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FIRST
SECTION
CASE OF ROMANENKO AND OTHERS v. RUSSIA
(Application
no. 11751/03)
JUDGMENT
STRASBOURG
8
October 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 Romanenko and
Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 17 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11751/03) 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 three Russian nationals, Mrs Tatyana
Gavriilovna Romanenko, Mrs Irina Georgievna Grebneva and Mr Vladimir
Fedorovich Trubitsyn (“the applicants”), on 26 February
2003.
- The
applicants were represented by Ms A. Soboleva and Mr V. Monakhov,
lawyers with Jurists for Constitutional Rights and Freedoms (JURIX),
a non-governmental organisation in Moscow. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicants complained under Article 10 about a violation of their
right to impart information.
- On
23 May 2005 the President of the Section granted the Open Society
Justice Initiative and the Moscow Media Law and Policy Institute
leave to intervene as third parties in the proceedings (Article 36 §
2 of the Convention and Rule 44 § 2 of the Rules of Court).
- By
a decision of 17 November 2005 the Court declared the application
admissible.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants live in Vladivostok and Arsenyev in the Primorskiy Region.
They are founders of the Arsenyevskie Vesti weekly newspaper.
A. The first article and the department's defamation
action
- Ms
P. published an article under the title “All Power Comes from
the Forest” («Вся власть
из леса») in issue no.
4 of the applicants' newspaper, dated 24-30 January 2002. The article
stated that, while the town of Dalnerechensk suffered from
underfunding, massive and unlawful felling of trees and illegal sales
of timber to China thrived. A regional roundtable (panel) on the
rational use and protection of forests revealed that representatives
of Chinese companies were constantly present at many timber yards in
Dalnerechensk and offered cash dollars for timber, whether documented
or not. Such companies were registered at fictitious addresses
outside the region.
- The
article went on to quote from an open letter which had been adopted
by the participants in the panel:
“All these irregularities have clearly been on the
rise since the town's police department (timber purchasing quota of
4,500 cubic metres) and the courts' management department of the
Supreme Court of the Russian Federation (timber purchasing quota of
3,000 cubic metres) became the forest operators.”
The
quotation was bold-faced and the source was clearly identified. The
letter had been signed by seventeen individuals, including the head
of the Dalnerechensk municipal council and his first deputy, the
deputy head of the town police, the deputy head of the local
department of the Federal Security Service, the deputy head of the
tax police, a senior State tax inspector, the deputy head of the
department for environmental resources, two directors of regional
forest operators, and others. The letter had been sent on behalf of
the Dalnerechensk municipal council to the Presidential Envoy in the
Far Eastern Federal Region and also made public at a press-conference
held on the premises of the Press Development Institute.
- On
28 March 2002 the courts' management department of the Primorskiy
Region (Управление
судебного
департамента
при Верховном
Суде РФ в Приморском
крае) brought a civil action against the
applicants – as the founders of the newspaper – for the
protection of its professional reputation and compensation for
non-pecuniary damage. They submitted that the impugned extract had
impaired the professional reputation of the department and undermined
the authority of the courts' management department of the Primorskiy
Region and that of the judicial system as a whole.
B. Publication of a refutation and Mr Shulga's
defamation action
- Following
the institution of the civil action, the applicants printed the
letter in full in issue no. 17 of the newspaper, dated 25 April –
1 May 2002, under the headline “Ghost Companies and Courts'
Management Department at Timber Yards” («Фирмы-призраки
и Управление
судебного
департамента
на лесозаготовках»).
The letter was followed by an editor's note under the headline “It
was not about you. Refutation” («Вас
тут не стояло.
Опровержение»).
The note emphasised that the quoted letter did not specify which
courts' management department had purchased timber. It went on as
follows:
“It is certainly easier for the head of the
Department, Mr V.A. Shulga, who lodged the [defamation] action, to
tell who[se department], in addition to its principal functions, has
been a forest operator and whose professional reputation has been
impaired when a newspaper brought this fact into the limelight...
