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FIRST
SECTION
CASE OF OBUKHOVA v. RUSSIA
(Application
no. 34736/03)
JUDGMENT
STRASBOURG
8 January
2009
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 Obukhova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34736/03) 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 two Russian nationals, Ms Yelena Mikhaylovna
Obukhova and Mr Aleksey Mikhaylovich Nevinitsyn, on 6 October 2003.
- Ms
Obukhova and Mr Nevinitsyn were represented before the Court by Ms V.
Fomina, counsel for the Zolotoye Koltso newspaper. The Russian
Government (“the Government”) were represented by Mr P.
Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- Ms
Obukhova and Mr Nevinitsyn alleged a violation of the right to
freedom of expression.
- By
a decision of 1 December 2005, the Court declared the complaint by Mr
Nevinitsyn inadmissible and the complaint by Ms Obukhova (“the
applicant”) admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). The Court decided, after consulting the parties,
that no hearing on the merits was required (Rule 59 § 3 in
fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Yaroslavl. She is a
journalist on the Zolotoye Koltso newspaper.
- On
17 January 2003 the newspaper published an article by the applicant
under the headline “A year later they impounded the car”
(«Через год
арестовали
автомобиль»).
The article was prompted by the following letter written by a Ms P.
and reproduced in italics in the opening passage of the article:
“On 22 September 2001 my husband... had a traffic
accident. Ms Galina Borisovna Baskova, a judge of the [Yaroslavl]
regional court, crashed into his car... The traffic police officers
did not find us responsible and we calmed down. But the following
year we received by registered mail a statement of claim, requesting
that Ms Baskova be compensated for damage in the amount of 75,000
roubles, and an order for a charge on our property and our car issued
by a judge. We had not been informed of the hearing and we consider
that our civil rights were violated as we were convicted in our
absence. We feel that Ms Galina Borisovna Baskova is taking advantage
of her office and connections in the judiciary”.
- The
article related the versions of the traffic accident by Judge Baskova
(as described in her statement of claim), by traffic police officers,
by Mr and Ms P. and by eyewitnesses. It concluded as follows:
“So far the Zavolzhskiy District Court [of
Yaroslavl] has held three hearings... The date of the next hearing is
not fixed yet. Mr and Ms P. remember menacing words that Galina
Borisovna [Baskova] uttered immediately after the traffic accident
‘You will buy me a new car anyway!’; they shudder but
they will defend themselves to the very end.”
- On 7 March 2003 Judge Baskova sued the newspaper, the
applicant and Ms P. for defamation and refutation of untrue
information contained in the statement “Baskova is taking
advantage of her office and connections in the judiciary”.
- On
the same day Judge Baskova requested the court to order interim
measures, and notably an interlocutory injunction on the newspaper to
prevent publication of “any articles, letters or materials
about the factual circumstances of the traffic accident of 22
September 2001, as well as about the court proceedings concerning
that accident until they [had] finished”.
- On
the same day a judge of the Kirovskiy District Court of Yaroslavl
issued a decision to indicate interim measures (определение
об обеспечении
иска). The decision endorsed the
arguments put forward by Judge Baskova and read, in its entirety, as
follows:
“The plaintiff has referred to the following
circumstances. The article ‘A year later they impounded the
car’ (Zolotoye Koltso, no. 9, 17 January 2003) was
published before a decision on the merits of her claim for damages
against Mr P. had been issued, after the Zavolzhskiy District Court
of Yaroslavl had suspended the proceedings on 9 December 2003
and commissioned a technical study at the defendant’s request.
The article ends with the assertion that Mr and Ms P. ‘will
defend themselves to the very end’. The plaintiff considers
that further developments in the judicial proceedings – upon
their resumption – may also be reported by the newspaper in
such a manner as to confirm the damaging information and conclusion
already disseminated by the author.
[The plaintiff] considers that under these circumstances
a failure to indicate interim measures can impede the enforcement of
the judgment [in the defamation claim]: otherwise, alongside with
publication of a rectification of the information damaging to her,
the newspaper would be entitled to continue publications stating the
opposite view, which would undermine the judicial protection of her
impaired rights.
Pursuant to Article 139 of the Civil [Procedure] Code of
the Russian Federation, a court may, at a request of a party to the
case, indicate interim measures if a failure to indicate them could
impede the enforcement of a court judgment.
Having regard to the above, I consider that Ms Baskova’s
request is to be granted.”
- The District Court issued – with immediate
effect – an interlocutory injunction worded as follows:
“To enjoin the editor’s office of the
Zolotoye Koltso newspaper from publishing any articles, letters or
other materials written by anyone, which relate the factual
circumstances of the traffic accident on 22 September 2001 with the
participation of Ms Galina Baskova, Mr P. and Mr K., or the
circumstances of the judicial proceedings on Ms Galina Baskova’s
claim for damages against Mr P. until such time as the present
dispute has been resolved.
