Forgotten Moldovan media freedom ECHR cases await implementation

By Ioana Iliescu, EIN Law and Advocacy Officer

Media freedom and pluralism in Moldova are a work in progress. As in all developing democracies, voices that are critical to the Government still encounter barriers or retaliation. Between 2007 and 2010, the European Court of Human Rights rendered four judgments against the Republic of Moldova concerning the undemocratic curtailment of media or journalistic freedom. However, they have been pending implementation for the past ten years or more, waiting for the Moldovan authorities to fulfil its obligation to implement them.

Source: Council of Europe website

The oldest case, Flux (no.2) v. Moldova, concerns the sanctioning of a newspaper for having published an article about the corruption of a school principal; domestic courts considered that in the absence of a criminal court decision, the public official could not be accused of bribery. The newspaper was ordered to issue an apology and to pay compensation. The ECHR found that the infringement of the applicant’s right to freedom of expression was not necessary in a democratic society, noting that his statements were ignored by the courts and that a degree of exaggeration is covered by journalistic freedom.

In Kommersant Moldovy v. Moldova, after publishing critical views of state actions, the applicant newspaper was shut down by a court order which failed to indicate specific articles that were problematic.

Photo by Roman Kraft on Unsplash

In one of the most egregious cases, Manole and others v. Moldova, the applicants, a group of nine journalists working for the “Teleradio-Moldova” State company, were subjected to extreme censorship, even involving military troops at the premises of the broadcasting company in order to prevent them from sharing uncensored news regarding ongoing protests in favor of the opposition. The ‘non-compliant’ journalists were questioned by criminal investigators and dismissed from their jobs.

Regarding freedom of expression in general, in the Gavrilovici v. Moldova group of cases, one applicant was sentenced to administrative detention for having insulted a politician; another was found guilty in civil defamation proceedings for allegedly having made false declarations, in letters to various authorities, about a candidate for the position of mayor in his village. The Court held that the impugned statements were value judgments which deserved particular protection, and that the sanctions imposed were not proportionate to the circumstances of the case.

For a judgment from the European Court of Human Rights to be implemented, reforms must be carried out to address the source of the human rights violation identified by the court. This can include changes to legislation or the jurisprudence of courts, and/or practical measures taken by the national authorities. The government has an obligation to submit an Action Plan to the Council of Europe, setting out the measures it intends to take in order to remedy the human rights problem identified by the Court.

The four judgments concerning freedom of expression are all at least ten years old. Despite this, no Action Plan has ever been submitted for three of the four cases.  The only case in this series of judgments in which an action plan/report has been submitted by the government – in 2011 - is Manole and others. This document does not adequately respond to the issues raised by the judgment[1].

In other words, for around ten years the Moldovan government has filed no public documents about how they intend to make progress with these cases.

Meanwhile, in recent years there have been a series of reforms addressing freedom of expression in the country. However,  there has been no official assessment by the Committee of Ministers whether these reforms have addressed the problems highlighted by the European Court of Human Rights. Without specific input from the Government and civil society, the status of the implementation of these judgments is, at best, unknown.

What is clear is that challenges to freedom of expression and journalistic freedom in Moldova have not ended with these judgments. Even in the past two years, media freedom has been subjected to unlawful limitations ranging from bans on journalists to enter public areas, aimed at preventing them from reporting on anti-government protests[2], to threats and pressures exerted upon journalists exposing corruption among Moldovan politicians[3]. According to the Independent Journalism Center in Moldova, even though the special law on freedom of expression has ensured the sufficiency of the legal framework, having been designed in accordance with EU standards, national case law continues to register abusive practices of deficient application of legal provisions. The high number of violations of the rights and freedoms of media representatives[4], including the right to free speech, reported by the Independent Journalism Center in the past years indicate that the steps undertaken by the Government have been unable to efficiently redress the issues in this area.

The time has come for the Moldovan Government to fulfill its’ reporting obligations to the Council of Europe, and provide a public assessment of what has been done so far to advance freedom of expression and media freedom in Moldova, within the scope of these judgments, and what still needs to be done. Transparency is crucial to the implementation process. Wider civil society deserves an informed seat at the implementation table. The input of both government and NGOs will be crucial to ensuring that the fundamental issues at stake are successfully addressed.

[1] The Moldovan Government references the judgment on just satisfaction in this case, claiming that the Court has already held that the legal shortcomings were overturned.  In fact, in the referenced judgment, the Court notes it “cannot in the present proceedings examine the new legislation to determine whether the situation which gave rise to the violation has been remedied”. The fact that the case is still pending implementation, with the mention that an updated or revised plan is awaited - since 2011 – is telling enough that the indicated measures have not been sufficient and more needs to be done.

[2] https://balkaninsight.com/2018/08/29/media-ngo-s-in-moldova-protests-against-abuses-08-29-2018/

[3] https://balkaninsight.com/2019/01/24/moldovan-journalists-under-unprecedented-fire-before-election-01-21-2019/

[4] http://media-azi.md/en/in-moldova