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THIRD
SECTION
CASE OF AVRAM AND OTHERS v. MOLDOVA
(Application
no. 41588/05)
JUDGMENT
STRASBOURG
5 July 2011
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 Avram and Others v.
Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Marialena Tsirli,
Deputy Section
Registrar,
Having
deliberated in private on 7 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41588/05) 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 five Moldovan nationals, Ms Ala Avram,
Elena Vrabie, Eugenia Buzu, Ana Moraru and Alina Frumusachi
(“the applicants”), on 7 November 2005.
- The
applicants were represented by Mr V. Gribincea, a lawyer practising
in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicants alleged, in particular, a breach of Article 8 of the
Convention on account of their secret filming and the broadcasting of
the video on national television.
- On
20 October 2009 the Court decided to give notice of the application
to the Government. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- 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.
A. The background to the case
- 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.
- 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.
- 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.
- 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.
- 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.
B. The unsuccessful attempt to have criminal
proceedings instituted
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
C. The civil proceedings
- 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.
- 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.
- 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.
- 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.
- 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).
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the 1964 Civil Code, in
force until 12 June 2003:
Article 7. Protection of honour and dignity
“(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.”
Article 7/1. Compensation for non-pecuniary damage
“(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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants claimed that there had been a violation of Article 8 of
the Convention in this case. The relevant part of Article 8 provides
as follows:
“1. Everyone has the right to respect for his
private ... life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The Government first submitted that the application
was inadmissible in respect of the second, third, fourth and fifth
applicants on grounds of non-exhaustion of domestic remedies. In
particular, the Government argued that those applicants should also
have attempted to have criminal proceedings initiated as a result of
the secret filming in the sauna.
- The
applicants disagreed with the Government and argued that under the
provisions of the Criminal Procedure Code in force at the material
time, the offence allegedly committed by the four police officers was
within the category of offences which did not require an express
complaint from the victim in order to trigger a criminal
investigation by the Prosecutor’s Office. In any event, the
second, third, fourth and fifth applicants had intended to intervene
as victims after the formal initiation of criminal proceedings.
However, they had not been able to do so because the Prosecutor’s
Office had refused to initiate criminal proceedings and dismissed the
complaints as manifestly ill-founded after a superficial preliminary
investigation.
- The
Court reiterates that an individual is not required to try more than
one avenue of redress when there are several available (see, for
example, Airey v. Ireland, 9 October 1979, § 23, Series A
no. 32). It clearly appears from the facts of the case that all the
applicants initiated civil proceedings against the Ministry of
Internal Affairs complaining, inter alia, about their alleged
secret filming by four police officers (see paragraph 18 above). The
Government have not argued that such a procedure is ineffective in
respect of the alleged breach of the applicants’ rights
guaranteed by Article 8. In any event, the facts of the case show
that no criminal proceedings were initiated after the first applicant
had complained to the Prosecutor’s Office about the actions of
the police and after the other applicants had been questioned by the
prosecutors. The Court considers, therefore, that it was
reasonable for the other applicants to consider that a criminal
complaint lodged by them would have had similar prospects of success
(see, mutatis mutandis, Castravet v. Moldova, no.
23393/05, § 25, 13 March 2007). In the light of the above, the
Court does not consider that the applicants have failed to exhaust
the domestic remedies and, therefore, the Government’s
objection must be dismissed.
- The Government also submitted that the applicants had
lost their victim status as a result of being compensated in the
civil proceedings.
- The
Court reiterates that a decision or measure favourable to an
applicant is not in principle sufficient to deprive him or her of
victim status unless the national authorities have acknowledged,
either expressly or in substance, and then afforded redress for, the
breach of the Convention (see Amuur v. France, 25 June 1996,
§ 36, Reports of Judgments and Decisions 1996 III).
