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FOURTH
SECTION
CASE OF FLUX (NO. 2) v. MOLDOVA
(Application
no. 31001/03)
JUDGMENT
STRASBOURG
3 July
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. 2) 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 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31001/03) 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 15 September 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
THE CIRCUMSTANCES OF THE CASE
- On
19 June 2002 Flux published on its first page the
title of an article due to appear in a future issue together with a
summary of the article. The title of the summary was “The red
millionaires” and it was accompanied by a big picture of the
leader of the Communist Party parliamentary group, Victor Stepaniuc,
wearing a top hat.
- The
summary read as follows:
“The Communists want to sell off piece-meal the
Anenii Noi canned food plant
The Anenii Noi plant is the only undertaking in the
region which is still alive. The rest of the plants have been sold
off piece-meal. Since the Communists came to power, a campaign to
liquidate this plant has commenced. Certain members of the Parliament
of Moldova wish to dismantle it and sell it off piece-meal. Sources
from the plant told our newspaper that the member of Parliament M.A.,
who is responsible for Anenii Noi County, with the support of the
main creditors ... is behind this dirty affair. Having great
influence and parliamentary immunity, he wants to fill his pockets
following the sale of the plant.
At present the plant is not operating and is making
substantial losses, and this situation is being used to maximum
advantage by this MP. Since the plant is not operating and is not
profitable, the shareholders want to liquidate it. The problem is
that the plant could operate if the shareholders did not hinder the
plant's staff.
(A detailed article about this affair will be published
in the Friday issue on page 5)”.
- The
next day, on 20 June 2002, Mr Stepaniuc brought civil
defamation proceedings against the newspaper and against the author
of the article. He argued, inter alia, that:
“... the defendants disseminated information which
is defamatory of me as a citizen, an MP and as the leader of the
Communist Party parliamentary group ...
... the article, which is accompanied by my picture,
contains the following defamatory statements: 'The Communists want to
sell the Anenii Noi canned food plant off piece-meal' ... 'Since the
Communists came to power, a campaign to liquidate this plant has
commenced. Certain members of the Parliament of Moldova wish to
dismantle it and sell it off piece-meal'.
By publishing this article, the defendants, acted in bad
faith, misinforming public opinion about my actions in my capacity as
MP and also about the activity of the Communist Party parliamentary
group which I represent, accusing us of destroying an enterprise
which is part of the national economy.”
- On 21 June 2002 Flux published the article
announced in its 19 June issue. The article was based on the account
of V.N., the deputy Chief Executive Officer of the Anenii Noi canned
food plant, and reported on events concerning alleged attempts by a
Communist parliamentarian (M.A.), to have the plant declared bankrupt
and sold off. It stated, inter alia, that the parliamentarian
had made use of the Tax Authority and other State bodies for that
purpose and that he (M.A.) had told V.N. that his actions were
supported by the Communist Party parliamentary group. According to
V.N., three other plants from the region had already been declared
bankrupt and sold off in the same manner.
- On
1 August 2002 Judge I.M., who was also President of the
Buiucani District Court, ruled in favour of Mr Stepaniuc, relying on
the following grounds:
“From the content and meaning of the article [of
19 June 2002] it is clear that Flux and the author made
defamatory and false accusations against Mr Stepaniuc, in particular
to the effect that he, in his capacity as MP and leader of the
Communist Party parliamentary group, had engaged in actions directed
at destroying enterprises within the national economy of the Republic
of Moldova for personal gain.
In addition, the article was accompanied by a picture of
the plaintiff.
The defendants did not present in the article any proof
of the truthfulness of their accusations.
In such circumstances, the court considers it necessary
to note that any article should be sincere, correct and contain only
truthful revelations which correspond to reality and are not based on
rumours, anonymous letters or inadequately checked information from
unreliable sources.
The defendants, however, did not abide by common sense
and unjustly defamed the plaintiff.
Accordingly, the defendants clearly overstepped the
limits of constructive criticism of public persons necessary in a
democratic society.
