SECOND SECTION

DECISION

Application no. 36712/10 Valentina ROȘCA against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Chamber composed of:

Robert Spano, President, Julia Laffranque, Paul Lemmens, Valeriu Griţco, Egidijus Kūris, Jon Fridrik Kjølbro, Ivana Jelić, judges, and Hasan Bakirci , Deputy Section Registrar ,

Having regard to the above application lodged on 9 June 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Valentina Roșca, is a Moldovan national, who was born in 1954 and lives in Seseni. She was represented before the Court by Ms T. Puiu, a lawyer practising in Chişinău.

2 . The Moldovan Government (“the Government”) were represented by their Agent ad interim at the time, Ms R. Revencu.

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

4 . In September 2002 a female school teacher from the applicant ’ s village disappeared. Her body was found some ten days later in an abandoned well. The ensuing investigation led by the police reached the conclusion that the woman had committed suicide and the case was closed.

5 . On 11 June 2003 a handwritten letter was sent to the Minister of Internal Affairs. The letter stated that it was from a group of concerned villagers but bore the signature of the mayor of the applicant ’ s village and the official stamp of the mayor ’ s office. The authors of the letter recounted the events concerning the victim ’ s disappearance and the discovery of her body and stated that they did not trust the outcome of the investigation led by the police.

6 . The letter stated that after the victim ’ s disappearance, on 29 September 2002, the whole village, including the school children and teachers, had started looking for her all over the village. All the vineyards, orchards and wells of the village had been checked.

7 . The body had been found, some ten days after the disappearance, in an abandoned well with little water in it. What was strange was that many children, men and school teachers stated that that particular well had been checked in the first days of the search and that nothing had been seen in it. According to the letter, the body had been found in a sitting position at the bottom of the well. There had been so little water in the well that only the lower part of the victim ’ s body had been covered by water. The victim ’ s hands had had signs of having been in contact with water, while the rest of the body had been soft to the touch and blood had flowed from the victim ’ s mouth after she had been taken out of the well.

8 . The letter went on to state that in fact the rumour in the village was that the victim had been killed by her sister-in-law, C.C. It was known that the victim had been ill and had gone often to C.C. to receive injections, as C.C. was a nurse. There had been speculation in the village that something must have gone wrong and the victim had been kept for many days in C.C. ’ s house in a state of unconsciousness. According to the rumours, C.C. ’ s husband and her son, who was a medical student, had later helped C.C. to carry the victim to the abandoned well during the night in a black car and had staged the victim ’ s suicide.

9 . The letter went on to state that the investigation conducted by the police could have been tampered with because the suspects and the victim ’ s family were close relatives and they had a cousin who was a high-ranking officer in Orhei police station. Therefore, there was a good chance that the investigation had been a sham and that the case had knowingly been treated falsely as a suicide. The authors of the letter asked for the reopening of the investigation and asked that their letter be kept secret from C.C., explaining that they were afraid of her.

10 . On an unspecified date C.C. obtained a copy of the above-mentioned letter, and in May 2006 she, her husband and her son brought a civil defamation action against three persons, including the applicant. In her application, C.C. did not disclose where she had obtained the copy of the letter from. She stated that she had reasons to believe that the letter could have been written by the applicant and/or another of the defendants because they had a very bad relationship with her and those two persons hated her. As to the third defendant, who was the mayor of the village, she stated that she had included him in the action because his signature was on the letter.

11 . In her written submissions to the court, the applicant vehemently denied having written the letter. However, during the proceedings an expert concluded that the letter had been written by her and subsequently she admitted having written it.

12 . In the meantime, C.C. had also brought a libel action under the Code of Administrative Offences. During those proceedings, the applicant admitted to having written the letter. She also admitted that she had had a very bad relationship with C.C. for a long time. However, she stated that her intention had not been to slander C.C. or to make false accusations against her. All she had wanted was to inform the authorities of the rumours in the village concerning the body found in the well. She said that there were other people in the village who shared the same concerns about the outcome of the investigation. In fact, one of those persons worked at the mayor ’ s office and it was he who had helped her to obtain the official stamp of the mayor ’ s office. She also admitted to having forged the mayor ’ s signature and having abusively applied the official stamp of the mayor ’ s office on her letter. Her explanation for those actions was that she had wanted to give more weight to the letter. On 25 June 2008 C.C. ’ s libel action was dismissed as time ‑ barred.

