Articolul 43. Drepturi ale personalităţii
(1) În condiţiile legii, orice persoană fizică are dreptul la viaţă, la sănătate, la integritate fizică şi psihică, la libera exprimare, la nume, la onoare, demnitate şi reputaţie profesională, la propria imagine, la respectarea vieţii intime, familiale şi private, la protecţia datelor cu caracter personal, la respectarea memoriei şi corpului său după deces, precum şi la alte asemenea drepturi recunoscute de lege.
(2) Aceste drepturi sînt insesizabile şi inalienabile.
Autor: Octavian Cazac
Publicat: 27 august 2020
Но затем личность растет, и понятие субъекта прав наполняется все более и более широким содержанием; личность добивается признания за собой новых и новых прав. При этом, разумеется, рост ее субъективных прав идет параллельно росту самого ее внутреннего содержания, росту ее интересов.
[Покровский И. А. Основные проблемы гражданского права. – Пг., 1917, ст. 101]
Dar pe urmă personalitatea crește, și noțiunea de subiect de drept se umple cu un conținut tot mai larg; personalitatea obține recunoașterea unor noi și noi drepturi. Concomitent, evident, creșterea drepturilor ei subiective este însoțită de creșterea a conținutului ei intern, de creșterea intereselor sale.
[Pokrowsky I. A. Principalele probleme ale dreptului civil, St. Pt, 1917, p. 101]
▮ Dreptul la onoare și demnitate
În cauza Monica Macovei vs. România (cererea nr. 53028/14, hotărârea din 28 iulie 2020), CtEDO a criticat hotărârile instanțelor judecătorești române de a o obliga pe politiciana Monica Macovei să plătească despăgubiri morale unui alt policitian vizat de declarațiile ei publice, în mărime de 2.300 euro persoanei și cheltuiala de publicare a dezmințirii de 2.205 euro (§100 din hotărâre).
Citat din Hotărârea CtEDO:
97. În lumina considerentelor expuse mai sus — neajunsurile în motivarea instanțelor de apel și recurs la examinarea cauzei (vezi paragrafele 83 și 88 de mai sus) și aparentul eșec al acelor instanțe de a examina consecințele pe care le-ar fi avut posibila calificare a afirmațiilor reclamantei ca fiind de o natură colectivă, în contextul mai larg în care ele au fost făcute (vezi paragrafele 91-94 de mai sus), coroborate cu efectul înfiorător pe care pedeapsa aplicată reclamantei a avut-o asupra libertății ei de exprimare (vezi paragraful 96 de mai sus) — Curtea constată că instanțele naționale nu au reușit să atingă un echilibru echitabil între interesele relevante și nici să fixeze „o nevoie socială presantă” pentru a pune protecția reputației lui D.Ş., oferită de Articolul 8 al Convenției, deasupra dreptului la libertatea exprimare al reclamantei, garantat de Articolul 10 al Convenției. Curtea, prin urmare, ajunge la concluzia că ingerința în dreptul la libertatea de exprimare al reclamantei nu era „necesară într-o societate democratică”.
În cauza Azadliq și Zayidov vs. Azerbaijan (cererea nr. 20755/08, hotărârea din 30 iunie 2022), CtEDO a reținut că jurnaliștii au răspândit informații faptice eronate despre săvârșirea unor infracțiuni concrete de către politicienii vizați, dar, totodată, sancțiunile (sub forma despăgubirii prejudiciului moral) erau disproporționat de mari. Astfel, autoritățile judiciare au admis o încălcare a art. 10 al Convenției.
37. A distinction must be made between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive. In order to distinguish between a factual allegation and a value judgment, it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Morice v. France [GC], no. 29369/10, § 126, ECHR 2015, and Freitas Rangel v. Portugal, no. 78873/13, § 51, 11 January 2022).
