In the case of OOO Ivpress and Others v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 18 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in four applications (nos. 33501/04,
38608/04, 35258/05 and 35618/05) 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 OOO Ivpress, a Russian
limited-liability company with the registered office in Ivanovo (“the applicant
company”), and two Russian nationals, Mr Valeriy Alekseyevich Smetanin and Mr
Aleksey Yurievich Ovchinnikov (“the individual applicants”), on 12 August 2004
and 16 September 2005.
The applicants were represented by Ms N. Murashchenko,
a lawyer practising in the Ivanovo Region. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The applicants alleged, in particular, a
violation of their right to freedom of expression.
On 25 September 2008, 12 February, 9 March and 19
June 2009 the applications were communicated to the Government. It was also
decided to rule on the admissibility and merits of the applications at the same
time (Article 29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant company publishes a weekly
newspaper Ivanovo-Press. The two individual applicants are journalists
writing for the newspaper.
A. Application no. 33501/04 (“the K. proceedings”)
On 12 August 2003 the Ivanovo-press
newspaper published in issue no. 32 an article by Ms L. headlined “You can see
it - and you can have it” («И око видит,
и зуб ймет») about a
conflict between Mr K., director of the local State gas-supply company
“Rodnikiraygas”, and his neighbours, the S. family. The article had the
following subtitles: “The Director of Rodnikiraygas has declared war on a
poverty-stricken family, not a single member of which is healthy”, “Boss in Law”,
“Gas Racket”. It also stated that Mr K. had “ordered that the S. family
not be supplied with gas”, and that “even when all the notified defects had
been eradicated ... [Mr K.] did not lift the unofficial ban”. Finally, in the
article Mr K. was described as “a parochial boss”.
Mr K. instituted defamation proceedings before the
Leninskiy District Court of Ivanovo against the applicant company and Ms L.
He requested the court to order a rectification of the above statements, all
the subtitles and the headline of the article.
On 18 December 2003 the District Court found in
part against the applicant company. In particular, it established that the S.
family had not been supplied with gas on account of defects in their compressed
gas equipment, and that the gas supply had been restored as soon as these
defects were rectified. Thus, the statements that Mr K. had “ordered that the
S. family not be supplied with gas”, and that “even when all the notified
defects had been eradicated ... [Mr K.] did not lift the unofficial ban” were
untrue.
With regard to the subtitle “The Director of
Rodnikiraygas has declared war on a poverty-stricken family ...” the District
Court found that “the fact that Mr K. [had] lodged a
civil claim against Ms S. does not constitute evidence of a declaration of war”,
and the plaintiff’s claim in this part was allowed.
The District Court further rejected the
defendant’s argument that the subtitles “Boss in Law” and “Gas Racket” were
value-judgments, not susceptible of proof. It stated that the expression “boss
in law” («начальник в законе») was analogous to
the Russian slang expression “thief in law” and could not have any other
meaning. The word “racket” («рэкет»)
meant an outrageous extortion, and, used together with the word “gas” in a
subtitle to the article about Mr K., who was the director of a gas supply
company, implied, in the court’s view, that the plaintiff was extorting a
property by threats and blackmail.
The court rejected the remainder of the claim,
finding that the headline of the article was merely a rephrased Russian proverb
which did not contain any information about Mr K. It found that the expression
“a parochial boss” could not be regarded as defamatory.
The court held the applicant company liable to
pay 3,000 Russian roubles (RUB) in compensation to Mr K. and RUB 515 in legal
aid.
On 17 March 2004 the Ivanovo Regional Court
upheld that judgment in a summary fashion.
B. Application no. 38608/04 (“the V. proceedings”)
In 2003, a series of articles critical of Mr V.,
who was the head of the Ivanovo Regional Highways Department and of the
Executive Committee of the Ivanovo Regional Branch of the United Russia party,
appeared in the Ivanovo-Press newspaper.
On 15 July 2003 the newspaper published an
interview with Mr Ku., the former general director of a public company.
Mr Ku. stated that in 1996 Mr V. had tricked him into signing a contract
with a private company which had subsequently defaulted on its obligations. Mr
Ku. stated in particular that Mr V. “was capable of violating moral
principles for the sake of money and [his] career”.
On 29 July 2003 the newspaper published an
article under the headline “V. wants a market, WE NEED VICTORY Sq.” («В-у нужен
базар, НАМ
- пл. ПОБЕДЫ»)
followed by a subheading “The head of the Executive Committee of the Ivanovo
Regional Branch of the United Russia party, V., is ready to convert Victory
Square into a market place”. The article criticised the authorities’ neglectful
attitude towards the veterans of the Second World War, as exemplified by the
attempts of some officials to build a shopping centre and car park in Victory Square. The article continued as follows:
“Cynically, loudly, shamelessly and in disregard of public
opinion, Mr V., the head of [the Ivanovo Regional Highways Department] and of
the Executive Committee of the Ivanovo Regional Branch of the United Russia Party,
has been lobbying town officials for the building of a shopping centre, parking
places, etc. in one of the town’s central squares (Victory Square, the name so
dear to the majority of its inhabitants) ...
