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FIRST SECTION
CASE OF ZAKHAROV v. RUSSIA
(Application no. 14881/03)
JUDGMENT
STRASBOURG
5 October 2006
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Zakharov v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
judges,
and Mr S. Nielsen, Section Registrar
Having deliberated in private on 14 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 14881/03)
against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Russian national, Mr
Aleksandr Vasilyevich Zakharov (“the applicant”), on 23
April 2003.
- The Russian Government (“the Government”)
were represented by their Agent, Mr P. Laptev, Representative of
the Russian Federation at the European Court of Human Rights.
- The applicant alleged a violation of his right to
impart information.
- The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
- By a decision of 9 December 2004, the Court declared
the application admissible.
- The Government but not the applicant filed further
written observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1947 and lives in the Moscow
Region.
- On 17 July 2002 the applicant privately sent a
complaint to the deputy Governor of the Moscow Region. He reported on
usurpation of a plot of communal land, adjacent to a public street in
Iksha, by the private person Ms V. The applicant alleged that Ms
A., the head of the Iksha town council, not only had failed to stand
up for the rights of other Iksha residents but actively contributed
to making the usurpation possible. In particular, Ms A. had allegedly
brought about premature retirement of a land surveyor who had
objected to the usurpation; she had interfered with the activities of
court bailiffs who had come to reclaim the usurped land; she had
assisted V. in obtaining title to the land by adverse possession; and
she had ostensibly made an exemption for V. from regulations
prohibiting planting of vegetables in the protected areas. The letter
concluded as follows:
“Such outrageous conduct of the appointed (not
elected!) head of the town council vis-à-vis the town
residents, – in full view of everyone – discredits the
power that appointed A. and sets an example of breaking the law with
impunity provided that you can 'make a deal' with the council head.
I ask you to state your opinion on A.'s anti-social
behaviour and assist [us] in returning the land plot into communal
use, notwithstanding her opposition...”
- On 27 September 2002 Ms A. lodged a civil action
against the applicant for refutation of information damaging to her
honour and dignity and compensation for non-pecuniary damage. She
maintained that the applicant's letter had contained untrue facts and
insulting value-judgments, which could have damaged her reputation in
the eyes of her hierarchical superiors, thereby causing her
non-pecuniary damage.
- On 27 January 2003 the Dmitrov Town Court of the
Moscow Region granted Ms A.'s defamation action, finding that
the applicant had failed to prove the truthfulness of his allegations
contained in the letter of 17 July 2002. Assessing the allegedly
insulting value-judgments in the concluding paragraphs of the letter,
the court held as follows:
“In addition to failing to substantiate the said
allegations with any proof, [the applicant] used expressions which,
in their form and contents, are not appropriate in respect of an
official, which the plaintiff is...
Also, the court considers that the judgments used by the
[applicant] in his letter – such as 'A. knows that by law
protected areas may not be occupied, but ostensibly makes an
exemption for V.', 'such outrageous conduct... discredits the power
that appointed A. and sets an example of breaking the law with
impunity provided that you can 'make a deal' with the council head',
'A.'s anti-social behaviour' – are not only untrue because the
[applicant] failed to prove that these facts had occurred, but also
insulting for the Town Council Head; this information, phrased as
insults, damages dignity and honour of the plaintiff, and it was sent
to a deputy Governor of the Moscow Region, which might have led to
belittlement of the plaintiff's authority in the eyes of regional
managers...”
- The court bound the applicant to make a rectification
by way of a letter to the deputy Governor of the Moscow Region and to
pay 300 Russian roubles (EUR 10) to Ms A. for non-pecuniary
damage.
- The applicant lodged a statement of appeal,
maintaining that his letter had stated his subjective view on the
existing problem.
- On 4 March 2003 the Moscow Regional Court partly
upheld, on the applicant's appeal, the judgment of 27 January 2003.
It did not analyse the truthfulness of the factual allegations and
grounded its judgment on the three expressions quoted above in the
last paragraph of the judgment of 27 January 2003. The appeal
court struck down the obligation to send a rectification, but upheld
the award in respect of non-pecuniary damage.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation (of 12
December 1993)
- Article 29 guarantees freedom of ideas and expression.
- Article 33 provides that Russian citizens shall have
the right to petition in person, as well as to submit individual and
collective appeals to, State authorities and local self-government
bodies.
B. Civil Code of the Russian Federation (of 30 November
1994)
- Article 152 provides that an individual may apply to a
court with a request for the rectification of “statements”
(“сведения”)
that are damaging to his or her honour, dignity or professional
reputation if the person who disseminated such statements does not
prove their truthfulness. The aggrieved person may also claim
compensation for losses and non-pecuniary damage sustained as a
result of the dissemination of such statements.
