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FIRST
SECTION
CASE OF ANDRUSHKO v. RUSSIA
(Application
no. 4260/04)
JUDGMENT
STRASBOURG
14 October
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 Andrushko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 23 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4260/04) 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, Ms Svetlana Vasilyevna
Andrushko (“the applicant”), on 11 December 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev,
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicant alleged violations of the right to freedom of expression
and the right to fair civil proceedings.
- On
9 September 2005 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 § 1).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Omsk.
- She
stood as a candidate for the elections to the legislative assembly of
the Omsk Region scheduled for 24 March 2002. One of her competitors
was Mr K., a local businessman.
- On
20 March 2002 thirty-nine minority shareholders and former employees
of the local department store “Oktyabrskiy” asked the
applicant to finance a campaign against Mr K., the majority
shareholder of Oktyabrskiy and the chairman of its Board of
Directors.
- On
the same day the applicant arranged for the printing of 1,500 copies
of the following leaflet, drafted by the shareholders:
“The Truth about K[.]
We, shareholders of the Oktyabrskiy department store,
have suffered from K[.] We are thirty-nine employees taken hostage
by that voracious big wheel. K[.]:
– depreciated our stock;
– coerced us into selling the stock for a song,
threatening us with dismissal;
– forced thirty-nine employees to resign by not
letting them work;
– paid a miserable salary and often paid us
with rotten groceries;
– having ousted the shareholders by unlawful
means, he has become the department store owner.
For more than a year we have been fighting for our
rights in courts and other instances. The law-enforcement agencies
are still powerless. In Omsk and its region many people have suffered
because of K[.]’s unlawful conduct; but everyone is silent and
money does not smell.
We, as victims of K[.]’s conduct, propose to write
a book entitled ‘The story of K[.]’s dark fortune’.
Let it include the story of everyone who has met that terrible man
on his or her way and become his victim. His fortune was made
from our tears. Do not taint yourself by supporting this man.
Whatever he undertakes is damned: every spring the renovated city
hall is flooded with sewage, and the Patriarch did not come to bless
the Church on the left bank which had been built in breach of
Orthodox canons.
We have suffered much harassment, repression and many a
misfortune because of this man. Do not trust his promises, they
build on our sorrows and lack of rights.
Voters! Sign your fair judgment of K[.]! Say ‘no!’
to the fortune made from the woes and tears of simple people.
We are firmly convinced that a man who breaks the Law
should not be a parliamentarian and lawmaker.
On behalf of the shareholders: G. F[.], L. K[.], V.
A[.]” (emphasis added)”
- On
26 March 2002 the applicant was elected a member of the legislative
assembly of the Omsk Region.
- Mr
K. challenged the election results before the Omsk Regional Court. In
particular, he claimed that by publishing the leaflet the applicant
had resorted to unlawful electoral campaigning. The parties to the
proceedings were Mr K. and the electoral commission. The applicant
was cited as a third party.
- On 4 June 2002 the Omsk Regional Court rejected Mr
K.’s application. It found that the leaflet had called on
electors to vote against Mr K., which was a permissible form of
electoral agitation. The publication of that leaflet had not breached
the electoral laws. If Mr K. believed that the leaflet contained
untrue information damaging to his honour and reputation, it was open
to him to bring defamation proceedings.
- Mr
K. sued the applicant and the three signatories of the leaflet for
defamation. He submitted that the italicised extracts above were
untrue and that the leaflet had damaged his reputation and gravely
affected the voters’ freedom of choice. He claimed compensation
in respect of non-pecuniary damage.
- The
applicant produced her evidence, including the original leaflet
bearing thirty-nine signatures, the decision to issue additional
shares taken by the Board of Directors of the Oktyabrskiy department
store under the chairmanship of Mr K., and an official document
showing that the flooding of the ground floor of the city hall had
been due to a construction defect which had subsequently been
corrected. Several of the minority shareholders had given oral
testimony to the court, confirming the information contained in the
leaflet.
- On
11 April 2003 the Kirovskiy District Court of Omsk allowed Mr K.’s
claims, finding that the defendants had failed to prove the
truthfulness of the contested extracts.