In the court's view, the fact that the plaintiff's name
was not given in the article is not conclusive, since his picture and
the meaning and content of the article make it clear that it is
directed against him. Consequently, he was exposed to mental and
moral suffering which should be remedied by the defendants.
In establishing the compensation to be paid for
non-pecuniary damage, the court shall take into consideration the
considerable vehemence of the attack against Mr Stepaniuc, the large
readership of the newspaper and the degree of suffering endured by
the plaintiff.
The court should also take into consideration the public
functions occupied by Mr Stepaniuc, that of MP and leader of a
parliamentary group, which should increase the award for moral
damage. Therefore the court considers it necessary to award the
plaintiff the maximum amount of compensation provided for by the
law.”
- The
court found the statement: “The Communists want to sell the
Anenii Noi canned food plant off piece-meal” to be defamatory
and ordered the newspaper and the author to pay the plaintiff 3,600
Moldovan Lei (MDL) (the equivalent of 270 euros (EUR) at the time)
and MDL 1,800 respectively. It further ordered the newspaper to
issue an apology within fifteen days. The defendants were also
ordered to pay the court fees.
- The
newspaper lodged an appeal against the judgment in which it argued,
inter alia, that the article had been directed against M.A.,
another MP from the Communist Party parliamentary group and not
against Mr Stepaniuc. The latter's picture had been published in
order to make it easy to identify the Communist Party parliamentary
group, since he was its President.
- The
applicant also argued that the impugned article was only an abstract
of an article to be published subsequently and that the statement
found by the first-instance court to be defamatory was merely a
subjective conclusion drawn by the author based on the information
published in the main article. The applicant further submitted that
M.A. had also instituted defamation proceedings against the newspaper
and requested that the two actions instituted by Mr Stepaniuc and by
M.A. be joined and examined together.
- The
applicant finally argued that Judge I.M. lacked independence and
impartiality because he was a friend of Mr Stepaniuc and had been
appointed President of the Buiucani District Court by the Communist
Party parliamentary group. The majority of the defamation cases
between Flux and Mr Stepaniuc were examined by him personally
and his decisions were stereotyped. In other defamation cases between
Flux and representatives of the Government, Judge I.M. had
always ruled in favour of the latter and had awarded them the maximum
amount provided for by law.
- On
6 February 2003 the Chişinău Regional Court
dismissed the appeal as being unfounded. It did not take into
consideration the article published on 21 June 2002.
- The
newspaper lodged an appeal on points of law, relying on the same
grounds as in its appeal and added, inter alia, that the
impugned article merely reproduced the opinion of the management of
the Anenii Noi canned food plant.
- On
1 April 2003 the Court of Appeal dismissed the appeal. It
stated, inter alia, that it was clear that the information
published in the article about Mr Stepaniuc did not correspond to
reality; moreover, his picture had been attached to the article.
- It appears that the defamation action brought by M.A.
against Flux was struck out due to M.A.'s failure to appear
before the court.
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 month's minimum wages if the
information has been circulated by a natural person.”
III. MATERIALS RELIED ON BY THE APPLICANT
- The Freedom House Organisation 2003 country report for
Moldova, insofar as relevant, reads as follows:
“... In 2002, the principle of the rule of law was
under challenge in Moldova. This was evidenced by the rising number
of cases filed by Moldovan citizens in the European Court of Human
Rights and actions taken by the Parliament and government to suppress
judicial independence. Also affecting the fragile balance of power
among the legislative, executive, and judicial branches of government
in 2002 were a series of judicial nominations based on loyalty to the
ruling party, the dismissal of the ombudsman, and attempts to limit
the independence of the Constitutional Court.
...
In April, the Moldovan Association of Judges (MAJ)
signaled that the government had started a process of “mass
cleansing” in the judicial sector. Seven judges lost their
jobs, including Tudor Lazar, a member of the court of appeals, and
Gheorghe Ulianovschi, the chairman of the Chisinau Tribunal. In the
case of Lazar, the move was likely revenge for decisions by the court
of appeals that favored the Basarabian Metropolitan Church and local
oil importers over the government.
