FIRST SECTION
CASE OF
REZNIK v. RUSSIA
(Application no.
4977/05)
JUDGMENT
STRASBOURG
4 April 2013
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 Reznik v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
4977/05) 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 Genri Markovich Reznik (“the
applicant”), on 5 February 2005.
The applicant was represented by Mr A. Makarov, a
lawyer practising in Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that his
right to freedom of expression had been violated.
On 15 September 2006 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1938 and lives in Moscow. He is a lawyer and President of the Moscow City Bar.
A. Incident involving Mr Khodorkovskiy’s counsel
On 25 October 2003 Mr Khodorkovskiy, a co-owner
of the Yukos company, was charged with criminal offences and placed in custody.
On 27 October 2003 he was transferred to special-purpose remand centre IZ-99/1
in Moscow operating under the authority of the Ministry of Justice of the Russian Federation (hereinafter “the remand centre”).
On 30 October 2003 a lawyer, Ms A., accepted to
represent Mr Khodorkovskiy in the criminal proceedings.
On 11 November 2003 Ms A. visited her client in
the remand centre. On leaving the centre, she was stopped by a prison
inspector, Mr B., who accused her of carrying unauthorised material that
Mr Khodorkovskiy had given her.
It appears from a personal inspection report (протокол личного досмотра)
of the same date that Mr B. “examined the belongings and clothing of the
lawyer, Ms A.” and seized two documents: a printed document concerning the
case against Mr Khodorkovskiy’s co-defendant, and a torn handwritten note. The
report was signed by Mr B., Ms A. and two prison officers who were present
during the search. The parties agreed that one of them had been a man (Mr F.);
the identity and sex of the second officer was in dispute: the Government
claimed that it had been a woman, “L-va”; the applicant insisted that it had
been a man, “L-vich”.
The investigators claimed that the note had contained
instructions about exercising influence on witnesses and interfering with the
investigation. On 22 December 2003 the Ministry of Justice asked the Moscow
City Bar to disbar Ms A. for acting in breach of the law and the lawyers’ code
of ethics. The applicant, as President of the Moscow City Bar, publicly
criticised the request by the Ministry of Justice.
B. Television discussion on the incident
On 25 December 2003 the NTV channel invited the
applicant and Mr Buksman, the Director of the Moscow Department of the Ministry
of Justice, to the talk show, “The Country and the World” («Страна и мир»), for a discussion of the incident
involving Ms A. The debate was broadcast live at about 10 p.m.
In the first few minutes of the discussion the
applicant asked Mr Buksman about his view on the events and the grounds
for making the request for disbarment. Mr Buksman did not give specific
answers, stating that the issue was not within his competence.
The presenter then asked the applicant about the
relationship between the Moscow City Bar and the Ministry of Justice, implying
that it was rather strained. The applicant denied that any tension existed and
added:
“I have to say that we have now examined the matter of lawyer
A. There was no attempt to pass any note from Mr Khodorkovskiy outside the
remand centre. There were no grounds for carrying out a search (обыск) which, by the way, was
performed by men who rummaged (шарили)
about the body of the woman lawyer. Evidence obtained by criminal or unlawful
means has no legal value. There is nothing, absolutely nothing, in Ms A.’s
records that could warrant her disbarment.”
The presenter then gave the floor to Mr Buksman,
who said that there existed a normal professional relationship between the
Moscow City Bar and the Ministry of Justice. The show ended.
C. Defamation proceedings
On 8 January 2004, remand prison IZ-99/1 and
warders Mr B. and Mr F. lodged defamation claims against the applicant and the
NTV television company with the Cheremushkinskiy District Court of Moscow. They
claimed that the applicant had falsely stated that male officers had “rummaged”
about Ms A.’s body and carried out a “search” on her, whereas they had merely
“inspected” her documents. Since the domestic law made a distinction between a
“search” (обыск) and
an “inspection” (досмотр),
the applicant’s statement amounted to an allegation of a breach of the Russian
law that was false and damaging both to the professional reputation of the
remand prison and to the honour and dignity of its officers. They sought a
rectification and compensation in respect of non-pecuniary damage.
