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TARA AND POIATA v. MOLDOVA - 36305/03 [2007] ECHR 817 (16 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/817.html
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[2007] ECHR 817
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FOURTH
SECTION
CASE OF
TARA AND POIATA v. MOLDOVA
(Application
no. 36305/03)
JUDGMENT
STRASBOURG
16
October 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 Tara and Poiata 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 S.
Pavlovschi,
Mr L. Garlicki,
Mr J.
Šikuta,
Mrs P. Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 25 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 36305/03) 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 Ţara, a newspaper based in
Chişinău, and Petru Poiată (“the
applicants”) on 15 September 2003.
The
applicants were represented by Mr V. Gribincea and Mr V. Zamă,
lawyers practising in Chişinău and members of the
non-governmental organisation Lawyers for Human Rights. The Moldovan
Government (“the Government”) were represented by their
Agent, Mr V. Pârlog.
The
applicants alleged, in particular, a breach of their right to freedom
of expression on account of their having been found guilty of
defamation of a politician.
On
9 February 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
31 October 2002 Ţara published an article
entitled “While ignoring the legislation on fair competition,
the Stepaniuc clan is taking away the property of others by
blackmail”. It reported by partly citing and partly summarising
a letter addressed to the President of Moldova by a transport
company, which used to operate several bus lines linking Chişinău
with other towns. The article read, inter alia, as follows:
“The other day Ţara
received a document with a very interesting content. It is a letter
addressed to President Vladimir Voronin by the managers of company F.
located in Ialoveni. According to its authors, the company ... had
been providing transport services and employing some 150 employees
... High-ranking individuals from the top of the power structure
asked them to yield the Chişinău-Ialoveni route on the
ground that “ours also need to work”. As a result, the
company's revenues decreased and 32 people were left without
employment. That is what the letter says.
We are not sure that things happened exactly like that;
however, Ţara and other
newspapers have written about some strange goings-on with the
Chişinău-Ialoveni route.
... the following passages from the letter are
translated from Russian: 'The elections (of 25 February 2001) came.
Knowing how we have been treated by the [former government], we
supported the Communist Party, provided them on a daily basis with
3-4 transportation units and generated publicity in their favour
using our own money. We were very glad that the truth had triumphed,
and that from then on we would work only in accordance with the law,
as they had promised in their election campaign. However, it appears
that those were only empty words ...
At the end of June 2002, Victor Stepaniuc, the leader of
the Communist Faction of Parliament, telephoned A.C., the Minister of
Public Transport and Roads, and asked that F.'s bus lines be taken
away from it and given to [two other companies], whose owners were
Victor Stepaniuc's nephew and son-in-law.'
Due to lack of space we will limit the details of the
letter and will summarise it: the minister complied. The ensuing
complaints were fruitless ... and F.'s buses were replaced with
[other buses]. Cover was also provided, according to the authors, by
the Traffic Police. The whole thing was conducted by Victor
Stepaniuc's son-in-law.
The authors' last hope lies with the President of the
Country and they ask him to put an end to the abuses and punish the
corrupt public officials. We wonder when somebody will write to the
President about similar abuses within the distribution network of the
Chişinău Tobacco Company, where Victor Stepaniuc is
presently getting ahead by eliminating his competitors using
Bolshevik methods.”
On
21 November 2002 Ţara published another article
entitled “Bolshevik habits. The Stepaniuc clan spreads its
tentacles”. It stated, inter alia, the following:
“The article of 31 October 2002 ... has
not provoked any reaction from any State authority. I wonder why the
Communist authorities do not react to serious allegations made by the
media ...
In that article I wrote about irregularities in the
field of public transport caused by companies G. and T. headed by the
son-in-law and nephew of Victor Stepaniuc, the leader of the
Communist Faction from Parliament. ...
Our newspaper was visited recently by other drivers from
Chişinău Bus Depot No. 1 with similar complaints. After
failing to obtain satisfaction from the courts, the people come to
our newspaper for help. However, we are not all-powerful. The only
thing that we can do is to sound the alarm on illegalities in the
hope that those in charge will put an end to them.
