European Court of Human Rights

 

 

SECOND SECTION

CASE OF PIETRIŞ S.A. AND NASTAS v. THE REPUBLIC OF MOLDOVA

(Application no. 45379/13)

 

 

 

JUDGMENT

STRASBOURG

19 January 2021

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Pietriş S.A. and Nastas v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Valeriu Griţco,
          Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 45379/13) 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 Pietriş S.A., a company registered in the Republic of Moldova, and a Moldovan national, Mr Iurie Nastas (“the applicants”), on 5 June 2013;

the parties’ observations;

Having deliberated in private on 15 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the refusal of the domestic courts to examine the applicants’ case due to failure to pay court taxes.

THE FACTS

2.  The first applicant (Pietris S.A.) is a company registered in the Republic of Moldova. The second applicant (Mr Nastas) was born in 1971 and lives in Vatra. The applicants were represented by Ms I. Soțchi, a lawyer practising in Chișinău.

3.  The Government were represented by their Agent, Mr O. Rotari.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 29 July 2012 a private television channel, Publika TV, broadcast a programme in which the first applicant was accused of having made false statements to the courts, while the second applicant was accused of influence peddling in respect of the courts. An article with identical content was placed on the television channel’s website on 30 July 2012.

6.  On 15 August 2012 the applicants asked Publika TV to retract the information published and to pay them compensation. On 20 September 2012 they lodged a court action against Publika TV. The applicants explained which parts of the programme and written article they considered defamatory. They paid 100 Moldovan lei (“MDL”) each in court fees.

7.  On 28 September 2012 the Buiucani District Court refused to examine the case, finding that the applicants had failed to indicate which specific expressions they considered defamatory. Moreover, they had failed to pay court tax in the amount of 3% of the value of the damages sought. The court gave the applicants time to remedy the shortcomings.

8.  On 9 October 2012 the applicants submitted to the court their request to examine the case, repeating their description of the phrases which they found defamatory. They argued that, since they had not asked for compensation, they did not have to pay additional court fees. The applicants’ letter reached the court on 10 October 2012.

9.  On 9 October 2012 the Buiucani District Court left the applicants’ court action without examination since they had failed to follow the court’s instructions of 28 September 2012.

10.  The applicants appealed on 19 October 2012. They argued that the first applicant had received too late the court’s decision of 28 September 2012 and that the second applicant had not received it at all. Moreover, they had paid court fees and had not asked for compensation, and therefore were not liable to pay 3% of any such compensation.

11.  On 5 December 2012 the Chișinău Court of Appeal rejected the applicants’ appeal as unfounded. That decision was final.

12.  After communication of the present application to the respondent Government, the Government Agent before the Court asked for the reopening of the proceedings, the express finding of a breach of Article 6 § 1 of the Convention in the applicants’ case, the quashing of the decisions of 28 September and 5 December 2012 in order to remedy the breach and, if need be, the award of just satisfaction to the applicants by applying directly Article 41 of the Convention.

13.  On 28 March 2018 the Supreme Court of Justice quashed the two decisions mentioned in the preceding paragraph and found a breach of the applicants’ rights under Article 6 § 1 of the Convention and sent the case for examination by the first-instance court. It found that the lower courts had incorrectly requested that the applicants pay court fees calculated as 3% of the amount of damages sought, when in fact the applicants had not requested any damages, relying on their right to do so subsequently. As for the request to award compensation under Article 41 of the Convention, the court decided that it was in the Government Agent’s competence, with Government approval, to negotiate a settlement with the applicants, the court being careful to avoid exceeding its own competence in these matters.

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

14.  The applicants complained that the refusal to examine their court action resulted in a breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.    Admissibility

15.  The Government argued that following the adoption of the judgment of 28 March 2018 (see paragraph 13 above), the applicants had lost their victim status. In particular, the Supreme Court of Justice expressly acknowledged a violation of Article 6 § 1 of the Convention. Moreover, it offered redress by quashing the court decisions of 9 October and 5 December 2012 and sending the case for examination in the first-instance court. Thus, the applicants were reinstated in their initial position and could claim in court the retraction of information which they considered defamatory. They finally argued that the finding of a breach of the applicants’ rights, together with their reinstatement in their original position, constituted in itself sufficient just satisfaction.

