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FIRST
SECTION
CASE OF CHEMODUROV v. RUSSIA
(Application
no. 72683/01)
JUDGMENT
STRASBOURG
31
July 2007
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 Chemodurov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 72683/01) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Viktor
Vladimirovich Chemodurov (“the applicant”), on 21
May 2001.
- The
applicant was represented before the Court by Ms G.
Arapova and Ms M. Ledovskikh, lawyers practising in Voronezh.
The Russian Government (“the Government”) were
represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant complained of a violation of his right to freedom of
expression.
- By
a decision of 30 August 2005, the Court declared the application
admissible. Neither party submitted additional observations on the
merits.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Kursk.
- On
19 July 2000 the Kurskiy Vestnik newspaper published an
article by the applicant entitled “Twelve chairs from the
Governor's suite of furniture, or How yet another million dollars
from the regional budget vanished into thin air” (“Двенадцать
стульев
из гарнитура
губернатора,
или Как
'испарился'
из областного
бюджета
еще один
миллион
долларов”).
The article gave an account of the misappropriation of budgetary
funds allocated for the purchase of furniture and renovations, and
Governor Rutskoy's calm reaction to these events. The relevant parts
read as follows (translated from Russian):
“A normal governor in that situation [having
received information about the misappropriation of substantial sums
from the budget] would certainly clutch his head in horror and start
inquiring how the taxpayers' money had disappeared and who was at
fault. He would fire those responsible and seek the assistance of the
police, the prosecutor's office and the courts in order to make good
the loss to the regional budget...
That would be the logical conduct of a normal governor.
But our [governor], having received a letter from the head of the
audit department..., wrote the following instruction by hand...”
- The
article then quoted the instruction given by Governor Rutskoy,
recommending to his aides that they re-evaluate the work that had
been carried out so as to cover up the discrepancy between the amount
allocated and the expenses incurred. The article ended in the
following manner:
“I do not know what others think, but my view is
as follows: a governor who gives such advice is abnormal
(ненормальный).
Let me clarify, lest I face judicial proceedings: I am talking about
the conduct of a [State] official, not Mr Rutskoy's personality,
which is none of my business.”
- On
1 August 2000 Governor Rutskoy lodged a civil action for defamation
against the applicant and the newspaper's editors. He considered
certain facts in the applicant's article to be untrue and damaging to
his honour, dignity and professional reputation and claimed 250,000
Russian roubles (RUR) in non-pecuniary damages. In particular, the
Governor considered the following words from the final paragraph of
the article to be insulting: “... a governor who gives such
advice is abnormal... I am talking about the conduct of a [State]
official...”
- On
19 October 2000 the Leninskiy District Court of Kursk allowed the
defamation action in part. The court was satisfied that the facts
contested by Governor Rutskoy were shown to have been true by the
applicant. As regards the final sentence, it found as follows:
“The extract from the article which reads '... a
governor who gives such advice is abnormal' represents the opinion of
the article's author, however, this opinion is expressed in an
insulting manner.
The court cannot agree with [the applicant's] arguments
that in using the word 'abnormal' he was referring to the Governor's
conduct and not to his personality. A subsequent clarification by the
author which reads '...I am talking about the conduct of a [State]
official, not Mr Rutskoy's personality' does not eliminate the
ambiguity of perception, including [the perception of] an insulting
meaning, as the purpose and structure of the main clause suggested
that 'abnormal' referred precisely to the word 'governor' and not to
his behaviour...
The court considers that the violation of the
plaintiff's right to a good name, honour, dignity and professional
reputation should be remedied, pursuant to Articles 150, 151 of the
Civil Code, by requiring the person who caused it to pay compensation
in respect of non-pecuniary damage...”
- The
District Court held that this extract was “expressed in an
insulting manner which damaged the honour, dignity and professional
reputation of A. Rutskoy” and ordered that the applicant
should pay RUR 1,000 (42 euros (EUR)) to the Governor. The
remainder of the Governor's action was dismissed as ill-founded.
- On
4 November 2000 the applicant appealed against the judgment. He
submitted that the plaintiff had taken the impugned words out of
context and that the court had failed to analyse the paragraph as a
whole. The word “abnormal” had obviously referred to the
acts of Governor Rutskoy as a State official and public figure.
Furthermore, according to an authoritative dictionary of the Russian
language, the first meaning of the word “abnormal” was
“divergent from the norm” and the meaning of “insane,
mentally ill” was the second, colloquial meaning.
- On
28 November 2000 the Kursk Regional Court upheld the judgment of 19
October 2000. The Regional Court confirmed the first-instance court's
finding as to the insulting meaning of the impugned sentence and
dismissed the applicant's arguments as follows:
“The grounds of appeal to the effect that the
impugned sentence was not insulting because it referred not to the
personality, but to the conduct of a public official cannot be taken
into account because the [first-instance] court correctly proceeded
from the literal meaning of the sentence and the interpretation of
that sentence suggested in the points of appeal did not conform to
its substance.”
II. RELEVANT DOMESTIC LAW
- 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...
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 shall not be transferable 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 have 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained of a violation of his right to impart
information guaranteed under 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...”
