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FIRST
SECTION
CASE OF NOVAYA GAZETA V VORONEZHE v. RUSSIA
(Application
no. 27570/03)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Novaya Gazeta v
Voronezhe 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,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27570/03) 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 the Editorial Board of the Novaya Gazeta
v Voronezhe newspaper, a limited liability company under
Russian law registered in Voronezh (“the applicant”), on
26 July 2003.
- The
applicant was represented by Ms M.A. Ledovskikh, a lawyer practising
in Voronezh. The Russian Government (“the Government”)
were represented Mr P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
- On
26 May 2005 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The impugned article and the defamation claims
- On
2 April 2002 the Novaya Gazeta v Voronezhe newspaper
(“the newspaper”) published an article by Mr E.P.
entitled “Atomic Mayor” («Атомный
мэр»).
The article concerned abuses and irregularities allegedly committed
by Mr S., the mayor of Novovoronezh, and by other municipal
officials, including Mr B., a deputy head of administration and
director of the economy and finance department, and Mr P., the
chairman of the education committee. The article also mentioned
certain private parties who supplied goods or performed services for
the municipal authorities, including Mr F., a local businessman who
did renovation work for State funded institutions.
- The article quoted extensively from the Report on the
Composite Audit of the Novovoronezh Town Administration, carried out
by the Audit Department of the Ministry of Finance for the Voronezh
Region from 13 November to 27 December 2001 (“the audit
report”).
- On 8 May 2002 Mr S., Mr B., Mr P. and Mr F. lodged an
action for defamation against the applicant. They claimed that the
following extracts from the article were untrue and damaging to their
reputation:
“... In autumn 2001 a group of campaigners in
Novovoronezh collected signatures for a vote of no confidence in
Vladimir S. They collected nearly three thousand signatures ...”
[paragraph 4]
“... For a long time the Novovoronezh town
administration failed to transfer payments to the compulsory medical
insurance fund. In the mayor’s opinion, these transfers were
not mandatory, but a commercial court decided otherwise. Thanks to
S., in 2002 the town budget will lose a further twenty million
[roubles] ...” [21]
“... Mayor S. still adheres to the ideas of
Socialism and Communism; not only once did he enter the ranks of the
Communist Party of the Russian Federation ... occasionally he left
its ranks ...” [23]
“... [In addition to the budget, Novovoronezh has
an off-budget fund. And a substantial one.] One would only wonder at
the way the mayor and his faithful companion, comrade B., the head of
the economy and finance department doubling as executive director of
all funds, handled its assets ...
Thus, thanks to the efforts of two prominent economists,
the town lost an amount comparable to nearly one half of the annual
budget ...” [34, 47]
“The chairman of the education committee of the
Novovoronezh administration, Mr P., did not produce any documents
showing that these students came from needy or large families as he
claimed ...”
What kind of needy families were these if even Mr P.,
the chairman of the education committee, does not know them?”
[57, 58]
“Inquisitive readers would ask: why did Mr B. care
so much about the military unit in the village of Boevo and the
regional psychiatric hospital (let’s recall the charitable
contribution of 300,000 roubles made to the hospital)? And they would
start looking for an answer.
Is it not in military unit no. 51205 that the son of the
aforementioned official is doing his military service?
Is it not in the regional psychiatric hospital that a
relation or a namesake of Mr B. has just undergone a medical
examination in order to escape punishment for a serious criminal
offence? ... [67-69]
And what about the honest Mayor S.? He does not know,
perhaps, about the tricks of his deputy?
On the contrary. He does know and he even personally
signs payment orders for the transfer of money to the State
enterprise ‘Voronezh regional clinical psychiatric
hospital’...” [71, 72]
“The thing is that the notion of competitions
(tenders) for the provision of services for State-funded
organisations ceased to exist in the town long ago. If our fair and
Communist-minded mayor S. liked Mr P. (they have done much business
together), he could have as much work as he liked. He could supply
computers at 150,000 roubles a piece and feed children in
kindergartens at inflated prices ...” [87]
“... During the audit an estimate of the repair
work actually performed in the town stadium was made up. The cost of
the actual work done amounted to nearly 500,000 roubles. So, Mr S.
and Mr F., where have the remaining 1,300,000 roubles gone? ...”
