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FIFTH
SECTION
CASE OF SHABANOV AND TREN v. RUSSIA
(Application
no. 5433/02)
JUDGMENT
STRASBOURG
14
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shabanov and Tren v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr A.
Kovler,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5433/02) 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 two Russian nationals, Mr Sergey
Mikhaylovich Shabanov and Mr Sergey Alimovich Tren (“the
applicants”), on 10 August 2001.
- The
Russian Government (“the Government”) were represented by
their Agent, Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicants alleged, in particular, a violation of their right to
freedom of expression and a violation of their right to a hearing by
a tribunal established by law.
- By
a decision of 23 November 2004, the Court declared the application
partly admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1959 and 1963 and live in the
town of Chernyakhovsk in the Kaliningrad Region. They are businessmen
and founders of the Pravo Znat newspaper (“The Right
to Know”).
A. Defamation action by Ms P.
- On
27 April 2001 the applicants' newspaper published an article under
the headline “What power costs: part 2” (“Сколько
стоит власть-2”).
The article gave a detailed account of the wages and benefits
received by mid-range employees in the town council. The relevant
extract read as follows:
“For the sake of clarity, let us look at the
elements that make up the wages. Let's take, for example, those of
the head of the legal department...
In total... 5,805 roubles.
Not bad for a twenty-year-old professional who recently
graduated from a teachers' college.”
- Ms
P., the head of the legal department, brought a defamation action
against the applicants. She submitted that she possessed higher legal
education and more than three years of relevant experience, and that
the article had harmed her authority in that it had sown doubts as to
her professional qualifications.
- On
13 June 2001 the Chernyakhovsk Town Court of the Kaliningrad Region
heard the claim and gave judgment. It found that the applicants had
been aware of the identity of the head of the legal department and
they had intended to expose a specific person, namely Ms P. The court
established that Ms P. had been appointed to her position in
September 2000 after having completed a course of higher legal
education. It found as follows:
“Having indicated in the article the salary of the
head of the legal department and having referred to a twenty-year-old
professional just out of college, the [applicants] related inaccurate
information, given that Ms P., whom the [applicants] described as
having graduated from a teachers' college four years previously, was
at the material time the head of the legal department and had higher
legal education.
The article 'What power costs: part 2' implies that
municipal employees receive high wages, paid out of the budget, and
cites as an example a young professional with college-level education
and no work experience.
The court considers that such information damages Ms
P.'s professional reputation and honour, in that it was disseminated
to a large readership and begs the conclusion that the position of
head of the legal department is occupied by an employee who lacks the
requisite qualifications and work experience, which undermines the
authority of the local administration and of Ms P.”
The
court ordered the applicants to publish a rectification and pay 300
roubles (RUR, 12 euros (EUR)) each to Ms P.
- On
20 June 2001 both applicants appealed against the judgment of 13 June
2001. They submitted that the information had not been proven to be
untrue and that it had not undermined Ms P.'s authority. They also
alleged a procedural violation, in that the case had been examined by
a formation consisting of one professional judge and two lay judges,
one of whom, lay judge Ms Kr., had participated in a previous hearing
on 5 February 2001, whereas lay judges could only sit in court
once a year and for no longer than fourteen days.
- On
18 July 2001 the Kaliningrad Regional Court confirmed the judgment of
13 June 2001. It upheld the District Court's findings that Ms P. had
graduated from a teachers' college, but noted that this had occurred
in 1997 and that, by the time of her appointment, she had also
completed higher legal education. The court concluded that the
article had been intended to cast a shadow of doubt on Ms P.'s
professional fitness and had thus damaged her reputation. As to the
alleged procedural violation, the court held that the applicants had
not proved that the lay judge in question had sat for more than
fourteen days and stated that their allegations had been based on an
erroneous interpretation of the Lay Judges Act.
B. Defamation action by Mr K.
- On
19 January 2001 the applicants' newspaper published an article by
Mr V. under the headline “The army with wet feet”
(“Армия с мокрыми
ногами”). The article
related the living conditions of soldiers in a military unit where
almost two hundred men had fallen ill because Mr K., the unit
commander, had not provided them with dry footwraps or arranged for a
place to dry their boots.