- The
Court notes that it is common ground between the parties that the
judgments given in the defamation action against the applicant
constituted an interference with his right to freedom of expression
as protected by Article 10 § 1. The Court's task is to determine
whether the interference was justified within the meaning of
paragraph 2 of this Article, that is, whether it was “prescribed
by law”, pursued a legitimate aim and was “necessary in a
democratic society”.
- As
regards the legal basis for the interference, the present case is
different from previous freedom-of-expression cases against Russia
that have been before the Court, in that the domestic courts held the
applicant liable not for his failure to prove the truthfulness of his
assertions under Article 152 of the Civil Code (see, for example,
Karman v. Russia, no. 29372/02, § 31,
14 December 2006, and Grinberg v. Russia,
no. 23472/03, § 26, 21 July 2005) but for having
proffered an insulting statement (the word “abnormal”)
which was degrading to the Governor's dignity, a personal
non-pecuniary right protected under Article 150 of the Civil Code.
The applicant contended that, since the notion of “insult”
was defined only in criminal law but not in the Civil Code, he had
not been able reasonably to foresee that the use of such a neutral
word would give rise to civil liability. The Court considers that it
need not determine whether the legal norms applied in the defamation
claim were formulated with sufficient precision to enable the
applicant to regulate his conduct, since the interference was, in any
event, not “necessary in a democratic society” for the
following reasons.
- The
Court recalls that, in applying the test of necessity, its task is 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, for example, Grinberg, cited above, §§ 26-27,
with further references).
- In
examining the particular circumstances of the case, the Court takes
the following elements into account: the position of the applicant,
the position of the plaintiff in the defamation claim, the subject
matter of the publication and qualification of the contested
statement by the domestic courts, the wording used by the applicant,
and the penalty imposed on him (see Krasulya v. Russia,
no. 12365/03, § 35, 22 February 2007, and
Jerusalem v. Austria, no. 26958/95, § 35, ECHR
2001 II).
- As
regards the applicant's position, the Court observes that he was a
journalist. It reiterates in this connection that the press fulfils
an essential function in a democratic society. Although it must not
overstep certain bounds, particularly as regards the reputation and
rights of others, its duty is nevertheless to impart – in a
manner consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see De
Haes and Gijsels v. Belgium, judgment of 24 February
1997, Reports of Judgments and Decisions 1997 I, §
37, and Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, § 59, ECHR 1999 III). Journalistic
freedom covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria (no.
1), judgment of 26 April 1995, Series A no. 313,
§ 38).
- The
thrust of the criticism in the applicant's publication was directed
against the regional governor Mr Rutskoy, a professional politician
in respect of whom the limits of acceptable criticism are wider than
in the case of a private individual (see Krasulya, § 37,
and Grinberg, § 32, both cited above, and Lingens v.
Austria, judgment of 8 July 1986, Series A no. 103,
§ 42). At the material time Mr Rutskoy was standing for
re-election to his position. As a prominent actor on the political
scene, Mr Rutskoy inevitably and knowingly laid himself open to close
scrutiny of his every word and deed by both journalists and the
public at large. The Court stresses that in these circumstances he
should have displayed a greater degree of tolerance to critical
publications.
- The
applicant's article concerned Governor Rutskoy's reaction to an
official audit report which revealed a substantial deficit in the
regional budget. The Government and the applicant were in agreement
that this subject could be considered as part of a political debate
on a matter of general and public concern. The Court reiterates in
this connection that it has been its constant approach to require
very strong reasons for justifying restrictions on political speech,
as broad restrictions imposed in individual cases would undoubtedly
affect respect for the freedom of expression in general in the State
concerned (see Feldek v. Slovakia, no. 29032/95, § 83,
ECHR 2001 VIII, and Sürek v. Turkey (no. 1)
[GC], no. 26682/95, § 61, ECHR 1999-IV).
- The
main point on which the parties disagreed was the characterisation of
the word “abnormal” by the domestic courts. Referring to
the Court's findings in the case of Constantinescu v. Romania (no.
28871/95, ECHR 2000 VIII), the Government submitted that the
word had been used to describe Mr Rutskoy's personality rather than
his political activities and that the applicant could have couched
his criticism in different terms without resorting to assertions
degrading to Mr Rutskoy's dignity. The Government pointed out
that the applicant had been ordered to pay a mere thousand roubles in
damages.
- The
applicant maintained that the domestic courts had not taken into
account the context of the article, which had concerned Mr Rutskoy's
professional conduct rather than his private life or mental health.
The applicant pointed out that, in order to eliminate any vestige of
ambiguity, he had expressly stated that he had been referring to Mr
Rutskoy's conduct rather than his personality. A consistent reading
of the article would have revealed that the applicant had first
examined what the conduct of a “normal” governor should
have been in a similar situation and then expressed his view on Mr
Rutskoy's reaction. Finally, the applicant stressed that he had not
stated that the governor had been generally abnormal; his value
judgment had referred to one specific manifestation of the governor's
professional activities, namely his advising his assistants to cover
up the budget deficit.
