THIRD SECTION

Applications nos . 41654/08 and 61428/08 Serafim URECHEAN against the Republic of Moldova lodged on 1 July 2008 and 12 November 2008 respectively

STATEMENT OF FACTS

The applicant in the first and second case, Mr Serafim Urechean , is a Moldovan national, who was born in 1950 and lives in Chi ș in ă u . He is represented before the Court by Mr D. Graur , a lawyer practising in Chi ș in ă u .

A. The circumstances of the case s

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

The applicant was, at the time of the events, a politician and a member of a parliamentary opposition party.

1. Application no. 41654/08

On 25 July 2007 the President of Moldova organized a press conference, during which he declared, inter alia , that the applicant “had bribed local officials to vote for [the applicant ’ s ] party” and that the applicant “had been “planting” criminal organisations during the past eleven years”. These statements were broadcasted the same day in a prime-time news bulletin on a popular private TV channel.

On 27 September 2007 the applicant lodged a civil defamation complaint against President Voronin , in his capacity as Chairman of the Communists ’ Party, and asked compensation for non-pecuniary damage.

On 30 October 2007 the Buiucani District Court struck out the case on the ground that Mr Voronin had immunity in his capacity of President and that courts were not competent to examine such cas es. The court relied on Article 81 § 2 of the Constitution.

The applicant appealed against this decision. He submitted, inter alia, that the President had not expressed an opinion in the exercise of his mandate, but had made a statement as a chairman of a political party on a private channel. According to the applicant, Mr Voronin had not been exercising his presidential functions when doing so.

On 7 February 2008 the Chi șinău Court of Appeal dismissed the applicant ’ s appeal. The Court of Appeal also relied on Article 81 § 2 of the Constitution.

2. Application no. 61428/08

On 21 September 2007 the President of Moldova participated in a prime ‑ time televised programme on a popular private channel. He declared, inter alia , that the applicant “had bribed local officials to vote for [the applicant ’ s party candidate for] chairman in local councils” and that the applicant “had been steeling public funds during the past ten years”. This programme was re-aired in prime time the following days.

On 25 October 2007 the applicant lodged a civil defamation complaint against President Voronin , in his capacity as Chairman of the Communists ’ Party, and asked compensation for non-pecuniary damage.

On 1 November 2007 the Buiucani District Court struck out the case on the ground that Mr Voronin had immunity in his capacity of President and that courts were not competent to examine such cases. The court relied on Article 81 § 2 of the Constitution and suggested that a settlement of the matter be found in televised debates.

The applicant appealed against this decision. He submitted, inter alia, that the President had not expressed an opinion in the exercise of his mandate, but had made a statement as a chairman of a political party on a private channel. According to the applicant, Mr Voronin had not been exercising his presidential functions when doing so.

On 11 December 2007 the Chi șinău Court of Appeal upheld the applicant ’ s appeal, quashed the decision of the Buiucani District Court of 1 November 2007 and ordered a rehearing of the case. The court noted that the first-instance court failed to assess if the claims were directed against Mr Voronin in his capacity of President of Moldova or of Chairman of a political party and also failed to inform the applicant which court was competent to examine the case.

On 12 March 2008, rehearing the case, the Buiucani District Court struck the applicant ’ s action out of the list of cases on the ground that Mr Voronin had immunity and could not be held responsible for opinions expressed in the exercise of his mandate as President. The court relied on Article 81 § 2 of the Constitution.

The applicant appealed against the decision. He submitted arguments similar to those in his first appeal.

On 13 May 2008 the Chi È™inău Court of Appeal dismissed the applicant ’ s appeal. It did not examine any of the grounds for appeal invoked by the applicant but merely repeated word for word the decision of the first ‑ instance court. The Court of Appeal also relied on Article 81 § 2 of the Constitution.

B. Relevant domestic law and practice

Article 81 § 2 of the Constitution of the Republic of Moldova reads as follows:

“The President of the Republic of Moldova enjoys immunity. He cannot be held responsible for opinions expressed in the exercise of his mandate.”

The decision of the Constitutional Court no. 8 of 16 February 1999 reads as follows:

“The independence of a Parliament member ’ s opinions, within the meaning of the Constitution refers only to his activity as member of Parliament, exercised exclusively under his representative mandate. [ ... ] The legal guarantee of independence of a Parliament member ’ s opinions does not exempt him from criminal or administrative liability for an offen c e committed outside the exercise of his mandate.”

The domestic courts examined previously a case in which a businessman filed a defamation complaint against the leader of a parliamentary opposition. The complaint concerned statements made in a newspaper interview. The courts held that, in a final judgment of the C hișinău Court of Appeal of 18 March 2004, that the defendant could not rely on his parliamentary immunity because the impugned statements had not been made in the exercise of his mandate.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he did not have access to court.

QUESTION TO THE PARTIES

Was the applicant denied his right of access to a court for the determination of his civil rights, in breach of Article 6 § 1 of the Convention (see, mutatis mutandis, the principles stated in Kart v. Turkey [GC], no. 8917/05, §§ 79-84, 3 December 2009) ?