- Firstly, the court referred to the judgment of the
Omsk Regional Court of 4 June 2002. It found that it was bound by the
finding contained in that judgment that the applicant had failed to
prove the truthfulness of the statements in the leaflet.
- The
court further found as follows.
(a) The
decision approving the issue of 300,000 additional shares had been
adopted by a general meeting of shareholders rather than by Mr K.
personally. That decision had previously been found lawful by a
court. Although Mr K. was a majority shareholder, the fact that he
had a decisive vote in certain issues “did not imply the
unlawfulness of the decisions taken. For that reason the accusation
blaming Mr K. for the depreciation of the shares and the ousting of
shareholders, as if it were unlawful conduct, was unsubstantiated.
The defendants had failed to prove that Mr K. had acted unlawfully”.
(b) It
had not been shown that the depreciation had been the result of
Mr K.’s conduct rather than of another cause. Moreover,
the defendants had sold their shares for 800 to 1,000 roubles each.
(c) That
there had been compulsion to sell shares had not been established. Mr
K., being the chairman of the Board of Directors, had suggested that
shareholders should sell their shares at the price of 30 roubles
each. There was no evidence that he had resorted to extortion,
violence or threats of violence.
(d) The
allegation that Mr K. had “forced thirty-nine employees to
resign by not letting them work” was also unsubstantiated. Mr
K. had not personally signed any dismissals. The employees had
resigned of their own free will and the resignations had been
countersigned by the director general, Mr B. There had therefore been
no causal link between Mr K.’s actions and the dismissals of
the employees.
(e) The
defendants had failed to prove that Mr K. had been personally
responsible for the payment of “a miserable salary”. The
salary of the employees of the Oktyabrskiy department store had been
comparable to the average salary in the region. Moreover, “the
notion of a miserable salary [was] subjective and the fact that such
a salary [had been] paid did not imply that it was a consequence of
Mr K.’s conduct. The unlawfulness of his conduct had not been
proved”.
(f) The
defendants had not submitted any evidence proving that shareholders
had been ousted by unlawful methods or that Mr K. had obtained the
ownership of the Oktyabrskiy department store unlawfully.
(g) The
allegation that “whatever [Mr K.] undertakes is damned”
was a “violation”. The statement that the city hall was
flooded every spring was untrue as additional construction works in
the city hall had fixed the flooding problem. As to the statement
about the church, the Prior of the church had confirmed that it had
been built in compliance with Orthodox canons. Moreover, Mr K. had
received a “letter of benediction” for its construction.
- The
District Court concluded as follows:
“The leaflet was clearly intended for [electoral]
campaigning and essentially purported to induce, and has induced,
voters to take part in the election and vote against the candidate Mr
K[.], which is not prohibited under election law.
It has been established that [the applicant] was not the
source of the information in the leaflet, or its author; she merely
disseminated it. As to the words, expressions and statements about
[Mr K.’s] property and fortune and the way it was made, they
reflect the opinion and civic position of a micro-community of
shareholders and former employees in respect of an existing dispute
between them and the joint stock company of which Mr K[.] is one of
the directors. A judicial dispute concerning these matters is pending
before the Omsk Commercial Court ...
As the court considers it proven that the dissemination
of statements by the defendants has damaged Mr K[.]’s honour,
dignity and professional reputation, it awards him 500 roubles
against [the applicant] in compensation for non-pecuniary damage...
The court takes into account the nature of the statements
disseminated and the fact that the leaflet was signed not only by the
defendants, but also by thirty-nine other persons, which
substantially reduced the defendants’ liability for the
non pecuniary damage incurred by the plaintiff.”
- In
the operative part of the judgment the court cited the italicised
statements in the leaflet and pronounced them untrue and defamatory.
- The
applicant appealed against the judgment. She submitted that the
District Court had incorrectly considered itself bound by the
judgment of 4 June 2002, which had concerned a dispute involving
a different cause of action and different parties. It had concerned a
dispute over the election results between Mr K. and the electoral
commission; the applicant had been a third party to that dispute. The
issues relating to defamation or compensation for non-pecuniary
damage had not been examined in the judgment of 4 June 2002. The
applicant further maintained that the defendants had submitted
evidence proving the truthfulness of the contested allegations. In
particular, the witnesses had confirmed that all the statements
contained in the leaflet were true. The District Court’s
findings had been contradictory. In particular, although the District
Court had found that Mr K., being the majority shareholder of
the Okrtyabrskiy department store, had influenced its policy, it had
also found, conflictingly, that Mr K. had not been personally
responsible for the impugned omissions. In conclusion, the applicant
submitted that the judgment of 11 April 2003 had violated her right
to impart opinions.