38. The Court also reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life. The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers also the physical and psychological integrity of a person. In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see, among others, Axel Springer AG, cited above, § 83, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, 27 June 2017). The Court further notes that the general principles applicable to cases in which the right to freedom of expression under Article 10 of the Convention has to be balanced against the right to respect for private life under Article 8 of the Convention were set out by the Grand Chamber in, among others, Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 104-07, ECHR 2012), and Axel Springer AG (cited above, §§ 84-88) and have been summarised in Perinçek (cited above, §§ 198-99). In particular, in such cases, the outcome should not vary depending on whether the application was brought under Article 8 by the person who was the subject of the statement or under Article 10 by the person who has made it, because in principle the rights under these Articles deserve equal respect and the margin of appreciation should in theory be the same in both cases (see Von Hannover, § 106; Axel Springer AG, § 87; and Perinçek, § 198, all cited above).
39. Lastly, the Court notes that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10. The Court must exercise the utmost caution where the measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Cumpǎnǎ and Mazǎre, cited above, § 111, with further references). In cases where a fair balance must be struck between the rights guaranteed by Articles 8 and 10 of the Convention, the size of the award of damages is a factor to be taken into consideration in assessing whether the right balance has been struck. Under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered, as well as to the incomes and resources of the applicants (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49, Series A no. 316-B; Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005‑II; Kasabova v. Bulgaria, no. 22385/03, §§ 69-71, 19 April 2011; Koprivica v. Montenegro, no. 41158/09, § 65, 22 November 2011; and Tešić v. Serbia, nos. 4678/07 and 50591/12, § 63, 11 February 2014).
40. Turning to the articles in issue in the present case, the Court notes that the subject matter of those articles was related to the general issue of the alleged corrupt practices among government officials and persons connected to them. It accepts the applicants’ submission that this issue constituted a matter of public interest. Moreover, in connection with the applicants’ submission that T.A. held a relatively high official position, the Court notes that, indeed, the limits of acceptable criticism are wider as regards a public figure, such as a politician, than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself or herself open to close scrutiny of his words and deeds by journalists and the public at large, and he or she must consequently display a greater degree of tolerance (see, among other authorities, Standard Verlagsgesellschaft mbH v. Austria (no. 3), no. 39378/15, § 87, 7 December 2021, with further references).
41. However, the Court notes that the articles, having specifically named T.A., directly accused him of having built or operated a “corruption machine” and having engaged in a certain “scale of corruption”. It was both repeatedly stated and insinuated throughout both articles that T.A., by means of corrupt practices, had either helped his relatives obtain various assets or engage in questionable business activities or had obtained such assets for himself by formally registering them in the name of other persons or engaged in questionable business activities himself, again formally through other persons. It was stated, unequivocally and as a matter of fact, that he owned a restaurant and a motel as a joint business and that various assets, such as a football club, a greenhouse, and so on, also belonged to him. Moreover, the articles mentioned many very specifically described properties and assets (including the sizes of plots of land and models of vehicles) which allegedly belonged to various relatives of T.A. and repeatedly insinuated and expressly stated that all those properties had been acquired by means of corrupt practices in which T.A. had been involved.
42. In view of the above, the Court considers that the statements that were found to be defamatory amounted largely to factual statements. Even if, as argued by the applicants, some of the expressions used in the article could qualify as “value judgments”, those expressions were essentially descriptive figures of speech used in relation to the factual statements made in the articles themselves. For example, the expression “blue whales” was used in relation to T.A. and his relatives who, as expressly alleged in the articles themselves, had engaged in large-scale corruption and allegedly owned numerous specifically mentioned assets and properties obtained through corruption. In this context, the phrase “blue whales” was a euphemism for the scale of alleged corruption, in the sense of being “very large”. As such, this expression itself was used merely as part of the factual allegation that the assets mentioned had been acquired through corruption. Similarly, while the articles compared the greenhouse with a stone wall with barbed wire on top to a “fascist concentration camp”, this descriptive comparison immediately followed the factual statement that the greenhouse had been “illegally appropriated” and was indeed a part of further factual statements about its outside appearance and the manner in which it was allegedly used.
