FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61513/00 by Valeriu BUSUIOC against Moldova

The European Court of Human Rights (Fourth Section), sitting on 27 April 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , judges ,

and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 31 January 2000,

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

The applicant, Mr Valeriu Busuioc, is a Moldovan national who was born in 1956 and lives in Chişinău. He was represented before the Court by Mr Serghei Ostaf, from the Moldovan Helsinki Committee.

A. The circumstances of the case

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

1. Background

The applicant is a journalist. On 14 August 1998 the weekly newspaper “Express” published an article entitled “The minor affairs of the big airport” signed by the applicant. He gave as sources for his article the outcome of a press investigation conducted by him and the materials of a parliamentary commission concerning the selling of military planes. The article stated, inter alia , that:

“The scandal of the sale of Moldovan aircrafts at dumping prices attracted the public attention of Moldovan society, which is already used to being unsurprised by such events. However, these still ongoing events offered our newspaper the opportunity to focus on this topic (see, 'Express' No. 19 and 20 of 19 and 26 June 1998). This article is an attempt to give a meaning to the events, which happened within the State Administration of Civil Aviation ('SACA') in the last two years, on the basis of facts which became known as a result of a press investigation.

In 1995 Chişinău International Airport ('CIA') split from the State Air Company 'Air Moldova' and became an independent enterprise. The Head of SACA was L.P., while A.I. was appointed as Head of CIA. An agreement was signed between SACA and A.I. for a period of three years. In 1996 the above agreement was cancelled on the grounds of the negligence of A.I. in carrying out his duties. This fact was the starting point of the story which follows.

A.I. disagreed with SACA's decision on his dismissal and lodged a court action seeking his reinstatement. Since court proceedings in Moldova are so lengthy, A.I., who could not accept his dismissal, took steps to approach CIA's staff. To this end, he organised with the support of his adherents a demonstration on the old airport square. A.I. took the floor and the core of his speech was that he was the only person who, as head of CIA, could ensure its economic growth.

SACA also decided to seek the opinion of its staff and with this purpose, its Director General, L.P., summoned a meeting of his deputies and the airport units' heads. Everyone expressed his view and the common opinion was that A.I. was not the right person to be the head of CIA. Hence, the meeting of the airport administration clearly expressed its distrust of A.I.

Nevertheless, such an outcome did not discourage the pretender to the chairmanship. He even issued a leaflet entitled 'Appeal to the airport staff', which stated: 1. SACA unfairly dismissed A.I.; 2. A.I. will inevitably become CIA's Director General.

This proved to be true, when the court declared SACA's actions to be illegal and ordered the reinstatement of A.I. in his previous post. ...”

The following relates to the events that took place after A.I.'s reinstatement:

“...The purging and transfer of staff marked the reinstatement of A.I. in the position. Many were reminded of their disapproval of the candidature of A.I. for the position of Director General of CIA, expressed at the meeting with directors and managers. ... Once he had become Director General of the Chişinău airport for the second time and after he had successfully accomplished the first staff purge by means of the reorganisation of the enterprise's structure, A.I. called up his 'team', which had been created during his previous directorship. ... the present Director General L.P., devoted to his elected patron A.I. ...

...One can become convinced about this by the example of another protégé of A.I. It is I.V. Not long ago, I.V. was working somewhere in the system of road transport and knew no more about planes than an ordinary person knows, and perhaps what he had been told by his relative A.I. But, probably, I.V. had shown a special interest in airport matters and the idea to hire him at the airport came to his wealthy relative. To this end, he did not even hesitate to invent a new position – Deputy Director of Handling. ...

...Frankly speaking, C.P. himself is not a great expert in landing planes...

...One of the most colourful figures of A.I.'s team became the head of the Staff Unit of the Airport, C.M. Indeed, his position can be characterised as follows: the head of the Airport's Staff Unit would astonish even an employee of the staff unit of any penitentiary [and] it is probably unnecessary to describe every detail of the adventures of this uncontrolled civil servant...

...The saying that everything is possible is borne out by another example, namely the former veterinary doctor, but currently the Manager of the Services' Purchase Unit, C.V...

...A.I. has appointed S.I. (a graduate of the Kiev Institute of Food Industry) ....

...doubtful transactions, behind which, in the opinion of many civil aviation employees, are A.I. and S.I.”