- On 11 June 2003 the Omsk Regional Court upheld the
judgment of 11 April 2003 on appeal. It held as follows:
“The conclusions of the [District] Court are
correct, as it can be seen from the contents of the entire contested
text that the authors presented Mr K[.], a candidate for election to
the legislative assembly of the Omsk Region and head of [the
Oktyabrskiy department store] as disreputable, as someone who
infringes the Law and moral principles, who builds his fortune
unlawfully and who harasses the shareholders of the Oktyabrskiy
department store in various ways ...
The [District] Court allowed the claims as the
defendants had not submitted evidence showing that the allegations
contained in the leaflet were true. Moreover, the assessment of Mr
K[.]’s personality was formulated in clearly insulting terms.
...
... the [District] Court correctly considered the
finding made in the judgment of the Omsk Regional Court of 4 June
2002 that [the defendants] had failed to prove the truthfulness of
the statements contained in the leaflet ... as evidence established
by the courts ...
[The applicant’s] arguments that the present case
has a different cause of action and that the parties have different
procedural status cannot warrant the re-establishment of a fact that
has earlier been established by a court. As the Regional Court made
an assessment of the truthfulness of the allegations contained in the
leaflet, the courts are bound by that judgment ... in the
determination of the present case.
[The applicant’s] argument that ... the judgment
violates citizens’ constitutional right to freedom of thought,
speech and information is unfounded. The views of a citizen or a
group of citizens on a certain issue, if they are distributed in
written form, must be formulated in proper language.
The expressions used in the leaflet, such as ‘voracious
big wheel’, ‘that terrible man’, ‘his fortune
was made from our tears’, ‘whatever he undertakes is
damned’, ‘the story of K[.]’s dark fortune’
are clearly insulting, are formulated in cynical terms, give an
assessment of the plaintiff’s personality and contradict the
socially acceptable norms of conduct and religious principles ...
The appeal must be dismissed because the [District
Court] correctly assessed the evidence, rightly concluded that the
statements in the leaflet were untrue and gave judgment in accordance
with the substantive and procedural rules.
However, the operative part of the judgment must be
clarified. Since essentially the entire leaflet contains untrue
statements damaging to Mr K[.]’s honour, dignity and
professional reputation, the list of statements that were found to
have been untrue must be deleted from the operative part.
Having regard to the particular circumstances of the
case (electoral campaigning), the fact that the widely disseminated
leaflet included untrue statements damaging to Mr K[.]’s
honour, dignity and professional reputation set out in a deliberately
insulting form, the degree of anguish experienced by the victim, the
[Regional Court] considers it appropriate to increase, in accordance
with Article 151 of the Civil Code, the award in respect of
non-pecuniary damage to 5,000 roubles against [the applicant] and to
2,000 roubles against [the other defendants].”
II. RELEVANT DOMESTIC LAW
A. Electoral agitation
- The
Federal Law of 19 September 1997 on Basic Guarantees of Citizens’
Electoral Rights and the Right to Participate in Referenda
(no. 124-FZ, in force at the material time, hereafter “the
Electoral Rights Act”) provides that election candidates may
distribute agitation materials (section 41 § 1).
- It is prohibited to abuse the freedom of the mass
media, in particular, by encouraging social, racial, ethnic or
religious hatred or enmity, by calling for the usurpation of power or
forcible change of the constitutional foundations of the Russian
Federation or breach of the territorial integrity of the Russian
Federation, by advocating war or by abusing the freedom of the mass
media in any other way (section 43 § 2).
B. Defamation suits
- Article 152 of the Civil Code 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.
- Resolution No. 11 of the Plenary Supreme Court of the
Russian Federation of 18 August 1992 (amended on 25 April 1995 and in
force at the material time) provided that in order to be considered
damaging statements had to be untrue and contain allegations of a
breach of laws or moral principles (commission of a dishonest act,
improper behaviour in the workplace or in everyday life, etc.).
