[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF FLUX (NO. 3) v. MOLDOVA
(Application
no. 32558/03)
JUDGMENT
STRASBOURG
12
June 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Flux (no. 3) v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 22 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32558/03) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Flux (“the applicant”), a
newspaper based in Chişinău, on 13 May 2003.
- The
applicant 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. Pârlog.
- The
applicant alleged, in particular, a breach of its right to freedom of
expression on account of its having been found guilty of defamation
of a politician.
- On
9 February 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
27 March 1999, during a television broadcast, the head of the
Department for Combating Organised Crime and Corruption, N. A.,
accused Valeriu Matei, the then Vice-President of Parliament and
President of one of the political parties represented in Parliament,
of corruption and, together with a mafia gang, of protecting several
companies allegedly involved in criminal activities. He stated, inter
alia, that:
“...Mr Matei should have been arrested as he has
committed both a criminal offence and a minor administrative
offence... A criminal file concerning protecting criminals will be
sent to the Prosecutor's Office and to the court... These companies
[which were suspected of being involved in criminal activities] are
being protected by the criminal gang headed by M. and by Mr Matei
from Parliament...”
- On
30 March 1999 Flux published an article entitled “The
anti-corruption war: General N.A. versus President Matei. Nicolae
Alexei claims that Valeriu Matei is providing political protection to
a mafia clan.”
- The
article contained a word-by-word account of the televised broadcast
of 27 March 1999 and the newspaper's commentary.
- On
30 April 1999 Valeriu Matei brought a civil defamation
action against Flux and argued that a large number of N.A.'s
statements published by Flux were untrue and defamatory of
him. The title of the article was not among those statements.
- On
20 February 2003, by a final judgment, the Court of Appeal found that
the statements complained of by Valeriu Matei were not defamatory of
him, inter alia, because Flux had simply reproduced
N.A.'s statements. However, it found that the following part of the
article's title was defamatory of Valeriu Matei: “N.A. claims
that Valeriu Matei is providing political protection to a mafia
clan”. The court found that no such sentence had been
pronounced by N.A. during the broadcast of 27 March 1999 and that the
newspaper had not adduced evidence to prove that Valeriu Matei was a
member of a mafia clan. The court ordered the newspaper to pay the
plaintiff 3,600 Moldovan Lei (MDL) and to issue an apology within
fifteen days. The newspaper was also ordered to pay the court fees.
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 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 body which circulated such
statements is not capable of proving that these statements correspond
to reality, 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 moral damage
“(1) The moral damage caused to a
person as a result of circulation through the mass media or by
organisations or persons of statements which do not correspond to
reality, as well as statements concerning his or her private or
family life without his or her consent, shall be compensated by way
of a pecuniary award. The amount of the award shall be determined by
the court.
(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 complained under Article 6 of the Convention that the
proceedings before the domestic courts had been unfair, that no
reasons had been given for the judgments of the domestic courts and
that the courts had lacked independence. Article 6, in so far as
relevant, reads as follows:
“1. In the determination of his civil rights
and obligations ..., everyone is entitled to a fair ... hearing ...
by an independent and impartial tribunal established by law.”
- The
applicant also complained under Article 10 of the Convention that the
domestic courts' decisions had entailed interference with its right
to freedom of expression that could not be regarded as necessary in a
democratic society. Article 10 reads:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
I. ADMISSIBILITY OF THE CASE
- In
its initial application, the applicant newspaper submitted further
complaints under Article 6 § 1 of the Convention alleging that
the domestic courts had given insufficient reasons for their
decisions and had lacked independence. It also complained under
Article 1 of Protocol No. 1 and Article 13 of the Convention.
However, in its observations on the admissibility and merits, it
asked the Court not to proceed with the examination of the complaints
under Article 1 of Protocol No. 1 and Article 13. The Court
finds no reason to examine them.
- The
Court considers that the applicant's complaint under Article 10
of the Convention and the complaint under Article 6 concerning the
fairness of the proceedings raise questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of the merits, and that no grounds for declaring them
inadmissible have been established. The Court therefore declares the
application admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of these
complaints.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
A. The arguments of the parties
1. The applicant
- The
applicant argued that the title of the article, for which the
newspaper had been penalised, was nothing more than a conclusion
drawn by the author from the statements made by N.A. and was thus
simply a value judgment supported by a sufficient factual basis.
- The
article had been written in the context of a debate on an issue of
distinct public importance, namely the alleged involvement of a high
ranking politician in illegal activities. The margin of appreciation
enjoyed by the domestic courts had therefore been very narrow in this
case.
2. The Government
- The
Government agreed that the facts of the case disclosed interference
with the applicant's right to freedom of expression. The interference
was nevertheless justified under Article 10 § 2 of the
Convention. The applicant 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 was thus “prescribed by law”
and the law was accessible and foreseeable. It served the legitimate
aim of protecting the dignity of Valeriu Matei; furthermore, the
measure was 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 domestic
law. They contended that in the present case the domestic authorities
had not overstepped this margin of appreciation and had made use of
it in good faith, carefully and in a reasonable way.
- The
Government submitted that the reasons given to justify
the interference were “relevant and sufficient” and that
the domestic courts had acted within the limits of the margin of
appreciation enjoyed by them in this particular case.
