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FIRST
SECTION
CASE OF ALEKSANDR KRUTOV v. RUSSIA
(Application
no. 15469/04)
JUDGMENT
STRASBOURG
3 December
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 Aleksandr Krutov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15469/04) 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 Nikolayevich
Krutov (“the applicant”), on 23 March 2004.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Rachkovskiy, a lawyer practising in Moscow. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicant alleged, in particular, that he had been found liable for
expressing his opinion.
- On
14 October 2005 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 1960 and lives in Saratov.
- On
9 January 2003 the applicant published an article under the headline
“The Political Scene in 2002: Old Faces and New Times”
(Политические
расклады
2002 года:
старые
лица
и новые
времена)
in issue no. 1 (10) of the Nedelya Oblasti newspaper. The
article examined the interplay of political groups in the Saratov
Region and, in particular, the part played by the prosecutor’s
office of the Saratov Region and B., the Saratov Regional Prosecutor.
- B.
sued the applicant and the editorial board for defamation before the
Kirovskiy District Court of Saratov. He claimed that the following
extract from the article had damaged his honour, dignity and
professional reputation:
“Probably, only this [the political union between
the town hall and the regional prosecutor’s office] can account
for the regional prosecutor’s office’s perseverance in
instigating criminal proceedings against members of the regional
government..., while at the same time shielding the serving officials
of the town hall and the town legislature from criminal prosecution.
For example, in the corruption-ridden case of the “Town Charity
Fund for Health Care Support”, charges had been brought against
only one member of the town legislature, Mr K[.], but shortly
thereafter he was acquitted. And the mayor’s close circle,
headed by Mr A[.] in person, was spared responsibility. In gratitude
for support the town hall started supplying the prosecutor’s
offices with ‘gifts’ in the form of foreign-made cars and
furniture. As to the regional prosecutor Mr B[.], the town hall
allocated to him under a 49-year lease agreement (!) a plot of land
in the courtyard of the block of flats where he lives (allegedly for
development).”
- The
District Court commissioned a linguistic examination of the impugned
extract by four experts from Saratov State University.
- On
12 September 2003 the panel of four experts returned their unanimous
findings. In their assessment, the article did not give an appraisal
of B.’s character, nor did it damage his honour or professional
reputation. The publication might create the impression that the
prosecutor’s actions had been unseemly and cast doubt on the
lawfulness of a lease agreement for such a long term and the validity
of its purpose. However, these issues called for a legal rather than
a linguistic examination. The experts concurred that the words
“probably”, “only this can account for...”
and “in gratitude for support” were expressions of the
journalist’s personal opinion rather than statements of fact.
The author did not allege that prosecutor B. had received any
benefits for his support of the town hall. The journalist merely
supposed that the prosecutor had not been impartial and that criminal
charges against officials had been brought selectively.
- On
14 November 2003 the Kirovskiy District Court of Saratov gave
judgment, finding against the applicant for the following reasons:
“Taking into account the factual circumstances of
the case, the court considers that in the [applicant’s article]
the plaintiff Mr B. cannot be viewed as a private individual because
in the public perception – having regard to the fact that the
plaintiff is a public figure – the plaintiff is Mr B., the
citizen who holds the office of the Saratov Regional Prosecutor and
must observe higher standards in his personal and professional image
and his daily actions.
The court further considers that the term ‘prosecutor’s
offices’ employed in the article also referred to the plaintiff
because, by virtue of his office, he is responsible for the operation
of all the prosecutor’s offices in the entire Saratov region.
Having regard to the above, the court considers that the
excerpt from the article at issue is nothing but statements
(сведения)
disseminated about the plaintiff that are damaging to his honour,
dignity and professional reputation...
The court does not consider proven the defendants’
argument that they disseminated a journalist’s opinion based on
facts, because the author’s opinion must not only be founded on
specific statements, but must also not damage the plaintiff’s
reputation or honour and must not contain statements about the
plaintiff’s unlawful conduct.
Since the purpose of expressing an opinion is to convey
it to third parties, the form of its expression must exclude the
possibility of misleading a reasonable third party as to whether such
information is an opinion or a statement of fact.
