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FIRST
SECTION
CASE OF FEDCHENKO v. RUSSIA (no. 2)
(Application
no. 48195/06)
JUDGMENT
STRASBOURG
11
February 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fedchenko v. Russia
(no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48195/06) 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 Oleg Dmitriyevich
Fedchenko (“the applicant”), on 30 September 2006.
- The
applicant was represented by Ms A. Soboleva, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, the former Representative of the
Russian Federation at the European Court of Human Rights.
- On
31 January 2007 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 1968 and lives in the village of Suponevo, in
the Bryansk Region.
- The
applicant has been the editor of a weekly newspaper, Bryanskiye
Budni (Брянские
будни),
since he founded it in 1999.
A. Articles concerning the educational system in the
Bryansk Region
- In
2004-2005 the state of educational system in the Bryansk Region
became the subject of media attention.
- The
newspaper Bryanskoye Vremya (Брянское
время),
in issue no. 30 of September 2004, published an article
entitled “Textbook for an Alchemist” (“Учебник
для алхимика”).
The article discussed the shortage of textbooks in schools and
problems related to their publication and supply. In particular, the
article mentioned a “mysterious” publisher of textbooks
which it linked to the dismissal of the then head of the Bryansk
Department of Education, I. Geraschenkov, who was later reappointed
to the post. The article also referred to an audit report which had
revealed numerous financial irregularities in the supply of
textbooks.
- On
6 July 2005 Rossiyskaya Gazeta (Российская
газета),
a newspaper of the Russian Government, published an abridged version
of an article by S.F. and A.G. entitled “Question for an
official. Where does the ‘children’s money’
disappear’ to?” (Экзамен
для чиновника.
Куда исчезают
«детские»
деньги),
which criticised the poor state of the education system in the
Bryansk Region. The article read as follows:
“The Bryansk Department of Education headed by I.
Geraschenkov and his first deputy N. Prokopenko spends more than
13,000 [roubles] a month per boarding school pupil. Education in a
vocational school is more expensive than in a prestigious commercial
college. According to the Department’s reports, each year
36,000 roubles are allocated to each school for the additional
training of teachers. However, the schools do not receive it.
The Bryansk Region broke all records for the number of
children playing truant from boarding schools and has been subject to
harsh criticism as a result. A shocking number of children are put on
a missing list every day. All right, now it is summer and the weather
is warm. However, the number of children playing truant from the
boarding schools is no smaller in winter, when it is freezing outside
and the child has neither a place to sleep nor food. What is the
explanation for this? Children are being kept in boarding schools in
unbearable conditions. Material resources there are very scarce and
there is a high turnover of tutors because of low wages.
One third of a billion roubles is allocated annually to
38 vocational schools in Bryansk. However, the picture is not any
better in these schools. Ugly walls, obsolete equipment, low wages
for the teachers ... The quality of training also leaves much to be
desired. It is notable that 90% of the school leavers do not take up
their chosen profession.
Fortunately, school financing is not within the
competence of the local education officials. However, significant
finances aimed at the development of school education pass through
the Department. And very strange things happen there!
For instance, take the ‘School Textbook’
programme. The Department’s senior officials manage to
convince the councillors that there are not enough textbooks in the
schools and that children from low-income families are in a
particularly difficult situation. However, as soon as the councillors
take a decision on the allocation of funds, these officials
immediately forget the acuity of the problem. Nobody remembers the
children from low-income families any more. Thus, between three and
five million [roubles] of budgetary funds are spent year in, year
out. This year the officials bought textbooks out of the budgetary
funds from a single supplier without an open tender. This is a gross
violation of the presidential decree on fighting economic crime and
corruption.
Another sphere within the Department’s competence
is the advanced training of educational staff. Bryansk teachers
became accustomed a long time ago to working without any methodical
support. However, 36,000 roubles from the regional budget is
allocated annually to each school for advanced training and
retraining. Headmasters in rural areas have not seen this money for a
long time and do not even know that it has been allocated.
Why does this happen? There are two reasons. First, the
money is not received by the schools as earmarked funds, but by
entities subordinate to the Department, such as the Bryansk Institute
of Advanced Training of Educational Staff, irrespective of the
quality of their work.
