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FIRST
SECTION
CASE OF FEDCHENKO v. RUSSIA
(Application
no. 33333/04)
JUDGMENT
STRASBOURG
11
February 2010
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 Fedchenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33333/04) 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 Oleg Dmitriyevich
Fedchenko (“the applicant”), on 26 July 2004.
- The
applicant was represented by Ms A. K. Soboleva, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, the former Representative of the
Russian Federation at the European Court of Human Rights.
- On
24 November 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Publication of the article
- The
applicant was born in 1968 and lives in the village of Suponevo, in
the Bryansk Region.
- The
applicant has been the editor of a weekly newspaper, Bryanskiye
Budni (Брянские
будни),
since he founded it in 1999.
- In
2003 a leaflet was distributed in Bryansk and the Bryansk Region
concerning a member of parliament (MP), Mr Shandybin, who was going
to stand in the forthcoming elections. The leaflet read as follows:
“Enough of telling fairy tales!!! Let us turn to
the facts! Read the Israeli weekly newspaper Beseder. The
fortune of the member of the State Duma Vasiliy Shandybin is
estimated by the newspaper at 13,123,400 dollars!! You do not believe
it? Where does the money come from??? Vasiliy Shandybin charges 1,000
US dollars for a letter with the letterhead of a member of the State
Duma, and 5,000 dollars for an MP’s inquiry concerning a
delicate matter!!! Lobbying on behalf of Vladimir Bryntsalov’s
interests in the State Duma – 300,000 dollars per year. The
profit from trading in medicines and from the sale of overpriced
medicines to the Bryansk Region – 600,000 dollars per year.
Vote for our fellow countryman Vasiliy Shandybin and you will surely
turn him into a billionaire!!!”
- The
leaflet was either quoted or its contents were described in a number
of newspapers including Desnyanskaya Pravda (Деснянская
правда)
of 8 October 2003 and Komsomolets Bryanska (Комсомолец
Брянска)
of 14 October 2003 and internet news sites, including posts on
www.news.nashbryansk.ru,
www.gazeta.ru,
www.vlasti.net
and www.sem40.ru
of 3 October 2003, a post on www.sobesednik.ru
of unspecified date in October 2002 and a post on www.globalrus.ru
of 20 October 2003. The applicant has provided copies of the
newspaper articles and printouts from the internet sites.
- On
9 October 2003 in Bryanskiye Budni no. 206 (no. 41) the
applicant published an article entitled “Vasya and Israel”
(“Вася
и Израиль”).
The article reads as follows:
“Vasya was slandered. Ivanych. Shandybin. The hand
reaches for an axe. Revenge! For our workers’ conscience!
The circulation of the leaflet distributed through towns
and villages, according to Vasiliy himself and his associates, is
half a million copies, and it says that Shandybin scraped up a
fortune of more than 13 million dollars. An angry rebuff of this
allegation was made by the Bryanskaya Pravda. He did not take
it, says Pravda, Bryntsalov did not chuck him 300,000 dollars
for assistance in the sale of medicines either, and 5,000 bucks for
an MP’s inquiry is unheard of.
Actually, when we are talking about Vasya, it is
appropriate to say that one should not look a gift horse in the
mouth. Vasya gave medical equipment as a present to two outpatient
clinics, and it is impossible to count how many music boxes he gave
to schools and orphans’ homes. It is clearly improper to ask
the donor where he got the money for all these goods. The benefactors
paid for Shandybin’s pretty haircut, and he justly distributed
the catch among those in need.
If there are doubts, they are caused by the unsightly
history of Russian ‘parliamentarism’. Recently, in
connection with the events of 1993, we were reminded how cynically
Yeltsin bought MPs who had not yet decided which side of the
barricades to run to. He promised them a rich piece of cake, and they
slyly ran for this piece, swallowing their spittle. Zhirinovskiy’s
party was accused of bribery many times, but all our elected
representatives take [bribes] (except Vasya, of course), if we mean
not only money but also greyhound puppies: favours from Western
patrons, from Khodorkovskiys or Abramovichs residing in Russia. And
this is a serious school, a school of venality. This is why the
accusation against Shandybin in the clandestine leaflet fell on
fertile ground. Whether Vasiliy Ivanovich took bribes or not, he will
have to account for all his colleagues, for the fact that he has sat
next to venal MPs in the venal Duma for many years. In a way, the
retribution is legitimate.
Who is the author? He is closer to the body of Vasiliy
Ivanovich than the MP himself thinks. Of course, the easiest answer
is: the one who intends to stand against him in the same electoral
district. We have no doubts that Vasya’s ill-wishers from this
camp will scribble too, but the leaflet containing a reference to the
Israeli source was in fact made in a different camp. Which one?
