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FIRST
SECTION
CASE OF PORUBOVA v. RUSSIA
(Application
no. 8237/03)
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 Porubova 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. 8237/03) 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, Ms Yana Vladimirovna
Porubova (“the applicant”), on 10 February 2003.
- The
applicant was represented by Ms L. Churkina, a lawyer practising in
Yekaterinburg. 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
applicant alleged, in particular, a violation of her right to a
public trial and a violation of her right to freedom of expression.
- By
a decision of 9 December 2004, the Court declared the application
partly admissible.
- The
Government, but not the applicant, filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Yekaterinburg. At the
material time she was a journalist and the editor-in-chief of the
newspaper D.S.P. (“D.S.P.” is a Russian
abbreviation meaning “For Official Use Only”).
- In
late September 2001 the applicant's newspaper published in the same
issue several items concerning the large-scale misappropriation of
budgetary funds allegedly committed by Mr V., the head of the
Sverdlovsk Regional Government, for the benefit of Mr K., an employee
of the Moscow representative office of the Sverdlovsk Region.
- The
first article, entitled “Gay scandal in the White House”
(“Гей-скандал
в «Белом доме»”),
appeared under the name of “Sergey Petrov”. It opened
with the following passage:
“Once upon a time there lived the head of the
Sverdlovsk Regional Government Mr V. He had everything: his
position, high esteem and respect. And also the governor's love.
But V. fell in love ... not with the governor or with
his work, but with a twenty-five year-old employee of the region's
representative office in Moscow, Mr K.
How does one become a homosexual? Where does this “love”
come from?
We are simple unsophisticated people ... And we cannot
imagine the scene that took place between them in the sumptuous
building of the region's representative office in Moscow ... Rumour
has it that the governor, on having learnt certain details, was
furious ... and even fired K. from his position.
But love, as we know, can overcome any obstacle. It
finds not only a time, but also a place.”
- The
article further asserted that, under the terms of an order signed by
Mr V. in 1997, the regional railway company had extinguished its
outstanding regional tax liability by purchasing a three-room flat in
Moscow:
“The flat was bought in Moscow at the following
address: 9 Orshanskaya St., building 1, flat no. ...
Initially the flat was even entered in the Government's
balance sheet. However, after a while V. made a gift of the flat ...
No, please do not think that he gave it to Mr K... [He gave it] to Mr
K.'s father. Apparently, as a 'thank-you' for the upbringing of his
son...”
- The
author concluded in the following manner:
“It might have been a private matter if it were
not for two 'buts'.
[Firstly,] two public figures, rather than private
individuals, were linked together by Shakespearean passions in this
story. In the instant case: the head of the Sverdlovsk regional
government, V., and a member of the regional parliament, K...
Secondly, the flat was purchased at our expense, at the
expense of our budget. Two billion roubles disappeared in 1997 into
thin air. To date there has been no reimbursement or sanctions on the
part of the tax authorities. The [character from a well-known Soviet
picaresque novel] blushed a lot as he was stealing official property,
but his like-minded accomplice V. never blushes.
And yet, to this day the entire budget of the region is
channelled through his hands. How can we ensure that he handles that
money honestly?”
- On
the left-hand column of the page the newspaper reproduced the text of
a letter which the deputy director of the Sverdlovsk regional police
had sent to the chairman of the Sverdlovsk regional audit commission.
The police officer informed the auditor that the police were
investigating the mechanism which involved extinguishing tax
liabilities by acquiring a flat in Moscow, and asked the experts of
the audit commission to assist by verifying the accounts of the
railway company, the Sverdlovsk Regional Government and the private
company that had acted as middleman in the transactions.
- The
third item, at the bottom of the page, was an article entitled
“History of the flat on Orshanskaya [Street]. Embezzlement of
public funds: a step-by-step guide for beginners” (“История
квартирки на
Оршанской.
Пошаговая
стратегия для
начинающих
казнокрадов”).
It described, in chronological order, the financial and real-estate
transactions between the railway company and the intermediary
company, as well as the orders signed by Mr V. and the sale of the
flat to Mr K.'s father.
