards it in full.
B. Non-pecuniary damage
- The
applicant newspaper claimed EUR 5,000 for non-pecuniary damage caused
to it by the breach of its Convention rights. In substantiating its
claim, the applicant newspaper argued that it had been obliged to
publish a retraction of the impugned statements and relied on
previous case-law.
- The
Government contested the claim and argued that it was ill-founded and
excessive.
- Having
regard to the violation of Article 10 of the Convention found above,
the Court considers that an award of compensation for non-pecuniary
damage is justified in this case. Making its assessment on an
equitable basis, the Court awards the applicant newspaper EUR 3,000.
C. Costs and expenses
- The
applicant newspaper's lawyer claimed EUR 1,990 for the costs and
expenses incurred before the Court. He submitted a detailed
time-sheet. The calculation in the time-sheet also included the time
spent on the complaint under Article 6 of the Convention.
- The
Government disputed the amount claimed for representation. They
considered it excessive and argued that the amount claimed by the
lawyer was not the amount actually paid to him by the applicant
newspaper. They disputed the number of hours worked by the
applicant's lawyer and the hourly rate he charged.
- In
the present case, regard being had to the itemised list submitted,
the complexity of the case, and also to the fact that the complaint
under Article 6 has been withdrawn by the applicant, the Court
awards the applicant newspaper's lawyer EUR 1,800 for costs and
expenses.
D. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant newspaper, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR
185 (one hundred and eighty-five euros) in respect of pecuniary
damage;
(ii) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage plus
any tax that may be chargeable;
(iii) EUR
1,800 (one thousand eight hundred euros) in respect of costs and
expenses plus any tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant
newspaper's claim for just satisfaction.
Done in English, and notified in writing on 1 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