In the defamation proceedings
the District Court heard many witnesses and, in particular, the warders of the
remand prison who had taken part in the incident involving counsel A. One of
them, Mr L-vich, testified as follows:
“I received a phone call and I was invited to take part in the
drafting of a report. When I arrived, Ms A., Mr B. and Mr F. were in the
office. B. was drafting the report. A. snatched a piece of paper and began
tearing it apart. We removed the document [from her], I signed the report and left.”
Ms A. described the way
in which the documents had been removed from her:
“I was subjected to a humiliating procedure, as a woman and as
a lawyer. They took the materials of the defence away from me by force. How is
it possible to take the materials, without touching me, while I was holding
onto them? ... Could there be any contact, other than bodily contact, if I was
clutching the materials to my chest and the prison employees were tearing them
away from me? It was not just my hands that they touched. [They touched] the
clothing that was covering my body.”
In the meantime, on 3
February 2004 the Council of the Moscow City Bar formally rejected the Ministry’s
request for Ms A.’s disbarment. It found, in particular, that the inspection (досмотр) carried
out on the person of Ms A. on 11 November 2003 and the seizure of her materials
had been unlawful.
On 10 June 2004 the District Court gave judgment
on the defamation claim, finding as follows:
“It was established at the court hearing that on 25 December
2003 a televised discussion between ... Mr Buksman and the lawyer Mr Reznik had
been broadcast live on the NTV channel. The presenters did not edit the text of
the interventions by Mr Buksman or Mr Reznik ... Mr Buksman was connected
with the presenter via a direct link, the defendant Mr Reznik was present in
the studio. It can be seen from a video recording which the court examined ...
that Mr Buksman and the defendant made statements of a controversial nature.
The participants put questions to each other and replied to questions from the
presenters. ...
The court considers that the statements by the defendant [Mr
Reznik] were simply an expression of his opinion on an event that had attracted
public attention and was widely discussed at the time. During the show “The
Country and the World” on 25 December 2003, a public official and a lawyer
held a discussion in which they expressed different opinions on the same event.
The statements by the defendant Mr Reznik were not offensive and did not
damage the plaintiffs’ honour, dignity or professional reputation. The
defendant, in his reply to the presenter’s question, did not mention either
remand prison no. 1 or the plaintiffs F. and B. ...
The plaintiff - remand prison no. 1 - alleged a violation of
the rights of individuals rather than those of prison no. 1. ... In the instant
case, the statements by the defendant, Mr Reznik, did not contain allegations
about the plaintiff, remand prison no. 1, nor did Mr Reznik’s statements damage
its reputation. It follows that the claims by remand prison no. 1 are unlawful
and unjustified because the plaintiff seeks the rectification of allegations concerning
its employees.
The claims by the plaintiffs F. and B. are likewise unjustified
because the statements by the defendant did not mention any names, still less
the plaintiff’s names. Moreover, ... there was no mention of their place of
work or place of residence, or of their appearance or characteristic features,
their rank or their position; the discussion was not accompanied by any
photographs or video footage of the plaintiffs; nor were their voices
broadcast. It follows that the defendant’s statements did not contain any
information damaging to the honour or dignity of Mr F. or Mr B.
[The court rejects as] unfounded the arguments by remand prison
no. 1 to the effect that the discussion was preceded by footage showing a
building with its postal address, which could have enabled television viewers
to recognise Matrosskaya Tishina remand prison no. 1. Neither Mr Buksman nor Mr
Reznik mentioned remand prison no. 1 in their replies. Moreover, it was the NTV
channel that decided to broadcast the footage featuring the building with its
address at the beginning of the show, but the plaintiffs have lodged no
defamation claim against the channel ...
Having regard to the above-stated, the court finds that the
claims are unjustified and must be rejected.”
The remand centre, Mr B., and Mr F., all lodged
statements of appeal.
