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FOURTH
SECTION
CASE OF SOFRANSCHI v. MOLDOVA
(Application
no. 34690/05)
JUDGMENT
STRASBOURG
21
December 2010
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 Sofranschi v.
Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34690/05) 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 a Moldovan national, Mr Eugen Sofranschi (“the
applicant”), on 21 September 2005.
- The
applicant was represented by Mr T. Cârnaţ, a lawyer
practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that his right to freedom of
expression had been violated as a result of judicial decisions in
defamation proceedings which had been brought against him.
- On
28 September 2009 the President of the Fourth Section decided to
communicate the case to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Eugen Sofranschi, was born in 1946 and lives in
Briceni.
- After
the dissolution of the Soviet Union, the land and property of the
former collective farms (kolkhozes) were divided among the villagers
who had been members of the collective farms. In some localities new
collective farms were formed, to which the villagers contributed
their land and other goods inherited from the former collective
farms. The collective farms were headed by leaders. In some cases the
villagers worked in the collective farms, whereas in other cases they
merely received a part of the revenue of the farm at the end of the
year. At the time of the events in question, the applicant was a
member of such a collective farm and had a tense relationship with
its leader, V.P., whom he suspected of abusing his position. It does
not appear that the applicant and V.P. had an employer-employee
relationship.
- In
May 2003 during a local election campaign, the applicant, who was a
member of the electoral staff of one of the candidates, wrote a
letter to the President of Moldova, the Speaker of Parliament and the
local Prosecutor’s Office which was critical of V.P., who was
also a candidate for the position of mayor of their village. In the
letter, the applicant accused V.P. of numerous abuses. The applicant
requested that the State authorities intervene in order to solve the
problems of: (i) access to a lake and pasture on the part of local
villagers; and (ii) V.P.’s abusive behaviour.
- In
August 2003 V.P. initiated civil defamation proceedings against the
applicant and claimed compensation of 20,000 lei (MDL). He argued, in
particular, that the following passages from the applicant’s
letter had been defamatory of him:
“[1] V.P. who, as a matter of
coincidence, was the leader of the collective farm is shameless ...
[2] He has no education and only attended primary school... He
obtained false diplomas and cannot even read properly... [3] He
illegally possesses shares in the collective farm ... [4] The
property [of the collective farm] which was gathered by the people
over a very long period of time is now used by shameless people. [5]
He has guns and threatens people with them ...”
V.P.
also submitted that the applicant had been spreading such rumours in
the village and that because of this he had lost the elections for
the position of mayor.
- In
his written defence before the Briceni District Court, the applicant
rejected V.P.’s accusations and stated that the information
concerning V.P.’s education and diplomas had been provided to
him and to many other villagers by a person named N.C. and that it
had been common knowledge in the village. As to V.P.’s reading
skills, the applicant submitted that all the members of the
collective farm could confirm that V.P. had had difficulty reading a
text during a meeting. As to V.P.’s threatening people with
guns, the applicant stated by way of example that during a village
festival V.P. had fired twice from a gun into the air in order to
intimidate two people. As to the allegation that V.P. had abusively
limited the villagers’ access to the lake, the applicant
submitted that a court had deprived V.P. of possession of the lake in
the interim.
- On
28 November 2003 the Briceni District Court found in favour of V.P.
and ordered the applicant to pay him MDL 10,000 in compensation for
non-pecuniary damage and MDL 500 for costs and expenses. The judgment
was upheld by the Court of Appeal but quashed by the Supreme Court of
Justice, which ordered a fresh examination of the case. In so doing,
the Supreme Court instructed the inferior courts to determine: (i)
when and on exactly which occasion the impugned expressions were made
by the applicant; and (ii) whether the impugned expressions had
constituted value judgments.
- On 7 July 2004 the Briceni District Court again found
in favour of V.P. and ordered the applicant to pay him MDL 12,000 in
compensation for non-pecuniary damage and MDL 500 for costs and
expenses.
The
court heard several witnesses, who declared that they had heard the
applicant spreading the impugned rumours among the villagers. The
applicant objected and argued that all the witnesses put forward by
V.P. had been his relatives. The applicant also submitted that the
impugned statements had only been made in the letter addressed to the
Prosecutor’s Office, the President and the Speaker of
Parliament.