The drivers who visited us asked us to clarify how
company T. had obtained licences for the same bus routes which they
run... I cite from their letter: 'company T., with support from
Parliament, something about which it sometimes expressly brags, can
solve any problem. Its drivers work outside any timetable and their
buses leave 10-15 minutes ahead of us on purpose. Any protests on our
part are useless due to the support in employs from Parliament.'
Their statements are confirmed by an official report by
a local transport authority, confirming the abuses of company T. ...
[and stating that] the activity of company T. seriously perturbs the
normal circulation of buses on the Chişinău – Malcoci
and Chişinău – Condrita routes.
What timetables are we talking about when the
father-in-law and the uncle occupy such high positions? While writing
this article I contacted I.G., the chief engineer from Chişinău
Bus Depot No. 1, to ask him whether the situation has improved. He
told me that on the contrary it is becoming worse and worse.
Thus, the Stepaniuc clan spreads its tentacles. How far?
For how long?”
On
an unspecified date Victor Stepaniuc brought civil defamation
proceedings against the newspaper and against the author of the
article. He argued, inter alia, that the article of 31 October
2002 contained the following statements which were untrue and
defamatory of him:
“... At the end of June 2002, Victor Stepaniuc,
the leader of the Communist Faction of Parliament, telephoned A.C.,
the Minister of Public Transport and Roads, and asked that F.'s bus
lines be taken away from it and given to [two other companies], whose
owners were Victor Stepaniuc's nephew and son-in-law. ... the
minister complied... We wonder when somebody will write to the
President about similar abuses within the distribution network of the
Chişinău Tobacco Company, where Victor Stepaniuc is
presently getting ahead by eliminating his competitors using
Bolshevik methods.
According
to him, the meaning and wording of the article of 21 November 2002
contained the following defamatory statements implying that:
“ in my capacity as an MP and leader of the
Communist Faction of Parliament, I offer cover for the illegal
actions of third parties in respect of the circulation of buses
between Chişinău and some villages in Ialoveni county.
'Thus, the Stepaniuc clan spreads its tentacles. How far? For how
long'?”
On
24 January 2003 the Buiucani District Court found in favour of
Victor Stepaniuc, finding that he could not be held responsible for
the activity of the companies owned by his nephew and his son-in-law,
particularly since the State authorities had not found any
illegalities in their activity and had not withdrawn their licences.
No link between the activity of Victor Stepaniuc in his capacity as
an MP and leader of a parliamentary group and the activity of those
companies had been established. The court found the passages
complained of by the plaintiff to be defamatory and ordered the
newspaper and the author to pay Victor Stepaniuc 3,600 Moldovan Lei
(MDL) (the equivalent of 238 euros (EUR) at the time) and MDL 1,440
(the equivalent of EUR 93 at the time) respectively. It also
ordered the newspaper to issue an apology within fifteen days. The
defendants were also ordered to pay the court fees.
The
applicants appealed against this judgment, arguing, inter alia,
that the first-instance court had totally disregarded their
arguments. The articles had reported in fact on letters and
statements of third parties, while the final conclusions had been
mere value judgments. They had acted in good faith and verified the
information contained in the statements of the third parties. One of
the sentences found to be defamatory by the first-instance court had
not even been included in the articles.
On
3 April 2004 the Chişinău Regional Court
dismissed the appeal. The applicants lodged an appeal on points of
law; however, that appeal was also dismissed by the Court of Appeal
on 11 June 2003.
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) Where 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 non-pecuniary
damage
“(1) The non-pecuniary damage caused to
a person as a result of circulation through the 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.”
THE LAW
The
applicants complained under Article 10 of the Convention that the
domestic courts' decisions had entailed interference with their 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 complaints under Article 6, Article 1 of
Protocol No. 1 and Article 13 of the Convention
In
its initial application, the applicant newspaper also submitted
complaints under Article 6, 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.