This is why the editor's office decided not to wait for
a court decision and considered it necessary to refute conjectures
that readers might have made about the Department of the Primorskiy
Region. Having regard to potential adverse consequences of the
publication, we officially announce -
THAT WE DID NOT MEAN THE COURTS' MANAGEMENT DEPARTMENT
OF THE PRIMORSKIY REGION.”
- On
an unspecified date Mr Shulga, the director of the courts' management
department of the Primorskiy Region, filed a civil action, in his
personal capacity, for the protection of his honour, dignity and
professional reputation and compensation for non-pecuniary damage. He
alleged that the refutation had not been valid because it had been
clear for a reasonable reader that his department had been targeted
in the publication. He contended that he was personally responsible
for his department and that the publication had caused substantial
non-pecuniary damage to his reputation.
C. Judgments in Mr Shulga's defamation action
- On
14 June 2002 the Arsenyev Town Court of the Primorskiy Region granted
Mr Shulga's action against the applicants. The court found that the
publication had targeted Mr Shulga's department because it had been
the only courts' management department in the region that had been
allocated a timber purchasing quota of 3,000 cubic metres for
construction of a new courthouse. On the other hand, the applicants
had failed to show that the inclusion of the department in the number
of forest operators had given rise to “irregularities”.
The court held that the disseminated information could not have been
the applicants' opinion or value judgment because they had
disseminated it without verifying its truthfulness.
- The
court rejected the applicants' defence that they had quoted from an
official statement which did not require additional verification
under section 57 §§ 3 and 4 of the Mass-Media Act. In the
court's view, the Press Development Institute that had circulated the
letter was an “autonomous non-commercial organisation”
rather than a “public association”, as provided in
section 57 § 3, and the head of the municipal council who had
signed the letter was a municipal employee rather than an official of
a State authority, as required by the same section.
- The
court ordered the applicants to publish a refutation and each of them
to pay 10,000 Russian roubles to Mr Shulga.
- On
28 August 2002 the Primorskiy Regional Court upheld, on an appeal by
the applicants, the judgment of 14 June 2002.
D. Judgments in the department's defamation action
- On
11 October 2002 the Arsenyev Town Court granted the defamation action
lodged by the courts' management department. The court held that the
contested information had originated from a letter approved by the
participants in a regional roundtable (panel) held in the Press
Development Institute, which was not a State authority, organisation
or a public association. Therefore, in the court's opinion, it was
incumbent on the applicants to verify the truthfulness of the
information before publishing it. Since the applicants had failed to
do so and had also failed to prove before the court that the
information had been true, they were at fault for the dissemination
of information damaging the reputation of the courts' management
department.
- The
court ordered the applicants to publish a refutation and each of them
to pay 15,000 Russian roubles to the department and also bear the
legal costs and expenses.
- On
15 January 2003 the Primorskiy Regional Court upheld, on an appeal by
the applicants, the judgment of 11 October 2002.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
- Article
29 guarantees freedom of thought and expression, together with
freedom of the mass media.
B. Civil Code of the Russian Federation
- Article 152 provides that an individual may apply to a
court with a request for the rectification of statements (svedeniya)
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. The same rules are
applicable in cases where the plaintiff is a legal entity.
C. Resolution of the Plenary Supreme Court of the
Russian Federation, no. 11 of 18 August 1992 (amended on 25
April 1995)
- The Resolution (in force at the material time)
provided that, in order to be considered damaging, statements had to
be untrue and contain allegations of a breach of laws or moral
principles (commission of a dishonest act, improper behaviour at the
workplace or in everyday life, etc.). Dissemination of statements was
understood as the publication of statements or their broadcasting
(section 2). The burden of proof was on the defendant to show that
the disseminated statements had been true and accurate (section 7).
D. The Mass-Media Act (Federal Law no. 2124-I of
27 December 1991)
- The founder (co-founders) of a newspaper is a person
or a group of persons who applied for registration of the newspaper
(section 7). The founder may not interfere with the functioning of
the newspaper unless otherwise provided by law and by the articles of
association (section 18). The founders, editors, publishers,
journalists, and authors, may be held liable for breaches of Russian
legislation on mass-media (section 56).