- Mr
K. sued the applicants and Mr V. for the protection of his honour,
dignity and professional reputation and claimed compensation for
non-pecuniary damage. As evidence of the non-pecuniary damage
sustained, Mr K. enclosed a medical certificate issued by a
psychiatrist. The certificate was made available to the applicants in
their capacity as defendants.
- On
13 July 2001 the newspaper published a follow-up article “There
are different kinds of syndromes. But still
no footwraps”
(“Синдром синдрому
рознь. И без
портянок”).
The article commented on various aspects of Mr K.'s statement
of claim. The relevant part read as follows:
“So, our character '...had to visit a
psychiatrist on 13 February 2001...'. 'Intellect with no
peculiarities', noted the doctor, [who] found that K. had ...
moderately pronounced asthenia syndrome and prescribed treatment.
Asthenia means impotence, a kind of disease. It means that the
commander of the regiment is not quite healthy. Or quite unhealthy?”
- Mr
K. subsequently supplemented his original statement of claim with
a complaint about the publication of information on his state of
health, which, in his opinion, was an unjustified interference with
his right to respect for private life.
- On
25 September 2001 the Chernyakhovsk Town Court of the Kaliningrad
Region gave its judgment. The court established that the facts
concerning the mass outbreak of illness among soldiers, described in
the article of 19 January 2001, were accurate and dismissed Mr K.'s
action in this part. However, it established that Mr K. had referred
to his visit to a psychiatrist in his statement of claim, that only a
limited number of people had access to the case file, and that Mr K.
had not consented to having his diagnosis published in a newspaper.
The court concluded that the article of 13 July 2001 violated Mr K.'s
personal non-pecuniary rights, namely the right to inviolability of
one's private life and personal and family secrets, which was
protected by the Constitution. Relying on Article 151 of the Civil
Code, it awarded him RUR 1,500 (EUR 55) and RUR 1,000 (EUR 37)
against the first and second applicants respectively.
- On
24 October 2001 the Kaliningrad Regional Court upheld on appeal the
judgment of 13 July 2001. The court dismissed the applicants'
argument that the public should have been informed of Mr K.'s state
of health because he was the commander of a military unit.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
- Article
29 of the Constitution of the Russian Federation guarantees freedom
of ideas and expression, as well as freedom of the mass media.
B. Civil Code of the Russian Federation (of 30 November
1994)
- The
relevant provisions of the Civil Code read as follows:
Article 150. Incorporeal assets
“1. An individual's life and health, dignity,
personal integrity, honour and goodwill, professional reputation, the
inviolability of one's private life, personal and family secrets, the
right to liberty of movement and to choose one's place of temporary
and permanent residence, the right to a name, copyright, other
personal non-property rights and other incorporeal assets which a
person possesses by virtue of birth or by operation of law shall be
inalienable and untransferable by any means...”
Article 151. Compensation for non-pecuniary damage
“If certain actions impairing an individual's
personal non-property rights or encroaching on other incorporeal
assets caused him or her non-pecuniary damage (physical or mental
suffering)... the court may impose on the perpetrator an obligation
to pay pecuniary compensation for that damage...”
Article 152. Protection of honour, dignity and
professional reputation
“1. An individual shall be entitled to claim,
before a court, a rectification of information damaging his honour,
dignity and professional reputation, unless the person who
disseminated the information proves that it was true...
5. The individual about whom information
damaging to his or her honour, dignity and professional reputation
was disseminated shall be entitled to claim, in addition to
rectification, compensation for pecuniary and non-pecuniary damage
caused by the perpetrator.”
C. Lay Judges Act
- On
10 January 2000 the Federal Law on Lay Judges of Federal Courts of
General Jurisdiction in the Russian Federation (“the Lay Judges
Act” or “the Act”) came into effect. By section 1
(2) of the Act, lay judges are persons authorised to sit in civil and
criminal cases as non-professional judges.
- Section
2 provides that lists of lay judges must be compiled for every
district court by local self-government bodies, such lists being
subject to confirmation by the regional legislature. Section 5
determines the procedure for the selection of lay judges. It provides
that the president of a district court is to draw random lots from a
list of lay judges assigned to that court. The number of lay judges
assigned to every professional judge should be at least three times
as many as that needed for a hearing.
- By section 9, lay judges are to be called to serve in
a district court for a period of fourteen days, or as long as the
proceedings in a particular case last. Lay judges may only be called
for service once a year.
