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FIRST
SECTION
CASE OF FILATENKO v. RUSSIA
(Application
no. 73219/01)
JUDGMENT
STRASBOURG
6
December 2007
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 Filatenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr G.
Bonello,
Mrs F. Tulkens,
Mrs N. Vajić,
Mrs S.
Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky,
judges,
and Mr S. Nielsen, Section Registrar
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 73219/01) 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 Aleksandr
Grigoryevich Filatenko (“the applicant”), on 21
February 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained under Article 10 of the Convention about a
violation of his right to freedom of expression.
- By
a decision of 3 June 2004, the Court declared the application partly
admissible.
- The
Government and the applicant filed further observations on the merits
(Rule 59 § 1).
- On
7 March 2005 the President granted leave for Lawyers for
Constitutional Rights and Freedoms (JURIX) to intervene as a third
party in the proceedings (Article 36 § 2 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in the town of
Kyzyl in the Tyva Republic of the Russian Federation. He
is a journalist working for the State television and radio
broadcasting company Tyva (GTRK Tyva).
8. In
1999, the elections to the State Duma of the Federal Assembly
of the Russian Federation, the lower chamber of Russian Parliament,
were scheduled to take place on 19 December. In the Tyva Republic,
Mrs G. Salchak was the leading candidate of the Otechestvo
party, and Mr I. Loktionov of the Edinstvo movement. The
elections to the federal Parliament coincided with the elections to
the Great Khural, the Parliament of the Tyva Republic.
- On
15 December 1999 the Tyva television channel broadcast a live show
“Elections-99” with the participation of election
candidates Mr P.A., Mr V.S. and Mr A.M. The applicant was the
presenter. The editor took a question from a viewer by phone, wrote
it on a piece of paper and handed it over to the applicant who read
the question to the participants. According to the applicant, the
question was:
“Why was the flag of the Tyva Republic torn off
the car with loud-speakers campaigning in support of G. Salchak?
This is the first time this has happened in our Republic!”
[“Почему
сорвали флаг
Республики
Тыва с радиомашины
в поддержку
Г. Салчак?
Это впервые
такое
в нашей
республике!”]
The
participants gave their answers to the question.
- On 16 December 1999 the electoral bloc of the Edinstvo
political movement brought a defamation action against the applicant
and the broadcasting company. The statement of claim was signed by Mr
A.O., the head of the regional campaign headquarters of the political
movement. According to the statement, on 15 December 1999 the
applicant had asked the show participants for their reactions to the
fact that the representatives of the campaign headquarters had torn
the Tyva flag off the campaigning car and stamped on it.
- On 20 January 2000 the applicant and the broadcasting
company filed their observations with the court. They submitted that
only individuals, but not legal entities such as the Edinstvo
political movement, could incur non-pecuniary damages.
- On 5 April 2000 the original statement of claim was
replaced by five identically worded statements filed by individual
members of the campaign headquarters of the Edinstvo political
movement, including Mr A.O., who also acted as the representative of
three other plaintiffs.
- The
case was heard by the Kyzyl District Court of the Tyva Republic.
Before the court the applicant maintained that he had read out the
question exactly as it had been noted down on the piece of paper
which was produced for the court's examination. The applicant also
added that at first the participants had not understood the meaning
of the question and that he had had to clarify that the incident in
question had taken place earlier on that day in front of the
headquarters of the Edinstvo movement.
- On 19 July 2000 the District Court gave judgment. It
found that no video recording of the show was available, and it
relied on witness statements to establish the exact wording of what
the applicant had said:
“The case file materials include a note which
contained the viewer's question phrased as follows: 'Why was the flag
of the Tyva Republic torn off the car with loud-speakers campaigning
in support of G. Salchak? This is the first time this has happened in
our republic!' (case file, page 12).
As the court has established, three candidates for the
Tyva Parliament participated in the Elections-99 show – Mr
P.A., Mr V.S., and Mr A.M.