- The
editor's office and journalists may not be held liable for
dissemination of information which is untrue and damaging to the
honour or reputation of citizens and organisations if such
information originated in press-releases of State bodies,
organisations, agencies, companies or public associations (section 57
§ 3) or if such information is a verbatim reproduction of
official statements by officials of State bodies, organisations or
public associations (section 57 § 4).
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
- A report on the honouring of obligations and
commitments by the Russian Federation, presented by co-rapporteurs of
the Monitoring Committee to the Parliamentary Assembly of the Council
of Europe (doc. 10568, 3 June 2005), noted as follows:
“Libel lawsuits
389. We are concerned by the current defamation
legislation and its application by the Russian judiciary and
executive powers. Journalists are often prosecuted through libel
suits (approximately 8-10,000 lawsuits a year)...
392. Also the legislation concerned should not grant any
special protection against criticism to public officials... Finally,
the possibility of filing lawsuits against media and journalists by
public authorities should be abolished as the latter per se cannot
possess any dignity, honour, or reputation.
393. Therefore, we urge the Russian authorities to
reform its defamation legislation, inter alia: ... to
introduce a clear ban on public bodies to institute civil proceedings
in order to protect their 'reputation' (without hindrance to the
right of public officials to litigate in their private capacity), to
clearly establish that no one should be liable under defamation law
for the expression of an opinion ('value judgements')...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained about a violation of their right to freedom of
expression. This complaint falls to be examined 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. Submissions by the parties
1. The applicants
- The applicants submitted that the interference with
their right to freedom of expression was not “prescribed by
law”. The wording of section 57 of the Mass-Media Act was
not sufficiently clear and foreseeable in its effects to enable
journalists to anticipate the distinction drawn by the domestic
courts between State officials and municipal employees. At the time
the Mass-Media Act was enacted in 1991, Russian constitutional and
administrative law classified municipal employees as State officials.
Even though the 1993 Constitution drew a distinction between State
bodies and bodies of local self-government, there was no evidence
that the status of municipal employees had undergone any changes or
that the Mass-Media Act needed to be amended in the light of the new
legal status of municipal employees. In any event, the open letter
had been signed not just by municipal employees, but also by public
officials of the tax inspectorate, Federal Security Service and the
police. Furthermore, municipal bodies and commercial companies were
covered by the notion of “organisation” in paragraph 3 of
section 57. The applicants pointed out that no one could reasonably
expect that a statute's provision should list for the purposes of
regulating public discourse all types and varieties of existing legal
entities, organisations, bodies, agencies, etc.
- The
first applicant argued in addition that imposing pecuniary sanctions
on the newspaper's founders in their personal capacity for damage
caused by publications of which they had not been personally
cognisant, should be considered as an unjustified restriction on
freedom of the press. It was not appropriate to hold the founder
liable for defamation when he had not made any personal attacks on
the plaintiffs as a journalist and had taken no part in the editing
or publishing process. Nor had he been obliged by law to read all the
articles in the newspaper, to review their content or to verify
personally the accuracy of the facts.
- The
applicants also claimed that the interference did not pursue any
legitimate aim. The main objective of the defamation claim was to
prevent the newspaper from criticising State bodies and officials in
the future. Had it been otherwise, the litigation should have
targeted the panel participants who had signed the open letter and
presented it to the public rather than the newspaper that merely
reprinted it. The interference could not be said to have pursued the
aim of “maintaining the authority of the judiciary”
because the courts' management department was in charge of the
maintenance of court buildings and the proper organisational
functioning of the judicial system; it did not adjudicate any cases.
The argument as to the legitimate aim of “protecting the
reputation and rights of others” was misconceived because the
word “others” should, in the applicants' view, apply only
to individuals or legal entities and could not extend to State bodies
such as the courts' management department.