[93]
B. The first-instance proceedings
- On
10 and 11 September 2002 the Sovetskiy District Court of Voronezh
(“the trial court”) took evidence from the parties. The
plaintiffs produced judgments of commercial courts pursuant to which
the amount of 26,927 Russian roubles (RUB) had been recovered from
the Novovoronezh municipal authorities in respect of payments to the
medical insurance funds. Mr S. also produced a document showing that
he had been a member of the Communist Party since 1995 and never
relinquished his membership.
- The
applicant had at its disposal ordinary copies of the audit report and
the report of 22 November 2001 on the verification of the work done
at the stadium and shooting gallery (“the stadium report”).
Since ordinary copies, as opposed to certified copies, had no
evidentiary value, the applicant asked the trial court to obtain the
originals. The trial court refused the request because the applicant
had not shown that it had attempted to obtain the originals itself.
- Throughout
October 2002 the applicant unsuccessfully sought to obtain the
originals from the Audit Department of the Ministry of Finance for
the Voronezh Region, the town department of the interior and the
Voronezh Regional and Novovoronezh Town Prosecutors’ Offices.
- The
applicant renewed its request for a court injunction requiring the
relevant authorities to submit the original documents.
- On
30 October 2002 the trial court refused the request, without citing
any reasons in the text of the judgment. Mr S. withdrew his claim in
the part concerning paragraph 4 of the article.
- On the same day the trial court issued its judgment.
It found that all the extracts contested by the plaintiffs had been
untrue and damaging to their reputation. The trial court premised its
findings on the following principles:
“In such cases, pursuant to Article 152 of the
Russian Civil Code, the defendant shall prove the truthfulness of the
information disseminated, whilst the plaintiff is only required to
show that the defendant disseminated the information. Not only
assertions, but also conjectures shall be amenable to proof. Damaging
conjectures which are shown to have been unfounded in a court hearing
will give rise to an apology. Reliance on rumours, hearsay, opinions
of anonymous experts, competent sources, etc. as the basis for the
damaging information shall not relieve the defendant from the
obligation to show its truthfulness...”
- The
trial court decided that paragraphs 93 and 94 of the article implied
the embezzlement of funds by Mr S. and Mr F. However, it noted that
the audit report assessed the total cost of work at RUB 1,850,000 and
that the defendants failed to adduce any proof of embezzlement.
- The
trial court accepted Mr S.’s opinion that statements in
paragraphs 21, 23, 47, 71, 72 and 87 of the article impaired his
honour, dignity and reputation. In the trial court’s view, it
was incorrect to say that the town “would lose a further 20
million thanks to the mayor” because the payments had been
mandatory anyway and, after they had been withheld for some time, a
court had ordered their recovery in the same amount. The information
on Mr S.’s “discontinuous” party membership was
considered untrue because he showed that he had joined the Communist
Party once and had not relinquished his membership ever since. The
trial court held that in paragraph 47 the author wrongly blamed Mr S.
and Mr B. for stopping the funding, because the structure of
off-budget funds was regulated by federal government decision.
Lastly, as to paragraph 87, the trial court determined that it
conveyed an impression that dishonest men, acting under the mayor’s
patronage, had made a profit out of kindergartens, but the authors
did not produce any evidence showing the truthfulness of that
allegation.
- As
regards Mr B., the trial court held that paragraphs 34, 47 and 67 69
of the article were untrue and damaging for his reputation because
the defendants failed to prove that Mr B. had been the executive
director of “all funds”, that a relation of his,
especially a criminal, had been in hiding in the psychiatric hospital
or had been treated there, and that he and Mr S. had misspent the
town’s budget.
- The
trial court accepted Mr P.’s view that the allegations of
abuses in the selection of students and his personal involvement in
them (paragraphs 57 and 58) had been insulting for him.
- The judgment stated:
“Thus, the court has concluded that the
plaintiffs’ claims are well-founded because the author and the
editors tolerated the publication of an article that contained
insulting and untrue statements... without bothering to check all the
relevant facts. In accordance with the law... evidence should have
been collected before the information was published and it is
inappropriate to start collecting evidence after the article was
published... Moreover, the plaintiffs have produced before the court
a reply from the Novovoronezh prosecutor’s office and a
decision of the Novovoronezh police department refusing criminal
prosecution in connection with the audit of certain financial matters
in the education committee of Novovoronezh in 2000-2001.”
- The
trial court ordered the applicant to pay RUB 10,000 to Mr S., as well
as RUB 5,000 to Mr B., Mr P. and Mr F., respectively, that is,
RUB 25,000 in total, and also to publish an apology.