“Dissemination of statements” was understood as meaning
the publication of statements or their broadcasting (section 2). The
burden of proof was on the defendant to show that the disseminated
statements were true and accurate (section 7).
C. Compensation for non-pecuniary damage
- Article
151 § 1 of the Civil Code provides that a court may award
compensation for non-pecuniary damage to an individual who has
incurred such damage as a consequence of acts that have violated his
personal non pecuniary rights. Article 150 lists, among other
personal non-pecuniary rights, the dignity of a person and his/her
honour, good name and professional reputation.
- The amount of compensation for
non-pecuniary damage depends on the degree of fault of the offender
and other pertinent circumstances. The court must also take into
account the degree of physical or mental suffering experienced by the
victim (Article 151 § 2). The degree of physical or mental
suffering is assessed on the basis of the circumstances of the case
and the personality of the victim. The amount of compensation must be
reasonable and equitable (Article 1101).
D. Civil procedure
- The
circumstances established by a final judgment are binding on the
courts. There is no need to establish those circumstances anew and
they may not be contested in any future litigation by the same
parties (Article 61 § 2 of the Code of Civil Procedure).
- The court must decide on the claims made by the
plaintiff. It may only decide on claims it has raised of its own
motion where a federal law so provides (Article 196 § 3).
THE LAW
I. ADMISSIBILITY OF THE APPLICATION
- The
Government submitted that the application should be rejected for
failure to comply with the six-month rule. Although the final
judgment in respect of all the complaints had been given on 11 June
2003, the Court had not received the application form until 19
January 2004.
- The
applicant submitted that she had dispatched the application form on
11 December 2003, that is, within six months of the final judgment.
- The Court observes that, in accordance with Rule 47 §
5 of the Rules of Court, the date of introduction of the application
is as a general rule considered to be the date of the first
communication from the applicant setting out, even summarily, the
object of the application. The date of introduction is accordingly
the date on which the first letter was written by the applicant or,
where there is an undue delay between this date and the date on which
the letter was posted, the Court may decide that the postage date
shall be considered to be the date of introduction (see Gaspari
v. Slovenia, no. 21055/03, § 35, 21 July 2009; Calleja
v. Malta (dec.), no. 75274/01, 18 March 2004; and Arslan
v. Turkey (dec.), no. 36747/02, ECHR 2002-X (extracts)).
- The
final judgment in the present case was given on 11 June 2003. The
applicant drafted her application form on 11 December 2003, as
indicated on its last page, and posted it on the same date. The Court
therefore accepts 11 December 2003 as the date of introduction of the
application. It notes that the application was introduced within six
months of the final judgment.
- For
the above reasons, the Court dismisses the Government’s
objection. It further observes that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained of a violation of her right to freedom of
expression guaranteed by 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 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. The parties’ submissions
- The
applicant submitted that the interference with her freedom of
expression had been unjustified. Firstly, the domestic courts had
incorrectly referred to the judgment of 4 June 2002. That judgment
had concerned an electoral dispute case in which the applicant had
not been a defendant. The issues relating to defamation or
compensation for non-pecuniary damage had not been examined in the
judgment of 4 June 2002 and the applicant had not been called upon to
prove the truthfulness of the allegations contained in the leaflet.
Therefore the statement contained in the reasoning part of that
judgment – that the applicant had failed to prove the
truthfulness of the leaflet – had been superfluous. When
examining the defamation dispute, the courts had incorrectly
considered themselves bound by the judgment of 4 June 2002. They
should have examined afresh whether the allegations in the leaflet
had been proved.
- Secondly,
the applicant argued that she had proved the truthfulness of the
factual allegations. Fourteen witnesses had testified before the
court and had confirmed the veracity of the information contained in
the leaflet. The remaining statements were value judgments expressing
the employees’ personal opinion about Mr K. The domestic courts
had made no distinction between value judgments and statements of
fact. They had not made any analysis of whether the contested
statements could have been value judgments not susceptible of proof.
The defendants had thereby been denied their right to hold an opinion
and to express it in the form of a value judgment.