On an unspecified date in 1998 six employees of CIA - I.V. (“first complainant”), C.P. (“second complainant”), C.M. (“third complainant”), C.V. (“fourth complainant”), S.I. (“fifth complainant”) and A.I. (“sixth complainant”) - lodged separate civil actions for defamation against the applicant and the publishing office of the newspaper with the Centru District Court. Relying on Articles 7 and 7/1 of the Civil Code, the complainants alleged, that the article contained statements which were defamatory in respect of them. On 5 September 1998 the Centru District Court decided to join all six actions.

2. Findings of the first instance court

On 3 December 1998 the Centru District Court found that the information contained in the article was of a defamatory nature in respect of each of the complainants and did not correspond to reality in respect of the first, second, fourth, fifth and sixth complainant in six separate passages. In the same decision, the complainants were awarded non-pecuniary damage to be paid by the applicant and the newspaper. In particular, the court quoted the following extract from the article:

(i) In respect of the first complainant

“... One can become convinced about this by the example of another protégé of A.I. It is I.V. Not long ago, I.V. was working somewhere in the system of road transport and knew no more about planes than an ordinary person knows, and perhaps what he had been told by his relative A.I. But, probably, I.V. had shown a special interest in airport matters and the idea to hire him at the airport came to his wealthy relative. To this end, he did not even hesitate to invent a new position – Deputy Director of Handling. ...”

The court found that these statements were of a defamatory nature and did not correspond to reality. The court ordered the applicant and the newspaper to pay the complainant non-pecuniary damage of 900 Moldovan Lei (MDL) (the equivalent of EUR 86.15 at the time) and MDL 1,350 respectively.

(ii) In respect of the second complainant

The court further ruled that the sentence

“Frankly speaking, C.P. himself is not a great expert in landing planes”

was of a defamatory nature in respect of the second complainant, C.P. The court ordered the applicant and the newspaper to pay the complainant non-pecuniary damage of MDL 900 and MDL 1,800 respectively.

(iii) In respect of the third complainant

The court quoted in its decision the following extract as being of a defamatory nature and as not corresponding to reality in respect of the third complainant:

“One of the most colourful figures of A.I.'s team became the head of the Staff Unit of the Airport, C.M. Indeed, his position can be characterised as follows: 'the head of the Airport's Staff Unit would astonish even an employee of the staff unit of any penitentiary' and 'it is probably unnecessary to describe every detail of the adventures of this uncontrolled civil servant'.”

The court ordered the applicant and the newspaper to pay the complainant non-pecuniary damage of MDL 900 and MDL 1,350 respectively.

(iv) In respect of the fourth complainant

The court found that the sentence

“The saying that everything is possible is borne out by another example, namely the former veterinary doctor, but currently the Manager of the Services' Purchase Unit, C.V.”

was of a defamatory nature in respect of the fourth complainant, and did not correspond to reality. The court ordered the applicant and the newspaper to pay to pay the complainant non-pecuniary damage of MDL 900 and MDL 1,350 respectively.

(v) In respect of the fifth complainant

The court found that the sentence

“A.I. has appointed S.I. (a graduate of the Kiev Institute of Food Industry) ....

...doubtful transactions, behind which, in the opinion of many civil aviation employees, are A.I. and S.I.”

was of a defamatory nature in respect of the fifth complainant. The court ordered the applicant and the newspaper to pay the complainant non-pecuniary damage of MDL 900 and MDL 1,800 respectively.

(vi) In respect of the sixth complainant

The court identified in its decision the following extract as being of a defamatory nature and as not corresponding to reality in respect of the sixth complainant:

“... A.I. [...] convened a meeting on the square of the old airport. ... He even issued a leaflet, entitled 'Appeal to the airport staff'. ... The purging and transfer of staff marked the reinstatement of A.I. in the position. Many were reminded of their disapproval of the candidature of A.I. for the position of Director General of IAC, expressed at the meeting with directors and managers. ... Once he had become Director General of the Chişinău airport for the second time and after he had successfully accomplished the first staff purge by means of the reorganisation of the enterprise's structure, A.I. called up his 'team', which had been created during his previous directorship. ... the present Director General L.P., devoted to his elected patron A.I. ... One can become persuaded about this by the example of another protégé of A.I. It is I.V. Not long ago, I.V. was working somewhere in the system of road transport and knew no more about planes than an ordinary person knows, and perhaps what he had been told by his relative A.I. But, probably, I.V. had shown a special interest in airport matters and the idea to hire him at the airport came to his wealthy relative. To this end, he did not even hesitate to invent a new position – Deputy Director of Handling ... Later, A.I. dismissed them from their positions... Instead of them he appointed a) K.V. (who some time ago had graduated the Odessa Institute of Communication), b) S.I. (a graduate of the Kiev Institute of Food Industry). ... Later on, A.I. dismissed S.I. from the position of Director of the State Air Company 'Air Moldova'.  ... the doubtful transactions, behind which, in the opinion of many civil aviation employees, are A.I. and S.I.”