D. The RSFSR Code of Civil Procedure
- Civil cases may be examined by a formation comprising
two lay assessors and a professional judge. In the administration of
justice lay assessors enjoy the same rights as professional judges
(Article 6).
- Civil proceedings are public in all cases, except
where a hearing in private is necessary for the protection of
information concerning State secrets, intimate details of parties'
lives or the confidentiality of adoption (Article 9).
- Written evidence is read out in open court and made
available to the parties and their representatives (Article 175).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 of the Convention that on
13 June 2001 the Chernyakhovsk Town Court of the Kaliningrad
Region had not been composed in accordance with the law. The relevant
parts of Article 6 § 1 read:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by a
... tribunal established by law.”
A. Submissions by the parties
- The
applicants indicated that the lay judge Kr. had not been drawn by lot
as required by section 5 § 5 of the Lay Judges Act and that the
general list of lay judges of the Chernyakhovsk Town Court had not
been ratified by the regional legislature (section 2 of the Act).
They considered therefore that lay judge Kr. lacked a legal basis to
sit on the formation.
- The
Government submitted that there had been no procedural irregularities
in the proceedings because it was not shown that lay judge Kr. had
served in the district court for more than fourteen days in breach of
section 9 of the Lay Judges Act.
B. The Court's assessment
- The
Court reiterates that the phrase “established by law”
covers not only the legal basis for the very existence of a
“tribunal” but also the composition of the formation in
each case (see Buscarini v. San Marino (dec.), no. 31657/96,
4 May 2000). The Court is therefore required to examine allegations
such as those made in the present case concerning a breach of the
domestic rules for appointment of judicial officers. The fact that
the allegation in the present case concerned lay judges does not make
it any less important since, pursuant to Article 6 of the Code of
Civil Procedure then in force, in their judicial capacity lay judges
enjoyed the same rights as professional judges (see paragraph 22
above).
- The
Court recalls that it has found a violation of Article 6 § 1 of
the Convention in a similar case (see Posokhov v. Russia,
no. 63486/00, §§ 40-44, ECHR 2003 IV). The finding
of a violation was made against the background of “the apparent
failure to observe the requirements of the Lay Judges Act regarding
the drawing of random lots and two weeks' service per year” and
the domestic authorities' admission that there had been no lists of
lay judges before the Regional Legislature approved a list of lay
judges. The combination of these circumstances led the Court to
conclude that the district court which heard the applicant's case had
not been a tribunal “established by law”.
- The
Court notes that substantially similar circumstances were also
present in the instant case. In their statement of appeal the
applicants submitted that lay judge Kr., who was in the court's
formation on 13 June 2001, had previously participated in the
hearing of another civil case on 5 February 2001. That
submission, which was not disputed by the appeal court or by the
respondent Government, begs the conclusion either that the maximum
permitted fourteen-day period of service had been significantly
exceeded or that lay judge Kr. had been called for service more than
once in the same year. In either case this amounted to a breach of
the rules for the selection of lay judges established in section 9 of
the Lay Judges Act (see paragraph 21 above). Furthermore, the
Government failed to show that the requirements of the Lay Judges Act
had been complied with as regards the drawing of judges' names by lot
and the mandatory ratification of the subsequent list by the regional
legislature. In fact, the Government did not produce any document
setting out the legal grounds for her participation in the
administration of justice.
- The
above considerations do not permit the Court to conclude that the
Chernyakhovsk Town Court that issued the judgment of 13 June 2001
could be regarded as a “tribunal established by law”. The
Kaliningrad Regional Court, in its review of the matter on appeal,
did nothing to eliminate the above-mentioned defects.
- There
has been therefore a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that the judgments of 13 June and 25 September
2001 violated their right to impart ideas and information under
Article 10 of the Convention, which provides 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
- The
applicants maintained that the information in both articles had been
true and accurate to the best of their knowledge and had not impaired
the plaintiffs' honour or reputation.
- The
Government submitted, without specifying to which judgment their
submissions referred, that the domestic courts had been guided by
Article 152 of the Civil Code. The Government also referred to
Article 17 of the Russian Constitution, according to which the
exercise of rights and freedoms must not encroach on other persons'
rights. In the present case, the applicants' articles encroached on
Ms P.'s and Mr K.'s right to be protected from the dissemination of
information damaging to their honour, dignity and professional
reputation.