13 . On 16 December 2008 the Călăraşi District Court upheld the civil defamation action against the applicant and ordered her to pay 10,000 Moldovan lei (MDL – the equivalent of 715 euros (EUR)) to the plaintiffs as compensation for non-pecuniary damage. The court based its conclusions on the fact that the applicant had been the author of the impugned letter and that the said letter had caused damage to the plaintiffs.

14 . The applicant appealed against the judgment, arguing, inter alia , that according to an explanatory judgment of the Plenary Supreme Court of Justice concerning civil defamation proceedings, no defamation was to be found where the imputed defamatory statements were contained in complaints and petitions addressed to the relevant law enforcement organs. The applicant also made reference to the Court ’ s case-law (in particular to the case of Zakharov v. Russia , no. 14881/03, 5 October 2006), submitting that, as in that case, her letter had been of a private nature and had not been made available to the public. The plaintiffs also appealed against the judgment, arguing that the award of compensation was too small.

15 . On 3 September 2009 the Chișinău Court of Appeal dismissed both appeals and upheld the judgment of the first-instance court. The Court of Appeal held that the information contained in the letter addressed by the applicant to the Minister of Internal Affairs had been false because a previous investigation had concluded that the victim had committed suicide. Both the applicant and the plaintiffs lodged appeals on points of law against the judgment.

16 . On 24 February 2010 the Supreme Court of Justice dismissed the applicant ’ s appeal on points of law but upheld that of the plaintiffs. It quashed the previous judgments and, after examining anew the merits of the case in the absence of the parties, adopted a new judgment in which it upheld the plaintiffs ’ action and awarded them damages of MDL 20,000 (EUR 1 430). The Supreme Court of Justice agreed that there could not be defamation in cases where information contained in a petition addressed to law enforcement organs was not accurate. However, that was only the case where the author of the petition had acted in good faith with a view to informing the authorities of a breach of the law. In the present case, however, the applicant had acted in bad faith because she had not signed the letter but had forged the mayor ’ s signature and had abusively applied the mayor ’ s office ’ s official stamp to it.

17 . The relevant part of Article 16 of the Civil Code reads as follows:

“(1) Every person has the right to respect for his or her honour, dignity and professional reputation.

(2) Every person has the right to request the renunciation of information that affects his or her honour, dignity and professional reputation if the person disseminating such information cannot prove that it corresponds to reality.

...

(4) Where information which affects a person ’ s honour, dignity and professional reputation is disseminated via 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 [material published] 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 [which] violates 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.

...”

18 . According to paragraph 19 of decision No. 8 of the Plenary Supreme Court of Justice of 9 October 2006 concerning practice to be followed in cases of defamation, a person who in a complaint addressed to law ‑ enforcement organs made statements which subsequently proved to be false cannot be held liable for defamation if he or she acted in good faith and without an intention to defame.

COMPLAINT

19 . The applicant complained that her being held liable, within the context of civil liability for defamation, had violated her right to freedom of expression, as guaranteed by Article 10 of the Convention.

THE LAW

20 . The applicant submitted that the interference with her right to freedom of expression had not been prescribed by law, because under Article 16 of the Civil Code, read in conjunction with the decision of the Plenary Supreme Court of Justice (see paragraph 18 above), the letter sent by the applicant to the Minister of Internal Affairs could not be categorised as “dissemination of information that affects his or her honour, dignity and professional reputation”, and a person who in a complaint addressed to law enforcement organs made statements that subsequently proved to be false could not be held liable for defamation.

21 . In the alternative, the applicant argued that the interference had not been necessary in a democratic society, because the language of her letter had not been abusive, strong or intemperate. She had merely disagreed with the results of the criminal investigation into the circumstances of the death of the school teacher and had wanted to share with the relevant authorities the rumours then circulating in the village. The fact that she had not signed the letter but had rather forged the mayor ’ s signature was not indicative of her bad faith or of her intention to slander the plaintiffs.