The court ordered the applicant and the newspaper to pay the complainant non-pecuniary damage of MDL 1,800 and MDL 3,600 respectively.

In the same decision, the court ordered the newspaper to publish a notice refuting the statements in respect of each of the complainants.

3. The applicant's appeal

The applicant and the newspaper lodged an appeal against this judgment with the Chişinău Regional Court. The applicant requested that the decision be quashed, submitting that he had produced sufficient evidence substantiating the accuracy of the statements made in the published article, despite certain minor and accidental factual errors.

As regards the first complainant, the applicant provided copies of his employment record regarding his previous job at an Insurance Company specialised in the insurance of motor cars. The applicant also argued that there was nothing defamatory in the statement that the first complainant was a relative of the sixth complainant and that his affirmation that the position of “Deputy Director of Handling” had never existed before the employment of the first complainant was true.

In respect of the second complainant, the applicant noted that the accuracy of his statements had been substantiated by the written depositions of the complainant himself, where it was established that the second complainant had been involved in a minor aeroplane accident in Budapest.

As for the third complainant, he pointed out that the truthfulness of the impugned statements had been proven by the depositions of three witnesses.

As to the fourth complainant, the applicant submitted that he had made an error in his job profile and that the fourth complainant was not a veterinary doctor but instead had a basic diploma in nursing.

Insofar as the fifth complainant was concerned, the applicant stated that confusion had occurred in respect of the institution she had graduated from and that her involvement in the illegal selling of the aeroplanes had been proved by a publication in an issue of the Official Gazette ( “Monitorul Oficial” ).

As regards the sixth complainant, the applicant noted that the accuracy of the allegations had been proved by witnesses' depositions and by the content of the leaflet attached to the appeal.

In addition, the applicant attached to his appeal application the copy of SACA's reply to the enquiry carried out by the newspaper in 1998.

4. Findings of the second instance court

On 5 July 1999 the Regional Court allowed in part the applicant's appeal and amended the District Court's decision by reducing the amount of the non-pecuniary damages to be paid by the applicant and the newspaper. The court justified the reduction by the fact that the circulation of the newspaper “Express” was limited. Accordingly, the applicant and the newspaper were ordered to pay MDL 450 and MDL 1,350 respectively to the first complainant, MDL 900 and MDL 1,350 respectively to the third complainant, MDL 180 and MDL 1,350 respectively to the fourth complainant, MDL 180 and MDL 1,350 respectively to the fifth complainant and MDL 900 and MDL 1,350 respectively to the sixth complainant. In the same decision, the court dismissed the initial action filed by the second complainant, indicating that the statement contained in the article about him had reflected the truth and therefore had not been of a defamatory nature.

5. The applicant's appeal in cassation

The applicant and the newspaper lodged an appeal in cassation with the Court of Appeal, submitting that sufficient supporting evidence had been produced to the first and the second instance court to prove the trouth of the statements made in the impugned article. In particular, the applicant noted that relevant supporting information had been contained in the report of the parliamentary comission on the illegal sale of airplanes and that therefore he should be exonerated from any civil responsibility.

6. Findings of the third instance court

On 7 September 1999 the Court of Appeal dismissed the appeal in cassation and upheld the decision of the Regional Court, stating that the appeal was unfounded. The court concluded that the impugned article had contained both defamatory statements which did not correspond to reality and statements which were not of a defamatory nature but did not correspond to reality. The court further ruled that the sanctioning of the newspaper had not in any way infringed its right to freedom of expression guaranteed by the Constitution and Law on the press. The court held, inter alia :

“The [...] newspaper contended that the article [...] had been based on information contained in the report of the parliamentary commission. However, the commission's report refers to the investigation of the selling of the [...] aircrafts, where the last names of C.P. and A.I. are mentioned in connection with issues other than those referred to in the impugned article. Article 27 of the Law on the Press, referred to in the appeal in cassation provides that the founders, journalists, editors and authors shall not be held responsible for spreading information contained in official documents. But the article [...] does not contain information from the parliamentary commission's report; it only describes the state of affairs in the International Airport using certain phrases that do not correspond to reality and are of a defamatory nature in respect of the complainants.”