B. The Court's assessment
1. Proceedings instituted by Ms P.
- In
the proceedings instituted by Ms P., an award of damages was made
against the applicants for creating the impression that Ms P. was not
qualified for her job. In particular, the applicants wrote that Ms P.
occupied the position of head of the legal department although she
had only recently graduated from a teachers' college. The domestic
courts found that Ms P. had in fact completed a course of higher
legal education.
- It
is undisputed that the award of damages represented an interference
with the applicants' freedom of expression which pursued the
legitimate aim of the protection of the reputation of others.
- The
applicants disagreed that the interference was “prescribed by
law” because their liability under Article 152 of the Civil
Code could only be engaged in the case of publication of inaccurate
statements. As the facts mentioned in the article – such as Ms
P.'s age and her graduation from a teachers' college – were not
found to have been untrue, they could not have been held responsible.
- The
Court is not convinced by the applicants' contention. It reiterates
that it is primarily the task of national authorities to apply and
interpret domestic law (see, for example, Tammer v. Estonia,
no. 41205/98, § 38, ECHR 2001 I). The application of
the domestic law on defamation in the present case does not appear
unreasonable or unforeseeable. The aim of legal provisions on
defamation is the protection of individuals against falsehoods liable
to tarnish their reputation. A falsehood may be communicated by
stating untrue facts, but also by leaving out true facts which, had
they been stated, could have significantly altered the perception of
the matter. The applicants in the present case incurred liability for
having failed to inform the readership about Ms P.'s legal education.
The Court accordingly considers that the interference was “prescribed
by law”.
- As
to whether the interference was “necessary in a democratic
society”, the Court recalls that Article 10 of the Convention
protects journalists' right to divulge information on issues of
general interest provided that they are acting in good faith and on
an accurate factual basis and provide “reliable and precise”
information in accordance with the ethics of journalism (see Fressoz
and Roire v. France [GC], no. 29183/95, § 54,
ECHR 1999 I; Schwabe v. Austria, judgment of
28 August 1992, Series A no. 242 B, § 34;
and Prager and Oberschlick v. Austria, judgment of
26 April 1995, Series A no. 313, § 37). The
applicants' publication discussed the adequacy of remuneration of
civil servants, which was undeniably a matter of general interest.
- By
their publication, the applicants sought to convey the view that Ms
P., head of the legal department, earned a high salary which was not
justified by her educational background and age. The Court reiterates
that even where a statement amounts to a value judgment, the
proportionality of an interference may depend on whether there exists
a sufficient factual basis for the impugned statement, since even a
value judgment without any factual basis to support it may be
excessive (see Jerusalem v. Austria, no. 26958/95, § 43,
ECHR 2001 II). In the present case it appears that the
applicants did not approach Ms P. for comments before publication and
did not verify the information about her education. They presented an
incomplete factual account to their readership, suggesting that Ms P.
was insufficiently qualified for her post. In these circumstances,
the Court considers that the applicants' article, in so far as it
concerned Ms P., was not a fair comment on a topic of general
interest but rather a gratuitous attack on Ms P.'s reputation. In
these circumstances, the amount of the award for damages does not
appear excessive.
- In
view of the above considerations and having regard to the margin of
appreciation afforded to the national authorities, the Court takes
the view that the interference complained of was proportionate to the
legitimate aim pursued and that the reasons advanced by the domestic
courts were sufficient and relevant to justify it.
There
has therefore been no violation of Article 10 of the Convention in
the proceedings instituted by Ms P.
2. Proceedings instituted by Mr K.
- Mr
K., a military officer, had initially sued the applicants for
disseminating untrue information about conditions of service in the
military unit under his command. He then added a claim for damages
incurred through publication of his diagnosis by the applicants.
Whereas the courts rejected the defamation claim, finding that the
information had been true, they ordered the applicants to pay damages
to Mr K. for an interference in his private life.
- This
interference with the applicants' freedom of expression was
prescribed by law, notably Article 151 of the Civil Code, governing
judicial protection of “personal non-pecuniary rights”,
including a right to the inviolability of one's private life, and
pursued the legitimate aim of the protection of the rights of others.
In the domestic courts' view, it was also necessary in order to
prevent the disclosure of information received in confidence. Had it
not been for the applicants' publication, Mr K.'s medical information
would have remained in the case file, to which few people had access.