And if you enter the rector’s reception area, you
will see fashionable splendour, an incredible number of secretaries
... The maintenance of the ‘Institute of Advanced Training’
costs the regional budget more than 16 million per year. Teachers and
headmasters cannot even rebel against it, the point being that the
rector of the ‘Institute of Advanced Training’ is the
selfsame Mr Geraschenkov, who heads the Department.
Clearly, in an organisation as secretive as the regional
Department it is very hard to get at the truth. For instance, we have
still to find out where one million roubles for computer and
communications equipment in the Department’s account left over
from 2004 have disappeared to. As far back as the first half of this
year schools in the region were due to be provided with modern
communication systems, but they still have not received anything.”
- On
14 July 2005 the Bryanskiye Budni published the full version
of the article. It was entitled “Where does the ‘children’s
money’ disappear to?” (Куда
исчезают
«детские
деньги»)
and read as follows:
“The Bryansk Department of Education headed by
I. Geraschenkov and his first deputy N. Prokopenko spends more
than 13,000 a month per boarding school pupil. Education in a
vocational school is more expensive than in a prestigious commercial
college. According to the Department’s reports, each year 36
thousand roubles are allocated to each school for the additional
training of teachers. However, the schools do not receive it.
The saddest thing about this situation is that the heads
of the Department do not even think about trying to change things for
the better. They wearily give instructions for decisions taken at
meetings held five years previously to be rewritten. Indeed, why
change anything when they are comfortable with everything.
The Department is remarkable not only because of the
inefficient expenditure of taxpayers’ money but because of the
inertia of its senior officials. Both Geraschenkov and Prokopenko
have held the top posts in the regional education office for a very
long time.
Establishments for children left without parental care
are the first thing the Department finances and is responsible for.
The Bryansk Region broke all records for the number of children
playing truant from boarding schools and has been subject to harsh
criticism as a result. A shocking number of children are put on the
missing list every day. All right, now it is summer and the weather
is warm. However, the number of children playing truant from the
boarding schools is no smaller in winter, when it is freezing
outside, and the child has neither a place to sleep nor food. What is
the explanation for this? Children are being kept in boarding schools
in unbearable conditions.
Material resources there are very scarce and there is a
high turnover of tutors because of the low wages. Many benefactors
who have seen this picture grant considerable funds to afford some
improvement in the conditions for the children. But if only they knew
how much budgetary money is spent per child! We repeat: 13,000 per
month! This is in addition to the funds provided by the benefactors.
However, there is another sad fact: notwithstanding such
heavy expenditure, in most cases the region still ends up with social
misfits. Many of the boarding school pupils engage in alcohol abuse,
become dependent on state benefits or end up being prosecuted and
sent to jail.
However, it is not the children’s fault, but the
fault of the system which the abovementioned heads have been building
for years.
Vocational schools are also directly dependent on the
regional Department of Education and receive taxpayers’ money
through the Department. Getting acquainted with the way the
vocational schools function brings you down. The material resources
of most of them are in decline: ugly walls, obsolete equipment and
low wages for teachers. School leavers have extremely low levels of
knowledge and professional skills. Unfortunately, 90% of the school
leavers do not take up their chosen profession, so that budgetary
money is effectively wasted.
One third of a billion roubles is seemingly allocated
annually to 38 vocational schools. Despite this they are in decline
and those they have trained are not in demand in the labour market,
even though nowadays highly qualified workers are in sufficient
demand and earn quite good money.
Fortunately, school financing is not within the
competence of the local education officials. However, significant
finances aimed at the development of school education pass through
the Department, including the material resources for the schools and
methodical support for teacher training. And very strange things
happen there!
For instance, take the ‘School Textbook’
programme. When it is time to allocate funds, the Department’s
senior officials go to the council and convince the councillors that
there are not enough textbooks in the schools and that children from
low-income families are in a particularly difficult situation and
cannot get the basic books. This is true. However, as soon as the
councillors take a decision on the allocation of funds – these
officials immediately forget the acuity of the problem. Books are
purchased randomly, distributed among the districts even more
chaotically and incomprehensibly large sums (around one hundred
roubles) are spent on shipping the educational materials. Nobody
remembers the children from low-income families any more.