The situation worsened when President Voronin refused to
prolong the mandates of 57 other judges. The MAJ conveyed a statement
on the matter to COE rapporteurs who were in Chisinau at the time on
a fact-finding mission. The government instructed the Ministry of
Justice to delay court decisions related to the payment of material
damages by state institutions. In October, Gheorghe Susarenco,
chairman of the Moldovan Association of Judges, stated at a press
conference that senior government officials were pressuring judges to
issue rulings that favored government bodies.
In December, President Voronin promulgated a
constitutional amendment giving him the right to appoint judges.
Under the amendment, the head of state will appoint the chairs of
courts, their deputies, and lower-ranking judges for four-year terms
at the recommendation of the Higher Council of Magistrates.
Parliament will appoint for four-year terms members of the Supreme
Court of Justice, including the chief of the Supreme Court of
Justice, the prosecutor-general, and the minister of justice. These
changes provide evidence that the country's Communist leaders are
weakening judicial independence and subordinating this branch of
governance to their authority...”
- The United States Department of State 2003 country
report on Moldova read as follows in its relevant parts:
“... The Constitution provides for an independent
judiciary; however, official pressure and corruption of judges
remained a problem.
There continued to be credible reports that local
prosecutors and judges extorted bribes for reducing charges or
sentences.
Following a major reorganization in May, the judiciary
consists of three levels: lower courts, courts of appeals, and the
Supreme Court. A separate Constitutional Court has exclusive
authority in cases regarding the constitutionality of draft and final
legislation, decrees, and other government acts. While the
Constitutional Court was generally regarded as fair and objective,
observers frequently charged that other courts were corrupt or
politically influenced.
The Constitution authorizes the President, acting on the
nomination of the Superior Court of Magistrates, to appoint judges
for an initial period of 5 years. Before being reappointed, judges
must undertake specialized judicial training and pass a test
evaluated by the Superior Council of Judges. Political factors have
played a large role in the reappointment of judges.”
THE LAW
- The
applicant complained under Article 6 of the Convention that no
reasons had been given for the judgments of the domestic courts and
that Judge I.M. of the first-instance court lacked independence and
impartiality. 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
A. The complaint under Article 6 of the Convention
concerning the independence and impartiality of Judge I.M.
- The
Government argued that the applicant had failed to adduce any
credible proof in support of its submission that Judge I.M. lacked
impartiality and independence. According to them, the mere fact that
the applicant had been unsuccessful in proceedings on several
occasions before that judge was not sufficient proof of his lack of
independence and impartiality. In any event the applicant had at its
disposal the possibility to challenge Judge I.M.
- The
applicant argued that Judge I.M. lacked independence and
impartiality. While he had obtained tenure in 2000 under the previous
Government, he had been appointed President of the Buiucani District
Court in 2001 by the Communist Party parliamentary group, which held
71 seats out of 101 and whose leader was Mr Stepaniuc. Since then he
had examined four other defamation cases brought by Mr Stepaniuc
against the applicant newspaper and had found in all of them for Mr
Stepaniuc and awarded the maximum amount possible under the law.
According to the applicant it was a strange coincidence that the
President of the court should himself have examined the majority of
the defamation actions brought by Mr Stepaniuc. This is moreover
strange since he had never examined defamation proceedings against
Flux brought by “ordinary” plaintiffs. In all the
cases the actions had been upheld even though Mr Stepaniuc had failed
to pay the court fees, an omission which was a formal ground for
inadmissibility under the Code of Civil Procedure. Mr Stepaniuc had
not even appeared before the court and all of his actions had been
examined in his absence, usually at the first hearing. Judge I.M.
never put questions to the defendant but kept advancing reasons which
were in support of the plaintiff's position, reasons which had never
been advanced by the plaintiff himself. This was proof of the
“special care” shown by Judge I.M. towards Mr Stepaniuc.