For the sake of transient personal interests of gluttonous nouveaux
riches some officials from the town administration are ready to sacrifice
(supposedly for a fee) the glory and pride of generations and to devalue and
belittle such notions as ‘Patriotism’, ‘Victory’ and ‘Faith’. Mr V.’s
unscrupulousness, the dubious origins of his wealth and financial resources, and
his readiness to transgress all moral laws to secure his wealth have been known
for a long time. His attempts to persuade the town administration to build
a shopping centre in the central square seem even more suspicious ... People
like V. have so far created nothing, done nothing for their fellow townsmen.
Not only that, the activity of the above-mentioned official has brought
nothing but harm. He worked in the position of general director of the
Polet company and the company lost eighteen billion [Russian roubles]. He
became the head of [the Ivanovo Regional Highways Department] and got money for
serious commercial projects ... The leaders of [the United Russia party] (V. is one of them) lack wisdom, will, aspiration to promote unity in society
by renouncing, at least temporarily, their ambitions and passion for wealth
...” (underlining added, see below).
Mr V. sued the applicant company and the author
of the article in defamation before the Leninskiy District Court. Considering
that the article’s headline, subheading and the extracts underlined above were
untrue and damaging to his dignity and professional reputation, he sought
rectification.
The applicant company maintained that all the
statements of fact contained in the article were true as proved by witness
testimony. The other statements were value judgements and could not be proved.
On 23 December 2003 the District Court granted
Mr V.’s action in part. It found that the underlined extracts were damaging to
Mr V.’s honour, dignity and reputation as they contained allegations that Mr V.
had breached moral and ethical norms, had behaved unscrupulously, cynically and
in disregard of public opinion, and that his activity had been harmful. The defendants
had not proved the veracity of those statements.
In respect of Mr V.’s allegedly dishonest
dealings with Mr Ku.’s public company, the District Court found that the testimony
of Mr Ku., who was hostile towards Mr V., was insufficient to prove the
truthfulness of the allegation that Mr V. had acted unscrupulously in that
matter or that his activity had been harmful.
With regard to Mr V.’s alleged intention to
convert Victory Square into a market place, the District Court noted that the
fact that he had repeatedly attempted to obtain building permission had been
confirmed by Mr G.’s testimony. However, no evidence had been adduced to
suggest that he had done so cynically or in disregard of public opinion.
The District Court accordingly found that the
underlined extracts were untrue, damaging to Mr V.’s honour, dignity and
professional reputation and were liable to rectification. It accepted, however,
that the statements which are not underlined were the author’s subjective
opinion and not susceptible of proof.
Both the applicant company and Mr V. appealed.
On 17 March 2004 the Ivanovo Regional Court
upheld part of the judgment and quashed the remainder. The Regional Court
agreed with the District Court’s findings that the underlined statements were
untrue and damaging to the plaintiff’s honour and reputation. The Regional Court noted in addition:
“The defendants failed to prove the truthfulness of their
allegation that V. had lobbied for the development of Victory Square. The
testimony by witness G[.] that the plaintiff had twice discussed with him the
issue of building a car park in front of the Polet company does not confirm
[the truthfulness of that allegation]. Judging by the meaning of the word ‘to
lobby’ (to apply pressure in order to obtain a certain decision), an
application to a competent official cannot be regarded as lobbying for the
building of a shopping centre in Victory Square.”
Accordingly, the Regional Court upheld the part of the judgment
concerning the underlined statements. That part of the judgment became final.
It quashed the part of the judgment concerning
the statements which are not underlined and remitted the case to the Leninskiy
District Court for re-examination for the following reasons:
“The court considers that the arguments by the plaintiff’s
counsel about the defamatory character of the phrase ‘V. wants a market, WE
WANT VICTORY Sq.’ and other phrases are well-founded. These phrases contain
statements about the facts which have allegedly taken place: ‘attempted to
persuade’, ‘is ready to convert the square’, ‘V. wants a market’. In these
circumstances the court cannot agree with the [District] Court’s finding that
these statements are value judgements of the author of the publication.”
On 13 April 2004 the Leninskiy District Court re-examined
the outstanding part of the case. If found that the headline and subheading of
the article and the statement that “his attempts to persuade the town
administration to build a shopping centre in the central square seem ... more
suspicious” were damaging to Mr V.’s honour, dignity and professional
reputation as they contained allegations that he had breached moral and ethical
norms and had belittled the memory of the veterans of the Second World War.
Mr V. then sued the applicant company and Ms L.
for compensation in respect of non-pecuniary damage and legal costs. On 16 June
2004 the Leninskiy District Court allowed the claims in part and ordered the
applicant company to pay Mr V. RUB 4,000 in respect of non-pecuniary damage,
plus legal costs. On 26 July 2004 the Ivanovo Regional Court upheld that
judgment on appeal.
C. Application no. 35258/05 (“the T. proceedings”)
On 11 January 2005 the Ivanovo-Press
newspaper printed an article by the applicant Mr Smetanin under the headline
“Five pairs of underwear for three years” («Пять трусов на три года»).