- On
12 October 2001 the prosecutor's office of the Sverdlovsk Region,
acting on requests from V. and K., initiated criminal proceedings
against the applicant for criminal libel and insult disseminated via
the media, offences under Articles 129 § 2 and 130 § 2 of
the Criminal Code.
- The
investigator commissioned a linguistic and cultural expert
examination of the articles in question. On 6 November 2001 the
expert came to the conclusion that they contained allegations that V.
and K. were homosexuals who had engaged in sexual intercourse in the
representative office of the Sverdlovsk Region. The expert considered
that the articles had sought to present a negative image of V.:
“Tolerance towards the customs and mores of others
is, in general, uncharacteristic of the Russian mentality, which is
also evident in the attitude towards 'sexual minorities'. The Russian
popular mindset and the Russian language retain a rigidly negative,
rude and discourteous attitude to people of non-traditional sexual
orientation (homosexuals and lesbians).”
The
expert noted that the author of the first publication had “a
preference for emotional value-judgments”. The report
concluded:
“In this context the information on the sale and
purchase of a flat in Moscow at the expense of the budget becomes
sensational and seeks to persuade the reader to view V. as a
dishonest manager, embezzler of public funds, and, in addition, an
immoral person who craves sensual pleasure and physical attraction
and is wanton and lustful. The pragmatic aim of the articles ... is
to undermine [readers'] trust in V. and K. as politicians...”
- In
late November 2001 counsel for the applicant privately commissioned a
linguistic expert examination of the articles. The expert found that
the word “homosexual” had no negative connotations and,
therefore, could not be held to damage or undermine the honour and
dignity of others. He noted that Russian society in recent years had
become more tolerant towards homosexuality and a disclosure of
someone's homosexuality in the mass media was not necessarily
damaging to his reputation. Counsel asked the investigator to admit
the report in evidence, but her request was refused on the ground
that the expert had been a linguist rather than a specialist in
cultural studies and thus had not been competent to perform the
examination.
- On
29 and 30 November 2001 the applicant was charged with criminal libel
and insult disseminated via the mass media.
- Following
the applicant's indictment, she and her counsel filed a number of
requests. They pointed out that the indictment did not identify which
information the prosecution considered untrue. As the actual scope of
the investigation had been limited to the allegations about V.'s
homosexuality, the applicant insisted that its scope be extended to
include the misappropriation of budgetary funds. Alternatively, if
the charges were to be based exclusively on the allegations about
V.'s and K.'s homosexuality, the applicant requested that a medical
examination of V. and K. be carried out in order to establish their
sexual orientation. On 3 and 28 December 2001 the investigator
refused all the requests. He replied in general terms that the
investigation was complete and that no further interviews or expert
reports were necessary.
- On 28 December 2001 the final bill of indictment was
served on the applicant and the case was referred for trial. The
applicant was charged with criminal libel and insult on account of
her having disseminated the information that “V. and K. [were]
homosexuals and lovers who [had] engaged in a homosexual act in the
building of the region's representative office in Moscow”. The
charges did not refer to the allegations of misappropriation of
budgetary funds.
- The
case was referred for trial to the Verkh-Issetskiy District Court of
Yekaterinburg, which decided to conduct the trial in private. The
applicant and her counsel asked for a public hearing, while the
victims and the prosecution stated their objections to giving further
publicity to the case. The District Court maintained its decision to
hear the case in private, noting that it related to the victims'
private life.
- The
applicant pleaded not guilty. She claimed that she had been convinced
of the accuracy of the information on K.'s homosexuality because she
knew him in person. She also requested leave to adduce in evidence
certain material comprising witness statements about a same-sex
relationship between V. and K.; the court refused this request.
- The
court examined the witnesses, who testified that the applicant had
been in charge of drafting the articles and publishing and
distributing the newspaper.