On 10 August 2004 the Moscow City Court quashed
the District Court’s judgment and granted the defamation claims by all three
plaintiffs, finding as follows:
“... the conclusion of the [district] court to the effect that
the statements made by the defendant in a live television show did not damage
the reputation [of the plaintiffs] is not correct. The statements did damage
the honour and dignity of the prison officers F. and B. and the professional
reputation of remand prison no. 1 because they actually contained an accusation
that the male prison officers had searched the female lawyer in a degrading
manner. ...
It can be seen from the statements by the witnesses Mr L-vich
and Mr T., the personal inspection report, and the conclusions of the
Qualifications Panel of the Moscow City Bar that the prison officers did not
carry out a search on Ms A., contrary to what Mr Reznik alleged, but the
[district] court did not take this fact into account ... The law distinguishes
between the terms ‘inspection’ and ‘search’, and the defendant Mr Rezink, a
professional lawyer, could not have been unaware of that distinction. Although
he had at his disposal reliable information that the prison officers had
carried out an inspection of Ms A.’s documents rather than searched her, he
made untrue statements in a live television show ...
Further, the [city] court cannot agree with the [district]
court’s conclusion that the defendant [Mr Reznik] did not identify any of the
plaintiffs by name ... That conclusion contradicted the operative part of the
judgment, in which the [district] court found that the incident ... had taken
place on the premises of remand prison no. 1 and concerned the removal of a
note from Ms A. ... The NTV channel showed the building at 18 Matrosskaya
Tishina Street, and the defendant Mr Reznik later made the contested
statements. In those circumstances, the professional reputation of remand
prison no. 1 had been undermined and it had standing to seek judicial
protection from defamation. The plaintiffs F. and B., who were employees of the
remand prison and who had taken part in the inspection of [Ms A.’s] papers ...
also had standing to sue in defamation.”
The City Court ordered the applicant to pay 20
Russian roubles (RUB) to each of Mr B. and Mr F. in respect of compensation for
non-pecuniary damage. The NTV channel was ordered to broadcast a rectification.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
Article 29 guarantees freedom of thought and
expression, together with freedom of the mass media.
B. Civil Code
Article 152 provides that an individual may
apply to a court with a request for the rectification of statements 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.
C. Personal inspection and body search
A personal inspection (личный досмотр) or an inspection
of personal belongings may be carried out with a view to uncovering instruments
or objects of an administrative offence (Article 27.7 § 1 of the Code of
Administrative Offices). Personal inspections must be carried out by a person
of the same sex, in the presence of
two attesting witnesses (понятые)
of the same sex (Article 27.7 § 3).
A suspect in a criminal
case may be subjected to a body search (личный обыск)
(Article 93 of the Code of Criminal Procedure). Body searches must be carried
out by a person of the same sex, in the presence of attesting witnesses (понятые) or
specialists of the same sex (Article 184 § 3).
The Pre-Trial
Detention Act (Law no. 103-FZ of 15 July 1995) established that, if there were
grounds to suspect visitors of passing prohibited objects, substances or food,
prison officers were entitled to carry out an inspection of their clothes and
belongings upon their entry or exit from the prison premises (part 6 of section
34).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicant complained about a
disproportionate restriction on his right to freedom of expression guaranteed
under Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority ...
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
A. Arguments by the parties
1. The Government
The Government advanced a number of reasons for
considering the applicant’s statement as a factual allegation rather than a
value judgment. It was significant, in their view, that he had taken part in
the talk show in his official capacity as the President of the Moscow Bar. The
audience had viewed him as a well-informed person who was competent to assess
alleged breaches of the rights of lawyers and to take appropriate action.
Taking into account that “the Russian public traditionally regarded the
authorities and their representatives with mistrust”, the audience would have
been more inclined to believe the words of a well-known lawyer than those of
the acting head of a department of the Ministry of Justice. The applicant could
not be held accountable for his statements to the standard of a journalist
because he was seen as an official disseminating verifying information.