- Finally,
the applicant claimed that the required procedural guarantees had not
been afforded to her. In particular, Mr K.’s statement of claim
had been limited to contesting certain allegations contained in the
leaflet. However, the appeal court had, of its own motion, examined
the entire leaflet and had found all the statements contained therein
to be untrue. Moreover, although Mr K. had not lodged an appeal
against the District Court’s judgment, the appeal court had, of
its own motion, increased the award in respect of non-pecuniary
damage. In the applicant’s opinion, those facts showed that the
defamation proceedings had been unfair.
- The
Government submitted that the statements published by the applicant
had been statements of fact. The applicant had failed to prove the
truthfulness of those statements. The interference with her freedom
of expression had therefore been justified. They further disagreed
with the applicant’s argument that the appeal court had
declared the entire leaflet to be untrue. It had only established
that “the allegations contained in the leaflet” had been
untrue and had amended the operative part of the judgment
accordingly. The appeal court had refined the findings made by the
District Court without examining any new evidence or changing the
reasoning or the substance of the District Court’s judgment.
With regard to compensation for non-pecuniary damage, the amount had
been determined in accordance with Articles 151 and 1101 of the Civil
Code (see paragraph 27 above).
B. The Court’s assessment
- The
Court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress. Subject to paragraph 2 of Article 10, it
is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no “democratic society”
(see Handyside v. the United Kingdom, 7 December 1976, §
49, Series A no. 24, and Jersild v. Denmark, 23 September
1994, § 37, Series A no. 298).
- The Court further observes that free elections and
freedom of expression together form the bedrock of any democratic
system. The two rights are inter-related and operate to reinforce
each other, as freedom of expression is one of the “conditions”
necessary to “ensure the free expression of the opinion of the
people in the choice of the legislature”. For this reason, it
is particularly important in the period preceding an election that
opinions and information of all kinds are permitted to circulate
freely. This principle applies equally to national and local
elections (see Kwiecień v. Poland, no. 51744/99, §
48, ECHR 2007 I, and Bowman v. the United Kingdom, 19
February 1998, § 42, Reports of Judgments and Decisions
1998 I).
- 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 within the meaning of Article 10 § 1 of the
Convention. Indeed, although the applicant was not the author of the
contested leaflet, she participated in its dissemination by
publishing and distributing it. The Court reiterates in this respect
that publishers, irrespective of whether they associate themselves
with the content of their publications, play a full part in the
exercise of freedom of expression by providing authors with a medium
(see Editions Plon v. France, no. 58148/00, § 22,
ECHR 2004 IV, with further references). It follows that the
pecuniary award that the applicant was ordered to pay to Mr K. in
connection with the publication of the impugned leaflet constituted
an interference with her right to impart information and ideas
included in the right to freedom of expression guaranteed by Article
10 § 1 of the Convention
- It
is not contested that the interference was “prescribed by law”,
namely Article 152 of the Civil Code, and pursued a legitimate aim,
that of protecting the reputation or rights of others, for the
purposes of Article 10 § 2. The dispute in the case relates
to 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. 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. This power of
appreciation is not however unlimited, but goes hand in hand with a
European supervision by the Court, whose task it is to give a final
ruling on whether a restriction is reconcilable with freedom of
expression as protected by Article 10. 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 Karman v. Russia, no.
29372/02, § 32, 14 December 2006, and Grinberg v. Russia,
no. 23472/03, §§ 26-27, 21 July 2005, with further
references).
- Turning to the facts of the present case, the Court
notes that the applicant, during the period directly preceding a
local election in which she was a candidate, published a leaflet
calling upon the local population not to vote for her competitor, Mr
K. The leaflet criticised Mr K.’s moral character and its aim
was apparently to cast doubt on his suitability as a candidate for
the local legislative assembly. The Court reiterates that, as a
general rule, any opinions and information pertinent to elections
which are disseminated during the electoral campaign should be
considered as forming part of a debate on questions of public
interest (see Filatenko v. Russia, no. 73219/01, §
40, 6 December 2007, and also the case-law cited in paragraph 41
above). According to its constant case-law, there is little scope
under Article 10 § 2 of the Convention for restrictions on
political speech or on debate on questions of public interest and
very strong reasons are required for justifying such restrictions
(see Krasulya v. Russia, no. 12365/03, § 38, 22
February 2007, with further references).