He expressed his dissatisfaction with the existing level of salaries and social
security in the Ivanovo Region and precariousness of the job market. The
applicant criticised the governor of the Ivanovo Region for a lack of attention
to those issues, writing as follows:
“In the meantime, at the children’s new year party the governor
talked about his cherished dream to find a life companion in 2005. He does not
think about the people but solely about himself. He was married twice and is
now searching yet again. The entire region is gossiping about him and Ms D. but
he does not care. He continues to turn us into zombies ...
When electing him, [we] expected that a Communist would care
about the people. But he turned out to be a simple demagogue! ...
The governor now claims that he is certain to be re-appointed
for a second term with a probability of 67 per cent. Did you ask the people’s
opinion? The people have faith in the president but, in my view, if he decides
to re-appoint the individuals who brought discredit upon themselves, the
residents of the Ivanovo region would not appreciate it!”
The article was accompanied
by a photograph showing two men, one of whom appears to be the governor of the
Ivanovo Region. The photograph carried the following caption: “In my view,
these men do not give a damn about anyone as long as [their] pockets are full
of money and [they have] a cute babe close by.”
The governor Mr T. and the deputy head of the
governor’s administration Ms D. sued the first and second applicants for
defamation. They claimed that the above-cited extracts and the caption under
the photograph damaged their dignity, honour and reputation.
On 31 March 2005 the Leninskiy District Court
gave judgment and granted the claim in part.
The District Court found, firstly, that the
applicants failed to prove the allegation that the governor was an individual
who “brought discredit upon [himself]”. It held as follows:
“The respondents did not produce any evidence showing the
veracity of the said statements. A copy of the Ivanovskaya Zemlya newspaper of
17 March 2005, in which the campaign ‘For the Ivanovo Region without [governor]
T.!’ was launched and the signatures collected against the re-appointment of Mr
T. for a second term may not be such evidence, similarly to any other newspaper
publications. The veracity of the statements printed in the newspaper and
participation of the listed organisation in the campaign has not been
established by anyone. The publication in the Ivanovskaya Zemlya newspaper of
17 March 2005 only demonstrates the existence of political struggle for the
governor’s position.”
The District Court further considered that the
extract concerning the governor’s personal relationships - starting from “He
does not think ...” and to the end of the paragraph - contained the assertions
that he had favoured his private life to the detriment of the social and
economic development of the region, neglected his professional duties, engaged
in an extra-marital relationship with Ms D. and also attempted to turn the
people of the region into “zombies”. The District Court pointed out that the
applicants failed to produce any evidence in support of those allegations which
were damaging to the reputation of both the governor and Ms D.
Referring to Resolution no.
3 of the Plenary Supreme Court (cited in paragraph 54 below), the District
Court also found that the caption of the photograph was not actionable in
defamation because it expressed the author’s personal opinion and because it
did not refer directly to Ms D.
The District Court held that the applicant company
should pay RUB 20,000 to the governor and RUB 15,000 to Ms D. and the
applicant Mr Smetanin RUB 5,000 and RUB 3,000, respectively. It also
ordered publication of the entire judgment by way of rectification.
On 11 May 2005 the Ivanovo Regional Court upheld
the judgment on appeal, in a summary fashion.
D. Application no. 35618/05 (“the S. proceedings”)
Between September 2004 and January 2005 the Ivanovo-Press
newspaper published a series of articles which criticised the management of the
Ivanovo Regional Social Security Fund by its director Ms S. In connection with
those publications Ms S. lodged two defamation claims before the Leninskiy
District Court of Ivanovo.
1. First defamation claim
On 4 March 2005 the Leninskiy District Court
issued judgment in the first defamation claim, in which the applicant company
and the applicant Mr Smetanin were the defendants.
The District Court found, firstly, that the
headline of the article by the applicant Mr Smetanin entitled “Shady
organisations stand up for S.” («За С-ву заступаются теневые
структуры»)
printed in issue no. 39 of 28 September 2004, was damaging for her
reputation. The article concerned a visit that the director of the Zabota
foundation Mr L. had paid to the newspaper’s office to express his discontent
about the negative coverage of Ms S.’s activities in previous publications.
Examined in the witness stand, Mr L. testified that the Zabota foundation had
been set up to assist orphaned children, the disabled and rehabilitated criminals
and that one half of the foundation’s employees were former convicts. He stated
that he had had professional contacts with Ms S. and had sought her assistance
in obtaining holiday vouchers for orphaned children. Exasperated by the
aspersions the newspaper had cast on Ms S., he had come to the office and had
spoken to the editor-in-chief. The District Court determined that, in the
absence of any evidence of the Zabota foundation’s involvement in criminal or
illegal activities, the allegation contained in the article’s headline was
untrue.
Secondly, the District Court considered the
assertions made by the applicant Mr Smetanin in the article “Sports, children’s
holidays and corruption” («Спорт,
детский отдых и коррупция»)
printed in issue no. 40 of 5 October 2004. The article alleged in
particular that Ms S. had “earned a fortune by simply siphoning off a large
part of funds through an acquaintance of hers” and that “for a long time those
amounts [had been] used to feed bandits and double-faced policemen who
cover[ed] up for her”. The District Court examined Ms U., who was Ms S.’s
“acquaintance” mentioned in the article, and two employees of the
social-security fund, but found no evidence of any misappropriations or
unlawful transfer of funds. Accordingly, it concluded that the allegations were
untrue and damaging for Ms S.’s reputation.
