Head of State Immunity for Defamatory Statements: The ECtHR’s Decision in Urechean and Pavlicenco v Moldova

On 2 December 2014, the European Court of Human Rights (‘ECtHR’) handed down its judgment in Urechean and Pavlicenco v Republic of Moldova (Application Nos 27756/05 and 41219/07). The case concerned an immunity from suit enjoyed by Moldova’s (then) President Viladimir Voronin, which domestic courts had found precluded actions in libel against him. While the ECtHR has ruled on parliamentary immunities on a number of occasions, this case is its first decision concerning immunity from civil actions enjoyed by a Head of State regarding their statements.

This post summarises the case and makes some brief observations about the significance of the Court’s decision for immunities accorded to political leaders’ statements.

  1. Case Summary

The first applicant was, at the time of the relevant events, the mayor of Chișinău (Moldova’s capital) and the leader of an opposition political party. The second applicant was an opposition Member of Parliament. Their claim concerned statements made in 2004 and 2007, respectively, of the then Moldovan President, Vladimir Voronin, during interviews broadcast on privately owned television channels. During the course of his discussions of diverse topics including foreign affairs, elections and the economy, the President had accused the first applicant of “creat[ing] a very powerful mafia-style system of corruption” during his mayoral term, and the second applicant of having come “straight from the KGB” (para 7).

The applicants had brought libel suits in Moldovan courts, seeking retractions of the allegedly defamatory statements and compensation. In both cases, Moldovan courts of first instance dismissed the applicants’ actions, finding that the President could not be held liable in civil law for the impugned statements. Both judgments referred to Article 81(2) of the Moldovan Constitution, which states:

The President shall enjoy immunity. He may not be held legally responsible for opinions expressed in the exercise of his mandate.

The courts hearing the applicants’ claims had elaborated that the phrase “opinions expressed in the exercise of [the President’s] mandate” encompassed “the point of view, opinions and convictions expressed in the exercise of his mandate in respect of matters and events from public life” (paras 9–10). Both applicants’ appeals were dismissed by the Chișinău Court of Appeal (para 12).

Before the ECtHR, the applicants argued that the Moldovan courts’ refusal to consider their actions on their merits violated their Article 6 European Convention on Human Rights (‘ECHR’) right of access to a court to determine civil claims. The ECtHR ultimately agreed with them.

In its decision, the Court observed two areas of common ground between the parties. First, the respondent Government acknowledged that Article 81(2) of the Constitution and the domestic courts’ refusal to hear the applicants’ claims constituted an interference with their right of access to a court (para 45). Secondly, the applicants conceded that Article 6 ECHR does not enshrine an absolute right, and that the conferral of the presidential immunity pursued the legitimate public interests in “protecting the President’s freedom of speech in the exercise of his functions” and, like parliamentary immunities conferred in various jurisdictions, in maintaining a separation of powers between different branches of governments (paras 39, 45).

The decision rested, then, on whether the legitimate aim pursued was proportionate to the restriction imposed on the applicants’ right of access to a court, taking into account the margin of appreciation states enjoy in granting immunities to political leaders (para 39). Following its own previous cases concerning parliamentary immunity, the ECtHR articulated that “the broader an immunity, the more compelling must be its justification” (para 44). It continued that immunities enjoyed by political leaders, “being an exception from the general rule of civil responsibility shall be regulated and interpreted in a clear and restrictive manner” (para 47). The Court found that there had been a disproportionate interference with the applicants’ rights under Article 6 ECHR. There were a number of factors that informed this conclusion. Most central to the ECtHR’s decision was the fact that the Moldovan courts had made no attempt to determine whether the President had made the allegedly libellous statements in the exercise of his official mandate. The domestic courts’ references to the statements having been made as part of the President’s participation in “public life” did not offer sufficient clarity on the limits of his immunity (paras 48–49). In addition, the constitutional immunity was “perpetual and absolute”, with no possibility of being lifted even where there may be “other issues of public or personal interest … which would justify an examination of the merits”. The domestic courts’ failure to conduct “any further enquiry into the existence of competing interest considerations” effectively conferred a “blanket immunity” on the Moldovan head of state, which the Court considered to be a violation of Article 6 (paras 50–52). The unavailability of alternative means of redress—the applicants had been unable to secure media engagements to defend themselves, and there were no remaining meaningful opportunities within Moldova for review of the rulings against the applicants (see para 23)—provided further evidence of the disproportionality of the interference with the applicants’ right of access to a court (para 53).

  1. Analysis

This section makes three comments on the Court’s decision: (i) its criticisms being directed towards Moldovan courts interpreting the Constitution, rather than the terms of the Constitution itself; (ii) the absolute nature of the presidential immunity; and (iii) the Court’s refusal to rule generally on the comparative breadth of presidential and parliamentary immunities.

(i) The ECtHR’s criticisms of the Moldovan courts

The ECtHR’s ruling focused on the shortcomings of the Moldovan courts’ decisions: rather than finding that Article 81(2) of the Moldovan Constitution inherently violated Article 6 ECHR by barring suits against the President falling within its terms, the ECtHR’s decision rested on the failure of the domestic courts to delimit the scope of the immunity conferred in that provision.

This post argues that the ECtHR’s criticism of the domestic courts is only partially well-founded, and that in fact one of its conclusions would have been better directed towards Article 81(2) itself, rather than the courts interpreting and applying that provision.