On 18
March 2004 Judge I.M. had been promoted and appointed by Parliament
as judge at the Supreme Court of Justice. According to the applicant
it was the first time that a judge from a first-instance court had
been promoted directly to the Supreme Court. Moreover, on 14 May 2004
Judge I.M. had been appointed Deputy President of the Commercial
Division of the Supreme Court of Justice and on 7 July 2006 he had
been awarded a State distinction called Meritul Civic by the
President of Moldova, who was also the President of the Communist
Party of Moldova.
- The
applicant also made reference, inter alia, to the reports of
the Freedom House Organisation and of the United States Department of
State (see paragraphs 19 and 20 above) and concluded that, in view of
the general perception of the Moldovan judiciary, the circumstances
surrounding the career of Judge I.M. and his behaviour in other
similar cases between the applicant newspaper and Mr Stepaniuc, it
had grounds for an objectively justified and legitimate fear that the
judge in question had lacked independence and impartiality when
examining the case.
- The
Court considers that it is not required to examine whether the
applicant failed to exhaust domestic remedies since it finds that the
complaint is in any event and for the following reasons manifestly
ill-founded.
- The
Court reiterates that appointment of judges by the executive or the
legislature is permissible, provided the appointees are free from
influence or pressure when carrying out their adjudicatory role (see
Campbell and Fell v. the United Kingdom, judgment of 28 June
1984, Series A no. 80, § 79). In the present case
it appears that Judge I.M. had tenure and that his employment could
not be terminated by the executive or the legislature. The applicant
did not adduce any evidence to show that Judge I.M. had been subject
to any form of influence or pressure from the executive or
legislature. In the light of the above, the Court is unable to
conclude that Judge I.M. lacked independence and impartiality, viewed
both subjectively and objectively, within the meaning of Article 6 §
1 of the Convention when dealing with the civil action brought
against the applicant newspaper. Accordingly, this complaint must be
declared inadmissible as being manifestly ill-founded within the
meaning of Article 35 §§ 3 and 4 of the Convention.
B. The complaints under Article 1 of Protocol No. 1 and
Article 13 of the Convention
- In
its initial application, the applicant newspaper also submitted
complaints under Article 1 of Protocol No. 1 and Article 13 of
the Convention. However, in its observations on admissibility and
merits it asked the Court not to proceed with the examination of
these complaints. The Court finds no reason to examine them.
C. Complaints under Articles 10 and 6 of the Convention
- The
Court considers that the applicant's complaint under Article 10
of the Convention and the complaint under Article 6 concerning the
insufficient reasons given for the domestic courts' judgments raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and that
no grounds for declaring them inadmissible have been established. The
Court therefore declares the application admissible. In accordance
with its decision to apply Article 29 § 3 of the
Convention (see paragraph 4 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
A. The arguments of the parties
1. The applicant
- The
applicant argued that the interference was not provided for by law
because Moldovan law and case-law did not distinguish between
statements of fact and value judgments.
- The
applicant also submitted that the article of 19 June 2002 was merely
a summary of the article published on 21 June 2002, which in its turn
reflected statements made by a third person, V.N. The title of the
summary, for which the newspaper had been penalised, was nothing more
than a conclusion drawn by the author from the statements made by
V.N. 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 management of State property
and alleged abuses by State officials. Moreover, the article had not
contained any criticism of Mr Stepaniuc, but only of M.A., who was a
parliamentarian belonging to the Communist Party parliamentary group.
Mr Stepaniuc's picture had been published only in order to make the
parliamentary group easily identifiable. In any event, the margin of
appreciation enjoyed by the domestic courts had been very narrow in
this case, since the plaintiff in the proceedings was a politician.
2. The Government
- The
Government agreed that the facts of the case disclosed an
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 Mr Stepaniuc; 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 their margin of appreciation and had made use of
it in good faith, carefully and in a reasonable way.