Thirdly, the District Court examined two
extracts from an article by the applicant Mr Smetanin published in issue no. 42
of 19 October 2004 and found as follows:
“The assertions that S. had made fun of [President] Putin and
that S. hides her real face from public are also damaging to the plaintiff’s
reputation ...
The sentence ‘T. S. hides her real face from the public’
contains in fact an assertion that the plaintiff is double-faced and has a
different, genuine face which she hides from the public. This conclusion finds
corroboration in the submissions by the representative of the defendants who
stated in court that the purpose of that figure of speech was to inform the
readers that there were not just positive but also negative aspects to the
plaintiff’s reputation. According to [the authoritative dictionary of Russian
language], the word ‘two-faced’ means something that presents two contradictory
aspects, hypocritical, insincere. No evidence showing the veracity of those
statements was submitted to the court. The prosecutor’s office discontinued
criminal case no. 3025 against Ms S. for lack of indications of the criminal
offences under Article 285 and 160 of the Criminal Code. The reports by [the
auditing authorities] do not contain any such evidence, either.
According to the same dictionary, the expression ‘make fun’ of
someone (the same as ‘laugh at’) means to ridicule or scorn something or
somebody; the article concerns the disrespect of legal requirements and
incompliance with the Presidential Decree [which required State officials to
render assistance to journalists in obtaining exact and truthful information]. ...
The plaintiff clarified in court that her refusal to give out information about
the employees of the social security fund had been prompted by written
petitions from the fund employees who had objected to having the information on
their place of work released to the media. For that reason [the court considers
that] the refusal to communicate such information to the media does not
demonstrate that Ms S. had made fun of the President of the Russian Federation.”
The District Court awarded Ms S. RUB 20,000 from
the applicant company and RUB 3,000 from the applicant Mr Smetanin in
respect of non-pecuniary damages, RUB 2,500 and RUB 1,000 respectively for
legal fees, and RUB 30 and RUB 10 respectively for court fees.
On 6 April 2005 the Ivanovo Regional Court
upheld the judgment in a summary fashion.
2. Second defamation claim
On 11 May 2005 the Leninskiy District Court gave
judgment in a second defamation claim lodged by Ms S. against the applicant
company, Mr Smetanin and Mr Ovchinnikov.
Analysing the article by the individual
applicants which appeared in issue no. 48 of 30 November 2004 under the
headline “S. is cheating ...” («С-ва обманывает»),
the District Court determined that the headline itself did not contain
information about concrete facts or events because it did not specify “what the
nature of the cheating had been and whom and when the plaintiff had cheated”.
The District Court further examined the
following extract from the same article:
“... in 2002, the regional control and audit department checked
the accounts of the fund relating to the organisation of summer holidays and
discovered an overexpenditure of 11 million roubles. We think that such a
considerable amount was transferred by Ms S.’s fund to Ms U[.]’s company.
According to our sources, the law-enforcement authorities took an interest in
that transaction, but someone quickly cooled their interest down.”
The District Court considered that the sentence
about the transfer of a large amount of money to Ms U.’s company was not
actionable in defamation since it was phrased as the authors’ supposition. On
the other hand, it held that the final sentence about the sudden loss of
interest by the law-enforcement authorities was damaging to the plaintiff’s
reputation as it contained “an assertion of Ms S.’s involvement in unlawful
distribution of the assets of the social-security fund”.
In respect of the article entitled “S.’s case” («Дело С-вой») in issue no. 1 of 11 January 2005, the
District Court found that it contained untruthful and damaging allegations that
Ms S. had renovated her flat at the expense of the social-security fund and
that she had lent the fund’s money to private companies almost for free.
The final element of the
defamation claim was the article which appeared in issue no. 4 of 1 February
2005. It concerned a possible replacement of Ms S. as the director of the Ivanovo social-security fund with another person and contained the following statement:
“This fact cannot give rise to optimism because, instead of one
dubious individual with a criminal past, the fund will be managed by another
individual who, in our opinion, should have no place in the executive power.”
In respect of this sentence the District Court found as
follows:
“There is no doubt that the sentence contains an allegation of
the plaintiff’s criminal past ... whereas the defendants did not produce
evidence of any such past. The fact that a criminal case was opened against Ms S.
cannot attest to her criminal past as it was subsequently discontinued for lack
of indications of a criminal offence. There is no doubt that the allegation of
criminal past is damaging to her honour, dignity and reputation. At the same
time, the adjective ‘dubious’... is a value-judgment which does not contain any
statement of fact and is not amenable to rectification.”
The District Court awarded Ms S. RUB 20,000 from
the applicant company and RUB 5,000 from each of the individual applicants in
respect of non-pecuniary damages, RUB 2,000 and RUB 500 respectively for legal
fees, and RUB 200 and RUB 50 respectively for court fees.