Remember who recently visited Israel. Thus, nominally these forces
are Shandybin’s allies, but effectively they consider him a
serf. And serfs need to be reminded from which barn they originate,
so that they do not put on airs and are obedient.
Unfortunately, Shandybin is looking for ill-wishers in
the wrong camp. They should be searched for among the people who
cover themselves with red rags. Their handwriting is recognisable.
Their latest provocation in the press was, in fact, a supplement to
Bryanskiye Budni. They published a fake edition of Budni
that criticised the opposition to Lodkin, inter alia, to test
their undercover printing works. Although the editors lodged an
official complaint, the law-enforcement authorities did not try to
find the publisher. And now here is a new volley, and surely not the
last one, from the underground regional committee [of the Communist
Party].”
B. First set of proceedings
- On
15 October 2003 the Election Committee of the Bryansk Region issued a
decree declaring that the applicant’s article was intended to
agitate the electorate and to encourage a negative attitude towards
Mr Shandybin. The applicant appealed to a court against the
decree.
- On
26 November 2003 the Bryansk Regional Court found that the decree was
unlawful. The court held:
“...[T]he article was published on 9 October 2003
... before the election campaign had started ... [T]he article
contains information about the distribution of a leaflet saying that
V.I. Shandybin had made a fortune of more than 13 million dollars,
and speculations by the author concerning the existence of this money
and its sources. The contents of the leaflet are not quoted in the
article. The text of the article contains neither information about
the forthcoming elections to the State Duma ..., about V.I. Shandybin
as a candidate for the State Duma, his political views and ideas, nor
agitational calls to vote for or against V.I. Shandybin or other
candidates.
... [Mr] Fedchenko stated at the hearing that in the
article he had not sought to agitate but had merely stated his
opinion concerning the distributed leaflet and the information
contained therein. The [defendant] did not produce any proof to the
contrary ...”
- The
Election Committee of the Bryansk Region appealed.
- On
18 February 2004 the Supreme Court of Russia upheld the judgment.
C. Second set of proceedings
- On
20 October 2003 Mr Shandybin brought an action for defamation against
the applicant in the Bryanskiy District Court of the Bryansk Region
and sought damages in the amount of 500,000 Russian roubles (RUB). He
claimed, in particular, that the following passages were untrue and
damaging to his honour and reputation:
“Shandybin scraped up a fortune of more than 13
million dollars.”
“He did not take it, says Pravda,
Bryntsalov did not chuck him 300,000 dollars for assistance in the
sale of medicines either, and 5,000 bucks for an MP’s inquiry
is unheard of.”
“Thus, nominally these forces are Shandybin’s
allies, but effectively they consider him a serf. And serfs need to
be reminded from which barn they originate, so that they do not put
on airs and are obedient.”
- On
31 May 2004 the Bryanskiy District Court found for the claimant. The
court held:
“...[T]he article Vasya and Israel as a
whole, as well as particular phrases and words (the subject of the
dispute) in it, are strongly indicative of a negative judgment and
contain direct emotional judgments which constitute insulting attacks
and indirect judgments.
...[T]he [first] assertion as such, in the context of
the article, is insulting, and damaging to the honour and dignity of
the claimant and ... to his reputation. The defendant failed to prove
the contrary. The claim is well-founded.
...The author ironically uses [slang words] in the
[second] assertion so as to give it a cynical, insulting character
and describes the claimant in negative terms. The assertion is beyond
the limits of civilised communication and is in breach of moral
standards. Accordingly, the claimant’s assertion ... concerning
the disparaging character of the above quotation is well-founded.
...The [third] assertion has an emotionally expressive
tone of contempt and humiliation and presents the [MP] to the readers
in a negative light, as a person capable of doing bad things for
society. If used metaphorically, the words are disapproving in tone.
The claimant has grounds to perceive the assertions as insulting and
slanderous. The court considers this information damaging to the
honour, dignity and reputation of the claimant.”
- The
court held the applicant liable for RUR 5,000 in respect of
non-pecuniary damage sustained by the claimant. The applicant was
also ordered to provide Mr Shandybin with an opportunity to publish
his response in Bryanskiye Budni. The applicant
appealed.
- On
1 July 2004 the Bryansk Regional Court reversed the judgment in the
part relating to the publication of the claimant’s response in
Bryanskiye Budni and upheld it in the remaining part. The
court found that since Mr Shandybin had not applied directly to
Bryanskiye Budni for the publication of the response within a
year of the publication of the defaming information, under Sections
45 and 46 of the Law on Mass Media he was estopped from applying to a
court in this respect. The court further held:
“On the basis of the evidence described in the
judgment the [first-instance] court reached the correct conclusion
that the assertions at issue did not correspond to the truth and
discredited the honour, dignity and reputation of the claimant.”