On
the basis of the evidence before it, the court found the impugned
passage from the letter of May 2003 to be defamatory. It did not find
the applicant guilty of spreading the impugned statements by any
other means. The court found the first statement to be false and
defamatory because V.P. had been legally elected as the leader of the
collective farm. The court also held the second statement to be
defamatory because V.P. had been able to present a diploma from a
university in the Russian Federation. In so far as the third
statement was concerned, in declaring it defamatory the court relied
on a letter of the Prosecutor’s Office in reply to the
applicant’s letter of May 2003, in which the Prosecutor’s
Office stated that V.P.’s title to the shares was legitimate.
As to the fourth statement, the court found that since V.P. had been
the leader of the collective farm, he had had the right to administer
its property and, therefore, the statement “used by shameless
people” was defamatory of V.P. Finally, the court also found
the last statement to be defamatory on the basis of a document issued
by the police, according to which V.P. did not possess any registered
guns. The court did not refer in its reasoning to the submissions of
a witness put forward by the applicant, who claimed to have been
threatened with a gun by V.P. In calculating the compensation for the
non-pecuniary damage suffered by V.P., the court held that the fact
that the impugned letter had been written during the election
campaign and that the applicant had been a member of the electoral
staff of the candidate running against V.P. in the elections were
aggravating factors on the part of the applicant.
- The
applicant appealed and submitted, inter alia, a document
issued by the Mayor’s Office of his village, according to which
V.P.’s use of a barn belonging to the collective farm had not
had a legal basis. The applicant also attached to his appeal a letter
from the Prosecutor’s Office indicating that a criminal
investigation was pending against V.P. in respect of his possession
of a false diploma. It appears that in September 2004 the mayor’s
office of the applicant’s village had made an inquiry of the
university in the Russian Federation which V.P. had stated that he
had graduated from. According to a letter signed by the president of
the university dated 9 September 2004, no person named V.P. had
graduated from that university in the year indicated on V.P.’s
diploma. It is not clear from the parties’ submissions whether
this document was part of the case file in the defamation
proceedings. It would appear that it was part of the case file in the
criminal proceedings pending against V.P.
- On 7 December 2004 the Bălţi Court of Appeal
dismissed the applicant’s appeal. The court held, inter
alia, that the pending criminal proceedings against V.P. for
possession of a false diploma were not a sufficient ground for
quashing the judgment of the first-instance court. Only a final
judgment finding V.P. guilty which had been adopted before the
impugned letter had been written would have justified such an
accusation being made against him.
- The
applicant lodged an appeal on points of law and reiterated, inter
alia, that his letter of May 2003 had not been made public but
rather had only been sent to a limited number of people.
- On
23 March 2005 the Supreme Court of Justice upheld the judgment of the
Court of Appeal but reduced the amount awarded in respect of
compensation for non-pecuniary damage from MDL 12,000 to MDL 3,000.
II. RELEVANT DOMESTIC LAW
- The
relevant part of Article 16 of the Civil Code reads as follows:
“(1) Every person has the right to the
respect for his or her honour, dignity and professional reputation.
(2) Every person has the right to request the
renunciation of information which affects his or her honour, dignity
and professional reputation if the person circulating such
information cannot prove that it corresponds to reality.
...
(4) Where information which affects a
person’s honour, dignity and professional reputation is
circulated in a mass medium, the court shall order [that medium] to
publish a disclaimer in the same column, page, programme or series of
programmes, within a maximum of 15 days of the date of entry into
force of the court judgment.
...
(7) A person whose rights and lawful
interests have been violated by a publication in a mass medium has
the right to publish a reply in the medium in question, at the
latter’s expense.
(8) Every person about whom information has
been published [thereby] violating his or her honour, dignity and
professional reputation has the right to request compensation for
pecuniary and non-pecuniary damage in addition to the publication of
a renunciation.”
THE LAW
- The
applicant complained under Article 10 of the Convention that the
domestic courts’ decisions had entailed interference with his
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.”
- The
applicant argued that he had not had effective remedies against the
breach of his freedom of expression and alleged a violation of
Article 13, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ....”
The
Government contested the admissibility of the application.
I. ADMISSIBILITY OF THE CASE
- The
applicant complained under Article 13 of the Convention that he
had not had an effective remedy available to defend his right to
freedom of expression. The Court notes that the applicant was found
guilty of defamation as a result of court proceedings instituted
against him by V.P. He had been able to appeal against the judgments
of the Briceni District Court and the Bălţi Court of Appeal
and he had his case examined twice by the Supreme Court of Justice.
