Flux v Moldova (No 2)

National Moldovan newspaper Flux published on its first page the title of an article due to appear in a future issue together with a summary of the article, which alleged that a Communist MP, MA wanted to sell off piece-meal a key industrial plant. The accompanying photo showed the leader of the Communist Party, VS. The next day VS brought defamation proceedings against the newspaper, arguing that Flux had disseminated information which was defamatory of him as a citizen, an MP and as leader of the Communist Party, as it accused him, on behalf of his party, of destroying an enterprise which was part of the national economy. The Court found for VS, ordering a significant award of damages. The newspaper appealed to the regional court and then to the Court of Appeal, which dismissed the appeal, stating that it was clear that the information within the article did not correspond to reality; moreover, his picture had been attached to the article.

(1) Whether there had been a violation of the newspaper’s Art 6 right to a fair trial on the basis that (i) no reasons had been given for the judgments of the domestic courts and (ii) that Judge I.M. of the first-instance court lacked independence and impartiality.

(2) Whether the domestic courts’ decisions had entailed interference with Flux’s right to freedom of expression that could not be regarded as necessary in a democratic society.

(1) The complaint under Art 6 concerning the alleged bias of Judge IM was manifestly ill-founded. Given that the Judge had tenure, that his employment could not be terminated by the executive or the legislature and that the applicant had failed to adduce any evidence to show that he had been subject to any form of influence or pressure, the Court was unable to conclude that the Judge lacked independence and impartiality.

(2)The Court found that the article was a press report on a political matter, an area in which States enjoy a very narrow margin of appreciation, on a matter of strong public interest, and that the article derived from a prima facie reliable source. The impugned phrase was merely a conclusion from the information presented in the article, said information being based on the account of the plant’s CEO, which had never been found defamatory or untrue. Thus, the Court found that the interference with the newspaper’s Art 10 right was not necessary in a democratic societ

The case is notable for Judge Bonello’s striking dissenting opinion, the opening sentence of which encapsulates his highly critical approach to the Court’s failure to address Convention violations arising from the lack of impartiality within the Moldova judiciary: “In this case the Court could have voiced its views on the pathology of an administration of justice. It did not.”

He finishes in equally strident terms, at [17]:“I thought this was the right time for the Court to start panicking. This a self-evident opportunity to detox an administration of justice. Instead I had to witness the Court allowing the Moldovan judiciary the widest margin of depreciation.”