Turning to the content of the applicant’s
statement, the Government submitted that the opening sentence concerning an
inquiry into Ms A.’s case had created the impression that the applicant had
been about to report on the findings of the inquiry. Accordingly, the following
sentences could only be interpreted as an outline of the findings, that is, the
established facts and the characterisation given to them in law. They could not
have been a mere personal opinion on the part of the applicant. The applicant
had presented the situation of Ms A. as a specific example of a breach of law
committed by the authorities.
The Government believed that the factual nature
of the applicant’s statement was not diminished on account of the fact that he
had not identified the prison warders by name or mentioned the remand prison,
because the talk show had been preceded by a story about remand prison IZ-99/1
of Moscow, in which the prison building and postal address had been shown. The
names of the prison warders had been public knowledge because they had been
previously mentioned in the other media. In the Government’s submission, for
the defamation claim to be granted, it was sufficient that at least one
television viewer - including lawyers, prison employees, and parents and
friends of the plaintiffs - could make a connection between the applicant’s
allegation of unlawful action on the part of prison warders on the one hand,
and Mr F. and Mr B. on the other. The detailed description of the situation
that the applicant had given had made their identification “simple and
evident”. Moreover, the way in which the applicant had described the incident
and whether or not the word “rummaged” had been damaging for the plaintiffs’
reputation were irrelevant. The plaintiffs had incurred damage on account of
the applicant’s allegation of a breach of the law, irrespective of the words in
which he had couched it.
The Government maintained that the applicant’s
allegation that Ms A. had been searched by male warders was untrue. The
report of 11 November 2003 had indicated that the inspection had been
carried out by two men (F. and B.) and one woman (L-va), and that Ms A. had
been subjected to an “inspection” rather than to a “search”. An “inspection”
could be carried out also by men if the prohibited items were surrendered
voluntarily or if the inspection only concerned the belongings rather than the
persona of the offender. The Government alleged that the applicant had craftily
confused the terms “search” and “inspection”, claiming that there had been no
grounds to carry out a search. Indeed, there had been no grounds for a search
and Ms A. had not been searched, but an inspection had been required on the basis
of section 34 of the Pre-Trial Detention Act because Ms A. had been suspected
of passing prohibited material from Mr Khodorkovskiy. That written
material had been found and seized from her.
Finally, the Government emphasised that the
applicant - an experienced lawyer who should know the difference between a
“search” and an “inspection” - had made his allegation on a television channel
that broadcasts not only to Russia but also to European countries. His
statements had amounted to a negative assessment of Mr F.’s and Mr B.’s
performance of their professional duties and had groundlessly tarnished the
professional reputation of the remand prison. The interference had therefore
been necessary to protect civil servants from unfounded verbal attacks (here
they referred to Lešník v. Slovakia, no. 35640/97, § 53,
ECHR 2003-IV).
2. The applicant
The applicant disagreed with the Government’s
submission that the impugned statement was to have been seen as a factual
allegation rather than an expression of his subjective opinion. He pointed out,
firstly, that it had been made in the context of an open debate between himself
and a State official on a matter of intense public interest. The presenter had
not introduced him in his official capacity as the President of the Moscow Bar
and his part in the discussion had been that of a lawyer and human rights
defender, and a long-standing member of the Moscow Helsinki Group.
In the applicant’s view, the thrust of his
criticism had not been directed at the remand prison or its warders, for he had
used the impersonal word “men” in describing the incident. He could not be held
responsible for the fact that the show had been preceded by some footage
featuring the remand centre building: he had not made or approved any
programming decision and he could not have known what kind of footage would be
broadcast just before his intervention. Besides, the number of the remand
centre had not been given and the footage only included a shot of the street
sign, rendering the remand prison unidentifiable in the eyes of the wider
television audience, who had no idea how many remand prisons there were in Moscow and in which streets they were located. The applicant also added that at the time of
the broadcast, the names of Mr B. and Mr F. had not once been mentioned in the
press and had been unknown to the audience.