- On
22 April 2002 the District Court gave judgment. It did not make any
findings as to whether the information on V.'s and K.'s homosexuality
was true or false. Instead, it noted their statements to the effect
that the articles in question had been damaging to their reputation
as politicians and public servants. Relying on the conclusions of the
linguistic expert examination of 6 November 2001, the District Court
found as follows:
“Indeed, it has been established beyond doubt that
the editor-in-chief of D.S.P., Ya. V. Porubova, deliberately
published ... [the impugned articles] which she had drafted. In these
articles she stated that the Chairman of the Sverdlovsk Regional
Government, Mr V., and a member of the House of Representatives of
the Legislative Assembly of the Sverdlovsk Region, K., were
homosexual lovers who had engaged in homosexual intercourse in Moscow
in the building of the representative office of the Sverdlovsk
Region, that is to say, she disseminated information based on her
insinuations and which she knew to be untrue and defamatory in
respect of the victims. In an attempt to slander the victims, she
arranged for the printing of 500,000 copies of the newspaper and
distributed them in the Sverdlovsk Region. The investigating
authorities correctly characterised her actions as libel under
Article 129 § 2 of the Criminal Code, i.e., dissemination
via the mass media of information known to be untrue and damaging to
other persons' honour, dignity and reputation.
In addition, Mrs Porubova related in these articles
untrue information to the effect that [V. and K.] were homosexual
lovers who had engaged in homosexual intercourse in Moscow in the
building of the representative office of the Sverdlovsk Region, that
is, she deliberately assessed the personal qualities and conduct of
the victims [in terms] which were grossly degrading to their human
dignity and which contradicted society's prevailing approach to the
treatment of individuals. Such treatment of the victims must be
considered obscene and damaging to their dignity. In order to make
the first issue of the newspaper appear important and sensational,
she undermined the honour and dignity of the victims in the mass
media. Therefore, the investigating authorities correctly
characterised her actions as an offence under Article 130 § 2 of
the Criminal Code.”
- The
applicant was found guilty as charged and sentenced to one and a half
years' correctional work, with retention of fifteen percent of her
wages for the benefit of the State.
- On
4 September 2002 the Sverdlovsk Regional Court upheld the conviction,
endorsing the reasons given by the trial court.
- Subsequently,
the applicant was dispensed from serving her sentence on the basis of
an amnesty act in respect of women and minors passed by the Russian
legislature on 30 November 2001.
II. RELEVANT DOMESTIC LAW
- Article
29 of the Constitution of the Russian Federation guarantees freedom
of ideas and expression as well as freedom of the mass media.
- Article
129 § 1 of the Criminal Code of the Russian Federation defines
criminal libel as dissemination of information known to be untrue
that damages the honour and dignity of another person or undermines
the person's reputation. Article 129 § 2 provides that criminal
libel disseminated in a public statement, a publicly displayed work
of art or the mass media is punishable by a fine and/or correctional
work for a period of up to two years.
- Article
130 § 1 of the Criminal Code defines criminal insult as
undermining the honour and dignity of the victim in an obscene
manner. Article 130 § 2 provides that criminal libel
disseminated in a public statement, a publicly displayed work of art
or the mass media is punishable by a fine and/or correctional work
for a period of up to one year.
- Article
137 of the Criminal Code establishes that it is a criminal offence to
collect or disseminate information about an individual's private life
without his consent or to make such information public through the
media.
- Article
18 of the RSFSR Code of Criminal Procedure (in force at the material
time) established that a trial could be conducted in private, in
particular with a view to preventing information about intimate
aspects of the parties' lives from being disclosed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the trial in her case had not been public. The relevant part of
Article 6 provides as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a ... public
hearing ... by a ... tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all
or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of
juveniles or the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the
interests of justice.”
- The
Government submitted that the decision to conduct the trial in
private had been compatible with the requirements of domestic law and
necessary in the circumstances of the case.
- The
Court observes that Article 6 § 1 of the Convention provides for
the possibility of excluding the press and public from a trial, in
particular, “where the interests... of the protection of the
private life of the parties so require”. Russian law contained
a similar provision: Article 18 of the RSFSR Code of Criminal
Procedure provided that hearings in private might be necessary to
prevent disclosure of information on “intimate aspects of the
parties' lives”.