The court considers that in the present case the
defendants have failed to meet these requirements and the statements
contained in the article are statements of fact amenable to proof in
judicial proceedings...”
- The District Court noted that the underlying facts in
the impugned excerpt were not disputed. Thus, criminal proceedings
were indeed brought against certain members of the regional
government, including the member of the town legislature K. Mr B. had
received a plot of land under the conditions indicated by the
applicant, and the Saratov town hall had put at the disposal of the
prosecutor’s offices, free of charge, a Hyundai car, six tables
and nine filing cabinets.
- However,
in the District Court’s view, the applicant had failed to show
that the mayor’s close circle had been “spared
responsibility” and that furniture, a foreign-made car or a
land plot had been offered “in gratitude for support”.
- The
District Court held that the entire extract had been defamatory,
ordered the newspaper to publish a rectification, and recovered 5,000
Russian roubles each from the applicant and the newspaper.
- On
19 December 2003 the Saratov Regional Court, on an appeal by the
applicant, upheld the judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
- Article
29 guarantees freedom of thought and expression, together with
freedom of the mass media.
B. Civil Code of the Russian Federation of 30 November
1994
- Article 152 provides that an individual may apply to a
court with a request for the rectification of “statements”
(сведения)
that are damaging to his or her honour, dignity or professional
reputation if the person who disseminated such statements does not
prove their truthfulness. The aggrieved person may also claim
compensation for losses and non-pecuniary damage sustained as a
result of the dissemination of such statements.
C. Resolution no. 11 of the Plenary Supreme Court
of the Russian Federation 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 (сведения)
had to be untrue and contain allegations of a breach, by a person or
legal entity, of laws or moral principles (commission of a dishonest
act, improper behaviour in the workplace or in everyday life, etc.).
Dissemination of statements was understood to mean the publication of
statements or their broadcasting, inclusion in professional
references, public speeches or applications to State officials, and
communication in other forms, including oral, to at least one other
person (section 2).
- Section 7 of the Resolution governed the distribution
of the burden of proof in defamation cases. The plaintiff had to show
that the statements had indeed been disseminated by the defendant.
The defendant had to prove that the disseminated statements were true
and accurate.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that there had been a violation of his right to
freedom of expression as set forth in 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 and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
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. 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
1. The parties’ submissions
- The
Government submitted that the interference with the applicant’s
right to freedom of expression had been prescribed by law, notably
Article 152 of the Civil Code. It had pursued the legitimate aim
of protecting the reputation of others, namely Regional Prosecutor
B., and was necessary in a democratic society. They referred to the
judgment of the District Court, which had established that the
applicant had failed to show that his allegations were true. The
penalty imposed on the applicant had not been severe.
- The
applicant maintained his complaint. He submitted that the excerpt
from the article in question was merely an expression of his personal
opinion based on facts known to him concerning the political scene in
the region. When deciding on B.’s defamation claims, the
District Court had failed to distinguish between a statement of fact
and a value judgment. The court had disregarded the findings of the
panel of experts, which had come to the conclusion that the excerpt
in question had constituted the applicant’s personal opinion,
and had given an unfair judgment when resolving the dispute. In line
with the provisions of Article 10 § 2 of the
Convention, in his article the applicant had discussed issues of
public interest concerning the interaction of political groups in the
region and criticised the actions of the regional prosecutor. The
domestic courts had not substantiated the preference they had given
to the protection of the personal rights of the regional prosecutor
over the applicant’s right to freedom of expression and the
interest of the public in receiving information. Nor had it been
shown that the applicant’s statements had had a negative impact
on B.’s professional career. On the contrary, B. had since been
promoted and appointed deputy general prosecutor of the Far East
(Dalnevostochniy) Region. In sum, the applicant argued that the
interference of the Russian authorities with his freedom of
expression had not pursued a legitimate aim and had not been
necessary in a democratic society, in contravention of Article 10 § 2
of the Convention.
2. The Court’s assessment
- The
Court notes that it is common ground between the parties that the
judgments given in the defamation action constituted an interference
with the applicant’s right to freedom of expression as
protected by Article 10 § 1. It is not contested
that the interference was prescribed by law, notably Article 152 of
the Civil Code. The Court also accepts the Government’s
argument that the interference pursued the legitimate aim of
protecting the reputation and rights of Regional Prosecutor B. with a
view to permitting him to exercise his duties without undue
disturbance. It remains, accordingly to ascertain whether the
interference was “necessary in a democratic society”.