The applicant asserted that, contrary to the
Government’s submission, no female warder had taken part in Ms A.’s inspection
or been present during that procedure. The personal inspection report had been
signed by Major L-vich, a deputy assistant prison governor, and the same Major
L-vich had been examined in the witness stand before the District Court. The
participation of a female warder had not been mentioned by any employees of the
remand prison or by any authority of the many that had carried out inquiries
into the incident, including the prosecutor’s office, the courts, the Ministry
of Justice and the qualifications panel of the Moscow Bar.
The statement about men touching the female
lawyer’s body rested on a sufficient factual basis. Ms A. had confirmed before
the District Court that the warders had snatched the materials from her while
she was holding them against her chest. Mr B.’s report of 11 November 2003 had
also mentioned that an inspection had been carried out of A.’s “belongings and clothing”,
and that she had resisted the removal of the materials. That could only be
construed as an indication of close physical contact between the male warders
and Ms A.
The applicant pointed out that there was a close
proximity between the words “search” and “inspection” in everyday use. He had
not been talking for the benefit of his learned colleagues, but rather to a
television audience, employing language that was accessible and understandable
for ordinary viewers. For lay people, the nuances of the legal meaning of the terms
“search” and “inspection” were indistinguishable and could as well be used as
synonyms. The applicant observed that even the Russian laws did not give a
precise definition of those terms by which they could be distinguished. He also
cited a number of publications in the printed media relating to the same
incident that had used the words “search/searched”, but which had not prompted
a defamation claim on the part of the remand prison or its warders.
In sum, the applicant considered that he had
presented his balanced subjective view on the incident involving Ms A., which
had rested on the findings of an inquiry by the Moscow Bar. The inquiry had
concluded that the inspection of Ms A. had been carried out in breach of the
applicable laws. The inquiry had disproved the allegation that Ms A. had been
carrying a note from Mr Khodorkovskiy, which allegation the prison employees
had invoked as a ground for examining her belongings and clothing. Irrespective
of whether the procedure was to be described as a “search” or an “inspection”,
in either case it was unlawful for male warders to examine a female lawyer. The
applicant had thus related, comprehensively and in good faith, the facts as he
knew them, without resorting to any exaggeration or exceeding the acceptable
limits of freedom of speech. The interference had not been necessary in a
democratic society and the judgment of the Moscow City Court had had a
“chilling effect” not just on the applicant but also on other legal professionals,
averting them from contributing to debates on current issues of public
interest.
B. Admissibility
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
It is common ground between the parties that the
City Court’s judgment in the defamation proceedings constituted an interference
with the applicant’s
right to freedom of expression guaranteed by Article 10 § 1. The interference
had a lawful basis, notably Article 152 of the Civil Code, which allowed the
aggrieved party to seek the judicial protection of his reputation and claim
compensation in respect of non-pecuniary damages. It also pursued a legitimate
aim, that of protecting the reputation or rights of others, within the meaning
of Article 10 § 2.
What remains to be established is whether the
interference was “necessary in a democratic society”. The test of necessity
requires the Court to determine whether the interference corresponded to a
“pressing social need”, whether it was proportionate to the legitimate aim
pursued and whether the reasons given by the national authorities to justify it
were relevant and sufficient (see, among many other authorities, Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and
36448/02, § 45, ECHR 2007-IV). 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. 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 Dichand
and Others v. Austria, no. 29271/95, § 38, 26 February
2002, with further references).
The Court notes at the outset the particular context
of the instant case. The statement which gave rise to the defamation action was
made by the applicant during a live television debate in which he and an
official from the Moscow Department of the Ministry of Justice took part. The
discussion revolved around the move by the Ministry of Justice to have Ms A.,
legal counsel for Mr Khodorkovskiy, disbarred. Mr Khodorkovskiy - formerly one
of the wealthiest individuals in Russia and a controlling shareholder of a
major oil company (see Khodorkovskiy v. Russia, no. 5829/04, § 7,
31 May 2011) - had at that time been imprisoned in a Moscow remand centre.
The criminal proceedings against him and the strategy of his defence were
matters of intense public and media attention. The request to have a member of
his defence team disbarred must have sparked a further wave of public interest.
