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FIRST
SECTION
CASE OF BEZYMYANNYY v. RUSSIA
(Application
no. 10941/03)
JUDGMENT
STRASBOURG
8
April 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 Bezymyannyy v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10941/03) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Russian national, Mr
Vladimir Mikhaylovich Bezymyannyy (“the applicant”), on 8
March 2003.
2. The
applicant was represented by Mr I. Skripnichenko, a lawyer practising
in Belgorod. The Russian Government (“the Government”)
were represented by Mr P. Laptev and Mrs V. Milinchuk,
former Representatives of the Russian Federation at the European
Court of Human Rights.
3. The applicant indicated
that he possessed Ukrainian nationality as well. The
Government of Ukraine have been notified of the application (Rule 44
§ 1 of the Rules of Court). They did not submit any written
comments under Article 36 § 1 of the Convention.
- On
13 September 2006 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Belgorod.
A. The background of the case
- The
applicant is a businessman and a former controlling shareholder of a
private company OAO “Restoran Belgorod”. According to the
applicant, in 1997 a number of third persons produced a fake sales
contract in respect of his shares in the company, as well as a fake
register of the shareholders. They then tried to gain control over
the company. Thereafter the matter was brought before the domestic
courts.
- On
27 April 1998 the Oktyabrskiy District Court of Belgorod, presided by
judge B., dismissed the applicant's action to have the sale annulled
and the register of shareholders declared fake and illegal. The court
refused to order a forensic examination of the evidence, including a
copy of the register of shareholders and the registrar's book of
records, which the applicant had claimed were fake, and having
admitted and considered them, rejected the applicant's action as
groundless.
- On
10 September 1998 that judgment was upheld on appeal by the Belgorod
Regional Court.
- On
18 September 1998, at the applicant's request, a police investigator
initiated criminal proceedings for fraud against a number of third
persons. On 28 October 1998 the investigator ordered an expert
examination of the documents which the applicant had claimed were
fake in the proceedings presided over by judge B.
- On
4 and 12 November 1998 the respective examinations were completed.
They confirmed that the copy of the register of shareholders and the
registrar's book of records had been tampered with and that some of
the entries had been fraudulently deleted or altered.
- It
appears that on 22 November 2001 the criminal investigation was
discontinued.
- Thereafter
the case was repeatedly suspended and resumed.
- The
latest decision to resume the proceedings was taken on
5 September 2002. The outcome of the investigation is
unclear.
B. The applicant's letter of 23 March 2000 and ensuing
events
- On
23 March 2000 the applicant wrote a letter to the Prosecutor of the
Belgorod Region with a copy to the Prosecutor General of Russia,
alleging that in the course of the proceedings in his case in 1998
judge B., “acting in the exercise of her duties, had committed
a crime by delivering a deliberately unjust decision knowingly based
on incorrect and sometimes even openly forged documentary evidence”.
The letter set out the applicant's views on the circumstances of his
case, referred to the outcome of forensic examinations carried out by
the investigator in the criminal case and requested the responsible
officials to bring criminal proceedings against judge B.
- Identical
letters were sent to the President of the Belgorod Regional Court and
the head of the Judiciary Qualification Board on 12 May 2000.
- In
response to the letter of 23 March 2000, on an unspecified date the
President of the Belgorod Regional Court and judge B. requested the
Regional Prosecutor's office to bring criminal proceedings against
the applicant for libel.
- By
decision of 6 April 2000 an investigator instituted proceedings
against the applicant for libel.
- On
27 September 2000 the applicant was questioned as a witness and
stated that judge B. had received bribes.
- On
18 May 2001 those proceedings were discontinued because of an amnesty
law.
- On
an unspecified date judge B. sued the applicant for defamation,
claiming 75,000 roubles (RUB - approximately 3,000 euros (EUR))
in damages and seeking an order for the retraction of the impugned
statements.
- By
judgment of 7 June 2002 the Sverdlovskiy District Court of Belgorod
granted the claims in full. The court noted that the judicial
decision taken by judge B. remained in force and that the applicant
had used all possible remedies against it by instituting appeal
proceedings. Without examining the form or accuracy of the statements
made by the applicant in his letter and having refused his requests
for the admission of evidence, the court concluded that the applicant
had defamed judge B. It ordered the applicant to send the Prosecutor
General of Russia, the Prosecutors of Belgorod and the Belgorod
Region, the President of the Belgorod Regional Court and the
Judiciary Qualification Board of the Belgorod Region a letter
retracting his previous allegations against judge B. The court also
awarded judge B. RUB 75,000 (approximately EUR 3,000) in
non-pecuniary damages.