- 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 amounted to “interference by [a] public
authority” with the applicant's right to freedom of expression
under the first paragraph of Article 10. Such interference will
entail a violation of Article 10 unless it is “prescribed by
law”, has an aim or aims that are legitimate under paragraph 2
of the Article and is “necessary in a democratic society”
to achieve such aim or aims.
1. “Prescribed by law”
- The
Court notes that the interference complained of had a legal basis,
namely Articles 7 and 7 § 1 of the Civil Code (see paragraph 18
above). In its judgment in Busuioc v. Moldova (no. 61513/00,
§ 52-54, 21 December 2004), the Court found that
these provisions were accessible and foreseeable. Accordingly, the
Court concludes that in this case too the interference was
“prescribed by law” within the meaning of Article 10 § 2.
2. “Legitimate aim”
- It
is not disputed by the parties, and the Court agrees, that the
interference served the legitimate aim of protecting the reputation
of Mr Stepaniuc. It therefore remains to be examined whether the
interference was “necessary in a democratic society”.
3. “Necessary in a democratic society”
(a) General principles
- The
relevant general principles have been summarised in Busuioc
v. Moldova, cited above, §§ 56-62, 2004 and
in Savitchi v. Moldova, no. 11039/02, §§ 43-50,
11 October 2005.
- In addition to that, the Court recalls that in Lingens
v. Austria (judgment of 8 July 1986, Series A no. 103, §
42) it held that:
“[the politician] inevitably and knowingly lays
himself open to close scrutiny of his every word and deed by both
journalists and the public at large, and he must consequently display
a greater degree of tolerance. No doubt Article 10 para. 2 enables
the reputation of others - that is to say, of all individuals - to be
protected, and this protection extends to politicians too, even when
they are not acting in their private capacity; but in such cases the
requirements of such protection have to be weighed in relation to the
interests of open discussion of political issues.”
(b) Application of the above principles in
the present case
- The
Court notes that in essence the applicant newspaper was penalised for
publishing a picture of the President of the Communist Party
parliamentary group in the context of a summary of a future article
containing criticism of that group for alleged involvement in illegal
acts. It is possible to say that the juxtaposition of the text and
the photograph gave rise to an implication that there was a link
between the alleged illegalities and Mr Stepaniuc. Moreover, the
summary did not make clear that the main article was to be based on
the account of a third person. It was, however, stated that
details were to follow in the main article and the summary made clear
that it referred to politicians and to political matters.
- The
Court notes that the article was written by a journalist and recalls
the pre-eminent role of the press in a democratic society to impart
ideas and opinions on political matters and on other matters of
public interest (see Sunday Times v. the United Kingdom (no. 1),
judgment of 26 April 1979, Series A no. 30, § 65).
The Court also recalls that States enjoy a very narrow margin of
appreciation in cases concerning politicians (see paragraph 40 above)
and notes that Mr Stepaniuc was a very high-ranking politician at the
time of the events. Finally, the Court notes that the summary and the
impugned statement were based on information coming from a source
which was prima facie reliable, namely from the CEO of the
plant (see, mutatis mutandis, Bladet Tromsø and
Stensaas v. Norway [GC], no. 21980/93, § 68, ECHR
1999 III).
- The
Court notes that the applicant argued in his appeal and in his appeal
on points of law that the article of 19 June 2002 was merely an
abstract of an article which was to appear on 21 June 2002 and that
the impugned phrase “The Communists want to sell off the Anenii
Noi canned food plant piece-meal” was merely a conclusion drawn
by the author from the information presented in that article. The
information in the main article, in its turn, was based on the
account of the plant's CEO and was never found defamatory or untrue
(see paragraphs 8 and 17 above). However, the national courts did not
pay any attention to the applicant's arguments and did not seek to
assess them, apparently treating them as irrelevant and concluding
that the impugned statement was untrue and defamatory of Mr Stepaniuc
without even reading the main article.