16.  The applicants submitted that, despite an express request for the Supreme Court of Justice to award compensation for the breach of the applicants’ rights, no such compensation was awarded. They referred to the Court’s case-law according to which the question of whether an applicant has lost his victim status may depend on the amount of compensation awarded. They added that, as a result of the denial of their access to justice, they were unable to defend their dignity and had to endure for years “public criticism and judgmental comments”. The resulting harm could not be remedied only by reopening the proceedings.

17.  The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” of a violation of a Convention right unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V, with further references).

18.  In the present case, the Court notes that the Supreme Court of Justice expressly found a breach of the applicants’ rights guaranteed by Article 6 § 1 of the Convention. As for the redress afforded, it notes that the applicants’ procedural rights have been restored and their case was sent for examination in the first-instance court.

19.  The applicants noted that they had not been awarded compensation, while the Government argued that the finding of a violation and reinstatement in the procedural position constituted sufficient just satisfaction.

20.  The Court reiterates that, as to the redress which has to be afforded to an applicant in order to remedy a breach of a Convention right at national level, it has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation found (see Tempel v. the Czech Republic, no. 44151/12, § 77, 25 June 2020). In the present case, the Court considers that while their procedural position has been restored, much of the reason for continuing the original proceedings has been lost. That is because information is a “perishable commodity” (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216 and OOO Flavus and Others v. Russia, nos. 12468/15 and 2 others, § 39, 23 June 2020). By refusing to examine the court action, the courts deprived the applicants of the opportunity to prove that they had been defamed and prevented them from obtaining a timely retraction by the respondent television channel of the relevant statements. Regardless of whether or not their court action had any chance of success, the refusal to examine it meant that they could not seek the retraction of the allegedly defamatory statements immediately after the events. Even if, in the re-opened proceedings, the courts now found that the statements made by Publika TV had been defamatory and ordered it to publish a retraction, such a retraction would do little to remedy the damage which had arguably been caused to the applicants in 2012.

21.  In these particular circumstances, the Court considers that the finding of a breach of Article 6 § 1 by the domestic courts and restoring the applicants’ procedural position are insufficient to offer redress for the violation of their rights, in the absence of an award for compensation.

The Government’s objection as to the loss of victim status must therefore be rejected.

22.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

23.  The applicants argued that their right of access to a court had been breached.

24.  The Government made no comment as to the substance of the complaint.

25.  The Court notes that, having reviewed the decisions of 9 October and 5 December 2012, the Supreme Court of Justice found a breach of Article 6 § 1 of the Convention in view of the fact that the applicants had been asked to pay court fees which they were not required by law to pay (see paragraph 13 above).

26.  The Court has no reasons to disagree with this analysis by the Supreme Court of Justice.

27.  In such cases where the domestic courts find a breach of an applicant’s rights, the only remaining question is usually whether the redress offered at the domestic level is sufficient to deprive the applicant of his victim status (see, mutatis mutandis, Ciorap v. the Republic of Moldova (no. 4), no. 14092/06, §§ 50-54, 8 July 2014). However, in the present case it has already established that the remedy offered in the judgment of the Supreme Court of Justice of 28 March 2018 did not suffice to deprive the applicants of their victim status.

28.  Accordingly, the Court finds that there has been a breach of Article 6 § 1 in the present case.

II.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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.    Non-pecuniary damage

30.  The applicants claimed 1,000 euros (EUR) each in respect of non‑pecuniary damage. They referred to the harm caused to them by being unable to defend their dignity.

31.  The Government considered that the sum claimed was excessive and unsubstantiated.

32.  In view of the materials of the case, the Court accepts in full the applicants’ claim, plus any tax that may be chargeable.

B.     Costs and expenses

33.  The applicants claimed EUR 3,000 for costs and expenses. They relied on a contract with their lawyer, as well as an itemised list of hours spent working on the case, plus a receipt confirming the payment made.

34.  The Government considered that the sum claim was excessive.

35.  Having regard to the materials in its possession, the Court awards the applicants jointly EUR 1,500 in respect of costs and expenses, plus any tax that may be chargeable to them.

36.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds

(a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 1,000 (one thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 19 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                    Branko Lubarda
Deputy Registrar                                                                       President