The witness Mr P.A. stated that the presenter, Mr
Filatenko, had read out a note with the following question: 'What is
your reaction to the fact that the Russian and Tyva flags were torn
off the campaigning car?'; members of the Edinstvo headquarters had
not been mentioned; he did not remember whether the Edinstvo
headquarters had been mentioned; the question had been worded
differently from the original note. The court does not consider that
the testimony of this witness is incontrovertible because at the time
of the show he was an assistant to the member of the Russian
Parliament G. Salchak.
The witness Mr V.S. stated that Mr Filatenko had asked
for the participants' reactions to the fact that the Tyva flag had
been torn off the campaigning car by members of the Edinstvo
headquarters and stamped on. The defendants distrusted the witness on
the ground that he was an assistant to the member of the Russian
Parliament Mr K. who is also the head of the republican branch of the
Edinstvo movement. However, the court sees no direct link between the
headquarters of the Edinstvo electoral movement, which had been
established for the purpose of electoral campaigning for the
candidate Mr Loktionov, and the republican branch of the Edinstvo
movement, which had been established after the elections; Mr K. had
not been a member of the Edinstvo headquarters and the court accepts
this testimony as accurate.
The witness Mr A.M. stated that he clearly remembered
the words 'flag', 'car' and the essence of the question, that a flag
had been torn off Salchak's car. The Edinstvo headquarters and their
members had not been mentioned. The court considers that this witness
testimony contradicts other evidence in the case and also the
statement by Mr Filatenko who... had mentioned the Edinstvo
headquarters. Since the witness does not remember his mentioning that
place, his testimony is incomplete.
The witness Ms O.K., who at that time had been a lawyer
at the [Edinstvo] headquarters, stated that Mr Filatenko had put the
question as follows: 'What is your reaction to the actions of the
employees (or members) of the Edinstvo headquarters who stamped on
the Tyva flag?'; in addition to the words 'stamped on' he used the
words 'tearing off'; the question was put as if it emanated from a
viewer; the question on the note was not read out. As there were many
breaches in the electoral campaign, all television shows were
recorded by the party headquarters... [The plaintiff] Mr A.O.
explained to the court that the recording had been lost during a move
to other premises.
The witness Ms B.I., who at that time was in charge of
the reception office at the Edinstvo headquarters, stated that in the
two or three days following broadcasting of the show there had been
many phone calls from people asking whether it was true that members
of the Edinstvo headquarters had torn down the flag; voters had been
shocked, and had believed it had been true. She had seen the show on
TV and the question had been worded as follows: 'What is your
reaction to the fact that members of the Edinstvo headquarters tore
the flag down from the campaigning car?'
The witness Mr V.K. stated that he had been present at
the show; the presenter had read out the question in the following
words: 'Is it true that the republican flag from the campaigning car
has been torn to pieces?'
The witness Mr V.L. stated that the presenter had read
out the note about the tearing of the flag from the campaigning car;
he had asked for the candidates' comments; there had been no mention
of members of the Edinstvo headquarters.
The witness Mr A.T. stated that the note received had
indicated that someone had torn down the flag but he could not
remember the exact text.
The witness Ms R.A. stated that the question had been
the following: 'What is your reaction to the fact that today, near
the Edinstvo headquarters, the Tyva flag was torn off the car
campaigning for G. Salchak?'
The court does not accept the statements by the
witnesses Mr V.K., Mr V.L., Mr A.T. or Ms R.A. as incontrovertible
because these witnesses are employed by the defendant broadcasting
company... and are subordinate to it.
The witness Ms O. Ch. stated that the essence of the
question had been about the tearing down and stamping on of the flag
and the candidates' reactions to that fact. The question had referred
to members of the Edinstvo headquarters [she remembered that] because
she had intended to vote for Edinstvo and had been shocked by that
fact...