- The
applicants further contended that the interference at issue was not
“necessary in a democratic society”. The libel
proceedings against them had had the aim of discouraging open
discussion on important matters of public concern in the Primorskiy
Region. The disputed statement had been part of an open letter which
had not been an attack against the courts' management department or
its officials but rather an appeal for a thorough and comprehensive
investigation into the activities of companies that cut down timber.
Referring to the Court's case-law, the applicants insisted that the
press should be able to rely on the content of official reports
without having to undertake independent research (see Colombani
and Others v. France, no. 51279/99, § 65, ECHR 2002 V).
In the context of the letter as a whole, the expression
“irregularities have clearly been on the rise” should be
regarded as a value judgment, not as an asserted fact. The domestic
courts had failed to weigh the rights and interests of the courts'
management department and of its head Mr Shulga in relation to the
public interest in receiving information of public concern. Moreover,
the protection afforded by Article 10 would be undermined if public
officials responsible for the operation of a State body were allowed
to substitute themselves for that body, as had happened with Mr
Shulga's filing of a defamation claim in his personal capacity.
Finally, the applicants pointed out that the amounts awarded against
them had been so excessive compared to their income –
approximately one third of their annual income – that the
proceedings had definitely had the aim of preventing future critical
coverage.
2. The Government
- The
Government submitted that the interference with the applicants' right
to freedom of expression had been prescribed by law, notably
Article 152 of the Civil Code which governed the protection of
the professional reputation of both citizens and legal entities. The
domestic courts found that the facts set out in the publications were
not shown to have been true and that there were no grounds to exempt
the applicants from responsibility by virtue of section 57 of the
Mass-Media Act.
3. The third parties
- The
third parties submitted, firstly, that government agencies were fully
equipped, and should be expected, to defend their reputation before
the court of public opinion rather than a court of law. The PACE
Report urged Russia to introduce a clear ban on the ability of public
authorities to institute civil proceedings in order to protect their
“reputation” (cited above, § 393). If public
authorities were to be included within the meaning of “others”
whose reputation or rights Article 10 § 2 was designed to
protect, it would subject journalists to a constant risk of
harassment through lawsuits and frustrate the media's ability to act
as a watchdog of public administration. Mindful of that danger,
courts of many jurisdictions barred public authorities from suing in
defamation because of the public interest that such authorities must
be open to uninhibited public criticism (United Kingdom: Derbyshire
County Council v. Times Newspapers Ltd [1993] AC 534; India:
Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632; United
States: City of Chicago v. Tribune Co., 307 Ill. 595 (1923);
South Africa: Die Spoorbond v. South African Railways [1946]
AD 999). Some new European democracies have also taken steps to bar
government bodies from claiming damages for defamation.
- Secondly,
the third parties indicated that Article 10 would be hollowed out if
public officials could substitute themselves for their respective
bodies in taking legal action. Here, the relevant test for
entertaining a defamation action against the media would be whether
the statement at issue was unequivocally “of and concerning”
that official. The “group defamation” doctrine has deep
roots in the common-law legal tradition (see King v. Alme &
Nott, 91 Eng. Rep. 790 (1700) (per curiam); Eastwood v.
Holmes, 1 F. & F. 347, 175 Eng. Rep. 758 (1858); New York
Times Co. v. Sullivan, 376 U.S. 254 (1964)). Defamation laws in
the continental legal system have similar identification
requirements; a plaintiff must be identifiable by name or image or
otherwise, in order to have standing to sue for defamation.
- Finally,
the third party pointed out that journalists should not be held
liable for defamation for accurately publishing statements contained
in non-confidential government documents. The Court has constantly
held the view that the press “should normally be entitled, when
contributing to public debate on matters of legitimate concern, to
rely on the content of official reports without having to undertake
independent research” (see Colombani and Others v. France,
no. 51279/99, § 47, ECHR 2002 V; also Selistö
v. Finland, no. 56767/00, § 60, 16 November 2004). A
similar well-developed legal doctrine known as the “fair report
privilege” has long been entrenched in the United States
jurisprudence (Restatement (Second) Torts, § 611 (1977)).