- In the instant case it is true that the Supreme Court
of Justice held that there had been a violation of the applicants’
right to respect for their private lives as a result of the
broadcasting of the video of the sauna scene and of the defamation of
one of them and that it awarded them compensation. That said, the
Court finds that the question of the applicants’ victim status
as regards the redress for the violation of their right is
inextricably linked to the merits of the complaint. Therefore, it
considers that both questions should be joined and examined together.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other
ground for declaring it inadmissible has been established. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants asserted that the secret filming of them in the sauna
amounted to an interference with their right to respect for their
private lives which was not in accordance with the law and was not
necessary in a democratic society. According to them, the domestic
authorities had erred in not finding that the video of the sauna
scene had been shot by the police officers. One of the four police
officers could be seen in the video of the sauna scene, a fact
retained by the Court of Appeal in its judgment of 18 December
2007. Despite that, the Prosecutor’s Office and the Supreme
Court of Justice had wrongfully found that the four police officers
had not been at the sauna. The applicants further submitted that the
investigation into their complaint about the secret filming was not
effective and that the prosecutors’ decisions had been based on
hasty and ill-founded conclusions. According to the applicants, the
broadcasting of the sauna scene on national television had had a
major negative impact on their lives. They had been debased in the
eyes of their families and their friends and one of them had even
been sacked from work.
- The
applicants lastly argued that the compensation awarded by the Supreme
Court of Justice in respect of the broadcasting of the video of the
sauna scene and the defamation had not been adequate and
proportionate to the severity of the breaches of their right to
respect for their private lives. In support of this contention the
applicants cited cases in which the Court had found breaches of
Article 8 of the Convention and in which the awards had been
considerably higher than those made by the Supreme Court of Justice
in their case. In their view, as a result of the insufficient amount
of compensation awarded by the Supreme Court of Justice they still
had victim status under Article 8 of the Convention.
- Referring
to the problem of the alleged secret filming and of the effectiveness
of the investigation thereof, the Government submitted that there had
been no interference with the applicants’ right to respect for
their private lives in this case because the Prosecutor’s
Office had found that the sauna scene had not been secretly filmed by
the police and that the filming had been carried out with S.D.’s
camera. In the Government’s opinion, the applicants’
attempt to re-argue the merits of the criminal and the civil domestic
proceedings in respect of the above-mentioned alleged breach amounted
to a fourth-instance type of complaint.
- In
so far as the amount of the compensation awarded by the Supreme Court
of Justice for the broadcasting of the video of the sauna scene and
for the applicants’ defamation is concerned, the Government
submitted that the Supreme Court had complied with the domestic
legislation, which fixed a limit for the amount of compensation to be
awarded in defamation cases. In the absence of similar case-law of
the Court in Moldovan cases, the Supreme Court could not have done
otherwise.
2. The Court’s assessment
(a) General principles
- The
Court has previously held that the notion of “private life”
within the meaning of Article 8 of the Convention is a broad concept
which includes, inter alia, the right to establish and develop
relationships with other human beings (see Niemietz v.
Germany, 16 December 1992, § 29, Series A
no. 251 B). It encompasses elements such as sexual life
(see, for example, Dudgeon v. the United Kingdom, 22 October
1981, § 41, Series A no. 45), the right to live privately and
away from publicity and unwanted attention. In construing the scope
of private life, it is important to have in mind the notion of
personal autonomy and human dignity.
- Furthermore,
private life, in the Court’s view, includes a person’s
physical and psychological integrity; the guarantee afforded by
Article 8 of the Convention is primarily intended to ensure the
development, without outside interference, of the personality of each
individual in his relations with other human beings (see, mutatis
mutandis, Niemietz cited above, § 29, and Botta v.
Italy, 24 February 1998, § 32, Reports of Judgments and
Decisions 1998-I). There is therefore a zone of interaction of a
person with others, even in a public context, which may fall within
the scope of “private life” (see, mutatis mutandis,
P.G. and J.H. v. the United Kingdom, no. 44787/98, §
56, ECHR 2001-IX, and Peck v. the United Kingdom,
no. 44647/98, § 57, ECHR 2003-I).
(b) Application of the general principles
to the present case
- There
is no doubt and it is undisputed among the parties that the matters
complained of in the present case fall within the ambit of protection
of Article 8. In this respect the Court sees no reason to depart from
the conclusion of the national courts, which acknowledged that there
had been interference with the applicants’ right to privacy in
respect of both the secret filming of them and the broadcasting of
the video on television and the defamation. The Court shares this
opinion and does not consider it necessary to re-examine the
compatibility of that interference with the requirements of the
Convention. The Court also notes that the domestic courts awarded the
applicants compensation for non-pecuniary damage and considers that
the principal issue is whether the awards made were proportionate to
the damage the applicants sustained and whether, in applying the
provisions of Article 7/1 of the old Civil Code, which limited the
amount of compensation payable to victims of defamation, the Supreme
Court of Justice fulfilled its positive obligation under Article 8 of
the Convention.