- On
appeal, the applicant argued that the court had failed to examine
whether his letter to the relevant authorities could constitute
dissemination of information within the meaning of the applicable
law, that the inaccuracy of his allegations had been presumed and he
had been refused a chance to prove them and that the first instance
court had failed to require from judge B. any proof of actual harm
resulting from the letter. The applicant also objected to the use of
the statements which he had made during the interview with the
investigator of the libel case.
- On
appeal the Belgorod Regional Court reduced the award of damages to
RUB 20,000 (approximately EUR 800) and upheld the rest of
the judgment on 10 September 2002.
C. Other sets of proceedings
- By
a final decision of 18 November 2003 the Belgorod Regional Court
rejected the applicant's action to annul the transfer of his property
to a number of third persons.
- By
a judgment of 4 February 2003 the Oktyabrskiy District Court rejected
his application to annul a lease agreement between the applicant and
a certain commercial entity.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
33 of the Constitution of the Russian Federation provides that
citizens of the Russian Federation have the right
to apply in person, as well as to submit individual and collective
applications, to state bodies and local government institutions.
- Article
152 of the Civil Code of the Russian Federation provides that a
citizen may apply to a court to have information damaging his or her
honour, dignity or professional reputation retracted unless the
person who disseminated such information proves its accuracy. In
addition to retraction, the citizen may also claim compensation for
losses and non-pecuniary damage sustained as a result of the
dissemination of such information.
- Section 2 of Resolution no. 11
of the Plenary Session of the Supreme Court of the Russian Federation
of 18 August 1992 (as amended on 25 April 1995) “On
certain issues arising during the examination by courts of action for
the protection of the honour and dignity of citizens, and also the
professional reputation of citizens and legal entities” defines
damaging information as information which is inaccurate and contains
assertions that a citizen has broken the law or transgressed moral
principles as well as impairing the honour or dignity of a citizen or
the professional reputation of a citizen or a legal entity. The
dissemination of such information is understood as the publication or
broadcasting of such statements or their inclusion in professional
references, public speeches, applications to State officials or
communication in other forms, including oral, to at least one another
person. The communication of such information to the person whom it
concerns cannot be considered as its dissemination.
- Section
7 of the Resolution lays the burden of proof on the defendant to show
that the information disseminated was accurate; the plaintiff must
prove only that the defendant disseminated the information.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained, relying on Articles 6 and 10 of the Convention,
about the defamation proceedings brought by judge B., alleging that
the proceedings had been unfair, that his letter to the relevant
authorities could not be regarded as disseminating defamatory
information, and that the award in the case had been disproportionate
and arbitrary. The Court considers that the complaint falls to be
examined under Article 10 of the Convention, which reads, in so far
as relevant, 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.”
- The
Government contested the applicant's argument and submitted that when
examining the defamation case brought by judge B. the domestic court
had sought to protect the judiciary against gratuitous attacks and
that there had therefore been no interference with the applicant's
freedom of expression. They concluded that there had been no
violation of Article 10 of the Convention.
- The
applicant maintained his complaint.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court finds it indisputable that the civil proceedings for defamation
against the applicant constituted interference with his freedom of
expression and that this interference was in accordance with the law
and pursued the legitimate aim of protecting the plaintiff's
reputation. It remains to be determined whether the interference was
“necessary in a democratic society”.
- According
to the Court's well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and for individual
self-fulfilment. Subject to paragraph 2 of Article 10, it is
applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no “democratic
society”. As set forth in Article 10, this freedom is subject
to exceptions, which must, however, be construed strictly, and the
need for any restrictions must be established convincingly.
- 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 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. 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
power of appreciation (see, among many other authorities, Nilsen
and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR
1999-VIII).
- The
Court considers that, unlike in the vast majority of cases that have
been examined by the Court, the defamation claim in the present case
was born out of the applicant's request to institute criminal
proceedings against judge B. rather than out of publication in the
media (see, by contrast, Dyuldin and Kislov v. Russia, no.
25968/02, §§ 40-41, 31 July 2007). When writing his letters
of 23 March and 12 May 2000, the applicant was acting in his personal
capacity as a private individual, not as a journalist.
- As
regards judge B.'s personal situation, the Court reiterates that it
may be necessary to protect public servants from offensive, abusive
and defamatory attacks which are calculated to affect them in the
performance of their duties and to damage public confidence in them
and the office they hold (see Janowski v. Poland [GC],
no. 25716/94, § 33, ECHR 1999-I). It is even more
important when it comes to judges since allegations of unlawful
behaviour accusing judges of having broken the law or of having
breached their professional obligations may not only damage those
judges' reputations, but also undermine public confidence in the
integrity of the judiciary as a whole (see Prager and Oberschlick
v. Austria, 26 April 1995, § 36, Series A no. 313).