The ECtHR’s finding that the Moldovan courts had paid insufficient attention to whether the President had made the impugned statements “in the exercise of his official mandate” was sound. The domestic judges imposed a sweeping interpretation of this phrase to encompass virtually any conviction expressed in the course of public life. As a result, an immunity which the Constitution expressed as being circumscribed was given an unrestricted, indiscriminate application, reasonably leading the ECtHR to its conclusion that the privilege conferred on the head of state disproportionately interfered with the Article 6 ECHR right of access of a court.

Indeed, the ECtHR could have made a similar point concerning the domestic courts’ inattention to whether the President’s statements fell within the Article 81(2) privilege, which extends only to “opinions”. The applicants had contended that the President’s statements “constituted statements of fact rather than opinions” (para 32), while the Moldovan Government argued that it was immaterial whether the statements “had constituted value judgments or statements of fact” (para 35). The ECtHR did not address these arguments in its reasoning. The domestic courts, too, had declined to consider meaningfully whether the President’s statements could be rightly classified as “opinions”. Arguably, then, they extended the privilege to all types of speech made by the President in the exercise of his official mandate, while the constitutional provision, on its ordinary meaning, provided a more restricted immunity. The domestic courts’ elision of the distinction between opinions and other types of statements provided further support for a finding of disproportionality—despite not featuring in the Court’s reasoning.

The ECtHR’s additional finding that the Moldovan courts had failed to consider whether there were any public interest or other factors that would recommend a suspension of the President’s immunity is less compelling. There is no evidence that Article 81(2), or any other provision of the Constitution, permits domestic courts to lift the immunity, even when a balance of factors may favour that course of action. If the ECtHR considered that a conferral of immunity must be accompanied by the possibility of suspending the immunity under certain circumstances, its criticism of Moldova’s current presidential immunity should have been directed at the constitutional provision itself, rather than the domestic courts applying it.

(ii) The absolute nature of the presidential immunity

The ECtHR’s comments on the absolute nature of the presidential immunity contained in Article 81(2) of the Moldovan Constitution merit further analysis. According to the ECtHR, the Moldovan courts had found that the constitutional immunity afforded to the President was “absolute and perpetual” and “a watertight defence … that it was impossible to prise open” (paras 50–51). The ECtHR proceeded to rule that the fact the national courts applied the immunity without any consideration of competing interests which may warrant its suspension “serve[d] to confer blanket immunity”, and that “blanket inviolability and immunity are to be avoided” (para 52).

In previous cases, the ECtHR has ruled that absolute immunities do not necessarily fall foul of Article 6 ECHR. For example, in A v United Kingdom (2002) (Application No 35373/97), the Court found that a parliamentary immunity’s “absolute nature cannot be decisive” (para 78). In that case, the immunity was found not to be disproportionate because it reflected “generally recognised rules” within European states and, in fact, was more narrowly cast than immunities enjoyed by legislators in other states (for example, it covered only statements made in Parliament and not in other contexts) (paras 83–84). Similarly, in Syngelidis v Greece (2010) (Application No 24895/07) the Court accepted that any exceptions to the parliamentary immunity in question “would seriously undermine the legitimate aims pursued” by that immunity, thereby accepting that an absolute immunity may be compatible with Article 6 ECHR (para 42).

In Urechean and Pavlicenco v Republic of Moldova, the Court’s position on the absolute nature of the presidential immunity is ambiguous. It criticised this absolute nature “[a]gainst th[e] background” of Moldovan courts interpreting the immunity without clearly delimiting when the President would be considered to be acting in the exercise of his official mandate (para 50). It is not clear whether the immunity’s absolute character would have been sufficient to render the immunity a disproportionate interference with the applicants’ Article 6 ECHR right, or whether this character was only incompatible with Article 6 ECHR when combined with other factors. In previous cases (including Syngelidis, above, and Cordova v Italy (No 2) (2003) (Application No 45649/99)) the Court’s findings of Article 6 ECHR violations were based on the extension of parliamentary immunities to non-parliamentary activities, but the Court in those cases did not take issue with the absolute nature of those immunities within their material scope. Its decision in Urechean and Pavlicenco v Republic of Moldova expresses a concern with the presidential immunity’s lack of exceptions even within its material scope. This represents a departure from the Court’s previous rulings, and one which may not be welcomed by states which consider the absolute nature of immunities for political leaders’ statements, within certain contexts, to be a bedrock constitutional principle.

(iii) The comparative breadth of presidential and parliamentary immunities

Despite this case being the first in which the ECtHR has ruled on the scope and application of the immunity of presidential statements, the Court refrained from ruling on one line of argument in which both parties engaged. The ECtHR declined to reach a general conclusion on which category of political leaders should be entitled to broader immunities: members of national legislatures or heads of state. The applicants had argued that presidential immunity should be narrower than the immunities held by members of parliament because the President does not participate in adversarial debates, because the President does not (unlike opposition parliamentarians) “run the risk of undue interference with his freedom of expression”, because the President’s constitutional roles require him “to display balanced and respectful behaviour”, and because the President is appointed by Parliament rather than popularly elected (para 29). In contrast, the Government had submitted that a head of state should benefit from a broader immunity than legislators on the basis that “it is more difficult to know when a president is acting in the exercise of his official mandate” as he does not participate in parliamentary debates (para 35). The ECtHR eschewed any such distinction between presidential and parliamentary immunities, explaining that its role was to “examine … whether in the circumstances of the case a fair balance was struck between the competing interests involved” (para 45). This is a prudent abstention on the Court’s part, if for no other reason that a general conclusion on whether legislative or executive immunities should be cast more narrowly may not be apposite for all of the diverse national constitutional systems in the states under the Court’s jurisdiction.

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