However, there is nothing in the text of the Moscow City Court’s judgment to
suggest that the City Court performed a balancing exercise between the need to
protect the plaintiffs’ reputation and the Convention standard, which requires
very strong reasons for justifying restrictions on debates on questions of
public interest (see Godlevskiy v. Russia, no. 14888/03, § 41, 23
October 2008, and Krasulya v. Russia, no. 12365/03, § 38,
22 February 2007). The Court finds that the domestic court failed to
recognise that the present case involved a conflict between the right to
freedom of expression and the protection of the reputation (see Dyundin v. Russia,
no. 37406/03, § 33, 14 October 2008).
The applicant is a professional lawyer and the
President of the Moscow Bar. Admittedly, the special status of lawyers gives
them a central position in the administration of justice as intermediaries
between the public and the courts, and such a position explains the usual
restrictions on the conduct of members of the Bar. However, as the Court has
repeatedly emphasised, lawyers are entitled to freedom of expression too and
they have the right to comment in public on the administration of justice
provided that their criticism does not overstep certain bounds (see Kyprianou
v. Cyprus [GC], no. 73797/01, §§ 173-174, ECHR 2005-XIII; Amihalachioaie
v. Moldova, no. 60115/00, § 27, ECHR 2004-III; and Nikula v. Finland, no. 31611/96, § 45, ECHR 2002-II, with further references). The
Court does not find persuasive the Government’s argument that by reason of his
legal background and position of authority, the applicant should have shown
particular meticulousness in his choice of words. Firstly, he was speaking for
the benefit of a lay audience of television viewers, rather than to a legal
forum. The word “search” is common and acceptable in everyday language to
describe adequately the essence of the procedure to which Ms A. was subjected.
In those circumstances, the applicant could not be held accountable for his
choice of words to the same standard of precision as could be expected of him
when delivering a speech before a court of law or making written submissions to
the same. Secondly, the format of the discussion between the applicant and a
State official was designed to encourage an exchange of views or even an
argument, in such a way that the opinions expressed would counterbalance each
other and the debate would hold the viewers’ attention. The presenter fed
questions to the participants, some of which hinted at the existing tension in
the relationship between the Ministry of Justice and the Moscow Bar. As the
discussion was broadcast live, the applicant was unable to reformulate or
refine his words before they were made public. Further, the other participant
to the debate was a representative of the Ministry of Justice. As he was given
the floor after the applicant (see paragraph 14 above), he could have dispelled any allegation which he considered to be untrue
and presented his own version of the incident, which however he chose not to do
(compare Filatenko v. Russia, no. 73219/01, § 41, 6 December
2007, and Gündüz v. Turkey, no. 35071/97, § 49, ECHR 2003-XI).
. The
Court further reiterates that, for an interference with the right to freedom of
expression to be proportionate to the legitimate aim of the protection of the
reputation of others, the existence of an objective link between the impugned
statement and the person suing in defamation is a requisite element. Mere
personal conjecture or subjective perception of a publication as defamatory
does not suffice to establish that the person was directly affected by the
publication. There must be something in the circumstances of a particular case
to make the ordinary reader feel that the statement reflected directly on the
individual claimant or that he was targeted by the criticism. Those principles also apply in the sphere of television and
radio broadcasting (see Godlevskiy, cited above, § 44; Filatenko,
cited above, § 45, and Dyuldin and Kislov v. Russia, no. 25968/02,
§ 44, 31 July 2007). It is an uncontested fact in the instant case that neither
the individual plaintiffs - two prison warders - nor the
suing legal entity - a Moscow remand centre - had been named in the applicant’s
speech. The City Court accepted, nevertheless, that all of them were entitled
to sue in defamation because the applicant’s intervention had been preceded by
some footage showing the remand centre building. The Government also added that
the prison warders had been identifiable because their names had been
publicised by other media. Those reasons do not appear sufficient to the Court.