To serve a copy of the injunction on the bailiffs’
service of the Kirov District of Yaroslavl, Ms P., the editor’s
office of the Zolotoye Koltso newspaper, the newspaper’s
reporter Ms Yelena Obukhova, and Mrs Galina Baskova.”
- On
7 April 2003 the Yaroslavl Regional Court dismissed the appeal
against the injunction, finding as follows:
“The regional court considers that in the instant
case a failure to indicate interim measures would impede not only the
enforcement of the court judgment but also the examination of the
[defamation] action.
The arguments in the appeal to the effect that the
[injunction] violated the defendant’s constitutional right to
impart information cannot be taken into account as the prohibition
only covers publication of materials concerning one specific traffic
accident... Publication of materials about these facts before the
judgment has been made would be contrary to the interests of the
justice. The interim measures indicated by the court are
proportionate”.
- On
29 April 2003 the Kirovskiy District Court gave judgment in the
defamation claim. It did not accept the argument by the newspaper’s
lawyer that the contested statement was Ms P.’s subjective
opinion which was evident from the introductory expression “we
feel that”. The court considered it to be “the author’s
allegation... about Ms Baskova’s using her office and
connections... in the framework of lodging her claim and obtaining
interim measures”. As the defendants could not prove the
truthfulness of that statement, the court ordered publication of a
rectification in the newspaper. On 26 June 2003 the Yaroslavl
Regional Court upheld that judgment.
II. RELEVANT DOMESTIC LAW
- The
Code of Civil Procedure provides as follows:
Article 139. Grounds for application of interim
measures
“At the request of a party to the case, a judge or
a court may indicate interim measures. Such measures may be indicated
at any stage of the proceedings if a failure to indicate them could
impede or make impossible the enforcement of the court judgment.”
Article 140. Interim measures
“1. Interim measures may include:
...
(2) an injunction restraining the defendant
from carrying out specific actions;
...
When necessary, a judge or a court may indicate any
other interim measures that correspond to the purposes described in
Article 139 of the Code...
...
3. Interim measures must be proportionate to
the plaintiff’s claims.”
Article 144. Revocation of interim measures
“3. ...If the claim has been granted,
interim measures remain effective until the judgment has been
enforced.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the restriction on her right to publish
materials concerning the traffic accident involving Ms Baskova was
incompatible with 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. Submissions by the parties
- The
applicant submitted that there had been no need to afford special
protection to Judge Baskova, who had sued in her personal capacity.
In both the defamation and compensation proceedings she had acted as
an ordinary plaintiff rather than in her judicial capacity and the
injunction had therefore not been required for maintaining the
authority and impartiality of the judiciary. The authority of the
judiciary would have been better served if proceedings had been
transparent and the general public had been able to form an opinion
on them. Furthermore, the scope of the interlocutory injunction had
been greater than that of the defamation claim. Judge Baskova had
only challenged the statement that she had used her office to her
advantage, the remainder of the publication had not been contested.
However, the injunction had prohibited any mention of the traffic
accident or of the proceedings in which Judge Baskova had been
involved. This created a paradoxical situation where the applicant
had been prevented from reporting on ongoing civil proceedings which
had been conducted in public and had been open to anyone. Obviously,
such a broad prohibition had not been “necessary in a
democratic society”.
- The Government submitted that an interference with the
applicant’s right to freedom of expression had been required
for maintaining the authority of the judiciary, since it had been
alleged that Judge Baskova had used her office to secure undue
advantage in the civil proceedings. The domestic courts had
determined that the reputation of Judge Baskova required heightened
protection and thus the interference had pursued a “pressing
social need”. The interim measure had been proportionate to the
legitimate aim as it had been strictly limited in its scope and time.
Having regard to the accusatory nature of the allegation contained in
the publication, a failure to indicate interim measures could have
led to further publications and greater damage to Judge Baskova’s
reputation. Accordingly, the application of such interim measures had
been of greater public importance than affording the applicant the
possibility of “endless stirring-up of doubts about
circumstances which were simultaneously being examined in judicial
proceedings”. Contrary to the applicant’s claim, the
injunction had not affected the publicity of civil proceedings
because they had been open to anyone wishing to attend them and also
because the applicant had had a vested interest in their outcome.
