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THIRD
SECTION
CASE OF DYUNDIN v. RUSSIA
(Application
no. 37406/03)
JUDGMENT
STRASBOURG
14
October 2008
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 Dyundin v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Boštjan
M. Zupančič,
Anatoly Kovler,
Alvina
Gyulumyan,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37406/03) 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 Vyacheslav Alekseyevich
Dyundin (“the applicant”), on 18 October 2003.
- The
applicant was represented by Ms A. Soboleva and Mr V. Monakhov,
lawyers practising in Moscow. 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, in particular, a violation of his right to freedom
of expression.
- On
13 December 2005 the Court decided to communicate the complaint to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in the town of Orsk in the
Orenburg Region. He is a journalist.
A. The publication
- On
21 August 2002 the applicant published an article in issue
no. 128\382 of the Orskiy Vestnik newspaper. The article
appeared under the headline 'Tortured suspects confessed to the theft
they had not committed' (“Под
пыткой
подозреваемые
сознались
в краже,
которой
не совершали”).
It concerned an investigation into the theft of property of a private
company. The company director had identified three of his former
employees as prime suspects. Mr S., one of those three, had gone to
the Leninskiy District police station of his own will to clear
himself of suspicion. The story then switched to a first-person
narrative by Mr S., which was preceded by the author's statement, in
bold and in italics: “I switched on the dictaphone recording of
S[.]'s story”.
- Mr
S. said that he had been detained overnight at the Leninskiy District
police station. The following morning he had been brought to an
office where five police officers had been present; Mr G. had
been among them. Mr S. continued as follows:
“It was a Saturday. They [the police officers]
planned to go to a wedding party after lunch; they reeked of fresh
alcohol, it looked like they had already been drinking. They
discussed how to torture me - using a crow-bar or otherwise? They
tied me to a chair, my legs fastened to the chair legs and my arms
cuffed behind the chair back. At first they punched me in the chest
with their fists, it hurt. I was in a state of shock. Then, a
sudden, stunning blow to the neck... I could not see who
delivered the blow and with what object. Someone said: 'What now? The
crow-bar?' G[.] says: 'Well, but do not stain my table'. And
he took all the magazines off the table. One of them, who squinted a
bit, took out a tool that looked like a tyre lever. I do not know how
they wanted to torture me. G[.] says: 'No, let's try a gas mask
first'. They put a gas mask on me... I could not breathe in or
out, I felt faint and my head shook...” (emphasis added, see
below).
- The
article further continued to relate Mr S.'s story as told by him.
After a while Mr S. had signalled his readiness to confess. He
had been taken to the office next door, where a young man in civilian
clothes had written down his statements. Thereafter, Mr S. had been
locked in the basement cell of the police station.
Switching
back to author's speech, the applicant introduced Mr M., a friend of
Mr S., who had gone to the police station to confirm Mr S.'s alibi.
With the words “Let us give [M.] the floor”, the story
continued as narrated by Mr M.:
“At the Leninskiy District police station they
took me into office no. 18 on the second floor. The interview was
conducted by the investigator G[.], a tall athletic man with red
hair.
– Where is the snatch?
– What snatch?
– ...Your friends have already confessed. You are
the 'weak link'. You are an 'MDP' – a morally degraded
person...
He began beating me. Every word was followed by a
blow...
– Where is the loot? You will tell me! I am a
paratrooper. I used to crush people like you and I will do the
same to you! Ever heard about disappearances? You will be one of
them if you do not give back the loot!
...I heard that if the police accidentally break the
leg or arm [of a detainee], operational officers have to finish the
victim off and secretly bury him so as to hide the traces of
torture...
G[.] says: 'Stop talking like a parrot. Counsel,
counsel... Counsel will be at trial, but now you are under pre-trial
investigation. Take him to the cell where the faggots are! They
are hungry, let them explain to him what he is.' But he did not hit
me. Just banged his fist on the table. As if they started to realise
that they had made a mistake and were at a loss what to do next.”