- The
Court notes at the same time that the applicant did not disseminate
the information attacking judge B.'s integrity via the media. He
merely reported the acts which he believed to be unlawful to a body
empowered to institute criminal proceedings, using wording that was
not abusive or offensive. In the Court's view, by doing so the
applicant acted within the framework established by law for making
complaints (see, in a similar context, Zakharov v. Russia, no.
14881/03, § 22, 5 October 2006).
- The
Court reiterates in that connection that it is one of the precepts of
the rule of law that citizens should be able to notify competent
State officials about conduct of civil servants which to them appears
irregular or unlawful (see Zakharov, cited above, § 26).
The important role that the judiciary plays in a democratic society
cannot in itself immunise judges from being targets of citizens'
complaints.
- As
the applicant set out his grievances in correspondence submitted in
his private capacity, the requirements of protection under Article 10
of the Convention have to be weighed not in relation to the interests
of freedom of the press or of open discussion of matters of public
concern but rather against the applicant's right to report
irregularities in the conduct of an official to a body competent to
deal with such complaints (see Kazakov
v. Russia, no. 1758/02, §
28, 18 December 2008).
- It
is true that, unlike politicians, judge B. could not be said to have
laid herself open to public scrutiny, and she thus needed to enjoy
public confidence in conditions free of undue perturbation when on
duty (see Janowski, cited above, § 33). However, the need
to ensure that civil servants benefit from public confidence in such
conditions can justify interference with freedom of expression only
where there is a real threat in this respect (see Raichinov v.
Bulgaria, no. 47579/99, § 48, 20 April 2006). The
applicant's letters obviously did not pose such a threat.
Furthermore, their contents were not made known to the general
public; thus no press or other form of publicity was involved (see,
by contrast, Pedersen and Baadsgaard v. Denmark [GC],
no. 49017/99, § 79, ECHR 2004-XI). The negative
impact, if any, of the applicant's words on Judge B.'s reputation was
therefore quite limited.
- Lastly,
the Court has to consider whether the sanction imposed on the
applicant was appropriate in the circumstances of the case. In its
view an award of damages of RUB 20,000 imposed for filing a
request to institute criminal proceedings against a judge appears to
be disproportionately severe.
- In
view of the foregoing considerations and assessing the text of the
letter as a whole and the context in which it was written, the Court
finds that the defamation proceedings resulted in an excessive and
disproportionate burden being placed on the applicant. There has
therefore been a violation of Article 10 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 6 of the Convention, the applicant claimed that he had
been a victim of racketeers who had used the assistance of some
public officials and judges to defraud him. According to the
applicant, the court proceedings against the racketeers had been in
breach of the requirement of Article 6 and generally unfair.
46. Having
regard to all the material in its possession, and as far as it is
within its competence, the Court finds that the applicant's
submissions disclose no appearance of violations of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant to 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 submitted that as a result of racketeers' actions in the
1990s he had sustained pecuniary damage amounting to a total of
267,821,348 euros (EUR). He did not support his claims by any
documents. The applicant also claimed EUR 100,000,000 for
non-pecuniary damage.
- The
Government submitted that there had been no causal link between the
alleged violation of Article 10 of the Convention and the pecuniary
damage claimed. They further stated that the amount claimed as
non-pecuniary damage was excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 3,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed around 30,000 Russian roubles (RUB) or
EUR 833 for postal expenses incurred before the domestic
authorities and the Court. He submitted invoices the majority of
which stipulated that the applicant had sent letters to the Russian
President, the Oktyabrskiy District Court, the Belgorod Regional
Court, the State Duma and the prosecutors' offices at different
levels. A few invoices confirmed that letters had been sent to the
Court. Some invoices mentioned or confirmed that the applicant had
spent sums of money at the Belgorod post office.
- The
Government made no comments on these claims.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers that it does not necessarily follow from the invoices
submitted by the applicant that all the postal expenses claims were
incurred in relation to the present application. It thus considers it
reasonable to award the sum of EUR 100 covering costs under all
heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 10 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into Russian roubles at the rate applicable
at the date of settlement, plus any tax that may be chargeable to the
applicant:
(i) EUR 3,000
(three thousand euros) in respect of non-pecuniary damage; and
(ii) EUR 100
(one hundred euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above 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 18 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