It followed that journalists had a right under Article 10 to publish
statements from a non-confidential document accurately without being
liable for the content of such statements.
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. Subject to paragraph 2 of Article 10, it
is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no “democratic society”
(see Handyside v. the United Kingdom, 7 December
1976, § 49, Series A no. 24, and Jersild
v. Denmark, 23 September 1994, § 37, Series A
no. 298).
- The
Court notes that the three applicants were the co-defendants in a
civil defamation case in connection with two publications in the
newspaper of which they were the founders. The Russian courts found
them liable for the alleged defamation and ordered them to pay
damages to the plaintiffs. It follows that the applicants were
directly affected by the impugned judgments which constituted an
interference with their right to freedom of expression within the
meaning of Article 10 § 1 of the Convention. Accordingly, the
Court's task is to determine whether the interference was justified.
- The
Court reiterates that an interference will constitute a breach of
Article 10 unless it was “prescribed by law”, pursued one
or more legitimate aims under paragraph 2 and was “necessary in
a democratic society” for the achievement of those aims.
- The
parties agreed that civil liability for publication of untrue
statements was foreseen by Article 152 of the Civil Code and in that
sense the interference was “prescribed by law”. The
applicants, however, argued that they should have benefited from the
protection afforded by the fair-reporting exception in section 57 of
the Mass-Media Act, since the statement in question had been taken
out of an official document. The domestic courts held that exception
to be inapplicable in the applicants' case because the document at
issue had been signed by “municipal officials” rather
than “State officials” and had been circulated by an
“autonomous non-commercial organisation” rather than a
“public association”. While the Court cannot but note the
artificial nature of the distinction made, it considers that this
issue will be more appropriately dealt with below, under the
proportionality limb of its analysis.
- The
Government claimed that the interference pursued the legitimate aim
of the “protection of the reputation or rights of others”.
The applicants and the third parties disagreed that public bodies and
authorities, such as the courts' management department in the instant
case, should fall within the meaning of “others” in
Article 10 § 2 of the Convention. The third parties cited
examples from jurisdictions around the world in which the courts
prevented public authorities from suing in defamation because of the
public interest in such authorities being open to uninhibited public
criticism. The report to the Parliamentary Assembly of the Council of
Europe on the honouring of obligations and commitments by the Russian
Federation also suggested that “the possibility of filing
lawsuits against media and journalists by public authorities should
be abolished as the latter per se cannot possess any dignity,
honour, or reputation” (see paragraph 25 above). The Court
acknowledges that there may be sound policy reasons to decide that
public bodies should not have standing to sue in defamation in their
own capacity; however, it is not its task to examine the domestic
legislation in the abstract but rather consider the manner in which
that legislation was applied to, or affected, the applicant in a
particular case (see Karhuvaara and Iltalehti v. Finland, no.
53678/00, § 49, ECHR 2004 X). Accordingly, this issue will
also be examined in the analysis of the proportionality of the
interference.
- Turning
to the issue whether the interference was “necessary in a
democratic society”, the Court must determine whether the
interference corresponded to a “pressing social need”,
whether it was proportionate to the legitimate aim pursued and
whether the reasons given by the national authorities to justify it
were relevant and sufficient. In assessing whether such a “need”
exists and what measures should be adopted to deal with it, the
national authorities are left a certain margin of appreciation. This
power of appreciation is not however unlimited, but goes hand in hand
with a European supervision by the Court, whose task it is to give a
final ruling on whether a restriction is reconcilable with freedom of
expression as protected by Article 10. The Court's task in exercising
its supervisory function is not to take the place of the national
authorities, but rather to review under Article 10, in the light of
the case as a whole, the decisions they have taken pursuant to their
margin of appreciation. In so doing, the Court has to satisfy itself
that the national authorities applied standards which were in
conformity with the principles embodied in Article 10 and, moreover,
that they based their decisions on an acceptable assessment of the
relevant facts (see Grinberg v. Russia, no. 23472/03,
§ 27, 21 July 2005).