(emphasis added, see below).
- In
the conclusion the applicant quoted from a medical report which noted
multiple bruises and abrasions on Mr S.'s body. He criticised the
passive attitude of supervising prosecutors who had refused to
initiate a criminal case against Mr G. and the other police officers,
and noted that the prosecutors' refusals were being appealed against
to a court. The real perpetrator had later been identified and
convicted of the theft.
B. Civil action for defamation
- The
senior operational officer of the Leninskiy District police
station, Mr G. sued the applicant and the newspaper's founder
for defamation before the Leninskiy District Court of Orsk.
Considering that the extracts in bold above were untrue and damaging
to his honour, dignity and professional reputation, he sought
compensation for non-pecuniary damage and legal costs. He denied that
he had ever used violence against Mr S. or Mr M.
- The
applicant maintained that the contested extracts had been a verbatim
reproduction of the personal stories of Mr S. and Mr M. and
represented their value judgments on these events. He had acted in
good faith and verified that neither Mr S. nor Mr M. had a reason to
slander or denigrate Mr G. The extracts either did not refer to Mr G.
personally (such as “they reeked of fresh alcohol...”) or
did not contain any information damaging to his reputation (such as
the statement about him being a paratrooper). The applicant produced
in evidence a dictaphone recording of his conversation with Mr S.,
when Mr M. had been also present. He also relied on the medical
report noting Mr S.'s injuries, on the records of the confessions
made by Mr S. and Mr M. at the Leninskiy District police station, and
on their complaints about ill-treatment lodged with the prosecutor's
office.
- The
District Court took oral evidence from Mr S. and Mr M. Mr S.
confirmed the accuracy of the story as reproduced in the article.
Responding to questions from both parties, he testified that police
officers but not Mr G. had reeked of alcohol, that he had been tied
to a chair, that Mr G. had indeed warned them against staining his
table, that Mr G. had not used violence against him but had been
“merely present”. Mr M. also confirmed his story as
narrated in the article.
- On 29 April 2003 the Leninskiy District Court of Orsk
granted Mr G.'s action in part. It noted firstly that the applicant
and the newspaper could not claim an exemption from liability for
defamation on the ground that they had merely reproduced statements
made by others, because no such exemption was provided for in the
Mass Media Act. Accordingly, they were required to prove the accuracy
of the contested statements. However, in the District Court's view,
neither the medical reports noting injuries on Mr M.'s and Mr S.'s
bodies, nor their interview records, nor their oral testimony could
be considered relevant evidence or proof of the truthfulness of the
allegations that Mr G. had tortured them or made intimidating
remarks.
Furthermore,
“...it follows from S[.]'s oral testimony that
G[.] had not been in an inebriated state during the interview, that
he had not suggested using a gas mask, that he had not resorted to
physical violence and that S[.] had not told [the applicant] about
that. A comparison of the dictaphone recording of S[.]'s story with
the narrative in the article leads to the conclusion that the events
were retold in the article in a different chronological order and
that the author creatively rewrote S.'s statements, increasing the
emotional intensity and emphasising G[.]'s leading part in the use of
violence towards the detainees.”
- The
District Court, however, accepted that the statement about Mr G.'s
being a paratrooper was not damaging to his reputation and that
Mr M.'s statement about the victims being “finished off”
by the police did not concern Mr G. personally. The remaining
extracts were found damaging to his reputation and liable to
rectification.
- The
District Court awarded Mr G. 2,000 Russian roubles (about 70 euros)
and legal costs against the applicant.
- On
31 July 2003 the Orenburg Regional Court, on an appeal by the
applicant and the newspaper, upheld the judgment.
II. RELEVANT DOMESTIC LAW
- 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.