The witness Ms E. P. stated that she had heard on TV
that a flag had been torn down and stamped on at the hotel; on the
following day she had gone to the Edinstvo headquarters to apply for
employment and had asked whether it was true; she had been told it
was not...
The witness Ms N. G. stated that it had been her
professional duty to monitor the media during the electoral
campaigning. She had watched every show, including 'Elections-99' on
15 December 1999. In the question put by the presenter the Edinstvo
headquarters had only been mentioned as the place where the incident
had taken place. There had been no breaches of the law on the part of
Mr Filatenko.
Having examined and assessed the witness statements ,
the court finds as follows: the testimony of Mr A.M. is incomplete;
the testimony of Ms N.G. to the effect that members of the Edinstvo
headquarters had not been mentioned in the question is refuted by the
testimonies of the witnesses Mr V.S., Ms O.K., Ms B.I., and Ms O.Ch.
Their testimonies are consistent, not contradictory inter se;
the court has no ground to doubt their objectivity and accepts their
statements as the basis of its findings. Thus, the court has
established that on 15 December 1999, on the 'Elections-99'
television show, Mr Filatenko had not asked the candidates the
question which had been written on the viewer's note. Instead, he had
asked for their reactions to the fact that on 15 December 1999
members of the Edinstvo headquarters had torn down the Tyva flag from
the campaigning car and stamped on it.”
- As regards the truthfulness of the information
contained in the applicant's question, the District Court had regard
to the findings of an inquiry carried out by the local police
department at the request of the plaintiff Mr A.O. On 21 March 2000
the police refused to initiate criminal proceedings, having
established that no desecration of the flag had taken place. The
District Court accordingly found that the allegation that the members
of the Edinstvo headquarters had torn down and stamped on the flag
was untrue. It further noted that such information implied the
commission of a morally and criminally reprehensible act and was
therefore damaging to the plaintiffs' honour and dignity.
- The District Court further examined the issue whether
the plaintiffs had been affected by the untrue allegation, even
though their names had not been mentioned in the broadcast:
“The broadcast did not mention the plaintiffs by
name. However, the withholding of the individual's name is not a
ground to reject the claim.
The plaintiffs submitted a list of members of the
Edinstvo headquarters which shows that [the five plaintiffs] had been
members of the campaign headquarters; the headquarters had included
nine members, [the plaintiff] Mr O.A. had been its head.
As [the plaintiffs] Mr O.A. and Mr M.S. explained, they
had suffered moral anguish after the show had been broadcast, as they
had considered that allegation insulting; their relatives and friends
had called and asked whether it had been true.
Not only the plaintiffs but also the viewers had been
under the impression that the allegation had targeted the plaintiffs.
The witnesses Mr V.S., Ms B.I. and Ms O.Ch. confirmed that fact. Mr
V.S. stated that, after the question had been put, he had immediately
started wondering who could have done that, because he knew that no
one working at the headquarters could have torn a flag down. The
witness Ms B.I. stated that in the following two or three days
outraged citizens had called the headquarters because they had
believed the allegation. The witness Ms O.Ch. stated that she had
intended to vote for the Edinstvo movement; after the Elections-99
show schoolteachers had been indignant, and she had gone to the
Edinstvo headquarters to verify whether the allegation had been
true.”
- The District Court finally noted that the original
question by the viewer had not contained any untrue information and
that the damaging allegation had emanated from the applicant himself.
The District Court held him liable to pay 2,500 Russian roubles
compensation to each plaintiff in respect of non-pecuniary damage. It
further ordered the television channel to broadcast a rectification
in the same time slot as the original show.
- On
22 August 2000 the Supreme Court of the Tyva Republic upheld the
judgment of 19 June 2000, endorsing the findings of the District
Court in a summary fashion.
- On
1 October 2000 enforcement proceedings were opened against the
applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
- Article
29 of the Constitution guarantees freedom of thought and expression,
and freedom of the media.
