FOURTH SECTION
DECISION
Application no. 16674/06
by TIMPUL DE DIMINEATA
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 23 March 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 18 April 2006,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Proceedings A
On 30 January 2004 Timpul Info-Magazin, the applicant in Timpul Info-Magazin and Anghel v. Moldova (no. 42864/05, 27 November 2007), published an article concerning alleged acts of corruption within the Ministry of Internal affairs.
Following civil defamation proceedings instituted by a person whose name appeared in the article, on 24 May 2005, the Buiucani District Court ordered Timpul Info-Magazin to publish a retraction. The judgment became final.
In the meantime, Timpul Info-Magazin was involved in another set of defamation proceedings which culminated with the Court’s judgment Timpul Info-Magazin and Anghel v. Moldova (cited above), in which a breach of the applicant newspaper’s right to freedom of expression was found. During those proceedings at the domestic level, a court ordered the freezing of the applicant newspaper’s accounts and the sequestration of its assets by way of a surety (see Timpul Info-Magazin and Anghel v. Moldova, cited above, §§ 9 and 10). As a result the newspaper was forced to suspend its activity without, however, liquidating the legal entity Timpul Info-Magazin.
The staff of Timpul Info-Magazin incorporated a new entity and created a new newspaper called Timpul de Dimineaţă, the applicant in the present case.
On 10 October 2005 a bailiff from the Buiucani Office of Bailiffs ordered Timpul de Dimineaţă to comply with the judgment of 24 May 2005 within three days.
On 13 October 2005 the applicant newspaper informed the bailiff that it was neither a defendant in those proceedings nor the successor to Timpul Info-Magazin and refused to comply with the bailiff’s order.
On an unspecified date, the bailiff applied to the Buiucani District Court and asked for a clarification in respect of the manner of enforcement of the judgment.
On 19 January 2006 the Buiucani District Court held a hearing in the case. The applicant newspaper argued that it was not the successor to Timpul Info-Magazin and argued that the two newspapers were registered as different legal entities, had different legal addresses and different bank accounts. However, the court found that the two newspapers had the same web page and that the editor in chief used the official headed paper of Timpul de Dimineaţă in a letter addressed to the bailiff. It ordered that the judgment of 24 May 2005 be enforced against the applicant newspaper, as it was the successor to Timpul Info-Magazin, and relied on Articles 43 and 70 of the Code of Enforcement of Judgments.
On 1 February 2006 the applicant newspaper appealed against the decision of the Buiucani District Court of 19 January 2006 and argued that the decision was illegal because according to Articles 43 and 70 of the Code of Enforcement a successor to a legal entity could only be declared after the dissolution of the entity or after a transfer of debt. The applicant argued that neither of the conditions had been fulfilled and that, therefore, it could not be declared the successor to Timpul Info-Magazin.
On 16 March 2006 the Chişinău Court of Appeal dismissed the applicant newspaper’s appeal, upheld the reasoning given by the first-instance court and added that the two newspapers had the same editor in chief and the same headquarters.
2. Proceedings B
On 12 January 2007 the applicant newspaper published a sarcastic article critical of the then Prime Minister, Mr V. Tarlev. The article was accompanied by a fake picture of the Prime Minister wearing Metropolitan vestments and a mitre and holding liturgical objects in his hands and criticised the Prime Minister for making a politically motivated speech on Christmas Day from the shrine of the main Cathedral in Chişinău, a Cathedral belonging to the Metropolitan Church of Moldova. The article reminded readers of previous accusations made by the shareholders of the Bucuria sweet factory against the Prime Minister, alleging that he had stolen several million United States dollars while he was the factory’s chief executive officer. The author of the article also referred to previous accusations that Mr Tarlev had abusively built his house on the territory of a public kindergarten. The case involving the Prime Minister’s speech from the shrine was compared to a case involving a priest (P.V.) who had been caught stealing a bath tub from a village kindergarten and who afterwards continued preaching Christian values from the shrine of his church for many years. In conclusion, the article stated that if President Voronin, Prime Minister Tarlev and P.V. were put together there would be a new holy trinity, the national trinity consisting of the Father (President Voronin), the Son (Mr Tarlev) and the Holy Spirit (P.V.), a Moldovan trinity which lies from the shrine and steals from the budget.