B. The Court's assessment
- It
is common ground between the parties, and the Court agrees, that the
decisions of the domestic courts and the award of damages made
against the applicant amounted to “interference by [a] public
authority” with the applicant's right to freedom of expression
under the first paragraph of Article 10. 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 (the
potential impact of the medium of expression concerned is an
important factor in the consideration of the proportionality of an
interference), 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; Murphy v. Ireland,
no. 44179/98, §§ 65-69, ECHR 2003 IX
(extracts), with further references).
- The
Court recalls that in Lingens v. Austria (judgment of 8 July
1986, Series A no. 103, § 42) it held that:
“[the politician] inevitably and knowingly lays
himself open to close scrutiny of his every word and deed by both
journalists and the public at large, and he must consequently display
a greater degree of tolerance. No doubt Article 10 para. 2 enables
the reputation of others - that is to say, of all individuals - to be
protected, and this protection extends to politicians too, even when
they are not acting in their private capacity; but in such cases the
requirements of such protection have to be weighed in relation to the
interests of open discussion of political issues.”
- The
Court notes in the first place that the domestic courts found to be
defamatory a statement about which even the plaintiff in the domestic
proceedings had not complained. That in itself would be sufficient
for the Court to find a violation in this case. However, even
assuming that that was not the case, the impugned statement amounted
to a statement of facts which appeared to be very accurate. Indeed
N.A. accused Valeriu Matei of protecting a criminal gang and the
parties did not dispute that such an accusation was made.
- Bearing
in mind the above circumstances, the fact that the impugned statement
was made by a journalist within a debate on an issue of public
interest, that the plaintiff in the domestic proceedings was a
high-ranking politician and having regard to the language used, 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 proceedings had been unfair because
the domestic courts had found to be defamatory a statement about
which the plaintiff in the domestic proceedings had not complained.
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 claimed EUR 260 for pecuniary damage, representing the
damages paid by it to Valeriu Matei and the court fees which it had
had to pay for the examination of its appeals.
- The
Government disagreed with the amount claimed and argued that the
applicant 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's claim for
pecuniary damage.
- The
Court considers the applicant's claim for pecuniary damage to be well
founded and awards it in full.
B. Non-pecuniary damage
- The
applicant claimed EUR 18,500 for non-pecuniary damage caused to
it by the breach of its Convention rights. In substantiating its
claims concerning the non-pecuniary damage related to the breach of
Article 10, the applicant argued that it had been obliged to publish
a retraction of the impugned statements and relied on previous
case-law in Moldovan cases. In particular, it relied on the cases of
Busuioc v. Moldova (no. 61513/00, § 104, 21
December 2004) and Savitchi v. Moldova (no. 11039/02,
§ 64, 11 October 2005) in which four and three thousand
euros, respectively, were awarded.
- 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
(see Savitchi, cited above, § 64).
C. Costs and expenses
- The
applicant's lawyer claimed EUR 1,455 for the costs and expenses
incurred before the Court. He submitted a detailed time-sheet and a
contract according to which the lawyer's hourly rate was EUR 60.
The calculation in the time-sheet did not include the time spent on
the complaints under Articles 13 and 1 of Protocol No. 1 to the
Convention which was subsequently withdrawn by the applicant.
- He
argued that the number of hours spent by him on the case was not
excessive and was justified by its complexity and by the fact that
the observations had to be written in English.
- As
to the hourly fee of EUR 60, the lawyer argued that it was within the
limits of the rates recommended by the Moldovan Bar Association which
were EUR 40-150. He also pointed to the high cost of living in
Chişinău, giving as examples the prices of accommodation
and petrol.
- The
Government disagreed with the amount claimed for representation. They
said that it was excessive and argued that the amount claimed by the
lawyer was not the amount actually paid to him by the applicant. They
disputed the number of hours spent by the applicant's lawyer and the
hourly rate charged by him. They also argued that the rates
recommended by the Moldovan Bar Association were too high by
comparison with the average monthly salary in Moldova and pointed to
the not-for-profit nature of the organisation Lawyers for Human
Rights.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred and were
reasonable as to quantum (see, for example, Amihalachioaie v.
Moldova, no. 60115/00, § 47, ECHR 2004 ...).
- The
reimbursement of fees cannot be limited only to those
sums already paid by the applicant to his or her lawyer; indeed, such
an interpretation would discourage many lawyers from representing
less prosperous applicants before the Court. In any event, the Court
has always awarded costs and expenses in situations where the fees
were not paid by the applicants to their lawyers before the Court's
judgment (see, among other authorities, Ilaşcu and
Others v. Moldova and Russia [GC], no. 48787/99, § 493,
ECHR 2004 VII, and Christian Democratic People's Party v.
Moldova, no. 28793/02, § 85, ECHR 2006 ...).
In
the present case, regard being had to the itemised list submitted and
the complexity of the case, Court awards the applicant's lawyer EUR
1,200 for costs and expenses.
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 the
complaint under Article 6 § 1 of the Convention about the
failure of the domestic courts to give reasons in their decisions;
- Holds
(a) that
the respondent State is to pay the applicant, 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 260 (two hundred and sixty euros) in respect of pecuniary damage;
(ii)
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(iii)
EUR 1,200 (one thousand two hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable;
(iv)
any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