C. Supreme Court's Resolution
- Resolution no. 11 of the Plenary Supreme Court of 18
August 1992 “on certain issues that have arisen in the course
of judicial examination of claims for the protection of honour and
dignity of individuals, and professional reputation of individuals
and legal entities” (as amended on 25 April 1995, in force
at the material time) established that the notion “dissemination
of information” employed in Article 152 of the Civil Code was
understood as the publication of statements or their broadcasting,
inclusion in professional references, public speeches, applications
to State officials and communication in other forms, including oral,
to at least one another person. It specified, however, that
“communication of such information to the person whom it
concerned could not be treated as dissemination”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The applicant complained under Article 10 of the
Convention about a violation of his right to impart information, in
that he had been found liable for dissemination of his opinions about
a public figure. Article 10 reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Arguments by the parties
- The Government submitted that the interference with
the applicant's right to freedom of expression had been justified
because it had been prescribed by Article 152 of the Civil Code and
because the applicant had failed to prove the truthfulness of the
information.
- The applicant pointed out that the Moscow Regional
Court had quashed the judgment in the part concerning the refutation
which had removed the legal basis for application of Article 152 of
the Civil Code. He indicated that the final judgment of the Moscow
Regional Court had been founded not on his allegations verifiable by
facts, as the Government submitted, but rather on his subjective
appraisal of Ms A.'s behaviour.
B. The Court's assessment
- It is common ground between the parties that the
judgments pronounced in the defamation action constituted an
“interference” with the applicant's
right to freedom of expression protected by Article 10 § 1. It
is not contested that the interference was “prescribed by law”,
notably Article 152 of the Civil Code, and “pursued a
legitimate aim”, that of protecting the reputation or rights of
others. The Court's task is to determine whether the restriction on
the applicant's freedom of expression met a “pressing social
need” and was proportionate to the legitimate aim pursued and
whether the reasons adduced by the national authorities in
justification of it were “relevant and sufficient”.
- The Court observes that the defamation claim was born
out of the applicant's correspondence with State authorities rather
than out of a publication in the media. The applicant wrote to the
deputy regional governor, complaining that the conduct of a town
council head had not been even-handed and at times unlawful. The
letter was sent privately, the applicant did not publish or otherwise
make his allegations available to the outside world, instead he acted
within the framework established by law for making complaints. He
brought his grievance solely to the attention of the direct
hierarchical superior of the official against whom the complaint was
directed. It is not clear how the head of the town council, who was
the plaintiff in the defamation action, obtained a copy of the
applicant's letter.
- The Court has in several cases observed that it may be
necessary to protect public servants from offensive, abusive and
defamatory attacks which are calculated to affect them in the
performance of their duties and to damage public confidence in them
and the office they hold (see Janowski v. Poland [GC],
no. 25716/94, § 33, ECHR 1999 I; and Lešník
v. Slovakia, no. 35640/97, § 53,
11 March 2003). The extent to which such protection might be
deemed necessary depends on the particular circumstances of the case.
In the present case the applicant's grievances were set out in
private correspondence and were not made public. Accordingly, the
requirements of such protection have to be weighed not in relation to
the interests of the freedom of the press or of open discussion of
matters of public concern but rather against the applicant's right to
report irregularities in the conduct of State officials to a body
competent to deal with such complaints.
- The Court recalls that it has found no violation of
Article 10 in the Lešník case where the
applicant was held criminally responsible for setting out allegations
against a prosecutor public in a letter to his hierarchical superior
(cited above). The present case, however, should be distinguished for
the following reasons.
- Firstly, the affected official in the Lešník
case was a prosecutor public and the necessity to fend off abusive
criticism against him was regarded as contributing to the maintenance
of the authority of the judiciary in a broader sense. In the present
case the criticism was directed against a town council head whose
standing is closer to that of professional politicians, and who
should be prepared to tolerate a more demanding public scrutiny. As
the Court has had an opportunity to remark, it would go too far if
the protection afforded to law-enforcement officials were extended to
all persons who are employed by the State (see Busuioc v. Moldova,
no. 61513/00, § 64, 21 December 2004). Secondly,
whereas Mr Lešník's aspersions on the prosecutor P.
were leaked to a newspaper – whether intentionally or
otherwise, the applicant's grievances remained a matter strictly
between him and the deputy regional governor, the hierarchical
superior of the town council head.