On 15 June 2005 the Ivanovo Regional Court
upheld the judgment on appeal, in a summary fashion.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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
statements (“svedeniya”) 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. Resolution no. 3 of 24 February 2005 issued by the
Plenary Supreme Court of the Russian Federation
The Resolution requires
the courts hearing defamation claims to distinguish between the statements of
facts which can be checked for veracity and evaluative judgments, opinions and
convictions which are not actionable under Article 152 of the Civil Code since
they are an expression of the defendant’s subjective opinion and views and
cannot be checked for veracity (paragraph 9).
III. RELEVANT COUNCIL OF EUROPE MATERIAL
On 12 February 2004 the Committee of Ministers
of the Council of Europe adopted, at the 872nd meeting of the Ministers’
Deputies, the Declaration on freedom of political debate in the media which
read in particular as follows:
The Committee of Ministers of the Council of Europe,
...
Reaffirming the pre-eminent importance of freedom of expression
and information, in particular through free and independent media, for
guaranteeing the right of the public to be informed on matters of public
concern and to exercise public scrutiny over public and political affairs, as
well as for ensuring accountability and transparency of political bodies and
public authorities, which are necessary in a democratic society, without
prejudice to the domestic rules of member states concerning the status and
liability of public officials ...
Conscious that natural persons who are candidates for, or have
been elected to, or have retired from political bodies, hold a political
function at local, regional, national or international level or exercise
political influence, hereinafter referred to as “political figures”, as well as
natural persons who hold a public office or exercise public authority at those
levels, hereinafter referred to as “public officials”, enjoy fundamental rights
which might be infringed by the dissemination of information and opinions about
them in the media;
Conscious that some domestic legal systems still grant legal
privileges to political figures or public officials against the dissemination
of information and opinions about them in the media, which is not compatible
with the right to freedom of expression and information as guaranteed by
Article 10 of the Convention;
Draws particular attention to the following principles
concerning the dissemination of information and opinions in the media about
political figures and public officials:
...
III. Public debate and scrutiny over political figures
Political figures have decided to appeal to the confidence of
the public and accepted to subject themselves to public political debate and
are therefore subject to close public scrutiny and potentially robust and
strong public criticism through the media over the way in which they have
carried out or carry out their functions.
IV. Public scrutiny over public officials
Public officials must accept that they will be subject to
public scrutiny and criticism, particularly through the media, over the way in
which they have carried out or carry out their functions, insofar as this is
necessary for ensuring transparency and the responsible exercise of their functions.”
THE LAW
I. JOINDER OF THE APPLICATIONS
The Court observes that the central issue in the
above applications was the applicants’ right to freedom of expression and that
they had originated in the same region and involved the same newspaper and the
same domestic courts. Having regard to the similarity of the circumstances
which are common to all four applications, the Court is of the view that, in
the interests of the proper administration of justice, the applications should
be joined in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicants complained that the judgments of
the Russian courts pronounced in the defamation claims had been in breach of Article
10 of the Convention, which 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. Submissions by the parties
1. The Government
The Government accepted that the domestic
judgments constituted an interference with the applicants’ right to freedom of
expression. That interference had a lawful basis in Article 152 of the Civil
Code and pursued a legitimate aim of the protection of the reputation of
others.
According to the Government,
the Russian courts drew a clear distinction between value judgments and
statements of fact. Thus, in the K. proceedings, they correctly considered that
the expressions “boss in law” and “gas racket” were not value judgments because
the latter expression amounted to an assertion that K. had extorted others’
property by threats, blackmail and violence. With regard to the V. proceedings,
the Government claimed that Mr V.’s repeated applications for permission to
build a parking lot could not be described as “cynical” and “shameless”
lobbying of a construction project; rather, his actions should have been viewed
as an attempt to arrange an “orderly placement of visitors’ vehicles”. In the
Government’s view, the article about Mr V. had been a “provocation”, written in
a pompous style and full of “high-impact statements”, which created an
ambiguous impression about Mr V., portraying him as someone who disrespected
moral requirements and desecrated the memory of the Great Patriotic War. The
Government acknowledged that the domestic courts did not examine whether the
contested statements could have been value judgments because the then effective
law did not require them to do so.
The Government further submitted that the
statements about Mr T. did not have a solid factual basis and were not a fair
comment on his private life or on the private life of Ms D. Since both
plaintiffs held high positions in the local municipal service, a refutation of
the applicants’ accusations against them had been necessary for the protection
of their untarnished reputations. With regard to the S. proceedings, the
Government stated that the domestic courts had drawn a clear distinction
between value judgments and statements of fact and had correctly established
that the publications contained serious allegations against Ms S. They claimed
that the applicants had used the report by the Ivanovo Region Control and Audit
Department of the Ministry of Finance and the information about criminal
proceedings against her, to relate their “speculations and conjectures” about
Ms S. and “to link her with the criminal underworld”.
Commenting on the proportionality of the
interference, the Government pointed out that the proceedings against the
applicants were civil rather than criminal in nature and that the awards
against them were small in amount.
2. The applicants
The applicants did not dispute that the
interference was lawful and pursued a legitimate aim - the protection of the
reputation of named individuals.
