Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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This case concerned two members of an opposition party who filed a defamation claim against the president of Moldova for statements the president made on two television programs. The domestic courts dismissed the claims on the grounds that the president enjoyed immunity from civil prosecutions while in office. The two politicians then appealed to the European Court of Human Rights (“ECtHR”), alleging that, by refusing to hear the defamation claims, Moldova had effectively denied the politicians their right of access to a court under Article 6 of the European Convention on Human Rights (“ECHR”). The ECtHR agreed.
The Applicants, Mr. Urechean and Ms. Pavlicenco, were politicians and members of a political party that opposed then-president of Moldova. The Respondent is the Republic of Moldova.
In 2004 and 2007, the then-president of Moldova appeared on two television programs in which he stated that “during the ten years of activity as a Mayor of Chisinau, [Mr. Urechean] did nothing but  create a very powerful mafia-style system of corruption,” and that Ms. Pavlicenco “came straight from the KGB.”
Based on these statements, the Applicants each brought libel actions against the president, and each of their claims were dismissed. The Moldovan courts found that the president enjoyed a presidential immunity from civil prosecution and could therefore not be held responsible for the opinions he expressed on the television programs. The Applicants then filed an application with the European Court of Human Rights (“ECtHR”) alleging that, by dismissing their claims, Moldova had violated their Article 6 right of access to a court under the European Convention on Human Rights (“ECHR”).
In reaching its decision, the ECtHR considered that it is generally acceptable for heads of state to enjoy prosecutorial immunity for certain civil actions performed in their function as head of state. Indeed, the Court noted that such immunities are often essential to the separation of powers in democratic societies.
Nevertheless, the ECtHR considered the immunity granted to Moldova’s president to be overbroad. The Court found that, in order to adequately protect the functions of democracy, such immunities must be restrictive and clearly defined. The immunity granted to Moldova’s president did not set out any limits, and most significantly, it did not prescribe limits to the immunity against libel actions. Thus, the domestic courts were given free range to apply the immunity where they saw fit, and they did so without any inquiry into competing interests that may have justified a more restrictive view of the immunity.
Therefore, because the domestic courts applied the immunity in a manner that effectively restricted the Applicants’ access to a domestic court, the ECtHR found that Moldova had violated the Applicants’ right of access to a court under Article 6 ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR found that the Moldovan president’s immunity from libel suits was too broad because it effectively denied those who would bring libel claims their Article 6 right of access to a court under the ECHR. On one hand, this restricts the president’s ability to say whatever he wants, but on the other, it enables those who would be defamed by the president to have their day in court. It also encourages honest public debate by broadening the accountability of the executive. Thus, overall, this case expands the freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This case puts ECtHR States Parties on notice that laws prescribing prosecutorial immunity to the head of state, while often essential to a democratic society, must be restrictive and clearly defined. They must not be construed to deny citizens’ right of access to a court.
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