- In
examining the necessity of the interference in the particular
circumstances of the case, the Court will take the following elements
into account: the subject matter of the publication, the position of
the applicants, the position of the person against whom the criticism
was directed, characterisation of the contested statements by the
domestic courts, the wording used by the applicants, and the penalty
imposed on them (see Krasulya v. Russia, no. 12365/03, §
35, 22 February 2007).
- Both
publications in the applicants' newspaper concerned the unlawful
felling of trees and undocumented sale of timber to Chinese
companies, a matter of intense public interest for residents of the
Primorskiy region, where the timber industry was one of the main
employers. It was stated that the inclusion of the regional police
department and the courts' management department in the number of
timber purchasers had resulted in an increase in irregularities in
the sale of timber. As the Court has held on many occasions,
reporting on matters relating to management of public resources lies
at the core of the media's responsibility and the right of the public
to receive information (see Busuioc v. Moldova, no. 61513/00,
§§ 63-64 and 84, 21 December 2004; and Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, §§
94-95, ECHR 2004 XI). However, there is no evidence in the
domestic judgments that the courts performed a balancing exercise
between the need to protect the plaintiffs' reputation and the right
of the members of the press to impart information on issues of
general interest. They confined their analysis to the discussion of
the damage to the plaintiffs' reputation without giving any
consideration to 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, cited above, § 38).
The Court therefore finds that the Russian courts failed to recognise
that the present case involved a conflict between the right to
freedom of expression and the protection of a reputation (see Dyundin
v. Russia, no. 37406/03, § 33, 14 October 2008).
- Further,
it is undisputed that the applicants were not the source of the
allegation about the increasing irregularities in the timber
business. The first publication reproduced an extract from an open
letter by seventeen persons concerned, namely State and municipal
employees and private businessmen, to the Presidential representative
in the region. The source of the quotation was identified and the
quotation itself was printed in bold and placed within quotation
marks. The second publication reprinted the entire text of the letter
together with the statement that the courts' management department of
the Primorskiy Region had not been the one targeted in the initial
publication. That additional statement was not found to contain any
defamatory information per se and the finding of the
applicants' liability in the proceedings in connection with the
second publication was likewise founded on the text of the open
letter.
- The
Court reiterates its constant approach that a distinction needs to be
made according to whether the statements emanate from a journalist or
are quotations from others, since punishment of a journalist for
assisting in the dissemination of statements made by another person
would seriously hamper the contribution of the press to discussion of
matters of public interest and should not be envisaged unless there
are particularly strong reasons for doing so (see Dyundin,
cited above, §§ 29 and 34; Pedersen and Baadsgaard v.
Denmark [GC], no. 49017/99, § 77, ECHR 2004 XI;
Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 65,
Series A no. 239; and Jersild, cited above, § 35). In
finding the applicants liable, the Russian courts treated as
irrelevant the fact that they were not the source of the impugned
allegation and that under Russian law, being the founders of the
newspaper, they had no control over its editorial policy (see
paragraph 23 above). Although the contested allegation was clearly
identified as one proffered by other persons, the courts failed to
advance any justification for imposing a punishment on the applicants
for reproducing statements made by others, a failure which was
incompatible with the Convention requirements.
- Furthermore,
such imposition of liability appears also to be at variance with the
requirements of the Russian Mass-Media Act, which provides that a
person should be exempted from liability if the statement in question
emanated from State officials, bodies, organisations, agencies,
companies or public associations (section 57). That exemption clause
is perfectly consonant with the Court's own approach to the effect
that the press should normally be entitled, when contributing to
public debate on matters of legitimate concern, to rely on the
content of official reports without having to undertake independent
research (see Colombani and Others, cited above, § 65).
The list of protected sources of information in section 57 of the
Mass-Media Act is broad and it does not appear plausible that bodies
of local self-government and their officials should be excluded from
the scope of the fair-reporting exception. Thus, the distinction
between State bodies and municipal bodies, drawn by the domestic
courts in order to overrule the applicants' reliance on that
exception, was rather formalistic and artificial. In any event, the
letter had been signed, among others, by the local police chief and
an official of the tax inspectorate, both of whom obviously fall
within the ranks of officials explicitly listed in section 57.
