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FOURTH
SECTION
CASE OF
TIMPUL INFO-MAGAZIN AND ANGHEL v. MOLDOVA
(Application
no. 42864/05)
JUDGMENT
STRASBOURG
27
November 2007
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 Timpul Info-Magazin and Anghel v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J.
Šikuta, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42864/05) 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 Timpul Info-Magazin, a Moldovan
newspaper (“the applicant newspaper”) and a Moldovan
national, Ms Alina Anghel (“the second applicant”), on 28
November 2005.
- The
applicants were represented by Mr A. Tănase,
a lawyer practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent at the
time, Mr V. Pârlog.
- The
applicants alleged, in particular, that their right to freedom of
expression had been violated as a result of judicial decisions in
defamation proceedings brought against them.
- The
application was allocated to the Fourth Section of the Court. On
28 November 2006 a Chamber of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as
its admissibility.
- Judge
Pavlovschi, the judge elected in respect of Moldova, withdrew from
sitting in the case (Rule 28 of the Rules of Court) before it had
been notified to the Government. On 5 January 2007, the Government,
pursuant to Rule 29 § 1 (a), informed the Court that they were
content to appoint in his stead another elected judge and left the
choice of appointee to the President of the Chamber. On 28 September
2007, the President appointed Judge Šikuta to sit in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant newspaper was registered in Chişinău.
The second applicant was born in 1975 and lives in Chişinău.
- On 16 January 2004 the applicant newspaper published an
article titled “Luxury in the Land of Poverty”, signed by
the second applicant. The article examined the relationship between
the State authorities and a private investment fund, D.H., which had
been founded by and was managed by D.P., a private company. The focus
was on the Government's practice of purchasing luxury cars without
making any details public. It recalled two purchases of cars in 2003,
including from D.H., for a total estimated value of 1,250,000 euros
(EUR). Only after the press published details was the Government
forced to acknowledge that this deal had taken place.
- The article continued by examining a more recent
purchase of 42 new luxury cars from D.H. for an amount exceeding EUR
1 million. The article criticised the deal's lack of transparency,
because it had not been published in the Official Gazette. It went on
to describe the manner in which the cars had been distributed to the
governors of 32 regions of Moldova and raised the issue whether that
was a means for the Government to ensure that those governors, 31 of
whom were communists as was the President of Moldova, would thereby
have a better ability to spread communist propaganda in their regions
ahead of the elections which were to be held a year later. The
article cited the leader of a political party, who declared that
rumours in the Government suggested that the price paid for each car
was some EUR 7,000 more than its list price. No explanation was
given by the authorities as to why luxury cars were needed if much
cheaper new cars could be purchased for a fraction of the price. The
article ended with an accusation of corruption at the highest State
level, for which no one was going to be punished, and said that if
the voters did not mete out justice at the forthcoming elections then
only God's justice could be hoped for.
- On
23 January 2004 D.H. and D.P. brought an action for defamation
against the applicants. At the same time, they asked for an
injunction against the applicants' publishing any material about the
leadership of D.H. and D.P. without their permission and for the
sequestration of the applicant newspaper's property to an amount
equal to their claim (500,000 United States dollars (USD) and
20,000,000 Moldovan lei (MDL)). The plaintiffs paid court fees of MDL
180. On the same day the Buiucani District Court ordered that the
applicant newspaper's assets be frozen as requested.
- On
6 February 2004 the bailiff enforced the warrant by sequestrating the
applicant newspaper's office equipment and freezing its bank account.
- The second applicant received several threatening
phone calls and on 23 June 2003 she was attacked outside her house by
unidentified persons and suffered a blow from a metal bar to her arm
and head. The applicant newspaper and other media linked the attack
with two investigations undertaken by the journalist, namely an
investigation into a luxury car offered as a gift by the President of
D.H. to the Minister of Internal Affairs and the article examined in
the present case.