- Article 1100 provides that compensation for
non-pecuniary damage is payable irrespective of the tortfeasor's
fault if damages were sustained through dissemination of information
damaging dignity, honour or reputation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained of a violation of his right to freedom of
expression provided in 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. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
Government submitted that the applicant had been found civilly liable
for deliberately imparting false information damaging another
person's dignity, honour and reputation. In particular, he had
written and published an article accusing police officer Mr G. of
serious criminal offences, namely abuse of power and ill-treatment of
detainees. The prosecutor's office had conducted an inquiry and had
refused to initiate criminal proceedings against Mr G. The domestic
courts had therefore correctly concluded that the information
imparted by the applicant had been false.
- Referring
to the decision in the case of Chernysheva v. Russia
(no. 77062/01, 10 June 2004), the Government argued that Article
10 of the Convention did not guarantee wholly unrestricted freedom of
expression. The exercise of that freedom carried with it “duties
and responsibilities”, which also applied to the press. Those
“duties and responsibilities” were liable to assume
significance when, as in the present case, there was a question of
attacking the reputation of a named individual. The applicant had
failed in his duty to verify the veracity of the imparted
information. Accordingly, the interference with his right to freedom
of expression had been justified. The fine imposed on the applicant
had been reasonable and proportionate to the legitimate aim of
protecting Mr G.'s reputation.
- The
applicant insisted that he had checked the accuracy of facts with a
reasonable degree of care, as might be required from a journalist. He
had obtained and submitted to the domestic courts medical reports
noting Mr S.'s injuries, the records of the confessions made by
Mr S. and Mr M. at the police station and copies of Mr S.'s and Mr
M.'s complaints about ill-treatment. Mr S. and Mr M. had confirmed
the accuracy of the information contained in the article. However,
the domestic courts had dismissed that evidence as untrustworthy
without explaining the reasons for that finding. The fact that the
authorities had refused to initiate criminal proceedings in respect
of the allegations of ill-treatment had not, in itself, proved that
the information published by the applicant had been untrue. The
applicant had mentioned in his article that the authorities had
refused to initiate criminal proceedings and had criticised them for
that. The purpose of the article had been to denounce the
authorities' failure to investigate the allegations of police
brutality. The applicant maintained that there existed a sufficient
factual basis for his statement. Although he had failed to prove in
court that his description of the events at the police station had
been true in all its particulars, he was still under the protection
of Article 10 of the Convention. Even harsh criticism in strong,
polemical language published “on a slim factual basis”
was protected under Article 10 (see Dichand and Others v. Austria,
no. 29271/95, § 52, 26 February 2002).
- The
applicant submitted that strict liability established by domestic law
in cases of disseminating information damaging dignity, honour or
reputation (see paragraph 18 above) was contrary to Article 10 of the
Convention. In the applicant's opinion a journalist was liable to pay
compensation in respect of non-pecuniary damage only if he had acted
with malice and his fault had been established by a court. In cases
where a journalist had defamed a public official unintentionally,
only rectification and pecuniary damages should be available to the
plaintiff. The applicant further argued that a journalist could not
be required to prove the veracity of his every allegation according
to the “beyond reasonable doubt” standard applied in
criminal law. A journalist who published an article about police
brutality might not be reasonably required to act as a prosecutor and
collect the evidence of guilt in a criminal case. His role was to
urge the prosecution authorities to initiate criminal proceedings by
making public the facts of ill-treatment and by drawing attention to
them.
2. The Court's assessment
(a) General principles
- According
to the Court's well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and each
individual's self-fulfilment. 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, judgment of
7 December 1976, Series A no. 24, p. 23, § 49,
and Jersild v. Denmark, judgment of 23 September
1994, Series A no. 298, p. 26, § 37).