- The
Court recalls that, to require an applicant to prove the truth of his
or her statements, while at the same time depriving him or her of an
effective opportunity to adduce evidence to support the statements
and thereby attempt to establish their truthfulness or to show that
their content was not entirely without foundation, constitutes a
disproportionate interference with the right to freedom of expression
(see, for example, Busuioc, cited above, § 88 and
Savitchi v. Moldova, cited above, § 59).
- Being
mindful of the above, bearing in mind the language used by the
newspaper in the impugned statement, the fact that journalistic
freedom also covers possible recourse to a degree of exaggeration, or
even provocation and having weighed up the different interests
involved in the present case, the Court comes to the conclusion that
the interference with the applicant newspaper's right to freedom of
expression was not “necessary in a democratic society”.
- Accordingly,
the Court concludes that there was a breach 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 claimed EUR 278 for pecuniary damage,
representing the damages paid by it to Mr Stepaniuc 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
(cited above) and Savitchi (cited above) 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.
B. Costs and expenses
- The
applicant's lawyer claimed EUR 2,680 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 Article 13 and Article 1 of Protocol No. 1 which
were 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 hourly 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 in
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, and also to the fact that one complaint
was declared inadmissible, the Court awards the applicant EUR 1,800
for costs and expenses.
FOR THESE REASONS, THE COURT
- Declares by six votes to one inadmissible the
complaint under Article 6 § 1 of the Convention
concerning the alleged lack of independence and impartiality of Judge
I.M.;
- Declares unanimously the remainder of the
application admissible;
- Holds unanimously that there has been a
violation of Article 10 of the Convention;
- Holds by six votes to one that there is no need
to examine separately the complaint under Article 6 § 1 of the
Convention;
- Holds unanimously
(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 278 (two hundred and seventy-eight euros) in respect of pecuniary
damage;
(ii)
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(iii)
EUR 1,800 (one thousand eight hundred euros) in respect of costs and
expenses;
(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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 3 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of Mr
Bonello is annexed to this judgment.
N.B.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE BONELLO
- In
this case the Court could have voiced its views on the pathology of
an administration of justice. It did not.
- The
applicant newspaper Flux submitted complaints relating to two
violations of Article 6 of the Convention. The majority declared
inadmissible the first complaint on the lack of independence and
impartiality of Judge I.M. A second complaint regarding the alleged
failure of the domestic courts to give reasons for their decisions
was disposed of by the majority with a finding that this complaint
did not raise an issue separate from the freedom of expression
complaint under Article 10, and that consequently the Court did not
consider it necessary to examine it separately.
- As
the applicant's first Article 6 complaint was declared inadmissible
not by a judgment but by a separate 'decision' of the Court, I am
restrained from expressing if and why I agreed or disagreed with that
decision, finding some comfort in the reflection that it is not the
first time that courts trip over semantics on their way to justice.
This restraint does not apply to the second complaint which was dealt
with by a judgment; this enables me to elaborate and make public the
reasons for my dissent.
- I
find it hard to agree with the majority's conclusion that a claim of
violation of fair-trial guarantees (deriving from an alleged failure
by the domestic courts to give reasons for their decision) raises no
separate issue from that of a violation of freedom of expression. The
domestic courts had condemned the applicant newspaper to pay damages,
plus costs, and to make an apology to a leading government
politician. The Court unanimously found these domestic judgments to
have been in violation of the applicant's freedom of expression. This
'freedom of expression' finding surely determined an issue totally
distinct from that whether the applicant's fair-trial guarantees had
been respected or not, and in my view this separate complaint should
have been considered and determined separately.
- The
Court enjoys unquestionable discretion to refrain from deciding
complaints which, although admissible and meritorious, do not raise
issues substantially different from others in which a violation of
some Convention guarantee has already been found. By rule of thumb,
it can safely be said that if a graver violation has previously been
established, the Court would rightly find it futile to determine also
a lesser violation arising from the same facts.
- In the circumstances of the present case I do not
consider a possible infringement of the fair-trial guarantees to be
meaner in weight or flimsier in value than a breach of freedom of
expression. The very particular facts on which this application is
based tend to indicate that one core issue to be determined should
have been whether the Article 6 fair-trial guarantees had been
respected or not.