On 15 January 2007 a group of approximately thirty persons, some of whom wore church clothes, held a protest demonstration in front of the headquarters of the applicant newspaper. They protested against the alleged blasphemy by the applicant newspaper and claimed to be members of a religious organisation belonging to the Metropolitan Church of Moldova. The protesters were accompanied by a reporter from the National Radio who came along with them to make a radio report of the event. An employee of a pro-Government newspaper distributed eggs to the protesters to be thrown at the newspaper’s building. A group of protesters entered the premises by force, extracted newspapers from the newspaper’s archive and set them alight in front of the building. They threatened the journalists with violence, used obscene language against them and cursed them saying “may your children burn in hell”. The journalists called the police, who arrived after approximately twenty minutes but did not stop the protest and the throwing of eggs; they stood aside and observed the event. One of the protesters declared to a television crew that the “newspaper asked for violence” and argued that since the Muslims had reacted violently as a result of caricatures of Mohammad, they, who believed in the “true God”, also had the right to do so. The protest ended when a person wearing priest’s clothes addressed the participants in Russian with the order “Dismiss”.
Later on that day a police officer drew up a report on the visible damage to the building of the applicant newspaper’s headquarters. He found that the exterior walls and windows had had eggs thrown at them.
The next day the newspaper received two letters from a religious organisation belonging to the Metropolitan Church of Moldova which had organised the protest, in which it was threatened again with the statement “for our faith we are ready to shed blood”.
During the next days the applicant newspaper published numerous materials concerning the events of 15 and 16 January 2007. It interviewed, inter alia, high-ranking priests from the Metropolitan Church of Bessarabia, which expressed the view that the article of 12 January 2007 did not contain any blasphemy, that the Prime-Minister’s political speech from the shrine was contrary to the rules of the Orthodox Church and that the protest of 15 January 2007 had a political connotation. They made a parallel between the events of 15 January 2007 and the acts of violence by members of the Metropolitan Church of Moldova against the members of their church in the 1990s. On the other hand a representative of the Metropolitan Church of Moldova refuted any implication of his Church in the events, argued that the protesters’ actions were justified and that history contained many examples of violent wars for the Christian faith.
On an unspecified date the applicant newspaper made an official complaint to the police and asked that criminal proceedings be instituted against those who had vandalised the newspaper’s headquarters, destroyed part of its archives and most importantly intimidated the journalists.
On 12 February 2007 the Buiucani Prosecutor’s Office informed the applicant newspaper that it had decided not to institute criminal proceedings against the protesters. However, administrative proceedings had been initiated against four protesters.
On 23 February 2007 the applicant newspaper challenged the decision of the Buiucani Prosecutor’s Office before an investigating judge. It argued, inter alia, that Timpul de Dimineata was an opposition newspaper which had published articles critical of the Government on numerous occasions. As a result it had been subjected to different forms of pressure by the authorities such as the initiation of many defamation proceedings against it and the freezing of its accounts. The applicant newspaper also reminded the Prosecutor’s Office that before July 2004 its team had worked at another newspaper called Timpul Info-Magazin, which had been forced to shut down as a result of an investigative article concerning a non-transparent acquisition of cars by the Government and an attempted murder of the journalist who wrote the article. The applicant newspaper also informed the Prosecutor’s Office that numerous reports of the Council of Europe, the OSCE and of such non-governmental organisations as Freedom House and Article 19 had expressed concern about limitations on the right to freedom of expression in Moldova.
In this context the applicant newspaper argued that the manner in which the protest of 15 January 2007 had taken place constituted a new act of intimidation against it by agents of the Government and was directed against the newspaper’s freedom of expression. In support of this submission, the applicant argued that the protesters were members of the Metropolitan Church of Moldova, which, unlike the Metropolitan Church of Bessarabia, was known to be approved and supported by the Government. According to the applicant, despite the official secularity of the State, there was no clear separation between the State and the Metropolitan Church of Moldova. The former protected the interests of the latter and vice versa. The Metropolitan of the Metropolitan Church of Moldova possessed a diplomatic passport, had a car with special plates and accompanied the President on foreign missions. During a visit of the Patriarch of Russia to Chişinău, on 13 November 2005, the President had declared that there was only one church in the Republic of Moldova – the Metropolitan Church of Moldova.