- In its submissions to the trial court the applicant
newspaper relied on the existence of an important public interest in
view of the fact that the transaction had been made with public money
but had not been carried out through a public tender organised by the
National Agency for Public Acquisitions, nor planned in the State
Budget for 2003. In addition, both the State authorities and the
plaintiffs had refused to disclose any details about the deal, which
seemed even more suspicious given that D.H.'s president was a member
of the Economic Council assisting the Prime Minister. The applicant
newspaper relied on Article 10 of the Convention and claimed that the
statements had been value judgments not susceptible of proof, or
reproductions of the opinion of a well-known politician and of
rumours which it had clearly identified as such and which could not
be proved. It added that the plaintiffs had become “public
persons” by entering into transactions with the Government and
that they should thus tolerate a much higher level of criticism. It
finally submitted that the damages sought were disproportionate.
- On 28 April 2004 the Buiucani District Court partly
accepted the plaintiffs' claims. It found that the applicant
newspaper had published factual statements. The court cited one
fragment of a paragraph from the impugned article, which read:
“...when the communists came to power, Vladimir
Voronin wanted to cut the Gordian knot of the investment fund [D.H.],
founded on the basis of investment bonds, that is he was picking at
it. They say that, in order for this not to happen, someone paid
someone else 500,000 dollars...”.
- The
court found that this expression did not “correspond to
reality” as the applicants had not proved it. The court found
that the expression had caused severe damage to the professional
reputation of the plaintiffs. Considering the type and content of the
publication, the court awarded the plaintiffs a total of MDL
1,350,000 (EUR 95,725) in compensation for non-pecuniary damage, to
be paid jointly by both applicants, and ordered the applicant
newspaper to publish an apology. Finally, the court cited Article 10
of the Convention and added that the applicants had “clearly
overstepped the limits of constructive criticism tolerable in a
democratic society and had distributed in bad faith factual
information in which they directly, but unjustifiably, accused the
plaintiffs of certain criminal deeds related to bribery”.
- In its appeal the applicant newspaper stated, inter
alia, that the court had deliberately taken the fragment of the
relevant paragraph out of context, which read as follows:
“Bad and surely ill-informed mouths in Chişinău,
say that at the moment when the communists came to power, Vladimir
Voronin wanted to cut the Gordian knot of the [D.H.] investment fund
created on the basis of investment bonds, that is he was picking at
it. They say that, in order for this not to happen, someone paid
someone else 500,000 dollars. It is not known whether this is simple
speculation and unfounded accusations. The reality is that today D.H.
and its Skoda distributor are doing well, prosper and sell the State
Chancellery enormous numbers of luxury cars, to the envy of their
competitors”.
(“Gurile rele şi, cu siguranţă,
prost informate din Chişinău afirmă că în
momentul accederii comuniştilor la guvernare, Vladimir Voronin a
vrut să „taie” nodul gordian al fondului de
investiţii [D.H.], înfiinţat în baza bonurilor
de investiţii, adică să-l ia la bani mărunţi.
Ca acest lucru să nu se întâmple,
se zice că cineva i-a plătit altcuiva 500 mii de dolari.
Sunt simple speculaţii şi învinuiri nefondate –
nu se ştie. Realitatea e că azi, [D.H.] şi
distributorul său 'Skoda' sunt bine mersi, prosperă şi
vând Cancelariei de Stat loturi uriaşe de automobile de
lux, spre ciuda concurenţilor.”)
- The
applicant newspaper emphasised that it had made very clear in the
article that the statement was based on rumours which it had called
ill-informed and had added that it was not known whether they were
true. In addition, Article 10 protected not just “constructive
criticism” but also statements that shocked or disturbed.
- On
22 July 2004 the Chişinău Court of Appeal upheld the
judgment of the first-instance court, finding that the applicant
newspaper had not proved the truth of the statement cited above. The
court also rejected the applicant newspaper's request to lift the
restriction on its property since that request had already been
rejected and no appeal had been lodged against the relevant decision.
The plaintiffs' appeal was also rejected since the amount of
compensation had been appropriate.
- In
its appeal on points of law the applicant newspaper invoked reasons
similar to those adduced earlier, adding that the case concerned
political expression, which enjoyed greater protection.
- On
14 September 2005 the Supreme Court of Justice partly quashed the
lower courts' judgments. The court relied on the same extract as the
lower courts. It found that the applicant newspaper had published
defamatory information which it could not prove to be truthful,
namely that the plaintiffs had paid a bribe and thereby committed a
criminal offence. Relying on this Court's jurisprudence, the Supreme
Court of Justice rejected the applicant newspaper's argument that
legal persons should not be able to claim non-pecuniary damage.
However, it considered excessive the amount awarded by the lower
courts, finding that a restriction on freedom of expression should
not be of such a degree as to put in jeopardy the economic survival
of the person sanctioned. Accordingly, the court reduced the award to
a total of MDL 130,000 (EUR 8,430).
II. RELEVANT DOMESTIC LAW
- 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
disclaiming 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 it 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 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 disclaimer.”
THE LAW
- The
applicants complained under Article 10 of the Convention that the
domestic courts' decisions had entailed interference with their 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.”
- In
their initial application, both applicants submitted complaints under
Article 10 of the Convention. However, in their observations on the
admissibility and merits Ms Alina Anghel asked the Court not to
proceed with the examination of her complaint.
In
view of the clear and unequivocal terms of Ms Anghel's request, and
finding that respect for human rights as defined in the Convention
and its Protocols does not require it to continue its examination of
her complaint, the Court, in accordance with Article 37 § 1(a)
of the Convention, decides to strike out the application in so far as
it relates to Ms Anghel. Article 29 § 3 of the Convention
will accordingly be discontinued in respect of that part of the
application.
I. ADMISSIBILITY
- The
Court considers that the applicant newspaper's complaint under
Article 10 of the Convention 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
application admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of the
complaint.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
A. The arguments of the parties
- The applicant newspaper complained of a violation of
its right to freedom of expression. It relied on the Court's
jurisprudence concerning the distinction between facts and value
judgments, the special role played by the press in a democratic
society and the wider limits of acceptable criticism in respect of
the Government and of public figures in so far as they are involved
in genuine public-interest acts. It relied on its good faith in
informing the public about how public funds were spent, the absence
of personal animosity against the plaintiff, the balanced tone of the
article as a whole and the serious and accurate investigation
undertaken before publishing the article. The applicant newspaper
referred to the D.H. president's accompanying the President of
Moldova on various trips and D.H.'s sponsoring of one such trip. It
finally referred to the seriousness of the penalty imposed by the
courts, which resulted in the applicant newspaper's closure. This
effect on the applicant newspaper had been largely foreseeable by the
domestic courts when they had made their pecuniary awards.
- The Government conceded that there had been
interference with the applicant newspaper's freedom of expression but
submitted that it had been provided for by law, had pursued the
legitimate aim of protecting the reputation of others and had been
“necessary in a democratic society”. The courts had
adopted reasoned decisions in which they had taken account of the two
competing values, of freedom of expression and the protection of
reputation, and had found that there had been a “pressing
social need” to impose the fine on the applicant newspaper. The
courts found that the applicant newspaper had overstepped the limits
of admissible criticism by launching unwarranted attacks on D. H. and
by eroding at the same time the principles of fair competition. While
acknowledging the special role played by the press in a democratic
society, they had relied on the “special duties and
responsibilities” attached to that role, notably that of
thorough research and verification of materials published. In their
observations the Government relied on the same extract as did the
domestic courts (see paragraph 13 above).
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 newspaper's right to
freedom of expression under the first paragraph of Article 10.
Such interference will entail a violation of Article 10 unless
it is “prescribed by law”, has an aim or aims that are
legitimate under paragraph 2 of the Article and is “necessary
in a democratic society” to achieve such aim or aims.
1. “Prescribed by law”
- The
Court notes that the interference complained of had a legal basis,
namely Article 16 of the Civil Code (see paragraph 20 above). The
Court considers that this provision is both accessible and
foreseeable in its application. Accordingly, the Court concludes that
in this case the interference was “prescribed by law”
within the meaning of Article 10 § 2.
2. “Legitimate aim”
- It
is not disputed by the parties, and the Court agrees, that the
interference served the legitimate aim of protecting D.H.'s
reputation. It therefore remains to be examined whether the
interference was “necessary in a democratic society”.
3. “Necessary in a democratic society”
- The
relevant general principles have been summarised in Busuioc
v. Moldova (no. 61513/00, §§ 56-62, 21
December 2004) and in Savitchi v. Moldova (no. 11039/02,
§§ 43-50, 11 October 2005).
- In addition, the Court reiterates “that a
possible failure of a public figure to observe laws and regulations
aimed at protecting serious public interests, even in the private
sphere, may in certain circumstances constitute a matter of
legitimate public interest” (see Fressoz and Roire v.
France [GC], no. 29183/95, § 50, ECHR 1999 I,
and Tønsbergs Blad A.S. and Haukom v. Norway, no.
510/04, § 87, ECHR 2007 ...).
- The
Court notes that the article was written by a journalist and points
out the pre-eminent role of the press in a democratic society to
impart ideas and opinions on political matters and on other matters
of public interest (see Sunday Times v. the United Kingdom (no.
1), judgment of 26 April 1979, Series A no. 30, § 65).
Particularly strong reasons must be provided for any measure
affecting this role of the press and limiting access to information
which the public has the right to receive (see, amongst many
authorities, Oberschlick v. Austria (no. 1),
judgment of 23 May 1991, Series A no. 204, § 58).
- While the Government contended that the applicant
newspaper had intended to attack D.H.'s reputation and affect fair
competition rules, the Court is unable to agree with this argument.
The article was clearly aimed at criticising the Government for a
non-transparent and wasteful manner of spending public money, which
is a genuine public interest matter, rather than at disparaging D.H.
The focus was on purchases of cars for the Government and, as the
article makes clear, D.H. had been involved in such transactions with
the Government on at least two occasions. D.H. did not claim, and the
courts did not find, that any other part of the article had been
untrue, including the statement that the cars had been overpriced and
that no official invitation for bids had been published before the
fleet of cars was bought from D.H., a practice which in itself could
legitimately raise the applicant newspaper's doubts in respect of
fair competition. The Court has therefore no doubts as to the
applicant newspaper's good faith in publishing the article.
- The
Court reiterates its finding in Steel and Morris v. the
United Kingdom (no. 68416/01, § 94, ECHR 2005 II)
that
It is true that large public companies inevitably and
knowingly lay themselves open to close scrutiny of their acts and, as
in the case of the businessmen and women who manage them, the limits
of acceptable criticism are wider in the case of such companies (see
Fayed v. the United Kingdom, judgment of 21 September 1994,
Series A no. 294-B, p. 53, § 75). However, in addition to the
public interest in open debate about business practices, there is a
competing interest in protecting the commercial success and viability
of companies, for the benefit of shareholders and employees, but also
for the wider economic good. The State therefore enjoys a margin of
appreciation as to the means it provides under domestic law to enable
a company to challenge the truth, and limit the damage, of
allegations which risk harming its reputation (see Markt Intern
Verlag GmbH and Klaus Beermann v. Germany, judgment of
20 November 1989, Series A no. 165, pp. 19-21, §§
33-38).
- The
Court is aware that, in the present case, D.H. could not be
considered to be a large company similar to that in Steel and
Morris, cited above. It should therefore enjoy a comparatively
increased protection of its reputation. Nevertheless, the Court
considers that when a private company decides to participate in
transactions in which considerable public funds are involved, it
voluntarily exposes itself to an increased scrutiny by public
opinion. In particular, if there are allegations that such
transactions were detrimental to public finances, a company must
accept criticism by the public (see paragraph 30 above). The Court
notes that, in the present case, public opinion could be legitimately
interested in the integrity of the transaction since the public
authorities had failed to disclose any details concerning the
purchase of the cars, the more so as D.H.'s president held an
important advisory function within the Government (see paragraph 12
above).
- The
Court also notes that, just as the domestic courts did in their turn,
the Government relied on a part of a sentence taken out of context in
order to show that the interference with the applicant newspaper's
rights had been necessary (see paragraphs 13, 15 and 25 above). In
this respect the Court reiterates that it has “to look at the
interference complained of in the light of the case as a whole”
(see, among many other authorities, Observer and Guardian v.
the United Kingdom, judgment of 26 November 1991, Series A
no. 216, § 59). The part of the sentence relied on by
the domestic authorities may indeed have created the impression for
the reader that D.H. had given a bribe to the President of Moldova,
which is a serious allegation of fact. However, when read in its
entirety, the paragraph reveals the rather extensive steps taken by
the applicant newspaper to warn the reader about the unreliable
character of the rumour on which it was reporting (see paragraph 15
above).
- In
this context, the Court reiterates that, as part of their role of a
“public watchdog”, the media's reporting on “'stories'
or 'rumours' – emanating from persons other than the applicant
– or 'public opinion'” is to be protected where they are
not completely without foundation (see Thorgeir Thorgeirson v.
Iceland, judgment of 25 June 1992, Series A no. 239, §
65). The lack of any detailed information about the transaction from
either the Government or D.H., despite the applicant newspaper's
attempts to obtain such details, and the other uncontested facts
raising legitimate doubts about the legitimacy of the deal (see
paragraphs 8, 12 and 32 above), could reasonably have prompted the
journalist to report on anything that was available, including
unconfirmed rumours.
- Moreover,
the Court considers that only one sentence in the fragment relied on
by the domestic courts, namely the allegation of bribery, could
arguably be considered to be a factual statement. In this respect,
the Court reiterates that in its practice it “has distinguished
between statements of fact and value judgments. The existence of
facts can be demonstrated, whereas 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 right secured by
Article 10” (see Jerusalem v. Austria,
no. 26958/95, § 42, ECHR 2001 II, and Busuioc v.
Moldova, no. 61513/00, § 61, 21 December
2004). As for the part of the sentence alleging what the President of
Moldova had wished or intended and what his attitude towards a
private company may have been, it was a value judgment which could
not be proved since no one except the President himself could know
for certain and he had not expressed any view in public.
- The
Court notes that the article was written in the context of a
forthcoming election and that it both discussed the possible
political reason for the purchase of the cars and expressly urged the
voters to punish, during the election, those in power responsible for
State-level corruption (see paragraph 8 above). The article thus
included political expression which was critical of the Government,
expression in respect of which “the limits of permissible
criticism are wider” (see Castells v. Spain,
judgment of 23 April 1992, Series A no. 236, § 46).
- The
Court notes, finally, that the applicant newspaper was ordered to pay
a fine of EUR 8,430, as a result of which the newspaper had to close
down (see paragraph 24 above), a fact not contested by the
Government. While the seriousness of the fine is irrelevant to the
outcome of the present case, the Court takes note of its chilling
effect on the applicant newspaper, and that its imposition was
capable “of discouraging open discussion of matters of public
concern” (see Thorgeir Thorgeirson, cited above, § 68,
and Cumpǎnǎ and Mazǎre v. Romania [GC],
no. 33348/96, § 114, ECHR 2004 XI) by silencing a
dissenting voice altogether.
- In
view of the above and taking into account the applicant newspaper's
good faith in reporting on an issue of a genuine public interest, the
relevant factual background and lack of any detail about the
transaction between D.H. and the Government, which give legitimacy to
doubts about its lawfulness, and in view of the failure by the
domestic courts to consider any of these elements in their judgments,
the Court considers that the interference with the applicant
newspaper's right to freedom of expression was not “necessary
in a democratic society”.
- There
has, accordingly, 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. Damage
- The applicant claimed EUR 25,000 for pecuniary and
non-pecuniary damage. It referred to the closing of the newspaper
following the freezing of its bank account and the award of heavy
damages. In support of its claims the applicant newspaper submitted
its tax declarations for 2003 and 2004, according to which it had had
a turnover of EUR 85,000 and had achieved a profit of EUR 19,499 in
2003. However, it had lost EUR 1,607 in 2004 because money had been
taken from its account and because of expenses incurred, despite
having had a turnover of EUR 47,895 in the first five months of
that year before its activity was paralysed. In addition, during the
first five months of 2004 contracts had been signed with third
parties which guaranteed the applicant newspaper a further turnover
of EUR 7,100. None of the payments due was made, because of the de
facto discontinuation of the applicant newspaper's activity.