- The
applicant newspaper claims the domestic courts failed to give reasons
on which to base its conviction for libel – not accidentally,
not through some genuine pressure-of-work oversight, but inasmuch as
the judge who ruled against the applicant lacked independence and
impartiality “because he was a friend of Mr Stepaniuc (the
plaintiff in the libel proceedings) and had been appointed president
of the Buiucani district court by the Communist party parliamentary
group” whose leader was the plaintiff in the defamation
proceedings against the applicant newspaper.
- The
applicant added that in other defamation cases between Flux
and representatives of the government, judge I.M. had always ruled in
favour of the latter and awarded them the maximum amount provided for
by law. By “a strange coincidence” the same judge
examined the majority of defamation actions brought by his friend Mr
Stepaniuc. All the claims of Mr Stepaniuc had always been upheld by
judge I.M. even in those lawsuits in which the plaintiff had failed
to pay court fees, which fact, by itself, should have rendered the
action procedurally inadmissible. Nor did the fact that the plaintiff
consistently failed to appear for the hearing of his court cases have
any negative impact on his pending cases – they were all the
same examined and determined by judge I.M. usually at the first
hearing.
- These
are the plaintiff's allegations of fact to explain why judge I.M.
could not be considered independent and impartial and why he failed
to give reasons for finding the applicant newspaper liable to maximum
libel damages.
- These
allegations on their own, if proved, would be worrying indicators of
a questionable detachment of the presiding judge from the litigants –
or from one of them. The alert however sounds louder still, as the
alleged failure of judge I.M. to give reasons for his decision (a
decision the Court unanimously found to have been in violation of the
Convention) has to be assessed against a wider historical backdrop.
If, as alleged, this failure of the presiding judge marches hand in
hand with systemic evidence of feeble guarantees for the independence
and impartiality of the judiciary as a whole, the alert should have
sounded more inexorably.
- I am attaching as an appendix brief summaries of
several external reports on the state of the judiciary in Moldova,
all highly negative and startling. For reasons of balance I wanted to
include reports from other authoritative sources denying that the
independence of the judiciary in Moldova is a stretcher case. I found
none.
- It
is, in my view, against these seemingly universal concerns that the
alleged failure by judge I.M. to give reasons should have enticed the
Court to take some note. The Court could have asked itself whether a
reluctance to reason out an unreasonable decision is the minimum to
expect from a self-respecting, hire and fire judiciary. The Court
could, or should, have investigated whether this was 'telephone
justice' in which the telephone was pointless and the justice
hilarious.
- I
find it self-delusory to harness impressive formulas to avoid facing
core issues of the administration of justice, and then to feel
fulfilled by one dexterous sweep of the debris under the carpet. No
doubt irrationally, I believe more than I make-believe. Strasbourg, I
thought, has a role to play in fortifying standards, well beyond that
of seeking refuge behind legal fictions. In the long run they only
energize the determination of those with a talent for finding the
independence of the judiciary amusing. Those bent on making the
independence of the judiciary obsolete know they need look no
further.
- I
would have expected the Court to pounce on this opportunity to give
hope to the people of Moldova. To let out some timid whispers for
justice politically untainted. I would have expected the Court to
have thoroughly investigated if the judgment that condemned the
applicant was supported by good reasons or by any reason at all. I
would have been gratified had the Court asked how often judge I.M.,
and other candidates for the heroes of the resistance award, found
against the ruling party or its exponents in politically sensitive
lawsuits. It would seem that the administration of justice in Moldova
respects a number of precepts. I looked for them in Article 6 and
could find none of them there.
- All
this alarms me profoundly. I have this old-fashioned prejudice
against judges approximately impartial. I respond with inconstant
passion to the credo of some politicians that judges fit nicely
everywhere, but best of all in their pockets. I find bland, if not
inconsequential, the doctrine that justice must not only be done, but
should manifestly be seen to be done. Far more relevant, to me, is
the doctrine that, for control-freaks to rule undisturbed, injustice
should not only be done, but should manifestly be seen to be done.