- The Court reiterates that there is little scope under
Article 10 § 2 of the Convention for restrictions on
political speech or debates on questions of public interest (see
Sürek v. Turkey (no. 1) [GC], no. 26682/95, §
61, ECHR 1999-IV). Moreover, although it cannot be said that
civil servants knowingly lay themselves open to close scrutiny of
their every word and deed to the extent politicians do, civil
servants acting in an official capacity are, like politicians,
subject to wider limits of acceptable criticism than private
individuals (see Thoma v. Luxembourg, no. 38432/97, § 47,
ECHR 2001 III).
- 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 and the
need to prevent the disclosure of confidential information, 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, pp. 233-34, § 37, and Bladet
Tromsø and Stensaas v. Norway [GC], no. 21980/93, §
59, ECHR 1999 III). Not only does it have the task of imparting
such information and ideas: the public also has a right to receive
them. Were it otherwise, the press would be unable to play its vital
role of “public watchdog” (see Thorgeir Thorgeirson v.
Iceland, judgment of 25 June 1992, Series A no. 239, p. 28,
§ 63). 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, p. 19, § 38). This freedom is subject to
the exceptions set out in Article 10 § 2, which must,
however, be construed strictly. The need for any restrictions must be
established convincingly.
- 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. Under the terms of paragraph 2 of Article 10 of
the Convention, freedom of expression carries with it “duties
and responsibilities”, which also apply to the media even with
respect to matters of serious public concern. Moreover, these “duties
and responsibilities” are liable to assume significance when
there is a question of attacking the reputation of a named individual
and infringing the “rights of others”. Thus,
special grounds are required before the media can be dispensed from
their ordinary obligation to verify factual statements that are
defamatory of private individuals. Whether such grounds exist depends
in particular on the nature and degree of the defamation in question
and the extent to which the media can reasonably regard their sources
as reliable with respect to the allegations (see Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02
and 36448/02, § 67, ECHR 2007 ..., and Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 78,
ECHR 2004 XI).
- In cases of publications based on interviews a
distinction needs to be made according to whether the statements
emanate from the journalist or are quotations from others, since
punishment of a journalist for assisting in the dissemination of
statements made by another person in an interview would seriously
hamper the contribution of the press to discussion of matters of
public interest and should not be envisaged unless there are
particularly strong reasons for doing so (see Pedersen and
Baadsgaard, cited above, § 77; Thorgeir Thorgeirson,
cited above, § 65; and Jersild, cited above,
§ 35).
(b) Application to the present case
- The
Court notes the applicant was found civilly liable for publishing an
interview with two former suspects in a theft case who alleged that
the police had beaten them to extract confessions. The interview was
followed by the applicant's comment denouncing the authorities'
failure to investigate the allegations of ill-treatment and bring
those responsible to justice.
- 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 as protected by
Article 10 § 1. It is not contested that the interference was
“prescribed by law”, notably Article 152 of the Civil
Code, and “pursued a legitimate aim”, that of protecting
the reputation or rights of others, 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 in a democratic society requires the Court to
determine whether the “interference” complained of
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 margin 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, among many others, Krasulya v. Russia,
no. 12365/03, § 34, 22 February 2007, and
Grinberg v. Russia, no. 23472/03, § 27, 21 July
2005).
- In
the present case the applicant expressed his views by having them
published in a newspaper. He was found civilly liable for his
publication, therefore the impugned interference must be seen in the
context of the essential role of the press in ensuring the proper
functioning of a democratic society (see Lingens v. Austria,
judgment of 8 July 1986, Series A no. 103, § 41, and
Sürek (no. 1), cited above, § 59). The
allegations of police brutality were obviously a matter of great
public concern and the applicant was entitled to bring them to the
public's attention through the press. However, there is no evidence
in the domestic judgments that the courts performed a balancing
exercise between the need to protect the policemen's reputation and
journalists' right to divulge information on issues of general
interest. They confined their analysis to the discussion of the
damage to the plaintiff's reputation without giving any consideration
to the applicant's journalistic freedom or to the fact that the
plaintiff was a civil servant acting in an official capacity and was
accordingly subject to wider limits of acceptable criticism than
private individuals (see case-law cited in paragraph 26 above). The
Court therefore considers 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 (see, for
similar reasoning, Kwiecień v. Poland, no. 51744/99,
§ 52, ECHR 2007 ...).
