Open Letter to the Parliament of the Republic of by tommyadams


									                    Open Letter to the Parliament of the Republic of Moldova

Honorable Speaker and Members of the Parliament of the Republic of Moldova,

The nongovernmental organizations signatories to this letter request that you reject the draft
law for amending paragraph 8 of Article 16 of the Civil Code of the Republic of Moldova No.
1107-XV of 6 June 2002, submitted to the Parliament as legislative initiative by the President
of the Republic of Moldova, Vladimir Voronin, on 12 June 2008. The draft law aims at
removing from paragraph (8) of Art. 16 of the Civil Code the words “and moral”, as well as
the entire second sentence of that paragraph. Thus, the simple publication of a denial would
serve as repair of moral damages caused to the plaintiff.

The signatory non-governmental organizations consider that the amendment of paragraph (8)
of Article 16 of the Civil Code as proposed by President Vladimir Voronin would encourage
defamatory statements and would generally worsen the quality of public debates and thus lead
to disinformation by the media and violation of the people’s right to be informed. The
adoption of this draft law would result in other judgments being issued by the European Court
of Human Rights against Moldova.

The proposed amendment is incompliant with the objective of Article 10 of the Convention
for the Protection of Human Rights and Fundamental Freedoms to establish a balance
between the exercise of the right to freedom of expression and exercise of other rights and
freedoms. The freedom of expression is one of the fundamentals of a democratic society and
the European Court of Human Rights refers to the importance of the freedom of expression as
a precondition for a functional democracy, especially through free and independent media.
However, this freedom implies obligations and responsibilities, as stipulated by paragraph 2
of Article 10 of the Convention. One of the duties of the Court is to verify whether the
authorities struck a fair balance when protecting two values guaranteed by the Convention
which may come into conflict with each other: on the one hand, freedom of expression
protected by Article 10 and, on the other, the right of the persons to protect their reputation, a
right which is protected by Article 8 of the Convention (Chauvy and Others v. France, no.
64915/01, § 70, ECHR 2004 VI). Each Contracting State must equip itself with adequate and
effective means to ensure compliance with these positive obligations under Article 8 of the
Convention (25 January 2000, Ignaccolo-Zenide v. Romania, § 108). When a conflict exists
between the two rights, neither of them can neutralize the other by adopting an absolute
position. They both must exist and be used in harmony, making the necessary compromises,
depending on the circumstances of each concrete situation. The Moldovan legislation must
allow the judge to give fair solutions to the cases he/she decides, and the institution of a
misbalance between the measures for the protection of rights by excluding the granting of
compensation for moral damages, which is an extreme position, would generate unfair
solutions. Moreover, the lack of the right to compensation for moral damages is nothing but a
blanket norm or ECHR ruled that blanket prohibitions come in contradiction with the
Convention (Clionov v. Moldova, 13229/04, § 41).

The principle established by the Court’s jurisprudence, that there is more latitude in the
exercise of freedom of expression in the area of political speech or debate, or in matters of
public interest, or in cases of criticism of politicians, should not be interpreted as allowing the
publication of any unverified defamatory statements (Lindon, Otchakovsky-Laurens and July
v. France, no. 21279/02 and 36448/02, Concurring Opinion of Judge Loucaides). This
principle refers to the fact that certain exaggerations in the assumption of certain facts are
allowed against politicians in the above-mentioned areas or that an offending effect thereof
must be tolerated and must not be sanctioned. However, reputation is a value for each person
and is protected in the Convention as a fundamental right of each individual without

We draw attention that the Resolution No.1165 (1998) of the Parliamentary Assembly
recommends to the member states to find a way of balancing the exercise of two fundamental
rights: the right to respect for one’s private life and the right to freedom of expression. The
Assembly recommends adoption of legislation that would allow individuals, among others,
the possibility of taking an action under civil law and claiming possible damages for invasion
of privacy. Moreover, it recommends adoption of legislation that would allow economic
penalties to be established for publishing groups that systematically invade people’s privacy.
We point out that, in this context, the term “privacy”, according to the ECHR jurisprudence,
also implies people’s reputation.

Also, the Declaration on Freedom of Political Debate in the Media, adopted by the Committee
of Ministers on 12 February 2004, sets out the remedies against violations by the media and
establishes that “political figures and public officials should only have access to those legal
remedies against the media which private individuals have in case of violations of their rights
by the media. Damages and fines for defamation or insult must bear a reasonable relationship
of proportionality to the violation of the rights or reputation of others, taking into
consideration any possible effective and adequate voluntary remedies that have been granted
by the media and accepted by the persons concerned.”

Being at a stage when democratic traditions are not yet deep-rooted in the Republic of
Moldova with regard to either the freedom of expression or other human rights, it is incorrect
to misbalance the means of protection thereof. The risk would be to have more serious cases
of defamation. These cases might be triggered by political order or by negligence. As long as
media self-regulatory means are deficient or missing in the Republic of Moldova, there is a
risk that a law that exonerates individuals responsible for defamation from compensation for
the caused damage would degenerate in mass defamation campaigns and would stimulate the
appearance of scandalous publications in disfavor of good faith and responsible media.

Taking into account the above-mentioned, we request, Honorable Members of the Parliament
of the Republic of Moldova, that you reject the draft law for amending paragraph (8) of
Article 16 of the Civil Code of the Republic of Moldova No.1107-XV of 6 June 2002.

      Independent Journalism Center
      Association of Independent Press
      “Lawyers for Human Rights” Association
      “Acces-info” Center
      Journalistic Investigations Center
      Helsinki Committee for Human Rights from the Republic of Moldova
      League for Protecting Human Rights
      Association for Promotion of Legal Clinics
      Association for Participatory Democracy ADEPT

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