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
- Article
29 guarantees freedom of thought and expression, together with
freedom of the mass media.
B. Civil Code of the Russian Federation
- Article 152 provides that an individual may apply to a
court with a request for the rectification of information (сведения)
that is damaging to his honour, dignity or professional reputation
unless the disseminator of that information proves that it
“corresponds to reality” (Paragraph 1). The defamatory
information must be refuted in the same media source that
disseminated it (Paragraph 2). The aggrieved person also has a right
to publish a response in the same media source (Paragraph 3). He may
also claim compensation for losses and non-pecuniary damage sustained
as a result of the dissemination of the information (Paragraph 5).
C. Law on Mass Media
- Under
Section 45 of the Law on Mass Media no. 2124-I of 27 December
1991 a media source may refuse to publish a response to defamatory
information if the aggrieved person did not apply for the publication
of the response within a year of the publication of the defamatory
information. Under Section 46 a refusal to publish a response may be
appealed against to a court within a year of the publication of the
defamatory information.
D. Resolution of the Plenary Supreme Court of the
Russian Federation, no. 11 of 18 August 1992 (amended on 25
April 1995)
- The Resolution (in force at the material time)
provided that, in order to be considered damaging, information
(сведения) had
to be untrue and contain allegations of a breach of laws or moral
principles (commission of a dishonest act, improper behaviour at the
workplace or in everyday life, etc.). Dissemination of such
information was understood as the publication of the information or
its broadcasting, inclusion in professional references, public
speeches, applications to State officials and communication in other
forms, including oral, to at least one other person (Section 2). The
burden of proof was on the defendant to show that the disseminated
information had been true and accurate (Section 7).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained under Article 10 of the Convention that the
Bryanskiy District Court’s judgment of 31 May 2004, upheld on
appeal by the Bryanskiy Regional Court on 1 July 2004, had violated
his right to express his opinion protected by Article 10 of the
Convention. He submitted that the domestic courts had failed to draw
a distinction between statements of fact and value judgments and held
him responsible for failing to prove the truth of value judgments.
Article 10 of the Convention 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 and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
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. Admissibility
- The
Government argued that the applicant had failed to exhaust the
domestic remedies available to him as he did not apply for
supervisory review of the domestic courts’ decision.
- The Court reiterates that an application for
supervisory review is not a remedy to be used for the purposes of
Article 35 § 1 of the Convention (see Denisov
v. Russia (dec.), no. 33408/03, 6 May 2004).
Therefore, the Government’s objection as to the non-exhaustion
of domestic remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government submitted that the domestic courts were right to find that
the assertions at issue constituted negative judgments and contained
insulting passages. At the same time the Government stated that the
interference with the applicant’s freedom of expression had
been justified since the assertions at issue were not value judgments
but statements of fact the veracity of which had not been proved by
the author.
- The
applicant argued that the Government, like the domestic courts,
failed to draw a distinction between statements of fact and value
judgments and held him responsible for failing to prove the truth of
a value judgment. In particular, the turn of speech “scrape up
a fortune” is an idiomatic expression characterised by
expressive emotional and metaphorical nature. “... [D]id not
chuck him ...” is a sarcastic remark. Finally, the assertion
“... they consider him a serf. And serfs need to be reminded
from which barn they originate ...” is a value judgment that
cannot be true or false.
- The
Court notes that it is common ground between the parties that the
judgments adopted by domestic courts in the defamation proceedings
constituted an interference with the applicant’s
right to freedom of expression guaranteed 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, within the meaning of
Article 10 § 2. What remains to be established is whether the
interference was “necessary in a democratic society”.
- The
Court reiterates that the right to freedom of expression enshrined in
Article 10 constitutes one of the essential foundations of a
democratic society. Subject to paragraph 2, it is applicable not only
to “information” or “ideas” which are
favourably received or regarded as inoffensive, but also to those
which offend, shock or disturb (see, among many other authorities,
Castells v. Spain, 23 April 1992, Series A no. 236, § 42,
and Vogt v. Germany, 26 September 1995, Series A no. 323, §
52). It comprises, among other things, the right to impart, in good
faith, information on matters of public interest, even where this
involves damaging statements about private individuals (see, mutatis
mutandis, Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, ECHR 1999-III). The Court emphasised that the limits of
acceptable criticism are wider still where the target is a politician
(see Oberschlick v. Austria (no. 1), 23 May 1991, Series A no.
