Full case report
Kommersant Moldovy v Moldova
Reference Application No. 41827/02
Court European Court of Human Rights
Judge Sir Nicolas Bratza (President), Casadevall, Bonello, Pellonpaa, Traja, Pavlovschi, Sikuta (Judges) and Elens-Passos (Registrar)
Date of Judgment 9 Jan 2007
Human rights – Freedom of expression – Article 10 – Necessity of interference in a democratic society – Sufficiency of reasons – Articles criticising authorities – Prosecution for endangering national security, territorial integrity and public safety and order
KM, a newspaper, published a series of articles criticising the authorities of Moldova for their actions in respect of the break-away ‘Moldavian Republic of Transdniestria’, and reproducing harsh criticism of the Moldovan Government by MRT and Russian leaders. KM was prosecuted for endangering Moldovan national security, territorial integrity and public safety and order by supporting the MRT against Moldova. The domestic courts found that KM had systematically violated the Press Act, although they did not specify which expressions or phrases were problematic. They added that the articles were not immune from liability on the ground that they were fair summaries of public statements by public authorities. KM was ordered to close the newspaper. KM complained that this was in violation of its rights under Article 10.
Whether the interference with KM’s Article 10 rights was necessary in a democratic society
Finding a violation of Article 10; the domestic courts had not given relevant and sufficient reasons to justify the interference (limiting themselves essentially to repeating the applicable legal provisions) and had avoided all discussion of the necessity of the interference. They had not specified which elements of the articles were problematic and in what way they endangered the national security and the territorial integrity of the country. The only analysis made was limited to the issue of whether the articles could be considered as good faith reproductions of public statements for which the applicant could not be held responsible in accordance with the domestic law. The Court was not satisfied that the domestic courts had “applied standards which were in conformity with the principles embodied in Article 10” or that they “based themselves on an acceptable assessment of the relevant facts” (citing Jersild v Denmark).
The Court repeated the familiar mantras that freedom of expression is one of the essential foundations of a democratic society and that the most careful scrutiny is called for when the measures taken or sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern. Interferences with press freedom that are not fully reasoned are unlikely to survive such scrutiny.
As draconian a sanction as it may seem, ordering the closure of the newspaper had had little practical effect. KM had simply continued its activities by publishing a new newspaper under a slightly different name, while preserving many elements of the old publication.
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