The applicant did not explain why, in his opinion, such a remedy
cannot be considered effective within the meaning of Article 13 of
the Convention. The fact that the applicant is not satisfied with the
outcome of the proceedings does not automatically trigger a violation
of Article 13 of the Convention. Accordingly, the Court cannot accept
the applicant’s contention that he had not had an effective
remedy under Article 13 of the Convention taken in conjunction with
Article 10 of the Convention. The complaint is therefore manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention.
- In
so far as the applicant’s other complaint is concerned, the
Court considers that it 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 it
inadmissible have been established. The Court therefore declares the
complaint admissible. In accordance with its decision to apply former
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
- The
applicant submitted that there had been a violation of Article 10 of
the Convention as a result of his having been found guilty of
defamation by the domestic courts.
- The
Government agreed that there had been an interference with the
applicant’s right to freedom of expression, but submitted that
the interference had been prescribed by law, had pursued a legitimate
aim and had been necessary in a democratic society. The applicant had
defamed V.P., not only in the letter addressed to the Prosecutor’s
Office, the President of Moldova and the Speaker of Parliament but
also by spreading defamatory rumours amongst the villagers. The
Government relied on the testimonies of witnesses called in the
domestic proceedings by V.P. (see paragraph 11 above).
- The
Government further submitted that even though V.P. had been a
candidate in the local elections at the time of the events, he could
not have been considered to be a politician, and the admissible
limits of criticism in his respect had therefore been more limited
than those in respect of politicians. In any event, the language
employed by the applicant had amounted to a “rain of insults”,
rather than criticism in a political context.
- The
Government went on to submit that all of the allegations made by the
applicant against V.P. had been false. In so far as the applicant’s
second statement was concerned, he had not been able to adduce any
evidence in support of his accusation that V.P. had possessed a false
diploma. In respect of the applicant’s third statement, it had
been established during the proceedings that V.P. had lawfully
possessed shares in the collective farm. The applicant had been
equally unable to prove the truthfulness of his statement that V.P.
had threatened third parties with a gun.
- The
Government finally argued that the penalty imposed on the applicant
could not be said to be severe as it had not been a criminal penalty,
and that it had been proportionate to the aim pursued by the domestic
courts in this case.
B. The Court’s assessment
- It
is common ground between the parties, and the Court agrees, that the
decisions of the domestic courts and the award of damages made
against the applicant newspaper amounted to “interference by
[a] public authority” with the applicant’s right to
freedom of expression under the first paragraph of Article 10 of the
Convention. It is also undisputed that the interference was
“prescribed by law”, namely Article 16 of the Civil Code,
and pursued a legitimate aim, namely the protection of V.P.’s
reputation. 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, 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 an analysis of the
relevant principles in more detail, see Giniewski v. France,
no. 64016/00, §§ 43-54, ECHR 2006 I; 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),
including the further references cited therein).
- The
Government insisted that the defamation had been committed not only
by the applicant’s writing a letter to State officials but also
by his spreading the contents of the letter amongst the villagers.
They relied on the testimonies of several witnesses to that effect
made during the domestic proceedings. The Court notes, however, that
the domestic courts only found the applicant guilty of defamation by
sending the impugned letter. It will therefore refrain from taking
into consideration any other alleged means of defamation of V.P. by
the applicant.
- The
interference with the applicant’s right to freedom of
expression was based on the applicant’s correspondence with the
President of Moldova, the Speaker of Parliament and the local
Prosecutor’s Office during a local electoral campaign. In the
impugned letter, the applicant, who was a member of the electoral
stuff of one of the candidates, complained about the conduct of the
leader of a collective farm, also a candidate in the elections. The
letter was sent privately to each of its recipients, and was not
published by the applicant or disseminated by him to a wider
audience. Accordingly, the requirements of the protection enjoyed by
V.P. have to be weighed not in relation to the interests of the
freedom of the press or of open discussion of matters of public
concern, but rather against the applicant’s right to report
irregularities to a body competent to deal with such complaints.
- The
Court further notes that the applicant did not resort in his letter
to abusive, strong or intemperate language, albeit that it might be
said to have contained a certain number of emotional expressions
verging on exaggeration or provocation (cf. Prager and Oberschlick
v. Austria, 26 April 1995, § 38, Series A no.