C. The appeal proceedings
- On
8 January 2003 the applicant filed a detailed appeal statement,
claiming that the article had concerned an issue of public interest
and that the plaintiffs, being “public figures” and State
servants, should have been more tolerant to criticism than ordinary
citizens. The article was largely founded on the audit report and the
district court did not afford the applicant an opportunity to prove
the truthfulness of any statements of fact as it refused their
request to obtain original documents. Moreover, the trial court
ordered the applicant to refute value judgments. The appeal statement
read, in so far as relevant, as follows:
“As regards the first document [...], [the trial
court] referred to the fact that there was no need to request it
because the case file contained a decision by the senior police
officer of the Novovoronezh GOVD [main department of the interior] to
institute a criminal investigation into the facts mentioned in the
report by the KRU [the Audit Department].
As regards the second document [...], the [trial] court
referred to the fact that [it had been stated] in the reply by the
Novovoronezh GOVD to the editorial board’s request to provide
the document that the GOVD did not have the document in question as
it had been forwarded to the Novovoronezh prosecutor’s office,
and that there was therefore no need to request it from the GOVD.”
- On 6 February 2003 the Voronezh Regional Court upheld
the judgment of 30 October 2002. It held that the applicant’s
arguments that the article had contained value judgments rather than
statements of fact was “unsubstantiated”. The court
reasoned, in so far as relevant, as follows:
“The dissemination of the information that the
plaintiffs seek to refute was proven before the [trial] court and has
not been disputed by the respondent. Accordingly the newspaper was
obliged to submit evidence before the [trial] court to prove the
truthfulness of the information in question.
However, no such evidence was presented before the
[trial] court.”
D. Ensuing events
- On 20 June 2003 the applicant transferred RUB 25,000
to the bank account of the bailiffs’ service in execution of
the judgment of 30 October 2002.
- The
applicant published an apology in the 11 – 17 July 2003 issue
of the newspaper retracting the information contained in the article.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
29 of the Constitution of the Russian Federation guarantees freedom
of ideas and expression, as well as freedom of mass media.
- Article
152 of the Civil Code of the Russian Federation of 30 November
1994 provides that an individual may seize a court with a request for
the rectification of information (сведения)
damaging his or her honour, dignity or professional reputation unless
the person who disseminated such information proves its accuracy. The
individual may also claim compensation for losses and non-pecuniary
damage sustained as a result of the dissemination of such
information. The rules governing the protection
of the professional reputation of a physical person are likewise
applicable to the protection of the professional reputation of legal
entities.
- Resolution
no. 11 of the Plenary Supreme Court of the Russian Federation of 18
August 1992, as amended on 25 April 1995 (in force at the material
time) provided in its Article 2 that to be considered damaging the
information (сведения)
had to be untrue and contain statements about an individual’s
or a legal entity’s breach of the laws or moral principles
(commission of a dishonest act, improper behaviour at the workplace
or in everyday life, etc.). Dissemination of information was
understood as the publication of information or its broadcasting, its
inclusion in professional references, public addresses, applications
to State officials, as well as its communication in other forms,
including orally, to at least one other person. Article 7 of the
Resolution governed the distribution of the burden of proof in
defamation cases. The plaintiff was to show that the information in
question had been disseminated by the defendant. The defendant was to
prove that the disseminated information was true and accurate.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained under Article 10 of the Convention about the
interference with its right to freedom of expression, which it
alleged was not necessary in a democratic society. Article 10, in so
far as relevant, 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.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. The parties’ submissions
1. The Government
- The
Government contested the applicant’s arguments. They claimed
that the disputed statements had been statements of fact and not
value judgments. The domestic courts had independently assessed the
evidence before them and decided on its relevance. The trial court
had had before it various pieces of evidence submitted by the parties
and had been able to decide on the civil dispute on the basis of
evidence it considered sufficient, without using other evidence.
- The
trial court’s refusal to request originals of the audit and
stadium reports had been well-reasoned. The applicant had been duly
notified of such reasons. The applicant could have complained to a
court about the prosecutor’s office’s failure to provide
the originals of the documents, but had not done so. Moreover, if the
trial court had not included reference to those reasons in the trial
minutes, the applicant could have requested modification of the
minutes under the relevant domestic laws.
- The
trial court’s judgment of 30 September 2002 had been based on
Article 152 of the Russian Civil Code since the applicant had failed
to prove the veracity of the statements made in the article. The
interference with the applicant’s freedom of expression had
pursued a legitimate aim, namely to protect the rights of others, and
had been necessary in a democratic society because the article had
suggested that the plaintiffs had committed illegal acts. The
Government concluded that there had been no violation of Article 10
of the Convention.
2. The applicant
- The
applicant submitted that the disputed statements had been supported
by the stadium and audit reports. However, it had been impossible to
use the reports as evidence because the author of the article had had
only ordinary copies, not originals or certified copies. The domestic
courts’ refusal to request the originals or at least certified
copies of the reports had had a chilling effect on journalists in
possession of ordinary copies of official documents capable of
disclosing a matter of public interest. The refusal to open criminal
proceedings concerning the facts described in the reports could not,
in itself, render the information contained in them false. Moreover,
the requirement to prove a value judgment was not compatible with
freedom of expression.
- In
the appeal statement the applicant’s counsel had referred to
the reasoning behind the trial court’s decision not to request
certified copies of the documents that had been communicated to her
via unofficial channels; the trial minutes had contained no reference
to the trial court’s reasoning in that connection.
B. The Court’s assessment
1. Admissibility
- The
Court notes that the application 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.
2. Merits
(a) General principles
- The Court reiterates at the outset that freedom of
expression constitutes one of the essential foundations of a
democratic society; subject to Article 10 § 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.
Freedom of expression is subject to a number of exceptions which,
however, must be narrowly interpreted and the necessity for any
restrictions must be established convincingly (see The Sunday
Times v. the United Kingdom (no. 2), 26 November 1991, §
50, Series A no. 217).
- 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 are relevant
and sufficient (see The Sunday Times v. the United Kingdom
(no. 1), 26 April 1979, § 62, Series A no. 30). 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 (see Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 43, ECHR 1999 VIII, and Jerusalem v.
Austria, no. 26958/95, § 33, ECHR 2001 II).
- The
press plays an essential role in a democratic society. Although it
must not overstep certain bounds, in particular in respect of 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, 24 February 1997, § 37,
Reports of Judgments and Decisions 1997 I). 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, 25 June 1992, § 63,
Series A no. 239, and Bladet Tromsø and Stensaas v.
Norway [GC], no. 21980/93, § 62, ECHR 1999-III).
- Article
10 protects not only the substance of the ideas and information
expressed, but also the form in which they are conveyed (see
Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series
A no. 204). Journalistic freedom also covers possible recourse to a
degree of exaggeration, or even provocation (see Prager and
Oberschlick v. Austria (no. 1), 26 April 1995, §
38, Series A no. 313).
- In
its practice, the Court has distinguished between statements of fact
and value judgments. While the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of
proof. The requirement to prove the truth of a value judgment is
impossible to fulfil and infringes freedom of opinion itself, which
is a fundamental part of the right secured by Article 10 (see Lingens
v. Austria, 8 July 1986, § 46, Series A no. 103).
- However,
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, cited above, § 43).
(b) Application of the above principles to
the present case
- The
Court observes that it was not disputed between the parties that the
civil proceedings for defamation against the applicant constituted an
interference with its freedom of expression and that this
interference was in accordance with the law and pursued the
legitimate aim of protecting the plaintiffs’ reputation. It
remains to be determined whether this interference was “necessary
in a democratic society”.
- The
Court reiterates that its 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 power of appreciation
(see Fressoz and Roire v. France [GC], no. 29183/95, §
45, ECHR 1999-I, and Egeland and Hanseid v. Norway, no.
34438/04, § 50, 16 April 2009).
- In
examining the particular circumstances of the case, the Court will
take the following elements into account: the position of the
applicant, the position of the plaintiffs who instituted the
defamation proceedings, and the subject matter of the debate before
the domestic courts (see, mutatis mutandis, Jerusalem,
cited above, § 35).
- As
regards the applicant’s position, the Court observes that the
applicant was sued in its capacity as the editorial board of the
newspaper. In that connection it points out that the most careful
scrutiny on the part of the Court is called for when, as in the
present case, the measures taken or sanctions imposed by the national
authority are capable of discouraging the participation of the press
in debates over matters of legitimate public concern (see Jersild
v. Denmark, 23 September 1994, § 35, Series A no. 298).
- Turning
to the respective positions of the plaintiffs who brought civil
proceedings against the applicant, the Court notes the following.