- It
is undisputed that the existence of a sexual relationship between the
victims was the key element of the applicant's allegations to be
examined at trial. Since it has been the Court's consistent approach
to consider sexual relationships as the most intimate aspect of an
individual's private life (see, for example, L. and V. v. Austria,
nos. 39392/98 and 39829/98, § 36, ECHR 2003 I, with
further references), the Court accepts that the exclusion of the
press and public was necessary for the protection of the injured
parties' private life and that the District Court's decision to hold
the trial in private was not arbitrary or unreasonable.
- It
follows that the conduct of the applicant's trial in private was
compatible with Article 6 § 1 of the Convention. Accordingly,
there has been no violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that her conviction on account of the articles
published by her had been incompatible with 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
- The
applicant emphasised that it had not been conclusively shown that she
had drafted the impugned articles or that she had arranged for the
printing of the newspaper. She pointed out that the courts had not
established whether or not the information on the existence of a
homosexual relationship between V. and K. had been false. The courts
had refused to take cognisance of the material demonstrating the
existence of such a relationship, to interview K.'s former spouse or
to examine the audit commission's report concerning the alleged
embezzlement scheme.
- The
Government submitted that the applicant had failed in her duty as a
journalist to verify the facts and to obtain the consent of the
individuals concerned to the disclosure of information about their
private life, as required by the Russian Media Act. The domestic
courts had rejected her procedural motions by means of reasoned
decisions and correctly determined that she had published unverified
facts which were damaging to the victims' honour and dignity.
B. The Court's assessment
- The
Court notes that it is common ground between the parties that the
applicant's criminal conviction constituted “interference”
with her right to freedom of expression as protected by Article 10 §
1. It is not contested that the interference was “prescribed by
law”, namely by Articles 129 and 130 of the Criminal Code, and
“pursued a legitimate aim”, that of protecting the
reputation or rights of others, for the purposes of Article 10 §
2. It remains to be determined whether the interference was
“necessary in a democratic society”.
- 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 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 Krasulya v. Russia, no. 12365/03, §
34, 22 February 2007).
- In
examining the particular circumstances of the case, the Court will
take the following elements into account: the position of the
applicant, the position of the persons against whom the criticism was
directed, the subject matter of the publication, the characterisation
of the contested statements by the domestic courts, the wording used
by the applicant, and the penalty imposed on her (see, mutadis
mutandis, Jerusalem v. Austria, no. 26958/95, § 35,
ECHR 2001 II).
- As
regards the applicant's position, the Court observes that she was a
journalist and editor-in-chief of a newspaper. She was convicted for
publishing articles of which she was found to be the author;
therefore, the impugned interference must be seen in the context of
the essential role of the press in ensuring the proper functioning of
political democracy (see Lingens v. Austria, 8 July
1986, § 41, Series A no. 103, and Sürek v. Turkey
(no. 1) [GC], no. 26682/95, § 59, ECHR
1999 IV). The Court reiterates that the exceptions to
journalistic freedom set out in Article 10 § 2 must be
construed strictly and the need for any such restrictions must be
established convincingly.
- As
regards the nature of the articles and the position of their
protagonists, the Court notes that one entire page of the newspaper
was devoted to a series of articles exposing the alleged
misappropriation of funds in the regional budget. It was claimed in
particular that the head of the regional government, Mr V., had
authorised the regional railway company to offset its outstanding tax
liability, totalling two billion roubles, against the purchase of a
large flat in Moscow. The flat in question had been initially
registered as the property of the region, only to be subsequently
transferred into the private ownership of Mr K.'s father. Mr K. was a
member of the regional parliament and an employee of the region's
representative office in Moscow, and had allegedly had an affair with
Mr V. The articles contained a wealth of specific facts and details,
such as the date and number of the order signed by Mr V., the names
of the companies involved, the amounts and the purchase price of the
flat and its exact location in Moscow. They were also accompanied by
the text of an official letter in which the head of the regional
police sought to enlist the assistance of the audit commission in
carrying out an inquiry into financial wrongdoings. In examining the
matter, the domestic courts gave no heed to the fact that the
allocation of budgetary resources was obviously an issue of paramount
importance which merited legitimate public concern. The Court, for
its part, reiterates in this connection that under Article 10
§ 2 of the Convention very strong reasons are required to
justify restrictions on political speech or debates on questions of
public interest (see Krasulya, cited above, § 38).