They emphasised that their publications touched
upon issues of considerable public interest: the protection of the rights of a
family of three disabled members in the case of the K. proceedings; denunciation
of private lobbying efforts undertaken by a high-ranking State official Mr V.; a
critical review of social and economic policy of the governor Mr T.; and
misallocation of resources in the social-security fund, of which Ms S. had been
the director.
The applicants maintained that the Russian
courts failed to distinguish between statements of fact and value judgments, on
the one hand, and between facts and their opinions or comments on those facts,
on the other hand. That the courts had to supply their own interpretation of
the disputed extracts by describing the feelings which they evoked suggested
that the extracts in questions were value judgments not amenable to proof. The
applicants pointed out that the Government’s observations did not refer to the
actual wording of the publications but rather to the impression which the
contested publication conveyed.
In conclusion, the applicants submitted that the
amounts of the domestic awards were rather substantial for a small regional
newspaper with a limited circulation.
B. Admissibility
The Court considers that the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
C. Merits
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 applicants’ 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
(see paragraph 54 above), 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 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, among many other authorities, Lindon, Otchakovsky-Laurens
and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV).
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, for
instance, 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, with further references).
In the present case the applicants expressed their
views by having them published in a newspaper run by the applicant company. They
were found civilly liable for their publication, therefore the impugned
interference must be seen in the context of the essential role of the press in
ensuring the proper functioning of a democratic society (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 59, ECHR 1999-IV, and Lingens v. Austria, 8 July
1986, § 41, Series A no. 103). In examining the particular circumstances of the
case, the Court will take the following elements into account: the position of
the applicants, the position of the persons against whom their criticism was
directed, the subject matter of the publications, characterisation of the
contested statement by the domestic courts, the wording used by the applicants,
and the penalty imposed (see Krasulya v. Russia, no. 12365/03, § 35,
22 February 2007, with further references).
The plaintiffs in all four defamation claims
were State officials or employees, including the Ivanovo Region governor Mr T.,
the head of a department of the regional government and the leader of the
incumbent party Mr V., the director of the regional social-security fund Ms S.,
and the director of a State company Mr K. The main thrust of the applicants’ criticism
was not directed at their private activities but rather at their conduct in
professional capacity and the manner in which they discharged the public
functions which had been entrusted to them. Moreover, Mr T. and Mr V. were an elected
public official and a career politician, respectively, who occupied positions
of a certain prominence and visibility. The Court reiterates in this connection
its constant position - which is also reflected in the Committee of Ministers
Declaration on freedom of political debate in the media - that, in a democratic
society, public officials must accept that they will be subject to public
scrutiny and criticism, particularly through the media, over the way in which
they have carried out or carry out their functions, insofar as this is
necessary for ensuring transparency and the responsible exercise of their
functions. It has been the Court’s constant position that the limits of
permissible criticism are wider with regard to a government official in the
course of performance of his or her functions than in relation to a private
citizen (see Novaya Gazeta v Voronezhe v. Russia, no. 27570/03, § 47, 21 December 2010, Dyuldin
and Kislov v. Russia, no. 25968/02, § 45, 31 July 2007, and,
as a classic authority, Castells v. Spain, 23 April 1992, § 46,
Series A no. 236).
However, there is no evidence in the domestic
judgments that the courts performed a balancing exercise between the need to
protect the plaintiffs’ reputation and journalists’ right to divulge
information on issues of general interest. They confined their analysis to the
discussion of the damage to the plaintiffs’ reputation without giving any
consideration to the applicants’ journalistic freedom or to the plaintiffs’
status as public officials acting in an official capacity. In the Court’s view,
the Russian courts did not seem to recognise that the proceedings in the present
case involved a conflict between the right to freedom of expression and the
protection of reputation (see Dyundin v. Russia, no. 37406/03, § 33, 14 October
2008). It does not appear that the domestic courts carried out an analysis of
whether or not the contested publications sought to make a contribution to a
debate on matters of general interest or public concern. The Court reiterates
in this respect that there is little scope under Article 10 § 2 of the
Convention for restrictions on debate on questions of public interest and that
very strong reasons are required for justifying such restrictions (see Godlevskiy
v. Russia, no. 14888/03, § 41, 23 October 2008, Krasulya, cited
above, § 38, and Feldek v. Slovakia, no. 29032/95, § 74, ECHR
2001-VIII).
Turning next to the qualification of the
contested statements by the Russian courts, the Court reiterates 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 Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Oberschlick v. Austria (no. 1), 23 May 1991, § 63, Series A no. 204, and paragraph 77 below). The Court
has on many occasions pinpointed the structural deficiency of the Russian law
on defamation which made no distinction between value judgments and statements
of fact, referring uniformly to “statements” (“svedeniya”), and
proceeded from the assumption that any such “statement” was amenable to proof
in civil proceedings (see Novaya Gazeta v Voronezhe, cited above, § 52; Andrushko
v. Russia, no. 4260/04, §§ 50-52,
14 October 2010; Fedchenko v. Russia, no. 33333/04, §§ 36-41, 11 February 2010; Dyuldin
and Kislov, cited above, § 47; Karman v. Russia, no. 29372/02,
§ 38, 14 December 2006; Zakharov v. Russia, no. 14881/03, § 29, 5
October 2006, and Grinberg v. Russia, no. 23472/03, § 29, 21 July
2005).