According to the applicant, he had been dismissed from the weekly “Express” after the lawsuit and he paid the fine in instalments for a period of three years.

B. 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 contradict statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as the statements which are not damaging to honour and dignity, but do not correspond to reality.

(2) When 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 refutation of the statements in the same rubric, on the same page or in the same programme or cycle of broadcasts.”

Article 7/1. Compensation for moral damage

“(1) The moral damage caused to a person as a result of circulation through the mass 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 minimum wages if the information has been circulated by a legal person and between 10 and 100 if the information has been circulated by a natural person.”

The Explanatory Decision of the Plenary Supreme Court of Justice of 27 March 1997

“1/7 ... the courts shall be aware of the notion of 'value judgment', which means that its author cannot be held liable for his or her opinion in regard of some facts, circumstances, etc., the veracity of which cannot be proven. A clear distinction should be made between facts and value judgments. The existence of facts can be proved, while truthfulness of value judgments is not susceptible of proof. To ask somebody to prove a value judgment is equal to a breach of his freedom of expression.”

COMPLAINT

The applicant complains that the judgments of the domestic courts awarding the complainants non-pecuniary damage constituted an unjustified interference with his right to freedom of expression under Article 10 of the Convention. He argues, in particular, that the statements in question were value judgments which were based on factual information and they concerned issues of public interest. The applicant concludes that the interference with his right to freedom of expression cannot be regarded as “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.

THE LAW

The applicant alleges a violation of his right to freedom of expression as guaranteed by Article 10 of the Convention, which 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. ...

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 ... public safety, for the prevention of disorder or crime ... for the protection of the reputation or rights of others ... .”

The Government agree that the facts of the case disclose an interference with the applicant's freedom of expression. This interference was nevertheless justified under Article 10 § 2 of the Convention. The applicant was ordered to pay non-pecuniary damage for defamation on the basis of Articles 7 and 7/1 of the Civil Code. The interference was thus “prescribed by law” and the law was accessible and foreseeable. It served the legitimate aim of protecting the dignity of the complainants and furthermore the measure was necessary in a democratic society.

The Government submit that the published article for which the applicant was sanctioned contained alleged factual statements and not value judgments.

They point to the national authorities' margin of appreciation in assessing the need for interference and submit that where the Convention refers to domestic law it is primarily the task of the national authorities to apply and interpret domestic law.  They contend that in the present case the domestic authorities did not overstep this margin of appreciation.

Relying on Janowski v. Poland ([GC], no. 25716/94, ECHR 1999 ‑ I), the Government state that the persons against whom the applicant's article was directed were civil servants and that “civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty”.

The Government further state that the sanction imposed on the applicant (MDL 2,610 that the applicant was ordered to pay to the complainants) was not disproportionate to the legitimate aim pursued.

The Government submitted that in December 1998 the average monthly salary in the Republic of Moldova was MDL 351.5 and in July 1999 it was MDL 298.9 (the equivalent of EUR 25.5 at the time).

The applicant argues that Article 7 and 7/1 of the Civil Code is not formulated with sufficient precision and clarity, that the sanction was not proportionate to the legitimate aim pursued and that it was not necessary in a democratic society.

The applicant states that Articles 7 and 7/1 of the Civil Code fail to elaborate on the meanings of “facts”, “honour”, “dignity”, “value judgment”, “burden of proof” in such a way as to render the render the law clear and foreseeable.

The applicant submits that the interference with his freedom of expression was not necessary in a democratic society. In this respect he disagrees with the Government's submission that the article contained only facts and no value judgments. According to the applicant, the article contained value judgments alone in regard to certain complainants and value judgments based on facts in regard to other complainants.

The applicant submits that the sanction imposed on him was too heavy and thus disproportionate as to the legitimate aim pursued. His monthly income at the material time varied between MDL 180 to MDL 220, while the minimum cost of living (coÅŸul minim de consum) was MDL 600.

In the light of the parties' observations, the Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Michael O'Boyle Nicolas Bratza Registrar President