Furthermore, the Government referred to the Court’s finding to
the effect that “the limits of permissible comment on pending
... proceedings may not extend to statements which are likely to
prejudice, whether intentionally or not, the chances of a person
receiving a fair trial or to undermine the confidence of the public
in the role of the courts in the administration of justice”
(see News Verlags GmbH & Co. KG v. Austria,
no. 31457/96, § 56, ECHR 2000 I). In the present
case the Government considered that the purpose of the injunction had
been the prevention of damage to Judge Baskova’s right to a
fair trial and to her authority as a judge. The applicant could have
unreasonably undermined the judge’s authority through her
continued reporting on a dispute to which she had been a party and
which was being considered by courts. If she had had doubts about the
conduct of the judge, she could have applied to the judges’
qualification panel with a complaint.
B. The Court’s assessment
-
The Court reiterates that freedom of expression constitutes one of
the essential foundations of a democratic society and one of the
basic conditions for its progress and for each individual’s
self-fulfilment (see Lingens v. Austria, judgment of 8
July 1986, Series A no. 103, p. 26, § 41).
Subject to paragraph 2, 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 that pluralism,
tolerance and broadmindedness without which there is no “democratic
society”. Given the essential role played by the press in a
democratic society, its duty is to impart – in a manner
consistent with its duties and responsibilities – information
and ideas on all matters of public interest. Not only does it have
the task of imparting such information and ideas: the public also has
a right to receive them (see, among many other authorities, Bladet
Tromsø and Stensaas v. Norway [GC], no. 21980/93,
§§ 59 and 62, ECHR 1999-III, and Colombani and Others
v. France, no. 51279/99, § 55, ECHR 2002-V).
- As
to the existence of an interference with the applicant’s right
to freedom of expression, the Court reiterates that, in so far as the
preliminary injunction has the effect of preventing journalists from
engaging in research and publications on the subject to which it
applied, the journalists may claim to be “victims” of
that measure (see, as a classic authority, Times Newspaper Ltd.,
The Sunday Times, Harold Evans v. the United Kingdom, no.
6538/74, Commission decision of 21 March 1975, Decisions and Reports
2, p. 90; and Observer and Guardian v. the United Kingdom,
26 November 1991, §§ 9 and 49, Series A
no. 216). In the instant case the interlocutory injunction was
issued in the framework of the proceedings, to which the applicant
was a party as a co-defendant. It prohibited the editor’s
office from publishing any materials by any person, including the
applicant, in so far as they concerned the road accident and the
claim for damages (see paragraph 12 above). It follows that the
applicant was directly affected by the impugned injunction of 7 March
2003 which constituted an interference with her right to freedom of
expression within the meaning of Article 10 § 1 of the
Convention.
- It
is not contested that the interference was “prescribed by law”,
namely the provisions of the Code of Civil Procedure governing
application of interim measures. As regards the legitimate aim of the
interference, the parties agreed that one of them was the protection
of the reputation of others. The Government further advanced that the
interference had also pursued the aim of the maintaining of the
authority of the judiciary. The applicant contested this argument.
The Court, for its part, is prepared to accept that the injunction
envisaged “maintaining the authority of the judiciary” as
one of its legitimate aims, since this phrase includes the protection
of the rights of litigants and since the purpose of the injunction
was to enable the defamation action to be heard without the
plaintiff’s rights in the meantime being prejudiced by the
commission of the very act which it was the purpose of the action to
prevent (compare Observer and Guardian, cited above, § 56).
The remaining issue is thus whether the interference was “necessary
in a democratic society”.
- In
the instant case the contested measure concerned the publication of
“any articles, letters or other materials” about the
traffic accident which had involved Judge Baskova or about the court
proceedings relating to that accident. Although Article 10 does not
prohibit prior restraints on publication or bans on distribution as
such, the Court emphasises that the dangers which restrictions of
that kind pose for a democratic society are such that they call for
the most careful scrutiny, which it will apply in its examination of
the instant case (see Editions Plon v. France,
no. 58148/00, § 42, ECHR 2004 IV; Association
Ekin v. France, no. 39288/98, § 56, ECHR
2001 VIII; and Observer and Guardian, cited above, § 60).
As the freedom of the press was at stake, the Russian authorities had
only a limited margin of appreciation to decide whether there was a
“pressing social need” to take the measures in question
(see Editions Plon, cited above, § 44).
- On
the facts, the Court observes that two civil procedures were
simultaneously pending. Both had been instituted by Judge Baskova.
The first one concerned her civil claim for damages against Mr P. in
connection with the traffic accident. In the second proceedings Judge
Baskova sued the newspaper, the applicant and Ms P. for defamation in
connection with the article relating the circumstances of the
accident and the institution of the proceedings for damages. The
interim injunction complained about was issued in the framework of
the second proceedings but prohibited the press coverage of the first
set of proceedings or the accident itself. The injunction remained
effective throughout the entire duration of the defamation
proceedings.