- The
fundamental principles relating to this question are well established
in the Court’s case-law and have been summarised as follows
(see, for example, Hertel v. Switzerland, 25 August 1998, §
46, Reports 1998-VI):
“(i) Freedom of expression constitutes
one of the essential foundations of a democratic society and one of
the basic conditions for its progress and for each individual’s
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 ...
(ii) The adjective ‘necessary’,
within the meaning of Article 10 § 2, implies the existence of a
‘pressing social need’. The Contracting States have a
certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with European supervision, embracing
both the legislation and the decisions applying it, even those given
by an independent court. The Court is therefore empowered to give the
final ruling on whether a ‘restriction’ is reconcilable
with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising
its supervisory jurisdiction, is not to take the place of the
competent national authorities but rather to review under Article 10
the decisions they delivered pursuant to their power of appreciation.
This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably,
carefully and in good faith; what the Court has to do is to look at
the interference complained of in the light of the case as a whole
and determine whether it was ‘proportionate to the legitimate
aim pursued’ and whether the reasons adduced by the national
authorities to justify it are ‘relevant and sufficient’
... In doing so, 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
relied on an acceptable assessment of the relevant facts ...”
- In
examining the particular circumstances of the case, the Court must
weigh a number of factors in the balance when reviewing the
proportionality of the measure complained of. First, it notes that
the applicant was a journalist. The Court reiterates in this
connection that the press fulfils an essential function in a
democratic society. Although it must not overstep certain bounds,
particularly as regards the reputation and rights of others, its duty
is nevertheless to impart – in a manner consistent with its
obligations and responsibilities – information and ideas on all
matters of public interest (see De Haes and Gijsels v. Belgium,
24 February 1997, § 37, Reports 1997-I, and
Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, § 59, ECHR 1999-III). Journalistic freedom
covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria (no.
1), 26 April 1995, § 38, Series A no. 313).
- The
Court also takes into account the fact that the impugned article was
published in early 2003 and contained an overview of the political
scene in the region, summing up the political events of the preceding
year. It provided comments on the interplay between the political
forces and referred to the roles played by prominent politicians and
public servants. In the Court’s opinion, the article raised
important issues and the applicant was entitled to bring them to the
attention of the public through the press.
- The
Court further notes that the thrust of the applicant’s
criticism in the excerpt under consideration was directed against
Regional Prosecutor B. who, being a public servant with the task of
contributing to the proper administration of justice, should have
enjoyed public confidence and was to be protected by the State from
unfounded accusations (see Lešník v. Slovakia,
no. 35640/97, §§ 54-55 in fine, ECHR
2003 IV). However, the Court reiterates that the limits of
acceptable criticism in respect of civil servants exercising their
power are wider than in relation to private individuals and the
national margin of appreciation with regard to the protection of
their reputation is circumscribed by the interest of a democratic
society in ensuring and maintaining a free press.
- Accordingly,
it was the task of the national authorities to strike a fair balance
between the journalist’s right to freedom of expression on the
one hand and the public prosecutor’s right to the protection of
his reputation on the other. However, in the text of the judgments
adopted by the domestic courts the Court does not discern any
evidence that they performed such a balancing exercise. They confined
their analysis to the importance of the protection of the public
prosecutor’s interests without giving any consideration to the
Convention standard which requires very strong reasons for justifying
restrictions on debates on questions of public interest initiated by
members of the press (see, among other authorities, Godlevskiy v.
Russia, no. 14888/03, § 41, 23 October 2008). The
Court therefore finds that the domestic courts failed to recognise
that the present case involved a conflict between the right to
freedom of expression and the right to protection of a reputation.