- Mr S. was the elected mayor of Novovoronezh. The Court
reiterates that a politician acting in his public capacity inevitably
and knowingly lays himself open to close scrutiny of his every word
and deed by both journalists and the public at large (see, among
other authorities, Colombani and Others v. France, no.
51279/99, § 56, ECHR 2002 V).
- Mr
B. and Mr P. were civil servants employed by the municipal
authorities. The Court notes that civil servants acting in an
official capacity are, similarly to politicians albeit not to the
same extent, subject to wider limits of acceptable criticism than a
private individual (see, mutatis mutandis, Janowski v.
Poland [GC], no. 25716/94, § 33, ECHR 1999-I).
- Mr
F., for his part, was a contractor performing renovation work in
State-funded institutions and thus a recipient of public funds. The
Court points out that private individuals lay themselves open to
scrutiny when they enter the public arena and considers that the
issue of the proper use of public funds is undoubtedly a matter for
open public discussion.
- The
Court accordingly concludes that all four plaintiffs being to a
certain extent exposed to public scrutiny as regards their
professional activities ought to have shown a greater degree of
tolerance to criticism in a public debate on a matter of general
interest than a private individual (see, mutatis mutandis,
Lingens, cited above, § 42).
- Turning
to the subject matter of the debate before the domestic courts, the
Court notes that the impugned article mainly contained information
about the management of public funds by the mayor and the civil
servants (see paragraph 6 above). This was indisputably a matter of
general interest to the local community which the applicant was
entitled to bring to the public’s attention and which the local
population were entitled to receive information about (see, mutatis
mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC],
no. 33348/96, §§ 94 – 95, ECHR 2004 XI). The
Court reiterates in this respect that there is little scope under
Article 10 § 2 of the Convention for restrictions on political
speech or on debate on questions of public interest (see Feldek v.
Slovakia, no. 29032/95, § 74, ECHR 2001 VIII).
- The Court will further consider the newspaper article
as a whole and have particular regard to the words used in its
disputed parts and the context in which they were published, as well
as the manner in which it was prepared (see Sürek v. Turkey
(no. 1) [GC], no. 26682/95, § 62, ECHR 1999-IV, and
Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04,
§ 90, ECHR 2007 III).
- The
Court points out at the outset that the impugned assertion concerning
Mr S.’s alleged discontinued membership of the Communist
Party (paragraph 23 of the article) was a factual statement, not a
value judgment. However, it is not persuaded that such a statement
could be capable of damaging Mr S.’s reputation given that
neither adherence to the Communist Party nor resigning from it
constituted an offence under Russian law at the material time.
- The
Court further considers that the remainder of the impugned statements
mostly reflected the journalist’s perception of the situation
concerning the distribution of the town’s off-budget funds.
Certain expressions used by Mr E.P. could be considered harsh
and provocative, but not to the extent of overstepping the
permissible degree of exaggeration. The purpose of publishing the
article was to call for closer public and independent control over
the spending of off-budget funds in order to prevent or stop possible
corrupt practices by the local officials. The Court considers
therefore that the impugned statements in the present case reflected
comments on matters of public interest and are thus to be regarded as
value judgments rather than statements of fact.
- However, in the present case the domestic courts
considered all the contested extracts to have been statements of
fact, without examining whether they could be considered to be value
judgments (see paragraphs 12 and 20 above). Their failure to embark
on that analysis was accounted for by the position of the Russian law
on defamation at the material time, which, as the Court has already
found, made no distinction between value judgments and statements of
fact, referring uniformly to “statements” («сведения»),
and proceeded from the assumption that any such “statement”
was amenable to proof in civil proceedings (see Grinberg
v. Russia, no. 23472/03, § 29, 21 July 2005, and
Zakharov v. Russia, no. 14881/03, § 29, 5
October 2006).
- The
Court also 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 De Haes and Gijsels, cited
above, § 47, and Oberschlick v. Austria (no. 2), 1
July 1997, § 33, Reports 1997-IV).
- In
the present case Mr E.P. relied on the audit report issued by a
governmental agency (see paragraph 5 above). In the Court’s
view the fact that the journalist had no access to the original or a
certified copy of the report does not deprive the text in his
possession of its informative value (see Bladet Tromsø and
Stensaas, cited above, § 68). It follows that the report in
question may have contained prima facie evidence that the
value judgment expressed in the article published by the applicant
was fair comment (see Jerusalem, cited above, § 45).