- The
Court further notes that the alleged embezzlement was left outside
the scope of the charges against the applicant and that the only
allegation covered was that of a homosexual affair between Mr V. and
Mr K. However, in the Court's view, that issue cannot be
dissociated from the main thrust of the articles. Assessing the
published material as a whole, the Court finds that the emphasis in
the impugned articles was clearly on the suspicious transactions
involving budgetary funds, whereas the reference in the opening
passage to Mr V.'s homosexual relationship with Mr K. served not so
much to lend colour to the events as, more importantly, to explain
why the scheme had been mounted in such a way that Mr K. would be its
ultimate beneficiary. That the thrust of the articles was directed
against the dubious transactions with taxpayers' money is also
obvious from the concluding passage of the first article (see
paragraph 10 above), in which the author explicitly acknowledged that
the affair in question would have been a private matter had it not
been for the involvement of high-ranking State officials, one of whom
was still responsible for handling the regional budget.
- The
Court considers that, since both Mr V. and Mr K. were professional
politicians – the head of the regional government and a member
of the regional legislature respectively – they inevitably and
knowingly laid themselves open to close scrutiny of their every word
and deed by both journalists and the public at large (compare Krone
Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26
February 2002). It emphasises that the right of the public to be
informed, which is an essential right in a democratic society, can
even extend to aspects of the private life of public figures,
particularly where politicians are concerned (see Editions Plon v.
France, no. 58148/00, § 53, ECHR 2004 IV). By reporting
facts – even controversial ones – capable of contributing
to a debate in a democratic society relating to politicians in the
exercise of their functions, the press exercises its vital role of
“watchdog” in a democracy by contributing to “impart[ing]
information and ideas on matters of public interest” (see Von
Hannover v. Germany, no. 59320/00, § 63, ECHR 2004 VI).
The instant case is, in the Court's view, distinguishable from those
cases in which publication of the photos or articles had the sole
purpose of satisfying the curiosity of a particular readership
regarding the details of the individual's private life (see Von
Hannover, cited above, § 65; Karhuvaara and Iltalehti v.
Finland, no. 53678/00, § 45, ECHR 2004 X; Campmany y
Diez de Revenga and López Galiacho Perona v. Spain (dec.),
no. 54224/00, ECHR 2000-XII; Société Prisma
Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003;
and Julio Bou Gibert and El Hogar y La Moda J.A. v. Spain (dec.),
no. 14929/02, 13 May 2003). As the Court has found above, the
impugned articles purported to contribute to a debate on an issue of
public concern. Accordingly, the Russian courts were required to
demonstrate a “pressing social need” for the interference
with the applicant's freedom of expression, but failed to do so.
- The
Court will next examine whether the decisions of the Russian courts
were based on an acceptable assessment of the relevant facts. It
observes that the actual scope of the charges against the applicant
was confined to the allegation that “V. and K. [were]
homosexuals and lovers who [had] engaged in a homosexual act in the
building of the region's representative office in Moscow”. The
Court cannot but note that this sentence, as quoted in the list of
charges, was not actually contained in the contested articles but
rather represented the prosecution's interpretation of the opening
passage of the article, which was subsequently endorsed by the
domestic courts without any inquiry as to whether or not the wording
corresponded to the actual text of the article. In the Court's view,
an examination of whether or not the applicant actually wrote the
words that the prosecution claimed she had written was crucial in
circumstances where the applicant faced a charge of disseminating
false statements.