The applicant newspaper submitted that at least four criminal offences had been committed by the protesters: violation of domicile, arson and destroying of goods, mass disorder and vandalism. The most serious consequence of the events of 15 January 2007 and of the subsequent threats against the newspaper, however, was a state of fear and anxiety of the newspaper’s staff and a chilling effect on them. The applicant complained further that the investigation conducted by the Prosecutor’s Office had been a sham. The Prosecutor’s Office had failed to investigate the identity of the instigators and did not take into consideration the special relationship between the Metropolitan Church of Moldova and the Government. Also, they did not pay attention to the fact that a reporter of the Government controlled National Radio accompanied the protesters to the headquarters of the newspaper. According to the newspaper all the above facts and the lack of action on the part of the police officers who arrived at the scene of the events raised a reasonable suspicion that the attack on the newspaper served the purpose of intimidating its journalists and limiting their freedom of expression.
On 26 February 2007 an investigating judge from the Buiucani District Court ordered the Prosecutor’s Office to examine the applicant’s complaint on its merits.
On 1 March 2007 the applicant newspaper wrote again to the Prosecutor’s Office and informed it, inter alia, that it had identified the organisers of the protest of 15 January 2007.
On 23 March 2007 the applicant newspaper was informed by the Prosecutor’s Office that its complaint had been dismissed. The applicant newspaper challenged the Prosecutor’s decision in court and argued, inter alia, that the refusal of the Prosecutor’s Office to investigate the attack of 15 January 2007 properly amounted to pressure on the newspaper because it was promoting the continued state of fear of the journalists that similar attacks could be repeated if they expressed criticism of the Government. The applicant also submitted examples of different approaches by the police in other cases of unauthorised demonstrations. One of the examples was that of the violent suppression of a peaceful march and the arrest of members of the Liberal Party on 27 March 2007. The applicant newspaper argued that that was the practice of the police in cases of peaceful unauthorised demonstrations against the Government, in contrast to their attitude in the case of the protest of 15 January 2007.
On 5 April 2007 the Buiucani District Court dismissed the applicant newspaper’s appeal and found that the Prosecutor’s Office had conducted a thorough investigation. As a result of that investigation administrative proceedings had been initiated against several persons for participating in an unauthorised demonstration. The complaint concerning the setting on fire of the newspaper’s archive had not been confirmed by evidence.
In the meantime, on 16 March 2007, four persons against whom the Prosecutor’s Office had initiated administrative proceedings for participating in an unauthorised demonstration were acquitted by the Buiucani District Court. The Prosecutor’s Office appealed against that decision. However, the appeal was dismissed on 16 April 2007 on the ground that the Prosecutor’s Office had failed to comply with the ten-day time-limit for lodging the appeal. The applicant newspaper learned about the outcome of these proceedings from the Government’s observations in the present case.
COMPLAINTS
1. The applicant newspaper complained that proceedings A were not fair as provided in Article 6 of the Convention because its civil rights and obligations had been decided in proceedings to which it had not been a party and thus had no possibility to defend itself.
2. In respect of proceedings B the applicant complained under Article 10 of the Convention that the State had not discharged its positive obligations to protect its right to freedom of expression.
THE LAW
On 15 December 2009 the Court received the following declaration from the Government:
“The Government acknowledge that there has been a violation of the applicant newspaper’s right to a fair trial within the meaning of Article 6 of the Convention as a result of the Court of Appeal’s decision of 16 March 2006 designating the applicant newspaper the successor to Timpul Info-Magazin on the ground that both newspapers had the same address and the same editor in chief.
The Government acknowledge that there has been a violation of the applicant newspaper’s right to freedom of expression within the meaning of Article 10 of the Convention, as a result of violent actions of representatives of a religious organisation, actions which were not promptly and effectively stopped/penalised by the State authorities.
The Government consider that the mere acknowledgement of violation of the applicant newspaper’s rights should constitute sufficient just satisfaction. In case that the applicant would dispute this aspect, the Government leaves the determination of a fair amount of compensation to the Court.
In view of the above, the Government respectfully ask the Court to take note of their declaration and to strike the case out of its list of cases.”
On 2 February 2010 the Court received the following declaration signed by the applicant:
“The applicant newspaper agrees with the Government’s proposal to acknowledge the claimed violations under Article 6 and under Article 10 of the Convention and is willing to accept that such an acknowledgement is just satisfaction in itself.
Accordingly, the applicant newspaper kindly asks the Court to proceed and approve the settlement proposed by the respondent Government and endorsed by the applicant newspaper.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy