CASE OF AVRAM AND OTHERS v. MOLDOVA
Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
5. The applicants were born in 1979, 1976, 1979, 1979 and 1979 respectively and live in Chişinău. Three of the applicants are journalists, one is a teacher of French and another is a librarian. They are friends. 6. At the time of the events the first two applicants were employed by a newspaper specialising in investigative journalism. The newspaper was involved in numerous scandals and lawsuits. In October 2002 its editor in chief was arrested on charges of corruption. According to the applicants, after that event two of them developed close relationships with the four police officers involved in the arrest of the editor in chief and one of them was even involved in a romantic relationship with one of the four police officers. According to the applicants, the police officers in question provided them with material for their work at the newspaper. The Government disputed the factual circumstances concerning the close relationship between the applicants and the four police officers. 7. In January 2003 a person calling himself Petrus came to the headquarters of the newspaper employing the first two applicants and offered to sell a video containing explicit images of a priest engaged in promiscuous behaviour. It appeared later that Petrus was member of a criminal gang and that the video in question had been used to blackmail the priest. The information was passed on to the four police officers and on 25 January 2003 three of the applicants helped the police officers to apprehend Petrus. One applicant was remunerated for her assistance and, on 27 January 2003, wrote a receipt to the Ministry of Internal Affairs. The Government disputed the applicants’ submissions concerning the arrest of Petrus and the applicants’ involvement therein. They confirmed the fact that one of the applicants had received money from the Ministry of Internal Affairs, however, without specifying the consideration for the payment. 8. Also in January 2003 one of the first two applicants became acquainted with a person named S.D., who was involved in a dispute with the Municipal Council about which the applicant wrote an article. On 31 January 2003 all the applicants, the four police officers and S.D. spent the evening in a sauna near Chişinău. The Government disputed the allegation that the four police officers had spent time in a sauna with the applicants and with S.D. 9. On 7 May 2003 the first applicant was allegedly contacted by one of the four police officers and was asked not to publish an article about illegalities at the Ministry of Internal Affairs due to appear the next day. The police officer took the applicant to a store, apparently specialising in electronics, where he showed her a video of her and the other applicants filmed on 31 January 2003 in the sauna and threatened to have it broadcast on national television if his conditions were not met and added that copies of the video would be sent to the applicants’ parents. He also allegedly threatened her with imprisonment and violence and warned her that her collaboration with the police would be made public. The first applicant informed the police officer in question that it was too late to stop the article’s publication since the material had already been sent to the printing house. On 8 May 2003 the article in question was published. 10. On 10 May 2003 at 7.30 p.m. the national television service broadcast a programme dedicated to the phenomenon of corruption and the moral character of journalists from the newspaper employing the applicants. The programme was presented by the president of the national television service and S.D. was a guest. The guest was presented as a businessman who alleged that he had bribed the second applicant to secure the publication of material. He also described his and the applicants’ evening in the sauna on 31 January 2003, and stated that one of the applicants had stolen money from the pocket of his trousers and that the applicants intended to kidnap his child for ransom. S.D. also alleged that the newspaper employing the applicants belonged to an opposition leader. The programme continued with footage from a black and white video filmed in the sauna. The applicants were seen in their underwear, apparently intoxicated, using obscene language. Two of the applicants were kissing and touching one of the men, and one of them was performing an erotic dance. The face of the male was covered in the video, whereas those of the applicants were not and the video was paused from time to time in order to allow them to be recognised more easily. The video appears to have been shot from a static camera and at least one of the male participants appears to have been aware of the filming, since he gave the “thumbs up” sign to the camera when none of the applicants was looking. A copy of the receipt issued to the Ministry of Internal Affairs was also shown in the programme and offensive terms with meanings such as “low class prostitutes” were employed when images of the applicants were shown. The programme continued with footage from a video of the arrest of the editor in chief of the newspaper employing the applicants. According to the applicants, that video had been part of a criminal case-file and not for public use. This information was not disputed by the Government. On 13 May 2003 the programme was broadcast again by the national television service. 11. On 17 and 20 May 2003 the first applicant lodged a criminal complaint about the blackmail which she and her colleagues had been subjected to and about the abuse of power committed by the four police officers. She submitted, in particular, that the police officers had invited her and her colleagues to a sauna and secretly filmed them, after which they had attempted to blackmail them with the video. 12. In examining the complaint the Prosecutor’s Office questioned four of the applicants, all of whom gave similar accounts of the facts of the case and accused the four police officers of the secret filming and blackmail. The police officers were questioned too, and all denied having had close relationships with the applicants and going with them to a sauna on 31 January 2003. They denied any implication in the secret filming, the allegations of blackmail and those concerning the transmitting of the video to the national television service. S.D. submitted that the video had been shot with his camera and that one of the applicants had accidentally switched the camera on and placed it on a shelf. He had discovered the video several months later and decided to take it to the national television service allegedly in order to prevent one of the applicants from kidnapping his child. He alleged not to have known the applicants’ male friends who had been with them in the sauna on 31 January 2003. The Prosecutor’s Office inquired with the Ministry of Internal Affairs whether the first applicant had ever received money in exchange for collaborating with the police and, in particular, whether she had helped bring about the arrest of a person called Petrus. In reply the Ministry of Internal Affairs did not answer the first question and stated that the Ministry had the right to have secret collaborators and remunerate them. The Ministry also informed the Prosecutor’s Office that there were no records on anyone named Petrus in its database. 13. On 20 June 2003 the Prosecutor’s Office rejected the first applicants’ criminal complaint and refused to initiate criminal proceedings on the ground that the complaint was ill-founded. The first applicant appealed. 14. On 24 July 2003 the hierarchically superior Prosecutor’s Office quashed the above-mentioned decision on the ground that the investigation had not been thorough. In particular, it noted that the lower Prosecutor’s Office had failed to determine how the receipt issued by one of the applicants to the Ministry of Internal Affairs was transmitted to the national television service. It was also noted that the payment of money to that applicant was to be checked with the Ministry of Finance, the administrator of the public funds. 15. On 5 September 2003 the Prosecutor’s Office again dismissed the first applicant’s criminal complaint on the ground that the receipt of 27 January 2003 did not constitute a State secret and that its disclosure to the national television service was not an offence. As to the complaint concerning the alleged abuse of power by the four police officers, it was also found to be ill-founded because it had not been established that the applicants had ever assisted in bringing about the arrest of Petrus. The first applicant appealed against this decision and submitted, inter alia, that what she was remunerated for by the Ministry of Internal Affairs had not been established. She also submitted that the investigators had failed to examine the original video from the sauna and that they had failed to examine the complaint about blackmail. 16. On 19 February 2004 the Centru District Court quashed the Prosecutor’s decision of 5 September 2003 on the ground, inter alia, that the Prosecutor’s Office had failed to examine the first applicant’s complaint concerning blackmail. 17. On 2 June 2004 the Prosecutor’s Office again dismissed the criminal complaint lodged by the first applicant on the ground that the dissemination of defamatory information was not an offence under Moldovan law. The first applicant challenged the decision before the hierarchically superior prosecutor. However, the appeal was dismissed on 3 June 2005 and a subsequent appeal was finally dismissed by the Centru District Court on 28 July 2005. On 19 October 2005 the Supreme Court of Justice dismissed an extraordinary appeal lodged by the first applicant. 18. In the meantime, all the applicants lodged an action with a civil court seeking compensation for the breach of Article 8 of the Convention by the Ministry of Internal Affairs and the national television service. They complained about the unlawful secret filming by the police in the sauna, the disclosure of the applicants’ collaboration with the police and the broadcasting of the video from the sauna on national television. The applicants also complained about the defamatory nature of some of the statements made on the programme aired on national television on 10 May 2003. For the alleged breaches they sought compensation in amounts varying between 9,000 and 45,000 euros. 