204, § 59).
- The
test of necessity requires the Court to determine whether the
interference corresponded to a “pressing social need”,
whether it was proportionate to the legitimate aim pursued and
whether the reasons given by the national authorities to justify it
were relevant and sufficient (see Lindon, Otchakovsky-Laurens and
July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR
2007 ...). In assessing whether such a need exists and what
measures should be adopted to deal with it, the national authorities
are left a certain margin of appreciation. In cases concerning the
press, it is circumscribed by the interest of a democratic society in
ensuring and maintaining a free press (see Dalban v. Romania
[GC], no. 28114/95, § 49, ECHR 1999 VI).
- The
Court’s task in exercising its supervisory function is not to
take the place of the national authorities, but rather to review
under Article 10, in the light of the case as a whole, the decisions
they have taken pursuant to their margin of appreciation. In so
doing, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles
embodied in Article 10 and, moreover, that they based their decisions
on an acceptable assessment of the relevant facts (see Dichand and
Others v. Austria, no. 29271/95, § 38, 26 February
2002).
- In
examining the particular circumstances of the case, the Court will
take the following elements into account: the position of the
applicant, the position of the plaintiff in the defamation claim, the
subject matter of the publication and the qualification of the
contested statement by the domestic courts (see Jerusalem v.
Austria, no. 26958/95, § 35, ECHR 2001 II).
- As
regards the applicant’s position, the Court observes that he
was a journalist and founder of a newspaper. It reiterates in this
connection that the press fulfils an essential function in a
democratic society. Although it must not overstep certain bounds,
particularly in respect of the reputation and rights of others, its
duty is nevertheless to impart – in a manner consistent with
its obligations and responsibilities – information and ideas on
all matters of public interest. Journalistic freedom also covers
possible recourse to a degree of exaggeration, or even provocation
(see Dalban, cited above, § 49).
- The
plaintiff was a member of parliament, who was going to stand in the
forthcoming elections. The Court reiterates that the limits of
acceptable criticism are wider as regards a politician than as
regards a private individual. Therefore, he was obliged to display a
greater degree of tolerance in this context (see, mutatis
mutandis, Oberschlick v. Austria (no. 2), 1
July 1997, Reports of Judgments and Decisions, 1997-IV,
§§ 31 33).
- The
subject matter of the publication was a leaflet distributed in
Bryansk and the Bryansk Region which alleged that the plaintiff,
Mr Shandybin, accumulated a fortune by dubious means. The
applicant described the contents of the leaflet, speculated on its
possible authorship and made his observations on bribery among
members of the parliament. The publication was thus part of a
political debate on a matter of general and public concern, which is
further supported by the fact that the leaflet was discussed in
numerous other newspapers and internet news sites (see paragraph 7
above). The Court recalls in this connection that it has been its
constant approach to require very strong reasons for justifying
restrictions on political speech, since broad restrictions imposed in
individual cases would undoubtedly affect respect for the freedom of
expression in general in the State concerned (see Feldek
v. Slovakia, no. 29032/95, § 83, ECHR 2001 VIII,
and Sürek v. Turkey (no. 1) [GC], no. 26682/95,
§ 61, ECHR 1999-IV).
- The
Court notes that the scope of the defamation proceedings extended not
to the publication in its entirety but to the following passages:
“Shandybin scraped up a fortune of more than 13
million dollars.”
“He did not take it, says Pravda,
Bryntsalov did not chuck him 300,000 dollars for assistance in the
sale of medicines either, and 5,000 bucks for an MP’s inquiry
is unheard of.”
“Thus, nominally these forces are Shandybin’s
allies, but effectively they consider him a serf. And serfs need to
be reminded from which barn they originate, so that they do not put
on airs and are obedient.”
- The Court notes that the Bryanskiy District Court in
its judgment of 31 May 2004, which was upheld on appeal in the
relevant part by the Bryansk Regional Court on 1 July 2004, observed
that the article as a whole and the passages at issue were “strongly
indicative of a negative judgment and contain direct emotional
judgments which constitute insulting attacks and indirect judgments”.
The Court notes in this regard that Russian law on defamation in
force at the material time made no distinction between value
judgments and statements of fact, as it referred uniformly to
“information” («сведения»)
and proceeded from the assumption that any such information was
amenable to proof in civil proceedings (see paragraphs 18 and
20 above). Irrespective of the actual contents of the
“information”, the person who disseminated it had to
satisfy the courts as to its truthfulness (see Grinberg v. Russia,
no. 23472/03, § 29, 21 July 2005). Having regard to
these legislative provisions, the domestic courts did not embark on
an analysis of whether the applicant’s contested statement
could have been a value judgment.