- Turning
now to the contents of the article published by the applicant, the
Court notes that a prominent feature of it was the interview with two
alleged victims of police brutality, Mr S. and Mr M. Parts of the
interview were found to have been defamatory by the domestic courts.
In so finding, the Russian courts failed to distinguish between the
author's own speech and his quotation of others, treating as
irrelevant the fact that the impugned statements did not emanate from
the applicant but were clearly identified as those proffered by other
persons (see paragraph 13 above). The domestic courts did not advance
any justification for punishment of the applicant for assisting in
the dissemination of statements made by another person in an
interview, although they were required to give particularly strong
reasons for doing so (see case-law cited in paragraph 29 above).
- The
Court further observes that the Russian courts characterised the
contested extracts as statements of fact and found the applicant
liable for his failure to show their veracity. The Court accepts that
the article contained serious factual allegations against the police
and that those allegations were susceptible of proof. However, the
Court considers that in the context of the balancing exercise under
Article 10, in particular where the reporting by a journalist of
statements made by third parties is concerned, the relevant test
is not whether the journalist can prove the veracity of the
statements but whether a sufficiently accurate and reliable factual
basis proportionate to the nature and degree of the allegation can be
established (see Pedersen and Baadsgaard, cited above, §
78). In that respect, it notes that the applicant submitted
documentary evidence, including a dictaphone recording of his
conversation with Mr S. and Mr M., the medical report noting Mr S.'s
injuries, the records of the confessions made by Mr S. and Mr M.
at the police station and copies of their complaints of
ill-treatment. He also called Mr S. and Mr M. to the witness stand to
confirm that the article reproduced their statements accurately
without distorting or exaggerating them. The evidence produced by the
applicant showed that Mr M. and Mr S. had been indeed questioned
by the police officers of the Leninskiy District police station and
confessed to the theft, that they had sustained injuries while in
police custody, and had complained to the domestic authorities that
they had been ill-treated. It also demonstrated that despite their
confessions Mr M. and Mr S. had never been charged and that another
person had ultimately been convicted of the theft.
- The
domestic courts found that the materials submitted by the applicant
were not relevant evidence of ill-treatment, without explaining the
reasons for that finding (see paragraph 13 above). It transpires from
the Government's submissions that the courts attached such
preponderant weight to the findings of the prosecutor's inquiry into
Mr S.'s and Mr M.'s allegations of ill-treatment and the refusal
to initiate criminal proceedings against the policemen that no
evidence produced by the applicant could have convinced them of the
veracity of the statements published by him. The Court recalls in
this respect that the standard of proof for establishing the
well-foundedness of a criminal charge by a competent authority can
hardly be compared to that which ought to be observed by a journalist
when expressing his opinion on a matter of public concern (see
Karman v. Russia, no. 29372/02, § 42, 14 December
2006, and Unabhängige Initiative Informationsvielfalt
v. Austria, no. 28525/95, § 46, ECHR 2002 I).
The Court is therefore not satisfied that the Russian courts gave
relevant and sufficient reasons for dismissing the evidence produced
by the applicant or based their decisions on an acceptable assessment
of relevant facts. In the Court's view, the body of evidence
available provided sufficient factual basis for the allegation of
police brutality. The Court is also unable to accept the Government's
argument that it was not permissible for the applicant to publish the
allegations of ill-treatment after the authorities had refused to
initiate criminal proceedings against the police officers. The
applicant mentioned in his article that the prosecutor's office had
refused to open an investigation into the claims of ill-treatment
made by Mr S. and Mr M. He criticised the authorities for their
passive attitude to the credible allegations of mistreatment of
criminal suspects, thereby expressing his opinion on a matter of
public concern.