B. Civil Code of the Russian Federation
- Article 152 provides that an individual can 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 can also claim
compensation for losses and non-pecuniary damage sustained as a
result of the dissemination of such statements.
C. Mass-Media Act (Law no. 2124-I of 27 December 1991)
-
A journalist has the duty to verify the truthfulness of the
information he or she communicates (section 49 § 1 (2)).
D. 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).
E. Case-law of the Supreme Court of the Russian
Federation
- On 20 December 2002 a deputy President of the Supreme
Court of the Russian Federation lodged an application for supervisory
review in a defamation action which had originally been granted by
the Penza courts. The deputy President noted, in particular, that:
“However, the courts did not take into account
that one of the requirements of Article 152 of the Civil Code is that
statements must refer to a particular person or a clearly
identifiable group of persons...”
On 7
February 2003 the Presidium of the Penza Regional Court granted the
application and quashed the judgments in the defamation claim. The
case eventually ended in a friendly settlement.
F. Criminal offence of desecration of the State flag
- Article 329 of the Criminal Code provides that
desecration (nadrugatelstvo) of the State flag of the Russian
Federation or the State emblem of the Russian Federation is a
criminal offence punishable with deprivation of liberty.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the domestic judgments in the defamation
action violated his right to impart information and impaired his
journalistic freedom. The complaint falls to be examined under
Article 10 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 applicant
- The
applicant submitted that a live political debate is one of the
legitimate and accessible means of imparting information. It is
customary for a presenter to read out all questions received from the
audience. In fact, there had been an explicit agreement with all the
participants in the “Elections-99” show that all
questions would be read out.
- The
applicant pointed out that he had twenty years of professional
experience and was well versed in the “duties and
responsibilities” of a journalist. In the light of his
experience, he had not seen anything in the viewer's question that
might have been perceived as inciting social hatred or encroaching on
the constitutional foundation of the State. The viewer had merely
sought to obtain accurate and reliable information about the “flag
incident” from informed and respected candidates for regional
Parliament. The applicant pointed out that he had only clarified that
the incident had taken place in front of the Edinstvo campaign
headquarters. The clarification was based on information that had
been broadcast earlier on that day. There had been nothing in the
question which could be construed as an unfounded accusation of
commission of a criminal offence, such as desecration of the Tyva
flag. Furthermore, a question cannot, by definition, be a statement
of fact, for it is essentially a query with the purpose of obtaining
information which requires an answer.
- Finally,
the applicant disagreed with the domestic courts' finding that the
interference had served the purpose of the protection of the
reputation of others. Not a single plaintiff had been mentioned in
the question by name or otherwise. In the judicial proceedings the
plaintiffs had not been able to show convincingly that they had been
personally affected by the question.
2. The Government
- The
Government considered that the applicant “had formed a wrong
idea of the balance of rights in a democratic society”. As a
professional journalist, he should have been aware of the impact of
his utterances on the audience and should have been particularly
precise and meticulous when making any information public (cf.
Fressoz and Roire v. France [GC], no. 29183/95,
§ 52, ECHR 1999 I, and Goodwin v. the United
Kingdom, judgment of 27 March 1996, Reports of Judgments and
Decisions 1996 II, § 39). The show had been broadcast
live during the electoral campaign and had essentially been a vehicle
for electoral competition. In these circumstances the impact of any
statement by the presenter, whose neutrality the audience had taken
for granted, had been so much greater “during the critical
period when [the voters'] minds were focused on their choice of
representative” (cf. Bowman v. the United Kingdom,
judgment of 19 February 1998, Reports 1998 I, § 45).
- The
Government maintained that the applicant had failed in his duty,
established both in the Court's case-law and in the Russian
Mass-Media Act, to verify the accuracy of the information he had
imparted. There had been a pressing social need to protect the
reputation of others since the applicant had imparted a false
allegation about the commission by other persons of a criminally
reprehensible act which, taking into account the audience and timing
of the show (6 p.m.), had undeniably provoked an indignant reaction
from the people “whose minds [had been] focused on their choice
of representative” (cf. Bowman case, cited above).