Thus, between three and five million [roubles] of
budgetary funds are spent year in, year out. This year the officials
bought textbooks out of the budgetary funds from a single supplier
without an open tender. This is a gross violation of the presidential
decree on fighting economic crime and corruption.
One more sphere within the Department’s competence
is the advanced training of educational staff. Bryansk teachers
became accustomed a long time ago to working without any methodical
support. The situation is absurd even: many teachers prefer to avoid
methodical institutions as they do not expect anything from them but
admonition and disrespect. However, 36,000 roubles from the regional
budget are allocated annually to each school for advanced training
and retraining. Headmasters in rural areas have not seen this money
for a long time and do not even know that it has been allocated.
Why does this happen?
There are two reasons. First, the money is not received
by the schools as earmarked funds, but by entities subordinate to the
Department, such as the Bryansk Institute of Advanced Training of
Educational Staff, irrespective of the quality of their work. If you
enter the rector’s reception area, you will see fashionable,
chic secretaries ... The maintenance of the ‘Institute of
Advanced Training’ costs the regional budget an incredible
figure of more than 16 million per year.
Not only are the teachers and headmasters of the schools
deprived of money that is due to them, they cannot even rebel against
it, the point being that the rector of the ‘Institute of
Advanced Training’ is the selfsame Mr Geraschenkov who heads
the Department. He is responsible not only for training, but for
performance appraisal as well. If a teacher claims that he was
offered a poor quality or uninteresting course, the training
specialist who appraises him will unnerve and humiliate him, and
perhaps reduce his marks and leave him with a pittance.
These are the conditions in which teachers work: with
the feeling that as far as professional development is concerned they
can count only on themselves and their colleagues. Or, as a teacher
of literature, a teacher of the highest grade, said: ‘You work
and work, try and try, and then a newly fledged training specialist
comes along and humiliates you for no reason.’
The other reason for the stalemate and mismanagement in
education is the following. The former Governor released Geraschenkov
from the post of director of the regional Department. However, the
new Governor reappointed him for some reason, thus violating the law
for a third time. Section 18 of the Law on State Service of the
Bryansk Region provides that only persons under 60 can be appointed
to such posts and that the appointment should be made on the basis of
a competition advertised in the media. The executive branch is not a
private clique, everything here is subject to State laws. However,
the competition did not take place, not even superficially.
And the third: Geraschenkov holds two posts of head of
department at the same time. This is a flagrant violation of the Law
of the Bryansk Region and of the Law on Education. The appointments
of the first deputy head of the Department N. Prokopenko and the
other deputy L. Kletskina were gross violations.
Then followed the dismissal of uncooperative members of
staff presumptuous enough to hold their own point of view. This was
followed by multimillion purchases without tenders and the
concealment of the unauthorised expenditure by subordinate entities.
Clearly, in an organisation as secretive as the regional
Department it is very hard to get at the truth. For instance, we have
still to find out where one million roubles for computer and
communications equipment in the Department’s account left over
from 2004 has disappeared to. Pursuant to the agreement with the
Ministry of Education the schools of the Bryansk Region were to be
provided with modern communication systems in the first half of this
year. We have not found any evidence that the modern communication
systems have arrived in the schools, but the million is not in the
account either. We would hope that the new authority will put things
right in the education system of the region.
[signature]
(an abridged version of this material was published in
Rossiyskaya Gazeta. Readers of the Bryanskiye budni
have an opportunity to get acquainted with the full version.)”
- The
newspaper Bryanskiy Rabochiy (Брянский
рабочий),
in its issue of 15 July 2005, published an interview with
S.F., a member of the Federal Expert Council of the Ministry of
Education and Sciences and a former deputy head of the Bryansk
Department of Education, entitled “Teachers’ Instructors”
(Поучатели
учителей).