- The
Court points out that the domestic courts refused to take any steps
to obtain an original or a certified copy of either the audit or the
stadium reports. Moreover, it is struck by the fact that neither the
trial nor the appeal courts tried to assess whether the information
presented in the article had any factual basis, or even mentioned
that Mr E.P. had referred to two official documents to support his
allegations.
- It
is impossible to state what the outcome of the proceedings would have
been had the trial court taken steps to obtain the evidence which the
applicant sought to adduce; but the Court attaches decisive
importance to the fact that it refused to obtain such evidence,
judging it irrelevant (see, mutatis mutandis, Castells v.
Spain, 23 April 1992, § 48, Series A no. 236). It considers
that, in requiring the applicant to prove the truth of the statements
made in the article while at the same time depriving it of an
effective opportunity to adduce evidence to support those statements
and thereby show that they constituted fair comment, the domestic
courts overstepped their margin of appreciation (see Jerusalem,
cited above, § 46).
- The
Government argued that the information contained in the disputed
article had in fact suggested that the plaintiffs had committed
crimes and there was thus a pressing social need to protect the
plaintiffs and to prevent the careless use of such serious
allegations. The Court can accept this argument in principle as it
has repeatedly attached particular importance to the duties and
responsibilities of those who avail themselves of their right to
freedom of expression, and in particular, of journalists (see
Jersild, cited above, § 31, and Prager and
Oberschlick, cited above, § 37). However, in the
circumstances of the present case the Court finds no indication of
such deliberate carelessness on the part of the applicant. It rather
appears that Mr E.P.’s statements did not constitute a
gratuitous personal attack as they were made in a particular
political situation in which they contributed to a discussion on a
subject of general interest such as the use made of budgetary funds
(see, mutatis mutandis, Unabhängige Initiative
Informationsvielfalt v. Austria, no. 28525/95, § 43,
ECHR 2002 I).
- It
is noteworthy in this connection that the
district court adopted an unusually high standard of proof and
determined that, as the criminal proceedings in connection with
financial irregularities were not pursued, the information provided
in the impugned article lacked a sufficient factual basis (see
paragraph 17 above). The Court reiterates in this respect that the
degree of precision for establishing the well-foundedness of a
criminal charge by a competent court can hardly be compared to that
which ought to be observed by a journalist when expressing his
opinion on a matter of public concern, in particular when expressing
his opinion in the form of a value judgment (see Unabhängige
Initiative Informationsvielfalt, cited
above, § 46). The standards
applied when assessing a public official’s activities in terms
of morality are different from those required for establishing an
offence under criminal law (see Scharsach
and News Verlagsgesellschaft v. Austria, no. 39394/98, § 43,
ECHR 2003 XI). Therefore, the Court is reluctant to follow the
logic implied in the district court’s reasoning that in the
absence of criminal prosecution of the plaintiffs no media could have
published an article linking them to instances of alleged misuse of
public funds without running the risk of being successfully sued for
defamation.
- In
conclusion, the Court finds that the standards applied by the Russian
courts were not compatible with the principles embodied in Article 10
and that the courts did not adduce “sufficient” reasons
to justify the interference in issue, namely the imposition of a fine
on the applicant for having published the impugned article.
Therefore, having regard to the fact that there is little scope under
Article 10 § 2 of the Convention for restrictions on debate on
questions of public interest (see, among other authorities, Sürek,
cited above, § 61, and Guja v. Moldova [GC],
no. 14277/04, § 74, ECHR 2008 ...), the Court finds
that the domestic courts overstepped the narrow margin of
appreciation afforded to Member States, and that the interference was
disproportionate to the aim pursued and was thus not “necessary
in a democratic society”.
- Accordingly,
there has 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
- In
its just satisfaction claims of 16 November 2005 the applicant
claimed 882 euros (EUR) in respect of pecuniary damage – the
equivalent of the sum in Russian roubles that it had paid to the
plaintiffs plus inflation. It provided a copy of the bank transfer
order to the bailiffs’ service dated 20 June 2003 for the
amount of 25,000 Russian roubles (RUB) (the equivalent of EUR 866 at
the official exchange rate established by the Central Bank of Russia
on 16 November 2005).
- The
Government stated that there was no evidence that the applicant had
actually paid the sum in question.
- The
Court points out that the applicant provided documentary evidence
that it had in fact paid the judicial award and awards the applicant
EUR 866 in respect of pecuniary damage. The applicant did not present
other claims.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(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
866 (eight hundred and sixty-six euros), plus any tax that may be
chargeable, in respect of pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(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 the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