- The
Court also finds it significant that the criticism contained in the
leaflet published by the applicant was directed against a person
engaged in political activities, in respect of whom the limits of
acceptable criticism are wider than in the case of a private
individual (see Lingens v. Austria, 8 July 1986, § 42,
Series A no. 103). By standing in the local elections, Mr K. entered
the political scene and inevitably and knowingly laid himself open to
close scrutiny of his every word and deed by both journalists and the
public at large. Therefore, he was required to display a greater
degree of tolerance.
- Further,
the Court notes that the leaflet was written and signed by a group of
minority shareholders and former employees of the Oktyabrskiy
department store owned by Mr K. It contained the signatories’
subjective appraisal of Mr K.’s activities and moral qualities
and their own perception of his influence – in their view
negative – on the state of affairs in the Oktyabrskiy
department store. It was clearly the subjective opinion of the
signatories of the leaflet that Mr K. was unsuitable for election to
the regional legislative assembly because he had, in their view,
abused his influential position within the Oktyabrskiy department
store and had treated the minority shareholders and employees of that
store unfairly. That opinion was based on their own experience of
dealing with Mr K. Their allegations that after the issue of
additional shares at the initiative of Mr K. the stock had been
depreciated, that Mr K. had offered to buy the shares of the minority
shareholders at a low price, that several employees discontented with
Mr K.’s policies and attitudes had been dismissed, and
other similar allegations, found confirmation in the domestic
proceedings. Accordingly, the signatories of the leaflet cannot be
accused of having distorted the facts or made any allegations which
did not repose on a sufficient factual basis. The Court sees no
reason to doubt that they acted in good faith. It therefore considers
that by publishing the leaflet the applicant was assisting in
disseminating an opinion on a matter of public concern which had a
sufficient factual basis.
- Admittedly, the expression or publication of an
opinion may also be excessive, in particular if its sole purpose is
to insult. A clear distinction must therefore be made between
criticism and insult (see, mutatis mutandis, Skałka v.
Poland, no. 43425/98, § 34, 27 May 2003). It is
however necessary to bear in mind that political invective often
spills over into the personal sphere; such are the hazards of
politics and the free debate of ideas, which are the guarantees of a
democratic society (see Lopes Gomes da Silva v. Portugal, no.
37698/97, § 34, ECHR 2000 X). The Court accepts that
certain expressions used in the leaflet could be considered to be
polemical. They do not, however, amount to insult or constitute a
gratuitous personal attack because the authors supported them with an
objective explanation. Although the comments contained in the leaflet
were without doubt severely critical, they nevertheless appear
proportionate to the frustration and indignation caused by Mr K.’s
behaviour towards the signatories as perceived by them.
- As
regards the reasons cited by the domestic courts to justify the
interference with the applicant’s right to impart information
and ideas, the Court notes firstly that the Russian courts failed to
recognise that the present case involved a conflict between the right
to freedom of expression and the protection of reputation and so did
not carry out the relevant balancing exercise. They confined their
analysis to a discussion of the damage to Mr K.’s
reputation without giving any consideration to the factors discussed
in paragraphs 45 to 48 above, such as the plaintiff’s position
as a professional politician involved in elections and the fact that
the contested statements represented a subjective opinion of a group
of people on a matter of public interest for the local community,
based on their personal experience and reposing on an adequate
factual basis. Accordingly, the Russian courts did not apply
standards which were in conformity with the principles embodied in
Article 10 (see, for similar reasoning, Dyundin v. Russia,
no. 37406/03, § 33, 14 October 2008, and Kwiecień, cited
above, § 52).
- The
Court also observes 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”
(“сведения”)
and proceeded from the assumption that any such statement was
amenable to proof in civil proceedings. Irrespective of the actual
contents of the “statements”, the person who disseminated
them had to satisfy the courts as to their truthfulness (see
paragraphs 24 and 25 above, see also Grinberg v. Russia,
no. 23472/03, § 29, 21 July 2005). Having regard to these
legislative provisions, the domestic courts did not make any analysis
of whether the statements published by the applicant could have been
a value judgment.