S.F. stated, inter alia, that I. Geraschenkov and his
deputy, N. Prokopenko, were responsible for the deficient system
of education in the region. In particular, funding for schools had
been misappropriated and a tender for publication of textbooks had
been conducted with irregularities. Furthermore, despite the
significant financial support provided to boarding schools from local
budgets and private sponsors, many pupils developed alcohol addiction
and upon leaving the boarding schools became dependent on the welfare
system or went to jail. S.F. claimed that this state of affairs was
due to the system created by I. Geraschenkov and N. Prokopenko.
He also blamed them for the lamentable conditions in vocational
schools.
B. Defamation proceedings
- On
1 August 2005 Mr Geraschenkov brought an action for defamation
against the applicant and the authors of the article in the Sovetskiy
District Court of Bryansk and sought damages in the amount of 50,000
Russian roubles (RUB) and costs from the applicant, damages in the
amount of RUB 25,000 from S.F. and RUB 15,000 from A.G. He claimed,
in particular, that the following passages were untrue and damaging
to his honour and reputation:
1. “The Department is remarkable not
only because of the inefficient expenditure of taxpayers’ money
but because of the inertia of its senior officials. Both Geraschenkov
and Prokopenko have held the top posts in the regional education
office for a very long time. Establishments for children left without
parental care are the first thing the Department finances and is
responsible for. The Bryansk Region broke all records for the number
of children playing truant from boarding schools and has been subject
to harsh criticism as a result. A shocking number of children are put
on the missing list every day. All right, now it is summer and the
weather is warm. However, the number of children playing truant from
the boarding schools is no smaller in winter, when it is freezing
outside, and the child has neither a place to sleep nor food. What is
the explanation for this? Children are being kept in boarding schools
in unbearable conditions.”
2. “However, there is another sad fact:
notwithstanding such heavy expenditure, in most cases the region
still ends up with social misfits. Many of the boarding school pupils
engage in alcohol abuse, become dependent on state benefits or end up
being prosecuted and sent to jail. However, it is not the children’s
fault, but the fault of the system which the abovementioned heads
have been building for years.”
3. “This year the officials bought
textbooks out of the budgetary funds from a single supplier without
an open tender. This is a gross violation of the presidential decree
on fighting economic crime and corruption.”
4. “Not only are teachers and
headmasters of the schools deprived of money that is due to them,
they cannot even rebel against it, the point being that the rector of
the ‘Institute of Advanced Training’ is the selfsame Mr
Geraschenkov who heads the Department. He is responsible not only for
training, but for performance appraisal as well. If a teacher claims
that he was offered a poor-quality or uninteresting course, the
training specialist who appraises him will unnerve and humiliate him,
and perhaps reduce his marks and leave him with a pittance.”
5. “Then followed the dismissal of
uncooperative members of staff presumptuous enough to hold their own
point of view. This was followed by multimillion purchases without
tenders and the concealment of the unauthorised expenditure by
subordinate entities.”
- At
the hearing Mr Geraschenkov’s representative amended the claim.
He excluded the first passage on the ground that it directly
concerned the Department of Education, and the third passage since it
had previously been published in the Rossiyskaya Gazeta and
was reproduced verbatim.
- The
applicant claimed that the passages in question were merely excerpts
from articles that had been published in other media.
- On
22 May 2006 the Sovetskiy District Court found for the claimant. It
held:
“It follows from the [second assertion] that the
authors of the article drew an affirmative conclusion as to the
connection between the fact that the region attracts social misfits –
those who abuse alcohol, are dependent [on state benefits] or end up
being prosecuted – and the system of work of the senior
officials named in the article: N.V. Prokopenko and I.A.
Geraschenkov.
...
Without providing incontrovertible evidence, the author
contends [in the fourth assertion] that there is a correlation
between what might be regarded as “improper” working
methods used by training specialists when making an appraisal and the
head of the Department responsible for the teachers’ appraisal.
...
[As regards the fifth assertion], without having, either
now or when the article was published, any evidence, such as a court
decision, the Department’s decree in respect of the claimant or
documentary evidence concerning the inquiries into the expenditure,
the author has defamed the claimant’s business reputation and
has not substantiated his allegations.