- The
Court reiterates that the test as to whether the impugned measure was
“necessary in a democratic society” involves showing that
the action taken was in pursuit of the legitimate aim, and that the
interference with the rights protected was no greater than was
necessary to achieve it (see Bartik v. Russia, no. 55565/00,
§ 46, ECHR 2006 ...).
- Although
the domestic courts have held the prohibition to be justified as a
means of protecting the reputation of others and maintaining the
authority of the judiciary, the reasons given by way of justification
do not appear sufficient to the Court. It will now examine in turn
the two prongs of the injunction, one relating to the prohibition to
publish information on the road accident and the other enjoining
publications on the civil claim for damages.
- As
regards the prohibition on information about the factual
circumstances of the traffic accident in which Mrs Baskova had been
involved, the Court notes at the outset that the applicant did not
put forward any specific version of the incident as the true or the
only possible one but rather presented several possible sequences of
events as related by Mr and Ms P., by Mrs Baskova in her statement of
claim, by the traffic police and by eyewitnesses. Not one of these
versions was contested as untrue or inaccurate in the defamation
proceedings, the scope of which was limited to the statement about
Judge Baskova’s connections in the judiciary (see paragraph 9
above). In issuing the injunction in the defamation proceedings, the
District Court merely referred to the fact that a technical study had
been commissioned, without explaining why it considered that further
research into, or publications on, the factual circumstances of the
road accident would be prejudicial for the outcome of the
proceedings. Moreover, since Mrs Baskova was involved in the accident
as a private person, the Court finds that the injunction on further
publications about the accident could not have been relevant for the
purpose of maintaining the authority of the judiciary.
- As
regards the prohibition on reporting on the pending claim for
damages, the Court accepts that the allegation contained in Ms P.’s
letter – that Judge Baskova had taken advantage of her office
and connections in the judiciary – could indeed be damaging to
Judge Baskova’s reputation and to the authority of the judicial
system. Nevertheless, although the injunction corresponded to the
legitimate aim it sought to achieve, in the Court’s view, its
scope was excessively broad and disproportionate to that aim. It must
be noted that the Russian legal system has no equivalent of the sub
judice rule and the right to report on proceedings in open court
is not in principle restricted. The Government’s argument that,
the injunction notwithstanding, the proceedings on the claim for
damages had retained their public character is irrelevant because the
applicant alleged a violation of the right to impart information
rather than a violation of the right to a public hearing. The Court
reiterates in this connection that the duty of the press to impart
information and ideas on all matters of public interest extends to
the reporting and commenting on court proceedings which contribute to
their publicity and are thus perfectly consonant with the requirement
under Article 6 § 1 of the Convention that hearings be public
(see News Verlags GmbH & Co. KG, cited above, § 56).
It is relevant for the Court’s assessment that the scope of the
injunction was not limited to the specific statement about Judge
Baskova’s attempt to secure undue advantage in the proceedings,
but rather restricted, in a general and unqualified manner, the
possibility of printing any material whatsoever relating to these
proceedings. The Court is unable to accept that such a sweeping
prohibition was “necessary in a democratic society”. It
agrees with the applicant that the injunction at issue was a
disservice to the authority of the judiciary because it reduced
transparency of the proceedings and may have given rise to doubts
about the court’s impartiality, for “justice must not
only be done; it must also be seen to be done” (see De
Cubber v. Belgium, judgment of 26 October 1984, Series A no.
86, p. 14, § 26). It is also a matter of particular concern for
the Court that the injunction listed as one of its purposes the
necessity to prevent the newspaper from publishing materials “stating
the opposite view”. It reiterates that the possibility of
expressing different views is the very essence of pluralism, without
which there is no “democratic society”.
- Having
regard to the above, the Court finds that by issuing an injunction on
the applicant which was excessively broad vis-à-vis the
legitimate aims it sought to achieve, the domestic authorities
overstepped the limited margin of appreciation afforded to them in
the cases, in which prior restraints on publications are at issue
(see Editions Plon, cited above).
- 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 1,000 euros (EUR) in respect of compensation for
non-pecuniary damage.
- The
Government considered that the claim was excessive and
unsubstantiated.
- The
Court finds that the applicant suffered non-pecuniary damage, which
would not be adequately compensated by the finding of a violation
alone. Making its assessment on an equitable basis, the Court accepts
the applicant’s claim in the amount of EUR 1,000, plus any tax
that may be chargeable on it.
B. Costs and expenses
- The
applicant 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 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, EUR 1,000 (one
thousand 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.
Done in English, and notified in writing on 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