The discussion was broadcast live and the applicant could not have been aware
of any footage that the editor had chosen to use as an introduction to the
debate. The Government’s contention that the names of Mr B. and Mr F. had entered
the public domain was not substantiated with any material from the printed or
visual media, whereas the applicant produced a selection of newspaper articles,
all of which referred to them as “prison officers”, without giving their name
or rank. In any event, the extent of the applicant’s liability in defamation
must not go beyond his own words and he may not be held responsible for
statements or allegations made by others, be it a television editor or
journalists. The fact remains that there was nothing in the applicant’s
statement to permit identification of the plaintiffs whom he described
impersonally as “men”, without mentioning their names or employer. In those circumstances,
the Court considers that the domestic authorities failed to adduce sufficient
reasons for establishing an objective link between the statement in question
and the individual claimants in the defamation action.
. Turning
to the content of the applicant’s statement, the Court considers that it need
not rule on the parties’ controversy over whether it was a value judgment or a
factual allegation. The Court has constantly held that even a value judgment
without any factual basis to support it may be excessive and that the relevant
test is whether a sufficiently accurate and reliable factual basis
proportionate to the nature and degree of the allegation can be established
(see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99,
§ 78, ECHR 2004-XI; Jerusalem v. Austria, no. 26958/95, § 43,
ECHR 2001-II, and De Haes and Gijsels v. Belgium, 24 February
1997, § 47, Reports of Judgments and Decisions 1997-I). The applicant said that counsel A. had not attempted to take
out any material from her client and that there had accordingly been no reason
to subject her to a search. He added that the search had been carried out by
men who had “rummaged” about her body. The Moscow City Court in its judgment,
and subsequently the Government in their submissions to the Court, did not take
issue with the word “rummaged” used by the applicant, but insisted that the
statement was defamatory because it implied a breach of law committed by the
prison warders.
The Court has already examined the incident
involving Ms A. in the application lodged by her client, Mr
Khodorkovskiy. It established, in particular, that no obvious provision of
Russian law prohibited counsel from keeping notes during meetings with a client
and that section 34 of the Pre-trial Detention Act concerning inspection of
visitors carrying prohibited objects (cited in paragraph 27 above) did not seem
to be applicable in the context of meetings between the defendant and counsel.
Against that background, the Court found that Ms A.’s note “[had been] to all
intents and purposes privileged material, that the authorities had [had] no
reasonable cause to believe that the lawyer-client privilege was being abused,
and that the note [had been] obtained from Ms A. deliberately and in an
arbitrary fashion” (see Khodorkovskiy, cited above, §§ 199-201). Similar
findings were contained in the Moscow Bar Council’s decision rejecting a
request by the Ministry of Justice for the disbarment of Ms A. (see paragraph 18
above). Those findings constituted a sufficient factual basis for the applicant’s
statement that the inspection of Ms A. had been devoid of legal grounds.
As to the treatment which, according to the
applicant, had been inflicted on Ms A. by prison warders, the Government drew a
distinction between a “search” and an “inspection”, claiming that the latter -
by contrast with the former - could also be carried out by men and, in
addition, that a female warder had taken part in the inspection. The Court
notes at the outset that the presence of a woman appears to be a conjecture
resulting from a signature on the inspection report which could be read as
either a male (“L-vich”) or a female (“L-va”) last name. In fact, no woman by
the name of L-va or any other name was ever mentioned in the domestic
proceedings, whereas the male warder L-vich was called to testify and appeared
before the District Court. Mr L-vich confirmed in the witness stand that he had
been in the office where Ms A. and warders B. and F. had been present, that he
had removed a document from Ms A. and that he had signed the inspection report
(see paragraph 16 above).
The Court does not consider it decisive that the
applicant described the procedure as a “search” rather than as an “inspection”.