- Finally,
the domestic courts found fault with the applicant for creatively
rewriting Mr S.'s statements, increasing the emotional intensity and
emphasising certain aspects. The Court observes that in their oral
submissions at the hearing Mr S. and Mr M. confirmed the accuracy of
the story as reproduced in the article. The Court is therefore
convinced that the applicant recounted the facts faithfully without
distorting them. Although it is true that the applicant did not
publish the interview in its entirety, omitting some parts and laying
emphasis on the others with the aim of intensifying the emotional
impact of the publication, there is no indication that he went beyond
the generally acceptable degree of exaggeration or provocation (see
the case-law cited in paragraph 27 above).
- In
the light of the above considerations and taking into account the
role of journalists and the press in imparting information and ideas
on matters of public concern, the Court finds that the applicant's
publication was fair comment on a matter of public concern resting on
a sufficient factual basis and that it did not exceed the acceptable
limits of criticism. The judgments in the defamation action against
the applicant gave rise to a breach of his right to freedom of
expression since, by omitting 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 interests, by
refusing to distinguish between the applicant's own speech and his
quotation of statements made by others during an interview, and by
failing to make an acceptable assessment of the relevant facts, the
Russian courts did not apply standards which were in conformity with
the principles embodied in Article 10 and did not adduce “relevant”
and “sufficient” reasons justifying the interference at
issue. The Court therefore considers that the domestic courts
overstepped the narrow margin of appreciation afforded to them with
regard to restrictions on debates on matters of public interest and
that the interference was not “necessary in a democratic
society”.
There
has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the defamation proceedings had been unfair.
He relied on Article 6 of the Convention, the relevant part of which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- It
is not the Court's function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention
(see, among many other authorities, Čekić and Others v.
Croatia (dec.), no. 15085/02, 9 October 2003). Having regard
to the facts as submitted, the Court has not found any reason to
believe that the proceedings did not comply with the fairness
requirement of Article 6 of the Convention. It follows that this part
of the application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the
Convention.
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
applicant claimed 59 euros (EUR) in respect of pecuniary damage,
representing the amount paid by him to the plaintiff in the
defamation action. He also claimed EUR 1,000 in respect of
non-pecuniary damage.
- The Government accepted the claim in respect of
pecuniary damage. They considered that the claim in respect of
non-pecuniary damage was excessive. In their view, a finding of a
violation would constitute sufficient just satisfaction.
- The
Court reiterates that under its case-law a sum paid as reparation for
damage is only recoverable if a causal link between the violation of
the Convention and the damage sustained is established. Thus, in the
present case, the sums which the applicant had to pay to the
plaintiff in the defamation action may be taken into account (compare
Thoma, cited above, § 71). The Court therefore
awards EUR 59 to the applicant in respect of pecuniary damage, plus
any tax that may be chargeable.
- As
regards non-pecuniary damage, the Court considers that the applicant
has suffered non-pecuniary damage as a result of the domestic courts'
judgments, which were incompatible with the 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 EUR 1,000, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- Relying
on the lawyers' timesheets, the applicant claimed EUR 1,100 for
his representation. His representatives had spent 22 hours in the
preparation of the observations and just satisfaction claims. It was
agreed between the applicant and his representatives that their work
would be remunerated at the rate of EUR 50 per hour.
- The
Government considered the costs and expenses claimed by the applicant
to be unnecessary and unreasonable as to quantum. The case was not
complicated and it was not necessary to retain two lawyers. Moreover,
the applicant had not produced the legal fee agreement or documents
showing that he had indeed paid the legal fee.
- 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. 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 1,100, 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 complaint concerning the alleged
unjustified interference with the right to freedom of expression
admissible and the remainder of the application inadmissible;
- 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 59
(fifty-nine euros), plus any tax that may be chargeable, in respect
of pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
1,100 (one thousand one hundred 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.
Done in English, and notified in writing on 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