- Finally,
the Government claimed that the judgment of the Kyzyl District Court
had been well reasoned and had clearly identified the defamatory
allegation. The necessity of making a rectification of the damaging
information was obvious and also in the public interest. There had
therefore been no violation of the applicant's right to freedom of
expression.
- Commenting
on the submissions by the third party (see below), the Government
pointed out that these submissions were of a general nature and did
not take into account the particular circumstances of the case.
3. Submission by Lawyers for Constitutional Rights and
Freedoms
- In
their comments submitted under Article 36 § 2 of the Convention,
the intervening party, Lawyers for Constitutional Rights and Freedoms
(JURIX), maintained that protecting expression on core subjects of
politics and government in the middle of an election campaign is so
vital an interest that, in libel actions, the Court should give
particularly close scrutiny to such issues as the standing of the
claimant and whether a statement asserts an actionable false fact, or
more reasonably is understood as political speculation, conjecture or
hyperbole. Without such scrutiny, there is a risk of abusive
litigation against the media by unnamed political elites over
statements inherently not capable of being proved true or false.
- The
intervening party submitted that comments made in good faith in
political debates should constitute protected expression. Questions,
speculations or conjectures should be considered as value judgments
and courts cannot require the media defendants to prove their truth,
especially when such statements are part of media coverage of an
election campaign and are made in the heat of political debates. The
intervening party illustrated this thesis with quotations from the
judgments of the highest European courts. Thus, the German
Constitutional Court, in the Schmied-Spiegel case (1961, 12
BVerfGE 113), overruled the judgments of the national courts because
they “incorrectly viewed the facts and circumstances of this
case exclusively from the standpoint of personal honour and the
interests affected by the resulting harm without considering the
particular nature of the feud played out in the press and its value
as a constituent element in the formation of public opinion”.
In another, the Campaign Slur case (1982, 51 BVerfGE I), the
German Constitutional Court confirmed its position by stating that
“even caustic and exaggerated statements, particularly those
made in the heat of an electoral campaign, are fundamentally within
the protection [of free expression]”. Although one could “glean
factual elements from the statement in question”, nonetheless
“the value judgment outweigh[ed] the factual content [contained
in the statement]”.
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, judgment of
7 December 1976, Series A no. 24, p. 23, § 49,
and Jersild v. Denmark, judgment of 23 September
1994, Series A no. 298, p. 26, § 37).
- It
is common ground between the parties that the judgments pronounced in
the defamation action constituted an interference with the
applicant's right to
freedom of expression within the meaning of Article 10 § 1 of
the Convention.
- It
is not contested that the interference was “prescribed by law”,
namely Article 152 of the Civil Code, and pursued a legitimate aim,
that of protecting the reputation or rights of others, for the
purposes of Article 10 § 2. The dispute in the case relates
to 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. 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, most recently, Karman v. Russia,
no. 29372/02, § 32, 14 December 2006, and Grinberg
v. Russia, no. 23472/03, §§ 26-27, 21 July 2005,
with further references).
- The
Court notes at the outset the particular context of the instant case.
The question which gave rise to the defamation action was put by the
applicant on a television show. The show was broadcast live a mere
four days ahead of the general and regional elections in Russia and
hosted three prospective candidates who represented different
political factions. Viewers were invited to contact the editors on
the phone and put their questions to the candidates. Although the
parties to the defamation proceedings disagreed on the actual wording
of the question as it had been put by the applicant, it was
undisputed that it referred to the tearing-off of the Tyva Republic
flag from the car which had campaigned in support of Mrs Salchak, the
Otechestvo party candidate. The incident had taken place somewhere
near the campaign headquarters of the Edinstvo political movement,
the main competitor of the Otechestvo party in the forthcoming
elections. That matter had been an event of the first magnitude, for
it appears that such an assault on the republican flag had happened
for the first time in the region. The Court reiterates that, as a
general rule, any opinions and information pertinent to elections,
both local and national, which are disseminated during the electoral
campaign should be considered as forming part of a debate on
questions of public interest (see, for example, Kwiecień v.