313). Assessing the text of the letter as a whole, the Court finds
that its contents did not go beyond the limits of acceptable
criticism. Furthermore, it appears that the applicant’s factual
allegations rested on what he believed to have been sound grounds. In
this respect the Court notes that the applicant’s allegation
that V.P. had a false diploma was considered to be serious enough by
the Prosecutor’s Office to initiate criminal proceedings
against V.P. The Court would underline that it does not accept the
reasoning of the Court of Appeal, namely that the allegations of
possession of a false diploma by V.P. should have first been proved
in criminal proceedings that ended with a conviction (see paragraph 13
above). To accept such a position would amount to an excessive
restriction of the freedom of expression which under no circumstances
can be limited to allegations proved in criminal proceedings ending
in final court judgments.
- It
is further noted that the applicant attempted to bring evidence in
support of the allegation that V.P. had threatened people with a gun
by putting forward a witness (see paragraph 11 above). However, the
national courts did not pay any attention to the witness’s
testimony and did not assess it, apparently treating it as
irrelevant. The Court recalls that in Busuioc v. Moldova (no.
61513/00, § 88, 21 December 2004) where a similar situation
occurred, it found that requiring the applicant to prove the truth of
his statements, while at the same time depriving him of an effective
opportunity to adduce evidence to support his statements and thereby
attempt to establish their truthfulness, amounted to a
disproportionate interference with the applicant’s right to
freedom of expression.
- A
further aspect of the complaint which is relevant for the Court’s
determination in the present case is the distinction between
statements of fact and value judgments. The applicant’s letter
contained both factual allegations of irregular conduct on the part
of V.P. and value judgments about his unethical behaviour. It has
been the Court’s consistent view that, while the existence of
facts can be demonstrated, 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 rights secured by Article
10 (see Savitchi v. Moldova, no. 11039/02, § 49, 11
October 2005). In the present case the Court considers that some of
the impugned statements made by the applicant, such as “V.P.
who, as a matter of coincidence, was the leader of the collective
farm is shameless...”, “the property [of the collective
farm] which was gathered by the people over a very long period of
time is now used by shameless people...” were value judgments
that represented the applicant’s subjective appraisal of V.P.’s
personality. The burden of proof in respect of these expressions was
obviously impossible to satisfy.
- The
Court finally considers that the most important aspect of its
assessment of the proportionality of the interference in the present
case is the limited impact of the impugned statements, due to the
fact that the applicant addressed his complaint by way of private
correspondence to State officials and did not make it public to the
outside world (see Grigoriades v. Greece, 25 November
1997, § 47, Reports of Judgments and Decisions 1997 VII).
- Having
regard to the above considerations, the Court finds that the Moldovan
courts did not adduce “relevant and sufficient” grounds
for the interference with the applicant’s right to freedom of
expression. There has therefore been a violation of Article 10 of the
Convention.
III. 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 244 euros (EUR) in pecuniary
damage, 176 EUR of which represented transport costs which the
applicant incurred in order to attend the court hearings in Bălţi
and Chişinău and the remainder concerning court fees which
he had been required to pay in order that his appeals be examined.
The applicant did not submit any receipts in support of his claim for
transport costs. He did, however, submit copies of payment receipts
concerning the court fees.
- The
Government disagreed with the amount claimed and argued that the
applicant had failed to substantiate his claim for reimbursement of
transport costs.
- The
Court agrees with the Government and considers it necessary to grant
only EUR 65 to the applicant, representing his payment of court fees.
B. Non-pecuniary damage
- The
applicant claimed EUR 5,000 in non-pecuniary damage caused to him by
the breach of his Convention rights.
- 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 EUR 3,000.
C. Costs and expenses
- The
applicant’s lawyer claimed EUR 1,040 for costs and expenses
incurred before the Court. He submitted a detailed time-sheet.
- The
Government disputed the amount claimed for legal representation. They
considered it excessive and disputed the number of hours worked by
the applicant’s lawyer.
- The
Court notes that the applicant’s representative did not submit
any observations concerning the admissibility and merits of the case
but only made submissions in respect of just satisfaction. Deciding
on an equitable basis, the Court awards him EUR 150 for costs and
expenses.
D. Default interest
- The
Court considers it appropriate that default interest 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
- Declares the complaint concerning Article 13
inadmissible and the remainder of the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to
be converted into Moldovan lei at the rate applicable upon the date
of settlement:
(i) EUR
65 (sixty-five euros), plus any tax that may be chargeable to the
applicant, in respect of pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicant, in respect of non-pecuniary damage;
(iii) EUR
150 (one hundred and fifty euros), plus any tax that may be
chargeable to the applicant, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