- The
Government submitted that the Supreme Court had no other solution but
to apply the provisions of Article 7/1 of the old Civil Code and that
the maximum compensation under that provision was awarded to the
applicants. The provision appears to have been applied by analogy to
the defendants who have not been found liable of defamation.
- The
Court points from the outset that a State which awards compensation
for a breach of a Convention right cannot content itself with the
fact that the amount granted represents the maximum under domestic
law. If a State chooses to apply its domestic legislation in dealing
with alleged breaches of Convention rights, it shall ensure that the
legislation in question is compatible with the Convention and the
Court’s case-law.
- As
regards the situation which arose in the instant case, the Court
recalls that it is not the first time when the Supreme Court was
called to deal with situations where the domestic law did not provide
for a remedy against a breach of a Convention right. In particular,
it recalls that in a decision of 21 November 2007 the Moldovan
Supreme Court of Justice found a breach of Article 3 of the
Convention and stated that while there was no domestic legislation
giving the applicant a right to compensation, the Convention should
be applied directly as it was part of the domestic legal system and
had precedence over domestic legislation (see Ciorap v. Moldova
(no. 2), no. 7481/06, § 13, 20 July 2010).
A
similar situation occurred in several other cases concerning the
quashing of final judgments contrary to the principle of legal
certainty. In those cases the Moldovan Supreme Court of Justice
applied Article 6 and Article 1 of Protocol No. 1 to the Convention
directly and awarded damages comparable to those awarded by the
Court. For instance, in its judgment of 25 January 2006 in the case
of Ungureanu v. the Sangerei Municipal Council, the Supreme
Court awarded compensation for non-pecuniary damage of EUR 1,500 (see
Ungureanu v. Moldova (dec.), no. 78077/01, 3 October
2006). In Guranda v. Moldova ((dec.), no. 28412/03, 20 March
2007), the Supreme Court awarded, in a judgment of 21 February
2007, compensation for non-pecuniary damage of EUR 4,400. In
Cumatrenco v. Moldova ((dec.), no. 28209/03, 20 March
2007) the Supreme Court applied the provisions of the Convention
directly and awarded EUR 4,850.
- In the light of the above considerations, the Court is
not persuaded that in applying directly the provisions of Article 8
of the Convention when dealing with the merits of the case, the
Supreme Court of Justice did not have instruments available other
than Article 7/1 of the old Civil Code when deciding the issue of
compensation. On the contrary, such an approach clearly ran contrary
to the domestic case-law cited above in which the Supreme Court had
relied directly on the Court’s practice to compensate breaches
of Convention rights.
- Be that as it may, the Court considers that the
amounts awarded by the Supreme Court of Justice to the applicants
were too low to be considered proportionate with the gravity of
interference with their right to respect for their private lives.
According to the applicants, the broadcasting of the video on
national television has dramatically affected their private, family
and social lives and the Court sees no reasons to doubt that. In such
circumstances the Court considers that the applicants can still claim
to be victims of a violation of Article 8 of the Convention and
therefore dismisses the Government’s
preliminary objection concerning the applicants’
victim status.
- There
has, accordingly, been a breach of Article 8 of the Convention in
this case.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- In
their initial application the applicants had also complained under
Article 6 of the Convention. However, in their observations on the
admissibility and merits, they asked the Court not to proceed with
the examination of this complaint. Therefore and in the absence of
any special circumstances regarding respect for the rights guaranteed
by the Convention or its Protocols, the Court considers that it is no
longer justified to continue the examination of this part of the
application within the meaning of Article 37 § 1 (a) of
the Convention.
- Accordingly
this part of the application should be struck out.
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
first and the second applicants claimed EUR 40,000 and EUR 50,000
respectively in respect of non-pecuniary damage. The other applicants
claimed EUR 15,000 each also in respect of non-pecuniary damage. The
amounts claimed by the first and the second applicants were higher
because they were named in the programme of 10 May 2003. Moreover the
second applicant was also falsely accused of stealing money from S.D.
In June 2003 the second applicant’s father died of a heart
attack, which she believes to have been caused by the sauna scandal,
and several months later she divorced.
- The
Government disagreed and submitted that the applicants had already
been compensated by the Supreme Court. Therefore, they considered
that the applicants were not entitled to any compensation.