- However,
it has been the Court’s constant view that 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 Lingens, cited above, § 46, and
Oberschlick v. Austria (no. 1), 23 May 1991, § 63,
Series A no. 204).
- The
Court notes that many statements contained in the leaflet, such as,
for example, that Mr K. was a “voracious big wheel” and a
“terrible man”, that his fortune was “made from the
woes and tears of simple people”, and that “whatever he
undertakes is damned” were examples of value judgments which
the domestic courts failed to distinguish from statements of fact.
The domestic courts held that the applicant had to prove the truth of
those allegations. The burden of proof was obviously impossible to
satisfy.
- Finally, the Court reiterates that the procedural
guarantees afforded to the defendants in defamation proceedings are
among the factors to be taken into account in assessing the
proportionality of the interference under Article 10. In particular,
it is important that the defendant is afforded a realistic chance to
prove that the factual basis for his allegations was true. A lack of
procedural fairness and equality may give rise to a breach of
Article 10 (see Steel and Morris v. the United Kingdom,
no. 68416/01, § 95, ECHR 2005 II, Kwiecień, cited
above, §§ 46 and 55; Castells v. Spain, 23 April
1992, § 48, Series A no. 236; Karman v. Russia, no.
29372/02, § 42, 14 December 2006; and Jerusalem v.
Austria, no. 26958/95, § 45, ECHR 2001 II).
- In
the present case Mr K. sued the applicant in respect of certain
statements only. The applicant’s defence was therefore limited
to the extracts mentioned by Mr K. in his statement of claim. The
judgment of the first-instance court was also clearly confined to
analysing the extracts contested by Mr K. The appeal court, however,
chose to examine the entire leaflet and to declare that its contents
were untrue. The Court is not convinced by the Government’s
assertion that the appeal court did not go beyond Mr K.’s
claim. It notes that in its judgment the appeal court referred to
statements which had not been mentioned in Mr K.’s statement of
claim, such as, for example, “the story of K[.]’s dark
fortune” and “his fortune was made from our tears”,
and found that they had damaged Mr K.’s honour, dignity and
professional reputation. The appeal court, moreover, stated
explicitly that “the entire leaflet contain[ed] untrue
statements” and decided to increase the award accordingly (see
paragraph 21 above). Given that under domestic law the courts might
go beyond the scope of the plaintiff’s claim only in cases
specified in federal laws (see paragraph 29 above) and that the
appeal court did not refer to any federal law that would give it
power to do so in the present case, the Court considers that the
decision of the appeal court to declare the entire leaflet untrue
could hardly be foreseeable to the applicant. It is also relevant
that the appeal court’s judgment was final, there being no
further ordinary instance before which the applicant could have
advanced his defence against its findings. It follows that in respect
of the statements which had not been mentioned in Mr K.’s
statement of claim, the applicant was afforded no opportunity at any
stage of the proceedings to prove that they were true or had a
sufficient factual basis.
- The
Court also observes that the domestic courts considered themselves
bound by the findings made by the Regional Court in the electoral
dispute between Mr K. and the electoral commission, with the
applicant involved as a third party. In particular, the domestic
courts referred to the finding contained in the judgment of 4 June
2002 that the applicant had not proved the truthfulness of the
extracts contested by Mr K. (see paragraphs 16 and 21 above).
However, the Court takes note of the applicant’s argument, not
contested by the Government, that during the electoral dispute she
had not been called upon to prove the truth of the allegations
contained in the leaflet. Indeed, that dispute concerned the
allegedly unlawful electoral agitation and, under domestic law, its
scope was limited to determining whether the leaflet contained
statements encouraging social, racial, ethnic or religious hatred or
enmity, calling for the usurpation of power or forcible change of the
constitutional foundations of the Russian Federation, or advocating
war (see paragraph 23 above). The Regional Court stated specifically
that all the issues relating to defamation had to be examined in
separate proceedings (see paragraph 12 above). The Court is therefore
persuaded that during the examination of the electoral dispute the
applicant was not given a meaningful opportunity to prove the truth
of the allegations published by her. It finds it peculiar that during
the subsequent defamation proceedings the domestic courts found that
the applicant was barred from arguing that her allegations had been
true because she had failed to do so during the electoral
proceedings. Owing to that finding, the applicant was deprived of any
chance to show that the allegations contained in the leaflet had a
sufficient factual basis.
