by Vladimir CERNENCHII
The European Court of Human Rights (Fourth Section), sitting on 17 February 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 28 January 2005,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the President’s decision to designate Judge Šikuta as acting national judge following Judge Poalelungi’s withdrawal,
Having deliberated, decides as follows:
The applicant, Mr Vladimir Cernenchii, is a Moldovan national who was born in 1950 and lives in Bălţi. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a journalist for Supply and Demand, a local newspaper in Bălţi. He contributed to the weekly publication A sacred right, dedicated to the protection of consumers’ rights.
On 12 September 2002 the newspaper published an article signed by the applicant in response to a letter from an inhabitant of Bălţi. The letter, which was reproduced at the beginning of the article, criticised State-owned monopoly companies for their lack of accountability, giving CET-Nord as an example. The applicant then commented on the letter.
In his comment the applicant referred to consumer legislation and to Government decision no. 634 of 5 July 2000, according to which companies offering certain services to the population, including heating and water supply, were obliged to pay for the installation of meters for the monitoring of consumption of their products. He went on to say that, despite repeated requests by the local authorities, CET-Nord refused to comply with the said Government decision. The applicant discussed the various legal means by which local authorities could influence the monopoly and their failure to do so.
The applicant concluded by stating:
“The impression is that the State company is controlled not by the citizens of Moldova, always obliged to observe the country’s legislation, but by some kind of extraterrestrial monsters who cannot be tamed by the local public administration.”
K., the director of CET-Nord’s service responsible for the installation of heating meters, initiated court proceedings claiming that the above passage defamed him.
On 31 July 2003 the Bălţi District Court accepted K.’s claim and ordered the applicant to publish an apology in the newspaper and to pay K. 2,000 Moldovan lei (MDL) (124 euros (EUR)). The court relied on Article 16 of the new Civil Code (see below). That judgment was quashed by the Bălţi Court of Appeal on 6 November 2003 and a re-hearing was ordered.
The applicant initiated court proceedings against CET-Nord claiming compensation for the costs he had incurred in installing a heating meter at his own expense, even though CET-Nord should have paid for it. On 3 March 2003 the Bălţi District Court accepted his claim and ordered CET-Nord to pay the applicant compensation. That judgment was upheld by the Bălţi Regional Court on 8 May 2003 and the Supreme Court of Justice on 9 October 2003.
On 25 December 2003 the Bălţi District Court accepted K.’s claims and ordered the applicant to publish an apology in the newspaper and to pay K. MDL 2,000 (EUR 122 at the time). The court found that the passage cited above was defamatory since all definitions of the word “monster”, according to the dictionary, were offensive. It rejected the applicant’s argument that the many violations of the law, including the rights of the least protected consumers, by the management of CET-Nord, allowed him to consider them monsters. The court relied on Article 16 of the new Civil Code.
On 6 April 2004 the Bălţi Court of Appeal partly quashed that judgment. It gave similar reasons to those of the lower court for finding the phrase offensive but considered that the pecuniary award should be reduced to MDL 500 since the law in force at the time of publication (Article 71 of the old Civil Code, see below) did not allow for such a high award.
On 15 September 2004 the Supreme Court of Justice quashed the judgment of 6 April 2004 and upheld that of the first-instance court. The court found that the Bălţi Court of Appeal had decided on an issue not raised by the plaintiff (pecuniary damage) instead of dealing with his request for non-pecuniary damage.
B. Relevant domestic law
The relevant provisions of the domestic law have been set out in Busuioc v. Moldova (no. 61513/00, §§ 39-40, 21 December 2004).
The applicant complained under Article 6 § 1 of the Convention of the retroactive application of the law by the courts and the examination of his case in his absence by the Supreme Court of Justice.
He also complained under Article 10 of the Convention of a violation of his right to freedom of expression.
On 20 November 2008 the Court received the following signed declaration from the Government:
“I, Vladimir Grosu, Agent for the Government of Republic of Moldova, declare that the Government of Moldova offer to pay the sum of 4,050 (four thousand and fifty) euros to Mr Vladimir Cernenchii with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Moldovan lei at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 1 December 2008 the Court received the following declaration signed by the applicant:
“I, Vladimir Cernenchii, applicant in the above case, note that the Government of Moldova are prepared to pay the sum of 4,050 (four thousand and fifty) euros with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover non-pecuniary damage, will be converted into Moldovan lei at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
I accept the proposal and waive any further claims against Moldova in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence Early Nicolas Bratza