- Similarly,
the Russian courts did not show in a convincing manner that the
applicants could not avail themselves of the fair-reporting exception
because the document at issue had been distributed at a
press-conference organised by an “autonomous non-commercial
organisation” rather than by a public association. Firstly,
under Russian law, a “public association” is a generic
term covering all types of non-governmental associations, including
“autonomous non-commercial organisations”. Secondly, as
the applicants correctly pointed out, it was of little relevance on
whose premises the press-conference had been organised, the important
fact being that the document had originated from public officials.
The Court notes that it was not alleged that the applicants had
distorted or otherwise modified the text of the original open letter.
Accordingly, it finds that, in reprinting an official
non-confidential document, the applicants acted in good faith and
were mindful of the “duties and responsibilities” of the
members of the press referred to in paragraph 2 of Article 10.
- The
Court further observes that the Russian courts characterised the
contested allegation about “irregularities” as a
statement of fact and found the applicants liable for failure to show
its veracity. The Court reiterates that in the context of the
balancing exercise under Article 10, in particular where the
reporting by a journalist of statements made by third parties is
concerned, the relevant test is not whether the journalist can
prove the veracity of the statements but whether a sufficiently
accurate and reliable factual basis proportionate to the nature and
degree of the allegation can be established (see Dyundin,
cited above, § 35, and Pedersen and Baadsgaard, cited
above, § 78). The fact that the regional police and the regional
courts' management department had obtained unusually high timber
purchasing quotas was not disputed in the domestic proceedings.
Likewise, the fact was not contested that wholesale companies
purchasing timber without appropriate licences had been allowed to
operate without hindrance in the region. The Court stresses that
where the impugned statement was made in the course of a lively
debate at local level, elected officials and journalists should enjoy
a wide freedom to criticise the actions of a local authority, even
where the statement may lack a clear basis in fact (see Lombardo
and Others v. Malta, no. 7333/06, § 60, 24 April 2007).
In sum, the Court finds that the contested statement, albeit
expressed provocatively, did not overstep the bounds of journalistic
freedom, bearing in mind that State bodies and civil servants acting
in an official capacity are, like politicians, subject to wider
limits of acceptable criticism than private individuals.
- Lastly,
the Court will assess the penalty imposed on the applicants. It notes
that they were each ordered to pay a substantial amount, first to
Mr Shulga in his private capacity and then an even greater
amount to the courts' management department. The domestic courts did
not analyse what part of the applicants' income those amounts
represented and whether an excessive burden would thereby be imposed
on them. In the applicants' submission, undisputed by the Government,
the sanction was equivalent to their income for four months and was
thus obviously a severe penalty.
- In
conclusion, the Court finds that the Russian authorities did not
adjudicate the defamation claims in compliance with the Convention
standards and did not adduce relevant and sufficient reasons for the
interference with the applicants' right to freedom of expression.
Accordingly, the interference complained of was not “necessary
in a democratic society” within the meaning of Article 10 §
2 of the Convention.
- 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. Pecuniary damage
- The
applicants each claimed 860 euros (EUR) as compensation in respect of
pecuniary damage. That sum corresponded to the amount which they had
each had to pay to the plaintiffs as a result of the domestic courts'
judgments.
- The
Government accepted that the applicants' claims were reasonable in so
far as those expenses had actually been incurred.
- The
Court finds that there is a causal link between the violation found
and the alleged pecuniary damage in so far as the applicants referred
to the amounts which they had paid under the domestic judgments.
Consequently, the Court awards each applicant EUR 860 in respect of
the pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Non-pecuniary damage
- The
applicant Mr Trubitsyn claimed EUR 3,000 and the applicants Ms
Romanenko and Ms Grebneva each claimed EUR 1,000 as compensation in
respect of non-pecuniary damage. They referred to the awards made by
the Court in comparable cases.