- Assessing
the proportionality of the interference to the legitimate aim
pursued, the Court observes at the outset that Mr K. voluntarily
produced the medical certificate in the defamation proceedings as
evidence of the moral damage caused to him by the applicants' first
publication. These proceedings were conducted in public, as required
by Article 6 of the Convention and Article 9 of the RSFSR Code of
Civil Procedure, and Mr K. did not ask that hearings be held in
private. The present case is therefore distinguishable from the cases
concerning disclosure of medical information for reasons beyond the
interested party's control (see, among others, Editions Plon v.
France, no. 58148/00, ECHR 2004 IV; Z v. Finland,
judgment of 25 February 1997, Reports 1997 I; and M.S.
v. Sweden, judgment of 27 August 1997, Reports 1997 IV).
- The
Court has therefore to determine whether the domestic courts struck
the right balance between the need to protect Mr K.'s private life
and the applicants' right to freedom of expression. It has been the
Convention organs' constant approach that the claim to respect for
private life is automatically reduced to the extent that an
individual brings his private life into contact with public life.
Thus, communication of statements made during public proceedings was
not considered as giving rise to an interference with private life
(see X. v. the United Kingdom, no. 3868/68, Commission
decision of 25 May 1970, 34 Coll. 10; and, more generally, Friedl
v. Austria, no. 15225/89, Commission's report of 19 May 1994,
§ 44). When people knowingly or intentionally involve
themselves in activities which are or may be recorded or reported in
a public manner, a person's reasonable expectations as to privacy may
be a significant, although not necessarily conclusive, factor. It is
also relevant whether the individual voluntarily supplied the
information and whether he could reasonable anticipate the later use
made of the material (see P.G. and J.H. v. the United Kingdom,
no. 44787/98, § 57, ECHR 2001 IX; Lupker v. the
Netherlands, no. 18395/91, Commission decision of 7 December
1992; Peck v. the United Kingdom, no. 44647/98,
§ 62, ECHR 2003 I; and Perry v. the United Kingdom,
no. 63737/00, § 42, ECHR 2003 IX (extracts)).
- In
the present case Mr K. submitted the medical certificate in the
proceedings concerning his defamation claim. He did so on his own
initiative with a view to corroborating his claim for non-pecuniary
damage. The document was made available to the applicants in their
capacity as defendants and it must be assumed that it was read out in
court as part of the written evidence, in accordance with the
procedural requirements stipulated in the RSFSR Code of Civil
Procedure. Thus, the information was accessible not only to the
parties to the case but also to those members of the general public
present in the courtroom. Admittedly, Mr K. could not have
reasonably expected that the information in the medical certificate
would be afforded the same degree of protection in the public
judicial proceedings as that enjoyed by confidential medical material
held in private files. However, its publication and dissemination by
the applicants in a newspaper had the result of attracting the
attention of the public at large, prior even to the court hearing in
the pending case. The domestic courts reached the conclusion that,
notwithstanding the fact that the plaintiff (Mr K.) had himself
filed the medical certificate, the applicants were required to pay
compensation to Mr K. for a breach of his right to private life and
to personal and family secrets (see paragraph 15 above). The Court
notes the differing contexts of “public” statements made
before a domestic court and the publicity which results from
publication in a newspaper. Further, the importance and significance
of facts can vary, depending on the circumstances. It would underline
that the domestic courts are better placed to assess the impact of
contextual differences in a given case (see Lešník
v. Slovakia, no. 35640/97, §§ 51, 52, 55,
ECHR 2003 IV).
- As
to the aim of the applicants' article, the Court does not doubt the
importance of public debate on the way in which the armed services
function. It is also true that the Kaliningrad Regional Court (see
paragraph 16 above) did not accept the applicants' contentions that
the public should be informed of the state of Mr K.'s health.
Moreover, it is clear from the text of the article in Pravo Znat
that, when commenting on Mr. K.'s health, the applicants were making
a gratuitous attack on Mr K. rather than trying to raise a
legitimate issue of public concern. Having regard to all the
circumstances of the case, the Court finds nothing inherently
untenable in the first-instance court's assessment that the article
has breached Mr K.'s rights.
- Finally,
it is noteworthy that the domestic courts' orders of compensation
(RUR 1,500 and 1,000 against the first and second applicants
respectively) were relatively modest.