Poland, no. 51744/99, § 51, ECHR 2007 ...).
According to its constant case-law, there is little scope under
Article 10 § 2 of the Convention for restrictions on political
speech or on debate on questions of public interest and very strong
reasons are required for justifying such restrictions (see, most
recently, Krasulya v. Russia, no. 12365/03, § 38,
22 February 2007, with further references).
- The
Court further notes that the format of the show 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 applicant was the
presenter and channelled the questions, received from the audience
and noted on pieces of paper, to the participants. The show was
broadcast live on television, so the applicant had but a limited
possibility of reformulating, refining or retracting any statements
before they were made public (compare Gündüz v.
Turkey, no. 35071/97, § 49, ECHR 2003 XI; and
Fuentes Bobo v. Spain, no. 39293/98, § 46, 29
February 2000). The Court reiterates in this connection that the
punishment of a journalist for having worded his questions in a
specific manner 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 Colaço Mestre and SIC – Sociedade Independente
de Comunicação, S.A. v. Portugal,
nos. 11182/03 and 11319/03, § 31, 26 April 2007, and
also, mutatis mutandis, Jersild v. Denmark,
judgment of 23 September 1994, Series A no. 298;
Thoma v. Luxembourg, no. 38432/97, ECHR 2001 III;
Lionarakis v. Greece, no. 1131/05, 5 July
2007).
- The
distinguishing feature of the present case is the parties'
disagreement as to what the applicant actually said. The District
Court found that the question, as it had been phrased by the viewer,
had not been defamatory. Rather, it had been the applicant who had
presented the matter as if it were a fact that the Tyva flag had been
torn down and stamped on by the members of the Edinstvo campaign
headquarters (see paragraph 17 above). Thus, the District Court held
the applicant liable not for reading out the viewer's question but
for making an independent factual allegation of which he was the
author. The applicant had consistently denied making any such
allegation; he only admitted to having specified, by way of
clarification, that the incident had taken place near the Edinstvo
campaign headquarters. The Court accordingly has to verify whether
the findings of the domestic courts as to the applicant's liability
rested on an acceptable assessment of the relevant facts (see
paragraph 38 in fine above).
- It
appears that no video recording of the show had survived to the day
of the domestic proceedings. In these circumstances, the domestic
court had no other option but to resort to witness testimony. A
significant number of witnesses gave evidence, including the show
participants and employees of both the broadcasting company and the
Edinstvo headquarters (see paragraph 14 above). While the applicant
had an opportunity to present his evidence to the court in
circumstances which did not place him at a substantial disadvantage
vis-à-vis the opposing party, as the Court has already found
in the decision as to the admissibility of the present application,
the reasons put forward by the District Court for the finding that
the applicant had accused the members of the Edinstvo headquarters of
tearing the flag off the car, do not appear to have been based on an
acceptable assessment of their testimonies.