The failure of the domestic courts to draw a
clear distinction between value judgments and statements of fact was
particularly salient in the proceedings instituted by Mr V. in 2003 (see
paragraphs 14-27 above). The Ivanovo Region courts held that the applicants
failed to prove that Mr V. had acted “cynically, loudly, shamelessly”, that he
had “created nothing, done nothing for [his] fellow townsmen”, that his
professional activity as a State official had “brought nothing but harm”, or
that he had lacked “wisdom, will, aspiration to promote unity in society by
renouncing, at least temporarily, [his] ambitions and passion for wealth” (see
paragraph 16 above). Likewise, in the contemporaneous proceedings instituted by
Mr K. (see paragraphs 6-13 above), the District Court insisted on a factual and
literal reading of the applicants’ phrase that Mr K. had “declared war” on an
indebted family and held this sentence to be untrue in the absence of an actual
declaration of war (see paragraph 9 above). In the Court’s view, those expressions
were examples of value judgments that represented the applicants’ subjective
appraisal of the moral dimension of Mr V.’s and Mr K.’s activities. In that
sense they were no different from the claim about the governor having no “shame
or scruples”, which the Russian courts, in other proceedings, held to be a
statement of fact whose veracity the journalist had failed to prove (see Grinberg,
cited above, § 31, and also compare with Krasulya, cited above,
§ 42). In their submissions, the Government expressly acknowledged that
the courts did not distinguish between value judgments and statements of fact because
the then effective law, as interpreted and applied at the material time, did
not require them to draw such a distinction (see paragraph 59 above).
By contrast, the hearings on the defamation
claims lodged by Mr T. and Ms S. took place in March and May 2005, that is
after the Plenary Supreme Court of the Russian Federation had issued its
resolution of 24 February 2005. In particular, paragraph 9 of the
resolution required the Russian courts to distinguish between statements of
fact, on the one hand, and “evaluative judgments, opinions and convictions”, on
the other hand, which were to be seen as an expression of the author’s
subjective view not actionable in defamation (see paragraph 54 above). The
Court notes with satisfaction this evolution of the domestic practice which transposed
the Convention standards in national defamation law. It will therefore examine
in detail the effect that the resolution may have had on the decision-making
process of the Russian courts in the T. and S. proceedings.
It is noted, firstly, that the District Court
applied the requirements of the resolution in respect of certain turns of
speech which it characterised as value judgements. In the T. proceedings, it referred
to the resolution to establish that the caption of the photograph accompanying
the contested publication expressed the author’s personal opinion and was not
actionable in defamation (see paragraphs 29 and 34 above). In the S.
proceedings, it acknowledged that the adjective “dubious” used to describe Ms
S. was a value judgment which did not contain any factual allegations and was
not therefore amenable to a rectification (see paragraphs 49 and 50 above).
Further, the District Court identified a number
of instances in which the applicants made specific factual allegations which
could be tested for truthfulness. Those included the accusations against Ms S.
who had allegedly liaised with criminal structures (see paragraph 39 above),
misappropriated money from the social security fund (see paragraph 40 above) or
renovated her flat at the public expense (see paragraph 48 above). The Court
agrees with the domestic courts that those expressions must be considered
statements of fact. Noting that the applicants were unable to adduce sufficient
evidence in support of those allegations, it sees no reason to disagree with
their assessment that the accusations were of such a nature and gravity as to
be capable of causing considerable harm to the reputation of Ms S.
In the T. proceedings, the District Court held
the applicants responsible for disseminating unverified information about the
governor’s alleged involvement in an extramarital affair. The applicants presented
the matter as common knowledge (“the entire region is gossiping”, see paragraph
28 above), without attempting to verify the rumours. Although the applicants
only cited the affair as an illustration of their thesis that the governor
cared more about his private life than he did about his official duties - which
could have been taken as a value judgment - the Court reiterates that even a value judgment must be based on sufficient facts in
order to constitute a fair comment under Article 10 and that the difference
between a value judgment and a statement of fact finally lies in the degree of
factual proof which has to be established (see Dyuldin and Kislov,
cited above, § 48, and Scharsach and News Verlagsgesellschaft v. Austria,
no. 39394/98, § 40, ECHR 2003-XI). Although the journalists must be afforded
some degree of exaggeration or even provocation, especially when it comes to
critical reporting about politicians or public figures, the Court accepts the
findings of the Russian courts in this connection and considers that the frivolous
and unverified statements about Mr T. private life must be taken to have gone beyond
the limits of responsible journalism (compare Tønsbergs Blad A.S. and Haukom
v. Norway, no. 510/04, § 92, 1 March 2007).
That being said, the Court is bound to recognise
that the requirement to distinguish between value judgments and statements of
facts contained in the Supreme Court’s resolution was a legal novelty at the
material time. The T. and S. proceedings indicate that its application in
practice by Russian courts was not immediately unproblematic. Thus, the
domestic courts did not examine whether the statements about the governor Mr T.