43. Accordingly, even if some phrases could be considered as “value judgments” if assessed on their own and out of context, in the particular context of the articles in issue those phrases were merely figures of speech constituting part of the very specific factual allegations. Those factual allegations amounted to an assertion that T.A. had committed serious criminal offences, including embezzlement and corruption. Therefore, the applicants were required under the Convention to provide a sufficient factual basis for such an assertion.
44. However, the Court cannot but note that the articles made no references to any sources of the factual information given. During the court proceedings, the applicants were unable to present any elements supporting their factual assertions or to demonstrate that they had any reliable sources that constituted a basis for them. It has not been demonstrated, and the applicants never alleged, that any independent research was conducted or that any attempts were made to check any official records, such as, for example, the State register of immovable property, company registration records, vehicle registration records, and so on. While in respect of one particular allegation relating to the alleged joint business of M.A. and T.A. the applicants noted that they had relied on “rumours” concerning this (see paragraph 20 above), it appears that they did not even attempt to take any steps to independently verify the reliability of those “rumours”. Neither did the text of the first article contain any proviso that the information given was based on mere rumours; instead, the article stated it unequivocally as an established fact. Moreover, not only were the applicants unable to demonstrate any basis for their factual statements that specific assets or businesses belonged to specific named individuals, but they were also unable to point to any sources or to demonstrate any other factual basis for their assertions that those assets or businesses had been acquired through corrupt or illegal practices. The lack of sufficient research by the applicants is also apparent from the fact that, according to T.A. (and as unrefuted by the applicants during the court proceedings), the articles had identified T.A.’s grandfather with an incorrect surname, even though a considerable part of the first article discussed the alleged assets and activities of that person’s grandchildren, referring to them as “[A.B.]’s grandchildren” (see paragraphs 10, 12, 14 and 16 above).
45. It has not been shown that even a minimal amount of fact-checking was done in respect of any information given in the articles. It therefore cannot be said that the applicants complied with the relevant standards of due diligence and acted in good faith in order to provide “reliable and precise” information. Such conduct by the applicants cannot be considered compatible with the tenets of responsible journalism, especially considering the gravity of the factual assertions made in the articles, which accused a specifically named individual of having committed serious criminal offences. There can be no doubt that those assertions attained the level of seriousness bringing into play T.A.’s rights under Article 8 of the Convention and that they were damaging to his reputation (see paragraph 38 above), and it has not been shown that in the present case there existed any special grounds dispensing the applicants from verifying those factual statements (see paragraph 36 above).
46. Turning to the manner in which the domestic courts, which were called upon to strike a fair balance between the applicants’ Article 10 rights and T.A.’s Article 8 rights, assessed the content and consequences of the publication and the veracity of the information provided, the Court notes that, indeed, as implied by the applicants (see paragraph 31 above), the courts’ reasoning was quite brief and did not analyse various statements made in the articles separately and in extensive detail (see paragraphs 19, 22 and 25 above). In this connection, the Court also notes that the relevant domestic law as it stood at the material time did not distinguish between statements of fact and value judgments but referred uniformly to “information” and required that the truth of any such “information” be proved by the respondent party. Such an indiscriminate approach to the assessment of speech has been held by the Court to be per se incompatible with freedom of opinion, a fundamental element of Article 10 of the Convention (see Gorelishvili v. Georgia, no. 12979/04, § 38, 5 June 2007, with further references). However, the Court’s task in the present case is not to assess the domestic legislation in isolation, but the manner in which it was applied by the domestic courts to the facts of the particular case. In the particular circumstances of the present case, the Court is satisfied that the courts’ reasoning, albeit brief, was “relevant” in that the courts convincingly identified the impugned statements as factual assertions and found that the arguments adduced by the applicants did not demonstrate that they had acted with due diligence in publishing those assertions, which were damaging to T.A.’s reputation. The courts thus provided certain reasons showing that there was a pressing social need to take measures to protect T.A.’s reputation.