- As
regards the reasons adduced by the domestic courts to justify the
interference with the applicant’s freedom of expression, the
Court observes that they did not accept the applicant’s
argument that the impugned excerpt was a value judgment, but
considered it to be a statement of fact by the applicant, insinuating
that B. had behaved unlawfully, which the applicant had failed to
prove. When rejecting the applicant’s argument, the domestic
authorities did not examine the question whether the excerpt could be
considered a value judgment. Nor did they specify what objective
evidence could be used to prove whether the impugned excerpt was true
or false. The Court notes in this respect that the assessment of
whether a certain statement constitutes a value judgment or a
statement of fact might in many cases be difficult. However, under
the Court’s case-law even a value judgment must be based on
sufficient facts in order to constitute a fair comment under
Article 10 (see, for example, Scharsach and News
Verlagsgesellschaft v. Austria, no. 39394/98, § 40 in
fine, ECHR 2003 XI).
- In
the excerpt under consideration, the applicant suggested that a
political union existed between the town hall and the regional
prosecutor’s office. He drew this inference from a number of
facts, such as the institution and outcome of criminal proceedings
against certain politicians, the allocation of furniture and vehicles
to the prosecutor’s offices, and a long-term land lease for the
regional prosecutor on favourable conditions. The Court notes that
the truthfulness of all the premises on which the applicant had based
his allegation was confirmed in the domestic proceedings. Criminal
proceedings were indeed brought against certain members of the
regional government, the member of the town legislature K. B. did
receive a plot of land under the conditions indicated by the
applicant, and the Saratov town hall did put at the disposal of the
prosecutor’s offices a Hyundai car, six tables and nine filing
cabinets (see paragraph 11). Accordingly, the Court is satisfied that
the applicant’s assumption that the “perks” for the
prosecutor’s office and the regional prosecutor himself were
not incidental had a sufficient factual basis. There is nothing to
suggest that it was made otherwise than in good faith and in pursuit
of the legitimate aim of promoting public awareness of the political
situation in the region and the part played by the regional
prosecutor in it.
- The
Court finds that, by alluding to the town hall’s “gratitude”
towards the regional prosecutor the applicant made a value judgment
the truthfulness of which was not susceptible of being proved true or
false. Accordingly, the domestic courts placed an excessive burden on
him when imposing a requirement to prove its veracity.
- Lastly,
the Court notes that the applicant did not resort in the excerpt
under consideration to abusive, strong or intemperate language; it
might be said that the expressions used verged on exaggeration and
provocation, but, having regard to the purpose of the publication and
the impact it was designed to have, the Court is of the opinion that
the language used cannot be regarded as excessive.
- In
the light of the foregoing, the Court considers that the domestic
authorities overstepped their margin of appreciation when finding the
applicant liable for defamation. They did not adduce “sufficient”
reasons justifying the interference at issue. The fact that the
proceedings were civil rather than criminal in nature and that the
final award was relatively small does not detract from the fact that
the standards applied by the Russian courts were not compatible with
the principles embodied in Article 10. Accordingly, the
interference with the applicant’s freedom of expression was
disproportionate to the aim pursued and not “necessary in a
democratic society”.
- There
has accordingly been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the
Convention that the District Court had gone beyond the scope of B.’s
claims and failed to resolve the defamation dispute in accordance
with the fairness guarantees set out in Article 6 of the
Convention.
- However,
having regard to all the material in its possession, the Court finds
that there is no appearance of a violation of the provision invoked.
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 claimed 150 euros (EUR) in respect of pecuniary damage,
representing the amount he had paid to B. pursuant to the domestic
judgments, and EUR 5,000 in respect of non-pecuniary damage.
- The
Government considered the applicant’s claim in respect of
pecuniary damage reasonable. They noted, however, that this amount
could be awarded to the applicant subject to proof that he had
actually paid the said amount to B. As for the applicant’s
claim in respect of non-pecuniary damage, they considered it
excessive and proposed that a finding of a violation would constitute
sufficient just satisfaction.
- The
Court notes that the applicant’s claim in respect of pecuniary
damage is directly related to the judgments issued by the domestic
courts, which it found to have been incompatible with Article 10 of
the Convention. It therefore accepts the applicant’s claim in
respect of pecuniary damage in the amount of EUR 150. It further
considers that the non-pecuniary damage suffered by the applicant
cannot be sufficiently compensated for by the 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 submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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 concerning the
interference with the applicant’s right to freedom of
expression 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:
(i) EUR 150
(one hundred and fifty 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 to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