- The
Government submitted that the amounts claimed were excessive.
- The
Court considers that the applicants have suffered non-pecuniary
damage as a result of the domestic judgments which were incompatible
with the Convention principles. The damage cannot be sufficiently
compensated for by the finding of a violation. The Court considers,
however, that the specific amount claimed by the first applicant is
excessive. Making its assessment on an equitable basis, the Court
awards each applicant EUR 1,000 plus any tax that may be
chargeable on that amount.
C. Costs and expenses
- The
applicants claimed EUR 1,400 for twenty-eight hours of work carried
out by their representatives in the Strasbourg proceedings at the
hourly rate of EUR 50. They submitted a time-sheet.
- The
Government alleged that the representatives might have acted in their
own interest when presenting the case, that the hourly rate had been
excessive, and that the participation of two counsel had not been
necessary. In any event, there was no evidence that the applicants
had actually incurred any legal expenses.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses in so far as it has been shown that these have
been actually and necessarily incurred and were reasonable as to
quantum. Examining the documents submitted by the applicants, the
Court is satisfied that the hourly rate and the number of hours spent
were reasonable as to quantum and awards the applicants jointly the
entire amount they claimed in respect of costs and expenses, namely
EUR 1,400, plus any tax that may be chargeable to the applicants on
that amount.
D. 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, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR
860 (eight hundred and sixty euros) to each applicant in respect of
pecuniary damage, plus any tax that may be chargeable on that amount;
(ii) EUR
1,000 (one thousand euros) to each applicant in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount;
(iii) EUR
1,400 (one thousand four hundred euros) to the applicants jointly in
respect of costs and expenses, plus any tax that may be chargeable to
the applicants on that amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
In
accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of Court, the joint concurring
opinion of Judges Spielmann and Malinverni is annexed to the
judgment.
N.A.V.
A.M.W.
JOINT CONCURRING OPINION OF JUDGES SPIELMAN AND
MALINVERNI
- We
are in agreement with the Court's conclusions that there has been a
violation of Article 10 of the Convention.
- However,
we cannot agree with the reasoning put forward by the majority in
paragraph 39 of the judgment. In so far as the interference in
connection with the civil action brought by the courts' management
department of the Primorskiy region is concerned (paragraph 10 of the
judgment), we have serious doubts as to whether this interference
pursued the legitimate aim of the “protection of the reputation
or rights of others” (emphasis added), as is suggested
implicitly by the majority. The Court leaves this question open,
saying that “it is not its task to examine the domestic
legislation in the abstract but rather to consider the manner in
which that legislation was applied to, or affected, the applicant in
a particular case”, and deciding that “this issue will
also be examined in the analysis of the proportionality of the
interference” (paragraph 39 in fine).
- Before
going into proportionality, the Court should have satisfied itself
that the interference pursued one of the legitimate aims laid down
exhaustively in paragraph 2 of Article 10 of the Convention. The
majority, albeit implicitly, seem to suggest in this respect that a
public body or authority may claim protection of the reputation or
rights of others, which is in our view inconceivable. Indeed, the
structure of Article 10 suggests a triangular relationship involving
the State - author of an interference -, the applicant - victim of an
interference - and “others”, whose reputation and rights
may or may not be protected. The only “public body”
covered by one of the exceptions laid down in paragraph 2 of Article
10 is the “judiciary”, whose authority and impartiality
may be protected through an interference, provided that such
interference is necessary in a democratic society and is
proportionate to the aim pursued.
- In
our view, under the Court's requisite strict construction of the
enumerated legitimate aims, it is unreasonable to include a public
authority within the meaning of “others” whose reputation
or rights Article 10, paragraph 2, is designed to protect.
- To
conclude, and in so far as the interference in connection with the
civil action brought by the courts' management department of the
Primorskiy region is concerned, the Court should have limited its
finding of a violation of Article 10 to the absence of a legitimate
aim, without examining the question of proportionality.