- The
claim that the applicant had made an accusation against the members
of the Edinstvo campaign headquarters had originated with the
plaintiffs in the defamation action and was supported solely by the
witnesses who were in one way or another affiliated with the Edinstvo
political movement: Mr V.S. (an assistant to the head of the
republican branch of the Edinstvo movement), Ms O.K. (a lawyer at the
Edinstvo headquarters), Ms B.I. (a receptionist at the Edinstvo
headquarters), and Ms O.Ch. (an avowed Edinstvo supporter). The
District Court accepted their statements as the basis of its findings
of fact, holding that it had no grounds “to doubt their
objectivity”. It did not address the reliability of those
witnesses in the light of their apparent association with the
Edinstvo movement. However, as regards the statements by the
applicant's co-workers, it was precisely their connection with the
defendant broadcasting company that prompted the District Court to
reject their testimonies as unreliable, without any assessment of
their individual credibility. That difference of treatment, for which
the District Court's judgment did not give any satisfactory account,
was still more prominent in its decision to reject the testimony of
the show participant Mr P.A. on the ground that he had worked for
Edinstvo's political competitor, but to accept the testimony of
another participant, Mr V.S., notwithstanding his position as an
assistant to the head of the Edinstvo regional branch. The
distinction drawn by the District Court between the two Edinstvo
structures does not appear convincing to the Court as it was only a
matter of internal organisation and had no bearing on the witness's
continued political affiliation with Edinstvo. Furthermore, the
District Court's decision to reject the statement by Ms N.G., an
independent and professional media observer, on the sole ground that
it contradicted the testimonies of the Edinstvo-affiliated witnesses,
likewise appears unpersuasive to the Court. In sum, the Court finds
that the District Court failed to make an acceptable assessment of
the relevant facts and give sufficient reasons for the finding that
the applicant's question had contained an independent factual
allegation against the plaintiffs.
- The
Court next 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 statement 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 (see Dyuldin and Kislov v. Russia,
no. 25968/02, § 44, 31 July 2007, and the Supreme
Court's case-law in paragraph 24 above). These principles also apply
in the sphere of television and radio broadcasting, as in the instant
case.
- It
was not in dispute in the domestic proceedings, and was also
acknowledged by the District Court, that none of the plaintiffs had
been mentioned by name or otherwise identified during the television
show. The District Court accepted nevertheless that the audience had
been given the impression that the plaintiffs' reputation had been
affected (see paragraph 16 above). The reasons on which this finding
was premised do not appear sufficient to the Court. It notes,
firstly, that no witness linked the allegation to any individual
claimant. All of them spoke about a general feeling of indignation
which the mentioning of the Edinstvo campaign headquarters in the
context of the flag incident had aroused in them. In fact, it appears
that the plaintiffs had also believed that it had been the campaign
headquarters' – rather than their personal – reputation
that had been affected. A clear indication of that conviction is the
fact that the defamation claim had initially been filed by the
Edinstvo political movement as a legal entity (see paragraph 10
above). However, once it transpired that under Russian law a legal
entity would not be able to recover non-pecuniary damages, five
individual members of the Edinstvo campaign headquarters stepped into
the proceedings in their personal capacity (see paragraphs 11 and 12
above). The District Court did not address the distinction between
the reputation of the Edinstvo political movement and that of
individual plaintiffs and allowed them to substitute themselves for
the political movement without further inquiry. In these
circumstances, the Court does not consider that the District Court
gave “sufficient” reasons for establishing an objective
link between the statement in question and the individual claimants
in the defamation action.
- Turning
now to the contents of the allegation which the applicant had
allegedly made, the Court observes that the District Court determined
its untruthfulness solely on the basis of the police decision not to
institute a criminal investigation into the offence of desecration of
a flag (see paragraph 15 above). The Court is not persuaded that the
police report was a sufficient piece of evidence or indeed a relevant
one. It is noted, firstly, that criminal liability may only arise in
the event of desecration of the State flag of the Russian Federation
(see paragraph 25 above). Accordingly, in the instant case the
accusation could not have entailed criminal prosecution even if it
had been true (see, by contrast, Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 80,
ECHR 2004 XI). Thus, the findings of the police inquiry were
irrelevant. On a more general level, the Court reiterates its
constant approach that the standard of proof for establishing the
well-foundedness of a criminal charge can hardly be compared to that
which ought to be observed by a journalist when expressing his
opinion on a matter of public concern, as the standards applied when
assessing someone's actions in terms of morality are quite different
from those required for establishing an offence under criminal law
(see, mutatis mutandis, Karman v. Russia,
no. 29372/02, § 42, 14 December 2006; Unabhängige
Initiative Informationsvielfalt v. Austria,
no. 28525/95, § 46, ECHR 2002 I; and
Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria,
no. 58547/00, § 39, 27 October 2005). This distinction
is of direct relevance to the instant case, given that the flag
incident was an event of major public concern and that by putting the
question, the applicant merely solicited an assessment of that event
by the show participants rather than made an affirmation. There could
be no serious doubts about his good faith, as there is no indication
that his intention was to accuse anyone of committing a criminal
offence. Nor can he be criticised for a failure to verify the factual
basis for the question, given the obvious constraints of a live
television show where time was of essence. In any event, a
representative of the Edinstvo political movement (Mr V.S.) was
present among those show participants who had been invited to reply
to the viewer's question, and he could have immediately dispelled any
allegation which he considered to be untrue and presented his own
version of the flag incident (compare Gündüz, cited
above, § 51, on counterbalancing of the applicant's statements
by the intervention of other participants).