- Having
regard to the violations found above, the Court considers that an
award of compensation for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis, the Court awards
EUR 5,000 to the first applicant, EUR 6,000 to the second
applicant and EUR 4,000 to each of the remaining applicants.
B. Costs and expenses
- The
applicants also claimed EUR 1,573.63 for the costs and expenses
incurred before the domestic courts and EUR 7,789.6 for those
incurred before the Court.
- The
Government disputed the amounts claimed for the applicants’
legal representation and invited the Court to dismiss the claim.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII). In the present
case, regard being had to the itemised list submitted by the
applicants and the above criteria, the Court awards them jointly
EUR 1,500 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
- Joins to the merits the Government’s
preliminary objection concerning the applicants’ victim status
and declares admissible the complaint under Article 8 of the
Convention;
- Decides to strike out the complaint under
Article 6 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention and dismisses in accordance the
Government’s above-mentioned objection;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention:
(i) to
Ms Avram – EUR 5,000 (five thousand euros) for
non-pecuniary damage;
(ii) to
Ms Vrabie – EUR 6,000 (six thousand euros) for non-pecuniary
damage;
(iii) to
Ms Buzu – EUR 4,000 (four thousand euros) for non-pecuniary
damage;
(iv) to
Ms Moraru – EUR 4,000 (four thousand euros) for non-pecuniary
damage;
(v) to
Ms Frumusachi – EUR 4,000 (four thousand euros) for
non-pecuniary damage;
(vi) to
the applicants’ representative – EUR 1,500 (one thousand
five hundred euros) for costs and expenses;
(b)
that the above amounts shall be converted into the national currency
of the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(c) 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 5 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena
Tsirli Josep
Casadevall Deputy
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Poalelungi is annexed to this judgment.
J.C.M.
M.T.
CONCURRING OPINION OF JUDGE POALELUNGI
I
share the view of the other members of the Chamber that there has
been a violation of Article 8 of the Convention in the present case;
however, I do not find the outcome of the case fully satisfactory,
for the reasons set out below.
The
applicants had two distinct complaints before the domestic
authorities:
(a)
that they had been secretly filmed by the police in a sauna during
moments of a private nature and later blackmailed with the video; and
(b)
that the national television service had broadcast the video of the
sauna scene.
The
prosecutors and the domestic courts dismissed the first complaint,
virtually without carrying out any form of investigation, but upheld
the second one and awarded compensation to the applicants in respect
of that complaint only.
Before
the Court the applicants submitted two distinct complaints:
(a)
that the authorities had failed to discharge their positive
(procedural) obligation under Article 8 by failing to properly
investigate the allegations that they had been secretly filmed by the
police; and
(b)
that the compensation awarded by the Supreme Court of Justice for the
broadcasting of the sauna scene on national television was
insufficient.
I
regret that the Chamber completely disregarded the first complaint,
holding that the applicants had been compensated by the domestic
courts in respect of all of their grievances and that the only issue
worth examining was the amount of compensation.
The
Chamber should also have addressed the applicants’ first
complaint and given a clear answer as to whether the Government had a
positive obligation to investigate the applicants’ allegations
about the secret filming and, if so, whether the Government
discharged that obligation.
I do
understand that, unlike under Articles 2 and 3 of the Convention, the
positive obligations under Article 8 should be limited and that the
State should not be required under that provision to investigate
petty complaints concerning breaches of privacy. This case, however,
is more serious than that since the applicants were journalists
working for a newspaper which had expressed opinions critical of the
Government. Moreover, there is strong prima facie evidence that the
applicants’ secret filming in the sauna was organised by agents
of the State. The video was later broadcast on national television in
a programme presented by the president of the national television
service and remarks about the opposition being behind the newspaper
employing the applicants were made. The facts clearly suggest that
the authorities were directly involved in this case and that they not
only failed to investigate the applicants’ allegations but, on
the contrary, created obstacles and hindered the investigation in
every possible way.
In
such a context, I would not treat the applicants’ complaint
concerning the State’s failure to investigate the circumstances
of their secret filming as a petty case of voyeurism but rather as a
serious assault on the freedom of speech.
It is
a pity that the applicants did not complain also under Article 10 of
the Convention. However, the principles applicable in that Article
could have been referred to in the examination of their complaint
under Article 8.
It is
true that some might have reservations in respect of the applicants’
professional conduct, but this should not be an obstacle to their
enjoyment of their rights guaranteed by Article 8 of the Convention.