The defendants have not provided any evidence that the
claimant dismissed uncooperative members of staff presumptuous enough
to hold their own point of view, that he had made multimillion
purchases without tenders and had concealed the unauthorised
expenditure by subordinate entities. This is not supposition or
speculation on the author’s part, but an assertion, since the
statements in question are not interrogative but affirmative.
...
The author conveys to the reader the idea that there
were negative aspects to I.A. Geraschenkov’s work as a
person and a senior official (the Director of the Department of
General and Professional Education of the Bryansk Region) without
providing evidence of this to the court ...
The court cannot take into account [S.F.’s]
arguments that he only gave one interview to Rossiyskaya Gazeta.
The article is signed by [him and A.G.]; there is no reference to the
interview with Rossiyskaya Gazeta. The defendant does not deny
that he was the author.
The court finds unfounded [S.F.’s] arguments that
the article provides critical coverage of the problem of education in
the territory of the Bryansk Region, that the aim of his interview
was to try to change the educational system in the Bryansk Region for
the better, and that the article was not about V.A. Malashenko, or
N.V. Prokopenko and I.A. Geraschenkov, but about the problems of
the children, teachers, headmasters and population in our region.
The article provides specific figures, and the surnames
of senior officials. From the wording of the contested statements it
is clear that the author was specifically referring to the activity
of the Department’s head, I.A. Geraschenkov.
In order to substantiate his arguments [S.F.] provided
copies of decrees issued by the Bryansk Regional Authority and
documentary evidence of the inquiries that had been made.
By decree no. 404-p of 14 July 2005 the Bryansk Regional
Authority established a commission to investigate the facts presented
in the article ‘Question for an official. Where does the
‘children’s money’ disappear to?’ By decree
no. 448-p of 28 July 2005 the Bryansk Regional Authority established
a commission to investigate the facts presented in the article
entitled ‘Teachers’ instructors’.
The commissions’ conclusions show that the
articles presented information that was not true and that no evidence
of unlawful expenditure or of textbooks being purchased without a
tender was found.
The court cannot take into account the arguments of
[S.F.] that the editors of Bryanskiye Budni should not be
liable because the passages in question reproduce verbatim excerpts
from other media sources, such as Rossiyskaya Gazeta and the
newspaper Good afternoon, Bryanschina [Добрый
день,
Брянщина].
Pursuant to section 57 § 6 of the Law on Media no.
2124-1 of 27 December 1991 as amended, the editorial board, editor in
chief and journalist are not liable for the dissemination of
information that is not true, or damages the honour and dignity of
citizens or organisations, infringes the rights and lawful interests
of citizens, or constitutes abuse of freedom of the media and (or)
journalist’s rights, if they reproduce verbatim information and
materials or excerpts from them disseminated by another media source
that is identifiable and can be made liable for the breach of the
legislation of the Russian Federation on the media.
The court found that the article indeed reproduced
verbatim an excerpt from an article that was published in Rossiyskaya
Gazeta on 6 July 2005 (third assertion in dispute).
However, the claimant’s representative stated as
much when he amended his client’s claims. In accordance with
[his] request, this assertion was not examined by the court.
The defendant did not produce any evidence to show that
he had reproduced an excerpt from materials published in Good
afternoon, Bryanschina. The article was published in Good
afternoon, Bryanschina on 13 July 2005. On the same date the
material for the article that was published in Bryanskiye Budni on
14 July 2005 was ready for publication. Furthermore, the article
contained no acknowledgment that it was reproducing material from the
newspaper Good afternoon, Bryanschina. There is only a
reference to the fact that ‘an abridged version of this
material was published in Rossiyskaya Gazeta’.
...
The court considers that the passages in dispute do not
constitute an opinion or speculations by the article’s authors,
but a statement of fact.
...
Having analysed the text of the article, it concludes
that the information contested by the claimant was published by the
newspaper’s editorial board on the basis of insufficiently
verified data.”