Firstly, as it has observed above, subtle nuances of legal terminology would
not be significant for a lay audience of television viewers. Secondly, the
thrust of the applicant’s invective was directed at the male warders who had
taken it upon themselves to examine the female counsel’s clothing. This
constituted a departure from the requirements of the domestic law, which
explicitly provided that both a personal inspection and a body search should be
carried out by persons of the same sex and in the presence of two attesting
witnesses (see paragraphs 25 and 26 above). Lastly, the Court observes that the
personal inspection report indicated that the warders had examined not just the
belongings but also the clothing of Ms A. She stated in the defamation
proceedings that they had removed from her the printed media that she had been
clutching to her chest (see paragraph 17 above). Even though the word “rummage”
appears somewhat exaggerated, the Court does not consider that the applicant
went beyond the limits of acceptable criticism, as he was seeking a way to
convey his indignation at the actions by the male warders. In the light of the
above, the Court finds that the applicant’s statements rested on a sufficient
factual basis and that the Moscow City Court did not base its decision on an
acceptable assessment of the relevant facts.
As regards the sanction imposed on the
applicant, the Court recalls the “chilling effect” that the fear of sanction
has on the exercise of freedom of expression (see, among many others, Nikula,
cited above, § 54, and Cumpǎnǎ and Mazǎre v. Romania
[GC], no. 33348/96, § 114, ECHR 2004-XI).
This effect, which works to the detriment of society as a whole, is likewise a
factor which concerns the proportionality of, and thus the justification for,
the sanctions imposed on the applicant, who, as the Court has held above, was
entitled to bring the matter at issue to the public’s attention. Although the penalty of 20 Russian roubles was negligible in
pecuniary terms, the institution of defamation proceedings against the
President of the Moscow City Bar in the context of the present case was capable
of having a chilling effect on his freedom of expression. In any event, the
sanction was not justified in the light of the factors set out above (compare Axel
Springer AG v. Germany [GC], no. 39954/08, § 109, 7 February 2012).
In sum, the Court has found that the applicant
was entitled to state his opinion in a public forum on a matter of public
interest and that his statements had a factual foundation. On the other hand,
the Moscow City Court did not recognise that the proceedings in the present
case involved a conflict between the right to freedom of expression and the
protection of reputation. Those failings call for the conclusion that the
standards according to which the national authorities examined the defamation
claims against the applicant were not in conformity with the principles
embodied in Article 10.
There has accordingly been a violation of
Article 10 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article 6
of the Convention of a breach of his right to a fair hearing in the proceedings
before the Moscow City Court and the absence of an effective remedy required
under Article 13 of the Convention.
In the light of all the material in its
possession and in so far as the matters complained of are within its competence
and distinct from the issues examined above, the Court finds that those
complaints do not disclose any appearance of violations of the rights and
fundamental freedoms set out in the Convention and its Protocols.
It follows that this part of the application
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 did not submit a claim in respect
of pecuniary or non-pecuniary damage. Accordingly, there is no call to make an
award under this head.
B. Costs and expenses
The applicant claimed 4,903.84 euros (EUR) for
the translation costs and EUR 270.88 for the postal expenses incurred in the
proceedings before the Court. He produced translation contracts and postal
receipts.
The Government submitted that certain
translation costs related to the documents which were irrelevant to the
domestic proceedings and that the translation of domestic judgments and
decisions had not been necessary because it had not been requested by the
Court.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court accepts the Government’s submission that a
portion of the translation expenses concerned the documents relating to Mr Khodorkovskiy’s
- rather than the applicant’s - case and was not therefore necessarily
incurred. Regard being had to the materials in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR 4,000 for
costs and expenses in the proceedings before the Court, plus any tax that may
be chargeable on the applicant.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the
applicant’s right to freedom of expression admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of
Article 10 of the Convention;
3. 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
4,000 (four thousand euros), plus any tax that may be chargeable on the
applicant, in respect of costs and expenses, 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Isabelle
Berro-Lefèvre
Registrar President