19. On 21 July 2006 the Centru District Court upheld the part of the applicants’ action against the national television service concerning the broadcasting of the video from the sauna and the defamatory statements made during the programme of 10 May 2003. The court considered that there was no public interest in broadcasting the video from the sauna. The rest of the applicants’ action was dismissed as ill-founded, the court finding that the applicants had failed to prove that the video had been shot by the four police officers. The applicants appealed. 20. On 18 December 2007 the Chişinău Court of Appeal upheld the applicants’ appeal against the judgment of the Centru District Court of 21 July 2006 and found the Ministry of Internal Affairs responsible for the filming in the sauna on 31 January 2003, for blackmailing the applicants and for handing to the national television of the video of the sauna scene and of a copy of the receipt issued to the Ministry of Internal Affairs to one of the applicants. The finding was based on the statements made by all the applicants during the criminal investigation, on the fact that the programme of 10 May 2003 contained images from the video of the arrest of the editor in chief of the newspaper employing two of the applicants, a video which was not publicly available (see paragraph 10 above) and on the presence in the programme of a copy of a receipt issued by one of the applicants. The judges of the Court of Appeal also recognised the man making a “thumbs up” sign in the video (see paragraph 10 above) as being one of the four police officers. The court also found the national television service responsible for broadcasting the video from the sauna. The court ordered the defendants to pay the applicants non-pecuniary damage varying between 8,000 Moldovan lei (MDL) (the equivalent of 480 euros (EUR)) and MDL 20,000 (the equivalent of EUR 1,200) and compensation for costs and expenses in the amount of MDL 42,697 (the equivalent of EUR 2,560). All the parties lodged appeals on points of law. 21. On 1 August 2008 the Supreme Court of Justice gave a final ruling in the case. It found the statements made during the programme of 10 May 2003 to the effect that the applicant journalists had been bribed to publish an article and that they intended to kidnap a child defamatory. The court also found that the disclosure by the Ministry of Internal Affairs of one of the applicants’ collaboration with the police by way of disclosing a receipt written by her had breached her right to respect for her private life. A similar breach with regard to all the applicants was found in respect of the broadcasting of the video of the sauna scene on national television without their consent and in the absence of a public interest justification. The court also found that the secret filming in the sauna constituted an unjustified interference with the applicants’ right to privacy as guaranteed by Article 8 of the Convention. However, relying on the outcome of the criminal investigation, the court found that there was insufficient evidence to conclude that the secret filming of the sauna scene had been carried out by employees of the Ministry of Internal Affairs. At the same time the court concluded that the Ministry of Internal Affairs was responsible for unlawfully transmitting to the national television service secret video material from a criminal case file, namely, a video of the arrest of the editor in chief of the newspaper employing the first and second applicants. 22. The Supreme Court ordered the national television service to pay each applicant MDL 3,600 (the equivalent of EUR 214) for non-pecuniary damage caused by the broadcasting of the video of the sauna scene. It also ordered the guest on the programme of 10 May 2003, S.D., to pay the second applicant MDL 1,800 (the equivalent of EUR 107) for defamation and the Ministry of Internal Affairs to pay MDL 3,600 (the equivalent of EUR 214) to the first applicant for disclosing her collaboration with the police. The court also ordered the defendants to pay the applicants MDL 42,697 (the equivalent of EUR 2,560) for costs and expenses. In reducing the amounts awarded by the Court of Appeal, the Supreme Court of Justice argued that the awards had to be in compliance with Article 7/1 of the old Civil Code, in force at the time of the events (see paragraph 23 below). 23. The relevant provisions of the 1964 Civil Code, in force until 12 June 2003: “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity if the person who made such statements cannot prove that they are true. (2) Where such information was made public by a media body, the court shall compel the publishing office of the media body to publish, not later than 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.” “(1) Damage caused to a person as a result of circulation of statements which do not correspond to reality and are damaging to his or her honour or dignity shall be compensated by the responsible natural or legal person. (2) The amount awarded shall be determined by the court in each case and shall be between [1,350 lei and 3,600 lei] if the information has been circulated by a legal person and between [180 lei and 1,800 lei] if the information has been circulated by a natural person.”