- The
court held the applicant liable to pay RUB 5,000 (approximately 150
euros (EUR)) in respect of non-pecuniary damage sustained by the
claimant. The applicant was also ordered to pay costs of RUB 10,100
and court fees of RUB 1,900, and to publish the operative part of the
judgment under the heading “refutation” in Bryanskiye
Budni. The court also held S.F. and A.G. liable to pay RUB 2,000
each in respect of non-pecuniary damage. The applicant and S.F.
appealed.
- On
29 June 2006 the Bryansk Regional Court reversed the part of the
judgment relating to the award of costs and court fees, quashing the
order to pay court fees in the amount of RUB 1,900, but upheld the
remainder. It held:
“[The appeal court] finds the [first-instance]
court’s conclusion that the information in dispute published in
the article ‘Where does the ‘children’s money’
disappear to?’ damaged the honour, dignity and business
reputation of the claimant well-founded, since the passages in
question affirmatively conclude that there was a connection between
the fact that the region attracts social misfits – those who
abuse alcohol, are dependant on welfare benefits or end up being
prosecuted and sent to jail – and the system of work of the
senior officials named in the article, including I.A. Geraschenkov.
The defendants did not provide any evidence to support either the
author’s contention that there is a correlation between what
might be regarded as ‘improper working methods’ used by
training specialists when making an appraisal and the head of the
Department responsible for the teachers’ appraisal, or the fact
of unauthorised expenditure by the claimant and the dismissal of
uncooperative members of staff ‘presumptuous enough to hold
their own point of view’.
The [first-instance] court rightly concluded that
[S.F.’s] arguments that the article was an independent
reproduction by the regional newspaper Bryanskiye Budni of
material from Rossiyskaya Gazeta which he had provided during
an interview were unfounded. The names of the authors [A.G. and S.F.]
appear under the article ‘Where does the ‘children’s
money’ disappear to?’, which was published in the
newspaper Bryanskiye Budni on 14 July 2005, edition no.
296 (28). It is also indicated that ‘an abridged version
of this material was published in Rossiyskaya Gazeta’
(an assertion supported by a copy of the article published in
Rossiyskaya Gazeta on 6 July 2005 that was provided to
the court), and that ‘readers of the Bryanskiye budni
have an opportunity to get acquainted with the full version’.”
II. RELEVANT DOMESTIC LAW AND OTHER RELEVANT DOCUMENTS
A. Constitution of the Russian Federation
- Article
29 guarantees freedom of thought and expression, together with
freedom of the mass media.
B. Civil Code of the Russian Federation
- Article 152 provides that an individual may apply to a
court with a request for the rectification of information
(“сведения”)
that is damaging to his honour, dignity or professional reputation
unless the disseminator of that information proves that it
“corresponds to reality” (Paragraph 1). The defamatory
information must be refuted in the same media source that
disseminated it (Paragraph 2). The aggrieved person also has a right
to publish a response in the same media source (Paragraph 3). He may
also claim compensation for losses and non-pecuniary damage sustained
as a result of the dissemination of the information (Paragraph 5).
C. Law on Mass Media
- Under
Section 45 of the Law on Mass Media no. 2124-I of 27 December
1991 a media source may refuse to publish a response to defamatory
information if the aggrieved person did not apply for the publication
of the response within a year of the publication of the defamatory
information. Under Section 46 a refusal to publish a response may be
appealed against to a court within a year of the publication of the
defamatory information.
D. Resolution of the Plenary Supreme Court of the
Russian Federation, no. 3 of 24 February 2005
- The Resolution provides that untrue information
(“сведения”)
constitutes statements concerning facts or events which did not take
place in reality at the time to which the information relates. It
includes allegations of a breach of laws or moral principles
(commission of a dishonest act, improper behaviour in the workplace
or in everyday life, etc.). Dissemination of such information is
understood as the publication of the information or its broadcasting,
diffusion thereof on the Internet, inclusion in professional
references, public speeches, applications to State officials and
communication in other forms, including oral, to at least one other
person (Section 7).
- The
domestic courts are instructed to take into account the Declaration
on Freedom of Political Debate in the Media adopted by the Committee
of Ministers of the Council of Europe on 12 February 2004, in
particular in the part relating to public scrutiny of political
figures and public officials. The burden of proof is on the defendant
to show that the disseminated information was true and accurate. If a
subjective opinion is expressed in an insulting form damaging the
honour, dignity or business reputation of the plaintiff, the
defendant may be held liable to pay damages for the harm caused by
the insult (Section 9).