- The
Court reiterates in this regard that, according to its established
case-law, a distinction has to be drawn between statements of fact
and value judgments. 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
Oberschlick (no. 1), cited above, § 63).
- As
regards the first impugned passage, the domestic courts found that it
was insulting and damaging to the honour and dignity of the plaintiff
and that the applicant failed to prove the contrary. The Court
observes that the passage at issue formed part of a phrase where the
applicant expressly referred to the leaflet distributed in Bryansk,
which stated that Mr Shandybin had made a fortune of more than
13 million dollars, and described its content. The Court is satisfied
that the applicant’s description corresponded to the substance
of the leaflet’s contents. In so far as the domestic courts
appear to have referred particularly to the expression “scraped
up” used by the applicant, the Court finds that this is a
colloquial term apparently employed with a view to adding a sarcastic
tone to the description.
- As
for the second impugned passage, which described an article published
in the newspaper Pravda apparently as a response to the
leaflet, it was not alleged that the description of its content was
inaccurate. It was the form and the tone of the description by the
applicant that the domestic courts found to be defamatory, stating
that the applicant had ironically used slang words in order to give
the assertion a cynical and insulting character and to describe the
claimant in a negative light.
- The
Court reiterates in this regard that Article 10 protects not only the
substance of the ideas and information expressed, but also the form
in which they are conveyed (see Oberschlick (no. 1),
cited above, § 57). In the Court’s view, the use by
the applicant of particular turns of phrase, colloquial expressions
or slang words in the passages at issue did not go beyond the degree
of exaggeration or provocation permitted by Article 10 (see paragraph
32 above) and consequently did not justify an imposition of
restrictions on his right to freedom of expression. Furthermore, the
Court notes that whereas Article 152 of the Civil Code refers to
“information”, the domestic courts held the applicant
liable not for the “information” contained in the
passages at issue but for the language and style that he had chosen
to use. The Court thus finds that their decisions with regard to the
first two passages constituted an unjustified restriction of the
applicant’s freedom of expression.
- As
regards the third impugned passage, the domestic courts held the
applicant liable for employing a disapproving and contemptuous tone
which presented Mr Shandybin to the readers in a negative light. The
Court observes that in the passage at issue the applicant expressed
his personal view on the attitude of other members of parliament
towards Mr Shandybin. His personal opinion clearly constituted a
value judgment the truthfulness of which could not be proved. The
domestic courts thus failed to distinguish between a statement of
fact and a value judgment. The word “serf”, obviously
used figuratively, was ironically employed by the applicant to add a
particular, admittedly rather provocative, colouration to his
observations. However, like the figures of speech used in the first
two passages, the Court does not find that the boundaries of the
protection afforded by Article 10 were exceeded by the applicant in
this regard either.
- In
the light of the above considerations the Court finds that the
domestic courts failed to establish convincingly any pressing social
need for putting the politician’s personality rights above the
applicant’s rights and the general interest in promoting the
freedom of the press where issues of public interest are concerned.
The fact that the proceedings were civil rather than criminal in
nature and that the final award was relatively small does not detract
from the fact that the standards applied by the domestic courts were
not compatible with the principles embodied in Article 10 since they
did not adduce “sufficient” reasons justifying the
interference at issue. Therefore, the Court considers that the
domestic courts overstepped the narrow margin of appreciation
afforded to them for restrictions on debates of public interest and
that the interference was disproportionate to the aim pursued and not
“necessary in a democratic society”.
- There
has been, accordingly, 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 5,000 Russian roubles (RUB) which at the time when
the claim was submitted equalled approximately 143 euros (EUR), in
respect of pecuniary damage and EUR 5,800 in respect of non-pecuniary
damage.
- The
Government contested the claim. In their view, a finding of a
violation would constitute sufficient just satisfaction.
- The
Court finds that in the circumstances of the case there is a causal
link between the violation found and the alleged pecuniary damage
claimed. Consequently, the Court awards the applicant EUR 143 in
respect of pecuniary damage, plus any tax that may be chargeable on
that amount.
- The
Court accepts that the applicant has also suffered distress and
frustration resulting from the judicial decisions incompatible with
Article 10 which cannot be sufficiently compensated solely by the
finding of a violation of the Convention. Making its assessment on an
equitable basis, the Court awards the applicant EUR 5,800 under this
head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an 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
- Declares the application admissible;
- 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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
143 (one hundred and forty-three euros) in respect of pecuniary
damage;
(ii) EUR
5,800 (five thousand eight hundred euros) in respect of non-pecuniary
damage;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount[s] at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