22 . The interference had been all the more disproportionate to the legitimate aim pursued given the fact that the courts had ordered her to pay a very high amount in compensation for non-pecuniary damage to the plaintiffs. Such a severe punishment had had a dissuasive effect on the applicant ’ s right to report irregularities to the relevant authorities.

23 . The Government submitted that the interference with the applicant ’ s right to freedom of expression had been prescribed by law and had pursued the legitimate aim of protecting the plaintiffs ’ dignity and reputation. The applicant had exercised her right to freedom of expression in bad faith. She had disseminated false information about the plaintiffs and proof of her bad faith was the fact that she had forged the mayor ’ s signature and had abusively applied the mayor ’ s office ’ s official stamp to her letter.

24 . The Government considered that the amount of compensation which the applicant had been ordered to pay to the plaintiffs had not been excessive and had been proportionate to the legitimate aim pursued.

25 . The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’ . As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Baka v. Hungary [GC], no. 20261/12, § 158, 23 June 2016).

26 . In instances where the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting the two values guaranteed by the Convention, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8. The general principles applicable to the balancing of these rights were first set out in Von Hannover v. Germany (no. 2) [GC] (nos. 40660/08 and 60641/08, §§ 104 ‑ 07, ECHR 2012) and Axel Springer AG (cited above, §§ 85-88) , then restated in more detail in Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, §§ 90-93, ECHR 2015 (extracts)) and more recently summarised in Perinçek v. Switzerland [GC] (no. 27510/08, § 198, ECHR 2015 (extracts)) .

27 . Turning to the facts of the present case, the Court notes in the first place, that the parties agree that there has been an interference with the applicant ’ s right to freedom of expression. That interference was based on Article 16 § 8 of the Civil Code. However, the applicant alleged that that interference was not in accordance with the law because under the above Article, a person who, in a complaint addressed to law enforcement organs, made statements that subsequently proved to be false could not be held liable for defamation. The Court notes that according to the interpretation given by the Plenary Supreme Court (see paragraph 18 above), only if a person acts in good faith without the intention to defame, he or she cannot be held liable for spreading untrue information in a complaint addressed to law ‑ enforcement organs. In view of the findings below, the Court considers that interference with the applicant ’ s freedom of expression was in accordance with the law in the present case.

28 . The Court further notes that the interference with the applicant ’ s right pursued the legitimate aim of protecting the reputation of others. Insofar as the necessity of the interference is concerned, the Court notes that the impugned letter concerned a matter of public interest, was of a private nature and was addressed to a public authority. Moreover, it referred to rumours rather than to direct allegations. Nevertheless, the applicant had made no attempt to verify the truthfulness of the rumours, and implicitly associated herself with them. Against that background, the Court cannot disregard the fact that the applicant admitted to having had a history of hostile relations with C.C.

29 . The Court further notes that during the proceedings the applicant did not attempt to substantiate in any way the factual statements contained in her letter. She did not call any witnesses who could confirm that there were other persons in the village sharing concerns about the outcome of the criminal investigation into the circumstances of the victim ’ s death or who could confirm the statements about the place where the victim ’ s body had been found, the state of the body and other factual statements contained in the impugned letter. Moreover, the domestic courts ’ conclusion that she had acted in bad faith, as demonstrated by her abuse of the mayor ’ s signature and stamp, cannot be regarded as arbitrary or manifestly unreasonable. Thus, in essence the domestic courts carried out a balancing exercise, albeit laconic, and the reasons which they gave can be regarded as relevant and sufficient. Finally, the amount awarded to C.C. was not so high as to render the interference disproportionate. In view of the above, the Court considers that the solution of the domestic courts struck a fair balance between the competing interests of C.C. and those of the applicant. The interference with the exercise of the applicant ’ s right to freedom of expression was thus justified and the Court rejects the application as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Hasan Bakırcı Robert Spano Deputy Registrar President