E. Declaration on Freedom of Political Debate in the
Media adopted by the Committee of Ministers of the Council of Europe
on 12 February 2004
- The
Declaration states, inter alia, that pluralist democracy and
freedom of political debate require that the public is informed about
matters of public concern, which includes the right of the media to
disseminate negative information and critical opinions concerning
political figures and public officials, as well as the right of the
public to receive them (Section I). Public officials must accept that
they will be subject to public scrutiny and criticism, particularly
through the media, over the way in which they have carried out or
carry out their functions, insofar as this is necessary for ensuring
transparency and the responsible exercise of their functions (Section
IV).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained under Article 10 of the Convention that the
Sovetskiy District Court’s judgment of 22 May 2006, which had
been upheld on appeal by the Bryanskiy Regional Court on 29 June
2006, had violated his freedom of expression protected by Article 10
of the Convention. He submitted that the domestic courts had failed
to draw a distinction between statements of fact and value judgments
and had held him responsible for a failure to prove the truth of
value judgments. Article 10 of the Convention 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
Government argued that the applicant had failed to exhaust the
domestic remedies available to him as he had not applied for
supervisory review of the domestic courts’ decisions.
- The Court reiterates that an application for
supervisory review is not a remedy to be used for the purposes of
Article 35 § 1 of the Convention (see Denisov
v. Russia (dec.), no. 33408/03, 6 May 2004).
Therefore, the Government’s objection as to the non-exhaustion
of domestic remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government submitted that the domestic courts had found that the
impugned passages constituted not the opinions of or speculations by
the authors of the article but statements of fact which had presented
the plaintiff in a negative light. The newspaper had failed to verify
the veracity of those statements prior to publication. Accordingly
the domestic courts were right to rule in favour of the plaintiff and
the interference with the applicant’s freedom of expression was
justified in terms of Article 10 of the Convention. In the
Government’s view, there had been no violation of this
Convention provision.
- The
applicant disagreed. He maintained that the domestic courts had held
him liable for inability to prove the truth of value judgments
whereas the veracity of the underlying statements of fact had not
even been contested. In particular, it had not been contested either
that there had been significant financial contributions to the
educational system, or that many boarding school pupils become social
misfits. However, he was held liable for failure to prove the
existence of a link between the two phenomena. Likewise, it had not
been contested that Mr Geraschenko was the head of the entity
responsible for the assessment of teachers. However, the applicant
was found liable for expressing his opinion that given the situation
teachers might have been afraid to voice their concerns. As for the
last statement, the passage concerning purchases without tenders had
been based on the earlier publication in Rossiyskaya Gazeta.
The issue had also been discussed in the Bryanskoy Vremya
issue of 16-22 September 2004. The misappropriation of funds had been
subject to investigation by two commissions instituted by the Bryansk
Administration. The passage concerning the “dismissal of
uncooperative members of staff” was based on the fact that one
of the authors, S.F., had been dismissed without any reasons for the
dismissal having been provided to him. In the applicant’s view,
in the present case the domestic courts had overstepped the narrow
margin of appreciation afforded to them for restriction on debates of
public interest in breach of Article 10 of the Convention.
- The
Court notes that it is common ground between the parties that the
judgments adopted by the domestic courts in the defamation
proceedings constituted an interference with the applicant’s
right to freedom of expression guaranteed by Article 10 § 1. It
is not contested that the interference was prescribed by law, notably
Article 152 of the Civil Code, and pursued a legitimate aim, that of
protecting the reputation or rights of others, within the meaning of
Article 10 § 2. What remains to be established is whether the
interference was “necessary in a democratic society”.