- The
applicant also submitted that he had acted in good faith. He had
verified all the facts in the article and the courts had been
satisfied as to their accuracy. He had therefore expressed a value
judgment which had rested on a solid and sufficient factual basis,
thus distinguishing his case from the Constantinescu case. On
the other hand, his case was similar to the Oberschlick case,
where the public use of a much stronger word “idiot”
(Trottel) in respect of a politician had been found not to be
disproportionate (see Oberschlick v. Austria (no. 2), judgment
of 1 July 1997, Reports 1997 IV, § 34).
- The
Court agrees with the domestic courts' characterisation of the word
“abnormal” as a value judgment rather than a statement of
fact. It cannot, however, accept their finding that in the context of
the applicant's article the word was employed to suggest that the
Governor was insane. The Court notes that the article opened with a
description of the contents of an audit report which had revealed a
shortage of funds allocated for the purchase of office furniture. The
applicant stated his view that under such circumstances an imaginary
“normal governor” would have attempted to identify those
responsible, ensure their prosecution and seek restitution of the
stolen money. He then contrasted the conduct of that fictitious
“normal governor” with the real-life reaction of Governor
Rutskoy, who had advised his assistants to re-evaluate the work that
had been carried out so as to cover up the deficit. The article
concluded with an expression of the applicant's opinion on the
“abnormality” of a State official's dispensing such
advice. Against this background, the Court considers that the term
“abnormal”, taken in its context, should be understood in
the sense given to it by the applicant, namely to describe the
conduct of a State official which did not appear appropriate in the
circumstances of the case.
- The Court further 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 Grinberg, cited above, §§
30-31, with further references). However, the question remains
whether there was 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, § 43, cited
above). In the present case the domestic courts were satisfied as to
the accuracy of the facts related in the applicant's article –
in particular, as regards the handwritten instruction by Governor
Rutskoy for his assistants to re-evaluate the work that had been
carried out – and dismissed that part of the Governor's claim
as unfounded. It follows that the applicant's value judgment had a
solid factual grounding.
- Finally,
the Court notes that the applicant took care to avoid an ambiguous
reading of his conclusion. He made it clear that his statement on
“abnormality” referred to Governor Rutskoy's conduct
rather than to his persona, and he did so in the piece itself, that
is, before the defamation suit was filed. The domestic courts did not
explain why they favoured the interpretation of the statement
suggesting that the Governor was mentally deficient over the one
criticising shortcomings in the discharge of his duties. In these
circumstances, the Court considers that the need to put the
protection of the politician's personality rights above the
applicant's right to freedom of expression and the general interest
in promoting this freedom where issues of public interest are
concerned has not been convincingly established.
- In
the light of the above considerations and taking into account the
task of journalists and the press of imparting information and ideas
on matters of public concern, even those that may offend, shock or
disturb, the Court considers that the use of the term “abnormal”
to describe Mr Rutskoy's conduct did not exceed the acceptable
limits of criticism. That the proceedings were civil rather than
criminal in nature and the final award was relatively small does not
detract from the fact that the domestic decisions were not based on
an acceptable assessment of the relevant facts (see paragraph 17
above). Accordingly, the Court finds that the interference at issue
was not “necessary in a democratic society”.
- There
has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 47 in respect of pecuniary damage, representing
the amount he had paid to Governor Rutskoy in pursuance of the
domestic judgments, adjusted for inflation. As regards non-pecuniary
damage, the applicant considered that a finding of a violation would
constitute a sufficient just satisfaction.
- The
Government accepted the claim for pecuniary damage in the amount of
RUR 1,070 which the applicant had actually paid to the Governor. They
stated that the applicant had not submitted a calculation of
inflation-related losses.
- The
Court considers that there is a causal link between the violation
found and the alleged pecuniary damage in so far as the applicant
referred to the amount which he had to pay to Mr Rutskoy under the
domestic judgments. Moreover, some pecuniary loss must have been
occasioned on account of the period that elapsed from the time when
the above amount was paid until the Court's award (see Grinberg,
§ 39, cited above). Consequently, the Court awards the
applicant EUR 50 in respect of pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed RUR 35,000 (EUR 1,026) for his representation
before the Court by Ms Arapova. He submitted a legal services
contract and two payment receipts.
- The
Government submitted that the amount of legal fees was excessive and
unreasonable. Furthermore, they claimed that the only acceptable
evidence of payment would be the representative's tax declaration,
stamped by the tax authority.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses in so far as it has been shown that these have
been actually and necessarily incurred and were reasonable as to
quantum. Examining the documents submitted by the applicant, the
Court is satisfied that the applicant paid his representative the
amounts stipulated in the legal services contract. Whether the
applicant's representative paid taxes on these amounts is immaterial
for making an award under Article 41 of the Convention. It further
considers that the legal fee was reasonable as to quantum and awards
the applicant the entire amount he claimed in respect of costs and
expenses, namely EUR 1,026, plus any tax that may be chargeable on
it.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
50 (fifty euros) in respect of pecuniary damage;
(ii) EUR
1,026 (one thousand and twenty-six euros) in respect of costs and
expenses;
(iii) 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
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