- Finally,
in assessing the necessity of the interference, it is important to
take account of the way in which the domestic courts dealt with the
case, and in particular whether they applied standards which were in
conformity with the principles embodied in Article 10 of the
Convention (see Pedersen and Baadsgaard, cited above, § 91).
A perusal of the Russian courts' judgments issued in the present case
reveals that they failed to recognise that the case involved a
conflict between the right to freedom of expression and the
protection of the reputation or rights of others and therefore did
not carry out the relevant balancing exercise (see Kwiecień,
cited above, § 52, and, by contrast, Keller v. Hungary
(dec.), no. 33352/02, 4 April 2006; and Pedersen and
Baadsgaard, loc. cit.). Likewise, they did not take into
consideration the crucial importance of free political debate in a
democratic society in the context of free elections or the wider
limits of criticism that politicians should be prepared to tolerate
(see Malisiewicz-Gąsior v. Poland, no. 43797/98, §
67, 6 April 2006, and Kwiecień, loc. cit.). Thus,
the national authorities cannot be considered as having applied the
standards embodied in Article 10 of the Convention and the Court's
case-law.
- In
the light of the above considerations and taking into account the
role of journalists and the press of imparting information and ideas
on matters of public concern, the Court finds that the interference
with the applicant's freedom of expression was not justified. That
the proceedings were civil rather than criminal in nature does not
detract from the fact that the standards applied by the Russian
courts were not compatible with the principles embodied in Article 10
since they did not adduce “relevant” and/or “sufficient”
reasons justifying the interference at issue. Therefore, the Court
considers that the domestic courts overstepped the narrow margin of
appreciation afforded to them for restrictions on debates of public
interest and that the interference was disproportionate to the aim
pursued and not “necessary in a democratic society”.
There
has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 12,500 Russian roubles (RUB) in respect of
pecuniary damage, representing the amount he had paid the plaintiffs
in the defamation action. He further claimed a loss of earnings of
approximately RUB 500 a month: on 21 February 2000 the head of his
service had refused him a promotion because of the judgment in the
defamation action and prohibited him from going live on air. The
applicant asked the Court to determine the amount of compensation in
respect of non-pecuniary damage.
- The
Government considered that a finding of a violation would constitute
sufficient just satisfaction in the present case.
- The
Court notes that the applicant's claim in respect of pecuniary damage
is directly connected with the judgments issued by the domestic
courts, which it found to have been incompatible with Article 10 of
the Convention. It is also supported by appropriate evidence,
including enforcement documents and a written refusal of promotion.
It accepts therefore the applicant's claim in respect of pecuniary
damage in the amount of 1,000 euros (EUR). It further considers that
the non-pecuniary damage suffered by the applicant cannot be
sufficiently compensated for by a finding of a violation. Making its
assessment on an equitable basis, the Court awards him EUR 1,000,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,000 (one thousand euros) in respect of pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage;
(iii) any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