- Judge
I.M.'s career crashed - from minor district judge to President of the
Supreme Court in a span of time shorter than it takes to say 'the
party is always right'. In an otherwise bleak panorama, it is
comforting to note that the sacrifice of judges who align their
energies with the welfare of the ruling political class, does not
always cripple their careers.
- I
thought this was the right time for the Court to start panicking.
This a self-evident opportunity to detox an administration of
justice. Instead I had to witness the Court allowing the Moldovan
judiciary the widest margin of depreciation.
APPENDIX
- According
to reports provided by the applicant and not contested by the
respondent state, at the relevant time there were a series of
nominations to the bench based on loyalty to the ruling party, the
dismissal of the Ombudsman, and attempts to limit the independence of
the Constitutional Court. The Moldovan Association of Judges had
recorded that the government had started a 'mass cleansing' of the
judicial sector. Seven judges had been ousted outright and the
President of the Republic failed to prolong the mandate of 57 other
judges. The Chairman of the Association of Judges declared publicly
to the media the “senior government officials were pressurising
judges to issue rulings that favoured government bodies”.
- By
virtue of a constitutional amendment, the President was given the
right to appoint judges and select the chairs of courts, their
deputies and lower-ranking judges for four year terms, at the
recommendation of the Higher Council of Magistrates. Parliament (by
political majority vote) was given the power to appoint for four year
terms members of the Supreme Court, including its president, the
prosecutor-general and the minister of Justice.
- Another
report, the U.S. Department of State country report on Moldova for
2003, underlined that “official pressure and corruption of
judges remained a problem ... observers frequently charged that other
courts were corrupt or politically influenced ... political factors
have played a large part in the reappointment of judges”.
- The
report of the Council of Europe's Commissioner for Human Rights (Com
D+1 (2003) 7) has made no mystery of the fact the “the
independence of the judiciary in Moldova is a serious worry”.
It pointed out the exercise of powers of appointment, reappointment
and dismissal of judges vested in the President of the Republic as “a
serious interference with the independence of the judiciary”.
The Commissioner's office delegation had sought in vain to establish
what guarantees apply in the procedure leading to the non
re-appointment of judges”. The report concluded that “it
follows that the present presidential practice on appointment and
re-appointment of judges does not provide sufficient rule of law
guarantees and seems therefore arbitrary ... It is thus urgent that
the presidential practice be revised in order to safeguard judicial
independence and the rule of law”.
- Similarly,
the International Commission of Jurists painted the bleakest of
pictures on the functioning of the Judiciary following a joint
mission to Moldova with the Centre for the Independence of Judges and
Lawyers in February 2004. Its report, dated November 30, 2004,
slammed virtually everything relating to the appointment, tenure of
office and removal of judges; it found these to be wholly out of line
with basic minimum European guarantees for the independence and
impartiality of the judiciary, and noted the massive return of
“telephone justice” by the executive and the legislative
to control the decisions of judges.
- In
the same vein was the statement of the International Helsinki
Federation for Human Rights on “Violations' of the Freedom of
the Media and the Independence of the Judiciary in Moldova”
dated June 10, 2003, which claimed that the Federation was “deeply
concerned about the ... gross violations of the freedom of the media
and the independence of the judiciary ... the judiciary continues to
face excessive political intrusion, the status of judges is insecure
due to the re-appointment procedure, the highly questionable overhaul
of the judiciary system and precedents of politically motivated
extralegal dismissal of judges ... the abolition of the guarantees of
a life term for judges and the large number of removals also put
additional pressure on the judges ... a basically uncritical mode of
operation resulting in further possibilities for executive control
over the judiciary and infringements of the separation of powers”.
- A
wider spectrum of non-domestic observations on the independence and
impartiality of the judiciary in Moldova is to be found in the First
Annex to the I.C.J. report mentioned above.