- The court concludes from the above that the
applicant’s procedural rights were curtailed to an extent
incompatible with Article 10. The lack of procedural fairness and
equality therefore gave rise to a breach of that Article in the
present case.
- In
the light of the above considerations, the Court finds that the
leaflet published by the applicant rested on a sufficient factual
basis and did not exceed the acceptable limits of criticism. That the
proceedings were civil rather than criminal in nature and the final
award relatively small does not detract from the fact that the
standards applied by the Russian courts were not compatible with the
principles embodied in Article 10 since they omitted to perform a
balancing exercise between the need to protect the plaintiff’s
reputation and the applicant’s right to divulge information on
issues of general interest, refused to distinguish between value
judgments and statements of fact, and failed to afford procedural
guarantees to the applicant to ensure that she had a realistic
opportunity to prove that the allegations published by her had a
sufficient factual basis. The Court therefore considers that the
Russian courts did not adduce “sufficient” reasons
justifying the interference at issue and that they overstepped the
narrow margin of appreciation afforded to them for placing
restrictions on debates of public interest. Accordingly, the
interference with the applicant’s right to freedom of
expression was disproportionate to the aim pursued and not “necessary
in a democratic society”.
- There
has therefore been a violation of Article 10 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 and Article 13 of the
Convention that the appeal court had gone beyond the plaintiff’s
claim by declaring that the entire leaflet was untrue and by
increasing the award accordingly. This complaint falls to be examined
under Article 6 § 1 the relevant part of which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Court finds that this complaint relates to issues which have already
been examined in the context of Article 10 (see paragraphs 53 to
56 above). For this reason the Court finds that the complaint
should be declared admissible but that it is unnecessary to consider
it separately (see, among other authorities, Kwiecień, cited
above, § 62, and Jerusalem, cited above, § 51).
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
- The applicant claimed compensation in respect of
pecuniary and non-pecuniary damage sustained by her and the three
signatories of the leaflet. In particular, she claimed 11,000 Russian
roubles (RUB), representing the amount paid by them to the plaintiff
in the defamation action. She also argued that that amount should be
adjusted for inflation. She left the determination of the amount of
compensation for non-pecuniary damage to the Court’s
discretion.
- The
Government accepted the claim in respect of pecuniary damage in the
amount of RUB 5,000, the amount paid by the applicant to the
plaintiff in the defamation proceedings. They argued however that the
claims submitted by the applicant on behalf of the three signatories
of the leaflet should be rejected as irrelevant to the present case.
As regards the claim in respect of non-pecuniary damage, the
Government submitted that a finding of a violation would constitute
sufficient just satisfaction.
- The
Court firstly notes that the three signatories of the leaflet were
not a party to the proceedings before it. They therefore have no
standing to claim compensation. The Court rejects this part of the
claim.
- The
Court considers that the sum which the applicant had to pay to the
plaintiff in the defamation action may be taken into account (compare
Thoma v. Luxembourg, no. 38432/97, § 71, ECHR 2001 III).
The applicant’s claim for an inflation-related adjustment must
however be rejected, as she failed to substantiate it by any
documents showing the inflation rate during the relevant period.
Accordingly, the Court awards EUR 128 to the applicant in
respect of pecuniary damage, plus any tax that may be chargeable.
-
Finally, the Court considers that the applicant has suffered
non-pecuniary damage as a result of the domestic courts’
judgments, which were incompatible with Convention principles. The
damage cannot be sufficiently compensated by a finding of a
violation. Making its assessment on an equitable basis, the Court
awards the applicant 9,000 euros (EUR), plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed RUR 7,000 for translation expenses. She
submitted the relevant receipts.
- The
Government disputed the claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 180 for translation
expenses, plus any tax that may be chargeable to the applicant on
that amount.
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 that there is no need to examine the
complaint under Article 6 § 1 of the Convention;
4. 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
128 (one hundred and twenty-eight euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
180 (one hundred and eighty euros), plus any tax that may be
chargeable to the applicant, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy
Registrar President