- The Court considers that, in the circumstances of the
present case, the fact that the applicant addressed his complaint by
way of private correspondence to the State official competent to
examine the matter, is of crucial importance for its assessment of
proportionality of the interference. That the citizens should be able
to notify competent State officials about the conduct of civil
servants which to them appears irregular or unlawful, is one of the
precepts of the rule of law. In this connection the Court notes the
express provision of the Russian Supreme Court's resolution that
“communication of information to the person whom it concerned”
was not considered its dissemination and therefore not actionable as
defamation (see paragraph 17 above). It appears that the applicant
raised this argument in substance, but it was not addressed by the
domestic courts. The domestic courts did not identify any “pressing
social need” for putting the protection of the civil servant's
personality rights above the applicant's right to impart information
and the general interest in having irregular conduct of civil
servants examined by competent authorities.
- The Court further notes that the applicant did not
resort in his letter to abusive, strong or intemperate language,
albeit it might be said to have contained a certain number of
emotional expressions verging on exaggeration or provocation (cf.
Prager and Oberschlick v. Austria (no. 1), judgment
of 26 April 1995, Series A no. 313, § 38). Assessing
the text of the letter as a whole, the Court finds that its contents
did not go beyond the limits of acceptable criticism, especially
since these limits are wider in respect of civil servants than in
relation to private individuals (see, e.g., Lešník,
cited above, § 53). Furthermore, as the fact of usurpation of
land by V. had not been denied or refuted in the domestic
proceedings, it appears that the applicant's factual allegations
rested on what he believed to have been sufficient grounds.
- A further aspect relevant for the Court's
determination in the present case is the distinction between
statements of fact and value judgments. The applicant's letter
contained both factual allegations of irregular conduct of the town
council head and value-judgments about her unethical behaviour. The
first-instance court had premised its finding of liability on
inaccuracy of factual statements and the insulting character of
value-judgments, but the final judgment by the Moscow Regional Court
maintained the finding of liability by reference to solely three
expressions in the last paragraph of the letter (see paragraph 13
above). The Regional Court held that the applicant failed to show
their truthfulness.
- The Court notes that the Russian law on defamation, as
it stood at the material time, made no distinction between value
judgments and statements of fact, as it referred uniformly to
“statements” and proceeded from the assumption that any
such statement was amenable to proof in civil proceedings (see
Grinberg v. Russia, no. 23472/03, § 29, 21 July
2005). Irrespective of the actual character of the “statements”,
the person who disseminated the “statements” had to
satisfy the courts as to their truthfulness. Having regard to these
legislative provisions, the domestic courts did not embark on an
analysis of whether the applicant's utterances could have been a
value judgment not susceptible of proof.
- However, it has been the Court's constant view that,
while the existence of facts can be demonstrated, 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 (see Grinberg, cited above § 30,
with further references). In the present case the Court considers
that the expressions used by the applicant, such as “outrageous
conduct”, “anti-social behaviour”, “ostensibly
makes an exemption”, were value judgments that represented the
applicant's subjective appraisal of the moral dimension of the town
council head's behaviour. The burden of proof in respect of these
expressions was obviously impossible to satisfy.
- Having regard to the above considerations, the Court
finds that the Russian authorities did not adduce “relevant and
sufficient” grounds for the interference with the applicant's
right to impart information. There has therefore been a violation of
Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 12,250 euros (EUR) in respect of
compensation for the pecuniary damage incurred through the loss of
employment in 2003. He further claimed EUR 137,200 in respect of
compensation for non-pecuniary damage.
- The Government considered the applicant's claim
“ill-founded and fabulous”. There was no causal link
between the violation and the loss of employment.
- The Court notes that the applicant did not produce any
information showing that his loss of employment in 2003 was somehow
connected to the defamation proceedings against him. It considers
that the applicant has not proven the existence of a causal link
between the violation of his right to impart information and the
alleged pecuniary damage. It rejects his claim for the pecuniary
damage but accepts, however, that the applicant must have suffered
non-pecuniary damage – such as distress and frustration
resulting from the judicial decisions incompatible with Article 10 –
which is not sufficiently compensated by the finding of a violation
of the Convention. Making its assessment on an equitable basis, the
Court awards the applicant EUR 1,000 under this head, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The applicant claimed EUR 280 in respect of costs and
expenses, representing his travel and postal expenses in the domestic
proceedings, legal fees and costs of unspecified medical services.
- The Government pointed out that only real and
necessary expenses should be reimbursed.
- The Court observes that the applicant did not submit
any documents in support of his claim for costs and expenses.
Accordingly, it makes no award under this head.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 10 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 1,000 (one thousand euros) in respect of pecuniary
damage, to be converted into Russian roubles at the rate applicable
at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