47. However, when assessing whether the reasons given by the domestic courts were, as a whole, “sufficient” and whether the courts struck a fair balance between the competing rights, the Court cannot but note that no reasoning was given by the courts to justify the proportionality of the measures taken against the applicants, despite the fact that the issue was repeatedly raised by them.
48. In this respect, the Court notes that, in addition to ordering the publication of a retraction and an apology, the domestic courts ordered the applicant newspaper to pay AZN 40,000 (approximately EUR 36,000) in compensation (see paragraph 18 above). In the appeals to the higher courts, the newspaper argued that this amount was too high given the newspaper’s low circulation and low profits and its dire financial situation at that point in time. In support of this argument, it provided some information showing it had been unable to pay off even its relatively small tax debts and that its net assets were worth very little (see paragraphs 21 and 24 above). On his part, the second applicant argued before the domestic courts that AZN 25,000 (approximately EUR 22,500), which he had personally been ordered to pay in compensation, amounted to many times his yearly income at the time (see paragraph 21 above). In this connection, the Court notes that there is a significant discrepancy between that submission and the second applicant’s subsequent submissions before the Court, in which he stated that AZN 25,000 had amounted to more than twice his yearly income at the time (see paragraph 32 above). It follows from this discrepancy that the second applicant misrepresented his actual income either before the domestic courts or the Court, or possibly even both. Neither before the domestic courts nor the Court has he produced any documentary evidence of his actual income at the time. Nevertheless, having regard to the available information about the average monthly wages in the country during the relevant period (see paragraphs 28 and 32 above), the Court notes that, in 2007, the sum of AZN 25,000 amounted to over nine times the average yearly salary and to more than forty times minimum yearly salary. In such circumstances, despite the inconsistent submissions by the second applicant concerning his personal income, the Court accepts that the second applicant nevertheless raised a sufficiently substantiated argument before the domestic courts that the amount of AZN 25,000 that he had been ordered to pay in damages was disproportionately high in relation to the average income in the country and to his personal income. Moreover, in addition to the above-mentioned arguments concerning their financial situations, the applicants also argued that the total amount awarded to T.A., AZN 65,000, was in any event too high in relation to T.A.’s own official income as a government official and, as such, disproportionate in relation to any potential damage caused to his reputation.
49. The Court accepts that, on the whole, the applicants raised relevant arguments showing prima facie that the amounts awarded were disproportionately high in the circumstances of the case. In these circumstances, it was of utmost importance for the domestic courts to examine whether sanctions of this severity could have a chilling effect on the exercise of freedom of expression by the press, which is called upon to participate in discussions of matters of general public interest. However, the domestic courts’ judgments remained silent in respect of the arguments raised by the applicants in this respect. No reasons were provided by the domestic courts in order to substantiate their decisions to award those particular amounts and it has not been demonstrated that they carried out any adequate assessment of the proportionality of the imposed sanctions.
50. In view of the above and having regard to the entirety of the case‑specific circumstances, the Court considers that, although the domestic courts provided relevant reasons as to the existence of a pressing social need to interfere with the applicants’ right to freedom of expression in order to protect T.A.’s reputation from unsubstantiated factual allegations that he had engaged in corrupt practices potentially amounting to criminal offences, no reasons were provided to justify the severity of the sanctions imposed on the applicants, which did not appear to bear a reasonable relationship of proportionality to the legitimate aim pursued. Thus, the domestic courts failed to provide “sufficient” reasons to justify the interference with the applicants’ right to freedom of expression. It follows that the interference was not “necessary in a democratic society”.
51. There has accordingly been a violation of Article 10 of the Convention.
Mod de citare recomandat: Octavian Cazac, Adnotare la art. 43 [online]. Codul civil Adnotat [citat 10.12.2023]. Disponibil: animus.md/adnotari/43/ Atenție! Verifică dacă lucrării tale i se aplică alte reguli de citare.