-
It is important to note that the applicant was not penalised for the
unauthorised collection and dissemination of information about
individuals' private lives, an offence specifically contemplated by
Article 137 of the Russian Criminal Code, but rather for criminal
libel and criminal insult. The offence of criminal libel put the
burden on the prosecution, rather than on the defendant, to show that
the impugned statement was both false and damaging to the victim's
reputation. As regards the first element of proof, the Court is
struck by the fact that the domestic authorities, the prosecution and
the courts alike never stated explicitly whether the allegations of
Mr V.'s and Mr K.'s same-sex relationship had been true or false
and made no findings in that respect. Not only did they refuse the
applicant's request for an examination of the victims with a view to
establishing their sexual orientation, but they did not even put any
questions about that delicate issue to the victims or any possible
witnesses. The judgments of the domestic courts were all but silent
on whether Mr V. and Mr K. were or were not homosexuals and whether
they had or had not had an affair in Moscow. Moreover, the courts did
not examine whether the applicant had in fact been aware of the
untruthfulness of the allegation in question, and they refused to
take cognisance of the material which the applicant sought to adduce
in order to show that she had had sufficient reasons to believe that
Mr V. and Mr K. had had an affair.
- Furthermore,
as regards the charge of criminal insult, the Court notes that the
condition sine qua non for legal characterisation of a certain
statement as constituting the offence of criminal insult under the
Russian Criminal Code was the presence of obscene words. However, no
such words were identified either in the list of charges compiled by
the prosecution or in the judgments of the domestic courts. The
expert's report commissioned by the investigation did not find any
such obscenities in the text either. The expert solely stated that
“tolerance... [was] uncharacteristic of the Russian mentality”
and that the Russian language contained a significant number of
pejorative and rude terms for describing homosexuals. Be that as it
may, the Court is unable to discern any such pejorative or rude terms
in the text of the original article. Even the word “homosexual”
– which may appear to be the most objectionable term in the
article – was employed in a rhetorical question without
reference to either Mr V. or Mr K. The Court therefore distinguishes
the present case from those in which an applicant's criminal
conviction for the use of strong or even obscene language to describe
other people's lives led it to find no violation of Article 10 (see,
for example, Tammer v. Estonia, no. 41205/98, §§
64-71, ECHR 2001 I, and Constantinescu v. Romania, no.
28871/95, §§ 70-78, ECHR 2000 VIII).
- In
the light of the above considerations, the Court finds that the
domestic courts failed in their duty to supply “relevant and
sufficient” reasons for finding the applicant guilty of either
criminal libel or insult. Finally, in assessing the proportionality
of the interference, the nature and severity of the penalty imposed
are also factors to be taken into account (see Skałka
v. Poland, no. 43425/98, § 38, 27 May
2003). In this respect, the Court notes that the applicant was
convicted and sentenced to one and a half year's correctional work
with retention of a portion of her wages. The sanction was
undoubtedly severe, especially considering that lighter alternatives,
such as a fine, were available under domestic law. The fact that the
applicant was dispensed from serving her sentence does not alter that
conclusion, seeing that the dispensation in question was merely the
product of a fortunate coincidence in the form of an amnesty act
which happened to apply to all minors and women accused of a wide
variety of criminal offences at the relevant period of time, and
which had not been adopted with the specific aim of redressing the
applicant's particular situation (see Mahmudov and Agazade v.
Azerbaijan, no. 35877/04, § 51, 18 December 2008).
- Taking into account the role of journalists and the
press in imparting information and ideas on matters of public
concern, even those that may offend, shock or disturb, the Court
holds that the applicant's conviction was not compatible with the
principles embodied in Article 10 since the Russian courts did not
identify a “pressing social need” or adduce “relevant
and sufficient” reasons justifying the interference at issue.
Therefore, the Court considers that the domestic courts overstepped
the narrow margin of appreciation afforded to them where restrictions
on debates of public interest are concerned, 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.
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.”
- The
applicant did not submit an itemised claim for just satisfaction as
required by Rule 60 of the Rules of Court. Accordingly, the Court
considers that there is no call to award her any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
10 of the Convention.
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