B. Complaint under Article 10 of the Convention
The
Court considers that the applicants' complaint under Article 10
of the Convention raises 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 this
complaint.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
A. The arguments of the parties
1. The applicants
The
applicants 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 articles had merely
disseminated statements made by third parties and had been part of a
debate on an issue of distinct public importance, namely the
management of public transport and alleged illegalities committed by
public officials. The applicants had acted in good faith when
publishing the article and verified the statements made by the third
parties. They had considered the source to be reliable, since it was
a letter addressed to the President of the country, contained many
details, and official reports emanating from State transport
authorities were attached to it. Of course it had been impossible for
them to verify the statement according to which Mr Stepaniuc had
telephoned the Minister of Public Transport.
Referring to the statement concerning the involvement
of Mr Stepaniuc in the distribution of the Chişinău
Tobacco Company, the applicants argued that that involvement had been
confirmed by an official report of the Moldovan Intelligence Service,
a copy of which had been attached to the domestic case file.
The
domestic courts had also ignored the fact that Mr Stepaniuc was a
high-ranking politician and that therefore the limits of criticism in
his respect were wide.
2. The Government
The
Government agreed that the facts of the case disclosed an
interference with the applicants' right to freedom of expression. The
interference was nevertheless justified under Article 10 § 2 of
the Convention. The applicants 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 Stepaniuc;
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 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 applicants amounted to “interference by [a] public
authority” with the applicants' 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; and
Murphy v. Ireland, no. 44179/98, §§ 65-69,
ECHR 2003 IX (extracts), with further references).
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.”
The
Court notes that the articles were written by a journalist and
reiterates 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). It is not disputed in the present case
that the subject matter of the impugned articles was of significant
public interest.
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).
The
Court notes that the impugned statements for which the applicants
were sanctioned could be divided into two groups: the statements
concerning and related to the alleged abuses by Mr Stepaniuc and his
relatives within the transport business, and the statement concerning
the alleged abuses committed by Mr Stepaniuc within the distribution
network of the Chisinau Tobacco Company.
Insofar
as the first category of statements is concerned, it appears that the
majority of those statements were citations from a letter written by
the management of company F. to the President of the country and from
a letter written to the newspaper by employees of another company who
had read the first article. The author of the articles took the
precaution of mentioning that he was citing or summarising third
parties' statements. It also appears that the information contained
certain accurate statements of fact, such as the family ties between
Mr Stepaniuc and the managers of the companies who had allegedly
committed abuses. It also relied on some official reports of
transport authorities. In such circumstances, the information could
have reasonably appeared to the author of the articles to be reliable
(see, mutatis mutandis, Bladet Tromsø and Stensaas
v. Norway [GC], no. 21980/93, § 68, ECHR
1999 III).
Moreover,
the Court notes that some of the impugned statements were pure value
judgments, such as the conclusion in the second article: “Thus,
the Stepaniuc clan spreads its tentacles. How far? For how long?”
In
this context the Court reiterates that the existence of facts can be
demonstrated, whereas the truth of value judgments is not susceptible
of proof. The requirement to prove the truth of a value judgment is
impossible to fulfil and infringes freedom of opinion itself, which
is a fundamental part of the right secured by Article 10 (see
Jerusalem v. Austria, no. 26958/95, § 42,
ECHR 2001 II).
Bearing
in mind the language used by the applicants, the fact that
Mr Stepaniuc was a high-ranking politician at the time of the
events, the fact that the applicants were a newspaper and a
journalist reporting on issues of public interest and the fact that
the domestic courts did not distinguish between statements of fact
and value judgments, the Court takes the view that there were no
relevant and sufficient reasons for finding that the applicants had
defamed Mr Stepaniuc and obliging them to pay compensation for
disseminating the information contained in the above statements.