“bringing discredit upon himself” or turning people into “zombies” (see
paragraphs 32 and 33 above) or the statements about Ms S. “hiding her real
face from public” and “making fun of President Putin” (see paragraph 41 above) could
have been value judgments not amenable to proof in civil proceedings. The Court
considers that those statements did not contain any factual allegations and
were value judgments rather than statements of fact. Moreover, it notes that the
applicants did produce in the domestic proceedings some evidence capable of
showing that their evaluation of Mr T.’s unimpressive performance in the
governor’s position or Ms S.’s incomplete compliance with the disclosure
requirements was not unjustified (see paragraphs 32 and 41 above). In these
circumstances, the Court finds that the requirement to prove their truth was incompatible
with the applicants’ right to freedom of expression which includes possible
recourse to a degree of exaggeration or provocation.
Finally, the Court observes that in all sets of
proceedings the applicants were ordered to pay damages ranging from RUB 3,000
to RUB 20,000 (approximately 85 to 575 euros). These amounts are not
significant even by the regional standard of living. Nevertheless, the Court
does not consider it decisive that the proceedings were civil rather than
criminal in nature and that the final awards were relatively small. What is
important in the instant case is that the domestic courts in all four sets of
proceedings - albeit to a varying degree - held the applicants responsible for
failing to prove the truthfulness of value judgments, that they did not assess the
issue whether or not the publications contributed to a debate on a matter of
public interest or general concern, and that they failed to recognise the wider
limits of permissible criticism in respect of State officials and employees.
Those failings call for the conclusion that the standards, according to which
the national authorities examined the defamation claims against the applicants,
were not in conformity with the principles embodied in Article 10.
There has therefore been a violation of Article
10 of the Convention in all sets of proceedings.
III. OTHER VIOLATIONS OF THE CONVENTION
The applicants also raised additional complaints
with reference to Article 10 of the Convention.
In light of all the material in its possession
and in so far as the matters complained of are within its competence, the Court
finds that those complaints do not disclose any appearance of violations of the
rights and fundamental freedoms set out in the Convention and its Protocols.
It follows that the case in this part must be
rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV. 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 and costs
The applicants claimed the following amounts:
- in respect of the K. proceedings: 100.20 euros (EUR) for
pecuniary damage representing the amounts disbursed in the domestic
proceedings, EUR 1,500 for non-pecuniary damage, and EUR 2,217.48 for
translation costs;
- in respect of the V. proceedings: EUR 994.86 for pecuniary
damage representing the amounts paid to Mr V. and court fees, EUR 2,000 for
non-pecuniary damage, and EUR 1,611.61 for legal fees, postal and translation
expenses;
- in respect of the T. proceedings: EUR 1,207.48 for pecuniary
damage representing the amounts paid to the plaintiffs and court fees, EUR
1,000 for non-pecuniary damage, and EUR 627.46 for postal and translation
expenses;
- in respect of the S. proceedings: EUR 1,207.48 for pecuniary
damage representing the amounts paid to the plaintiffs and court fees, EUR
2,000 for non-pecuniary damage, and EUR 2,611.61 for legal fees, postal and
translation expenses.
The Government submitted that no compensation in
respect of the pecuniary damage should be awarded because there was no
violation of the applicants’ rights. Their claim in respect of non-pecuniary
damage was excessive in comparison with the awards made by the Court in similar
cases (here they referred to Godlevskiy and Zakharov, both cited
above, in which the award amounted to EUR 1,000, and to Marônek v. Slovakia, no. 32686/96, ECHR 2001-III, in which the Court considered that
the finding of a violation would be sufficient just satisfaction). Finally,
they argued that the costs and expenses were not shown to have been actually
incurred.
The Court notes that the applicants’ claim in
respect of pecuniary damage covered the court fees in the domestic proceedings
and the amounts of judicial awards against them in those proceedings. Noting
that the evidence of payment of fees and awards was provided, it accepts the
claim under this head and awards the applicants jointly EUR 3,510 in respect of
pecuniary damage plus any tax that may be chargeable on that amount.
The Court further considers that in the
circumstances of the case a finding of a violation of Article 10 will
constitute sufficient just satisfaction for the applicants in respect of
non-pecuniary damage.
Finally, the Court is satisfied that the claim
for costs and expenses was corroborated with documentary evidence and was
reasonable as to quantum. However, one of the complaints turned out to be
inadmissible and a small reduction must be applied on that account. In these
circumstances, it awards the applicants jointly EUR 6,000 under this head, plus
any tax that may be chargeable to them.
B. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Decides to
join the applications;
2. Declares
the complaints concerning the defamation proceedings in which the applicants
were the defendants admissible and the remainder of the applications
inadmissible;
3. Holds that there has been a violation of
Article 10 of the Convention in respect of all four sets of proceedings;
4. Holds that the finding of violation is
sufficient just satisfaction for any non-pecuniary damage suffered by the
applicants;
5. Holds
(a) that the respondent State is to pay the applicants
jointly, 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 3,510 (three thousand five hundred and ten euros),
plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 6,000 (six thousand euros), plus any tax
that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 22 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Isabelle
Berro-Lefèvre
Registrar President