- The
Government submitted that no compensation was due to the applicant
newspaper because no violation of its rights guaranteed by the
Convention had occurred and because any damage caused to the
applicant newspaper had been the result of its own abusive and
unprofessional actions. They also disagreed with the amount claimed
and argued that the applicant newspaper should not be entitled to
recover it in the absence of any evidence of damage. The Government
referred to the Court's jurisprudence awarding smaller amounts than
that claimed by the applicant newspaper. In particular, in Kommersant
Moldovy v. Moldova (no. 41827/02, 9 January 2007), EUR
8,000 had been awarded and the penalty imposed on the applicant in
that case had been much harsher (the closing of the newspaper)
compared to the fine in the present case. The Government asked the
Court to reject the applicant newspaper's claim or to declare that a
finding of a violation constituted sufficient just satisfaction.
- The
Court notes that while the Government challenged in principle the
applicant newspaper's right to damages and the amount claimed, it did
not give any detail or argument to show that the calculations made by
the applicant were incorrect. The Court notes that the tax
declarations give support to the applicant newspaper's hope of
obtaining profits exceeding EUR 25,000. However, it considers that
the evidence submitted cannot serve to provide a precise
quantification of the profits lost, since the applicant's economic
performance could have fluctuated during the four years at issue (see
Kommersant Moldovy, cited above, § 47).
- Making
an overall assessment on an equitable basis and taking into account
the applicant's general claim for non-pecuniary damage, the Court
awards the applicant EUR 12,000 (see Ukrainian Media Group v.
Ukraine, no. 72713/01, § 75, 29 March 2005).
B. Costs and expenses
- The
applicant's lawyer claimed EUR 5,080 for the costs and expenses
incurred before the Court, of which EUR 5,000 was legal fees. The
applicant newspaper and its lawyer requested that any amount awarded
for legal fees be paid directly to the lawyer's account, given the
possible difficulties in obtaining the money under the specific
circumstances of the present case.
- The
lawyer submitted a detailed time-sheet and a contract according to
which the lawyer's hourly rate was EUR 50-100, depending on the
activity. He argued that the number of hours spent by him on the case
had not been excessive and was justified by its complexity and by the
fact that the observations had had to be written in English.
- As
to the hourly fee of EUR 60, the lawyer argued that it was within the
limits of the hourly rates recommended by the Moldovan Bar
Association, which were EUR 40-150.
- The
Government disagreed with the amount claimed for representation. They
said that it was excessive and argued that the amount claimed by the
lawyer was not the amount actually paid to him by the applicant
newspaper. They disputed the number of hours spent by the applicant's
lawyer and the hourly rate charged by him. They also argued that the
rates recommended by the Moldovan Bar Association were too high in
comparison with the average monthly salary in Moldova and pointed to
the not-for-profit nature of the organisation Lawyers for Human
Rights.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred and were
reasonable as to quantum (see, for example, Amihalachioaie v.
Moldova, no. 60115/00, § 47, ECHR 2004 ...).
- In
the present case, regard being had to the itemised list submitted and
the complexity of the case, the Court awards the applicant EUR 1,800
for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the 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
- Decides to strike out of its list of cases the
part of the application relating to the complaint lodged by Ms Alina
Anghel;
- Declares the application in so far as it relates
to the applicant newspaper 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 the currency of the respondent State at the rate
applicable at the date of settlement:
(i)
EUR 12,000 (twelve thousand euros) in respect of pecuniary and
non-pecuniary damage;
(ii)
EUR 1,800 (one thousand eight hundred euros) in respect of costs and
expenses;
(iii)
any tax that may be chargeable on the above amounts;
(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 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