As
far as the statement concerning Mr Stepaniuc's alleged abuses within
the distribution network of the Chişinău Tobacco Company is
concerned, the Court has a different view. That statement, in the
Court's opinion, constitutes a statement of fact which does not
appear to have been supported by any evidence and which appears to be
totally unrelated to the facts presented in the rest of the article
and the letters from the transport companies. The statement could, in
the Court's view, be considered as offensive and damaging to the
reputation of Mr Stepaniuc. Having examined the materials of the case
file from the domestic proceedings, the Court has not found any copy
of a report by the Moldovan Intelligence Service concerning the
matter. Therefore the contention made by the applicants in paragraph
17 above cannot be upheld and the Court concludes that the applicants
did not adduce before the domestic courts any arguments in support of
that allegation against Mr Stepaniuc. Neither does it appear from the
materials submitted by the parties that they sought to persuade the
courts in some way that they had made any reasonable attempt to
verify that information before publication. Accordingly, the finding
of the Moldovan courts that that statement was defamatory could, in
the Court's opinion, be justified as necessary in a democratic
society.
C. Conclusion
Having
regard to the above, the Court concludes:
(1) that
there has been no violation of Article 10 of the Convention as
regards the applicants' statement concerning the alleged abuses
committed by Mr Stepaniuc within the distribution network of the
Chişinău Tobacco Company;
(2) that
there has been a violation of Article 10 of the Convention as regards
the rest of the impugned statements.
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 applicants claimed 251 euros (EUR) and EUR 93
respectively for pecuniary damage, representing the damages paid by
them to Mr Stepaniuc and the court fees which they had to pay
for the examination of the appeals.
The
Government disputed the amount claimed and argued that the applicants
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 applicants' claim for pecuniary damage.
Having
regard to the fact that the Court has found no breach of Article 10
of the Convention in respect of one of the impugned statements, it
considers that the applicants' claim for pecuniary damage should be
reduced to EUR 200 and EUR 70 respectively.
B. Non-pecuniary damage
The
applicants claimed EUR 5,000 each for non-pecuniary damage
caused to them by the breach of their Convention rights. In
substantiating their claims, the applicants argued that they had been
obliged to publish a retraction of the impugned statements and relied
on previous case-law in Moldovan cases. In particular, they relied on
the cases of Busuioc (Busuioc v. Moldova,
no. 61513/00, 21 December 2004) and Savitchi (Savitchi v.
Moldova, no. 11039/02, 11 October 2005) in which four and
three thousand euros, respectively, had been awarded to the
applicants.
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 each applicant EUR 2,500.
C. Costs and expenses
The
applicants' representatives claimed EUR 3,089 for the costs and
expenses incurred before the Court. They submitted a detailed
time-sheet and a contract according to which the hourly rate was EUR
60 for Mr Gribincea and EUR 50 for Mr Zamă and according to
which they had spent 41.08 and 12.5 hours on the case respectively.
They
argued that the number of hours spent by them 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 fees, the representatives argued that they were within
the limits of the hourly rates recommended by the Moldovan Bar
Association, which were EUR 40-150. They also pointed to the high
cost of living in Chişinău, giving as examples the prices
of accommodation and petrol.
The
Government disputed the amount claimed for representation. They
argued that it was excessive and that the amount claimed by the
lawyers was not the amount actually paid to them by the applicants.
They disputed the number of hours spent by the applicants'
representatives and the hourly rate charged by them. 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 are
reasonable as to quantum (see, for example, Amihalachioaie v.
Moldova, no. 60115/00, § 47, ECHR 2004 III).
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 the Court did
not find a violation of Article 10 in respect of all of the impugned
statements, the Court awards the applicants EUR 1,800 for costs and
expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been no violation of
Article 10 of the Convention in respect of the statement concerning
the alleged abuses by Mr Stepaniuc within the distribution network of
the Chisinau Tobacco Company;
Holds that there has been a violation of Article
10 of the Convention in respect of the rest of the impugned
statements;
Holds
(a) that
the respondent State is to pay the applicants, 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 270 (two hundred and seventy euros) in respect of pecuniary
damage;
(ii)
EUR 2,500 (two thousand five hundred euros) each in respect of
non-pecuniary damage;
(iii)
a global sum of 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
applicants' claim for just satisfaction.
Done in English, and notified in writing on 16 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