- In
the light of these considerations, it cannot be said that the
decisions of the domestic courts overstepped the margin of
appreciation afforded to them. Thus, the Court accepts that the
interference complained of was not disproportionate to the legitimate
aim pursued and can therefore be considered “necessary in a
democratic society” within the meaning of Article 10 § 2
of the Convention.
Accordingly,
there has been no violation of Article 10 of the Convention in the
proceedings instituted by Mr K.
III. 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
applicants claimed 2,000 euros (EUR) in respect of compensation for
non-pecuniary damage. Mr Tren also claimed EUR 1,940, representing
the value of his share in the newspaper, which he had allegedly been
forced to sell in July 2004.
- The
Government pointed out that there was no causal link between the
alleged violation and the sale of Mr Tren's share and that the
amounts claimed were excessive.
- The
Court is not convinced that there existed a causal link between the
violation found and the sale of Mr Tren's share. Accordingly, it
rejects the claim in respect of pecuniary damage. On the other hand,
it considers that the applicants must have incurred non-pecuniary
damage which is not sufficiently compensated by a finding of a
violation. Making an assessment on an equitable basis, it awards each
applicant EUR 500 as compensation for non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicants did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds unanimously that there has been a
violation of Article 6 of the Convention;
- Holds unanimously that there has been no
violation of Article 10 of the Convention in the proceedings
instituted by Ms P.;
- Holds, by four votes to three, that there has
been no violation of Article 10 of the Convention in the proceedings
instituted by Mr K.;
- Holds unanimously
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 500 (five
hundred euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint partly dissenting opinion
of Mr P. Lorenzen, Mr R. Maruste and Mr J. Borrego Borrego,
is annexed to this judgment.
P.L.
C.W.
JOINT PARTLY DISSENTING OPINION OF JUDGES LORENZEN,
MARUSTE AND BORREGO BORREGO
We
disagree with the majority's assessment of the defamation action
brought by Mr K.
We
accept that Mr K. was under no legal obligation to submit information
about his visit to a psychiatrist during the defamation proceedings.
He did so on his own initiative, apparently seeking to convince the
court that the applicants' first publication had perturbed him and
caused him damage. However, as the majority rightly stressed, the
document was made available to the applicants in their standing as
defendants and it must be assumed that it was read out in court as
part of the written evidence, in accordance with the procedural
requirements of the RSFSR Code of Civil Procedure. Thus, the
information was accessible not only to the parties to the case but
also to those members of the general public present in the courtroom.
Although the applicants' publication of it undeniably contributed to
wider dissemination of the information in question, Mr K. could
not reasonably have expected that it would be afforded the same
degree of protection as that enjoyed by confidential medical material
held in private files. For that reason we cannot subscribe to the
domestic courts' finding that the applicants should be liable for the
disclosure of information received in confidence.
Admittedly,
the applicants commented on Mr K.'s visit to a psychiatrist in a
jesting way, implying that he might be not fit for military command.
In this connection the Court has reiterated that journalistic freedom
covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria, judgment
of 26 April 1995, Series A no. 313, § 38). We are of
the opinion that the impugned publication did not resort to offensive
or intemperate language and did not go beyond a generally acceptable
degree of exaggeration or provocation. Granted, the commanding
officer of a regiment is not a politician. However, he is certainly a
public figure, who has authority over 200 soldiers and is responsible
for their wellbeing. Consequently, he is also subject to closer than
usual public scrutiny and criticism.
Further, we would note that the problems faced by the military
command and the professional aptitude of military personnel are
issues of general interest, on which journalists have the task of
informing the general public (see, mutatis mutandis, Thorgeir
Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no.
239, § 63). We recall that, in this particular case, that
interest was further aroused by the fact that a very large number of
soldiers had fallen ill. The mental health problems of a military
officer with more than two hundred conscripts under his command was
undeniably a matter of general and particular public concern. We
consider that public concern about the facts involved in this case
overweighs the individual interests.
In
these circumstances, we find that the domestic courts did not
convincingly establish any “relevant and sufficient”
reasons for giving priority to the protection of Mr K.'s personality
rights, rather than to the applicants' right to freedom of expression
and to the general interest in promoting that freedom. Accordingly,
the interference complained of was not “necessary in a
democratic society” within the meaning of Article 10 §
2 of the Convention. There has therefore been a violation of Article
10 of the Convention in connection with the proceedings instituted by
Mr K.