- The
Court reiterates that the right to freedom of expression enshrined in
Article 10 constitutes one of the essential foundations of a
democratic society. Subject to paragraph 2, it is applicable not only
to “information” or “ideas” which are
favourably received or regarded as inoffensive, but also to those
which offend, shock or disturb (see, among many other authorities,
Castells v. Spain, 23 April 1992, Series A no. 236, § 42,
and Vogt v. Germany, 26 September 1995, Series A no. 323, §
52). It comprises, among other things, the right to impart, in good
faith, information on matters of public interest, even where this
involves damaging statements about private individuals (see, mutatis
mutandis, Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, ECHR 1999-III). The Court emphasised that the limits of
acceptable criticism are wider still where the target is a politician
(see Oberschlick v. Austria (no. 1), 23 May 1991, Series A no.
204, § 59).
- 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 (see Lindon, Otchakovsky-Laurens and
July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR
2007 ...). 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. In cases concerning the
press, it is circumscribed by the interest of a democratic society in
ensuring and maintaining a free press (see Dalban v. Romania
[GC], no. 28114/95, § 49, ECHR 1999 VI).
- 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 Dichand and
Others v. Austria, no. 29271/95, § 38, 26 February
2002).
- 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 plaintiff in the defamation claim, the
subject matter of the publication and qualification of the contested
statement by the domestic courts (see Jerusalem v. Austria,
no. 26958/95, § 35, ECHR 2001 II).
- As
regards the applicant’s position, the Court observes that he
was a journalist and founder of a newspaper. It reiterates in this
connection that the press fulfils an essential function in a
democratic society. Although it must not overstep certain bounds,
particularly in respect of 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. Journalistic freedom also covers
possible recourse to a degree of exaggeration, or even provocation
(see Dalban, cited above, § 49).
- The
plaintiff was the head of the Bryansk Department of Education. The
Court reiterates that civil servants acting in an official capacity
are, like politicians, subject to the wider limits of acceptable
criticism than a private individual (Janowski v. Poland [GC],
no. 25716/94, § 33, ECHR 1999 I). Therefore, he was obliged
to display a greater degree of tolerance in this context (see,
mutatis mutandis, Oberschlick v. Austria (no. 2),
1 July 1997, Reports of Judgments and Decisions 1997-IV, §§
31-33).
- The
subject matter of the publication was the state of the educational
system in the Bryansk Region. The publication was thus part of a
debate on a matter of general and public concern, which is further
supported by the fact that various issues concerning secondary and
vocational schools in the Bryansk Region were discussed in numerous
other newspapers (see paragraphs 7-8 and 10 above). The Court recalls
that there is little scope under Article 10 § 2 of the
Convention for restrictions on political speech or on debate on
matters of public interest (see Sürek v. Turkey (no. 1)
[GC], no. 26682/95, § 61, ECHR 1999-IV).
- The
Court notes that the scope of the defamation proceedings extended not
to the publication in its entirety but to several passages. The Court
will examine below the qualification of each statement by the
domestic courts as well as their general findings applicable to all
the passages at issue.
1. Statement concerning contributions to the
educational system and boarding school pupils
- The
statement read as follows:
“However, there is another sad fact:
notwithstanding such heavy expenditure, in most cases the region
still ends up with social misfits. Many of the boarding school pupils
engage in alcohol abuse, become dependent on state benefits or end up
being prosecuted and sent to jail. However, it is not the children’s
fault, but the fault of the system which the abovementioned heads
have been building for years.”
- On
22 May 2006 the Sovetskiy District Court found that in the passage at
issue the authors had concluded that there was a connection between
the fact that the region attracted social misfits and the system of
work of the senior officials of the Bryansk Department of Education,
N.V. Prokopenko and I.A. Geraschenkov, and held that that
conclusion was defamatory. The finding was upheld on appeal by the
Bryansk Regional Court on 29 June 2006.
- The
Court reiterates that, according to its established case-law, a
distinction has to be drawn between statements of fact and
value-judgments. While the existence of facts can be demonstrated,
the truth of value-judgments is not susceptible of proof. The
requirement to prove the truth of a value-judgment is impossible to
fulfil and infringes freedom of opinion itself, which is a
fundamental part of the right secured by Article 10 (see Oberschlick
(no. 1), cited above, § 63).
- It
observes that according to Resolution no. 3 of 24 February 2005
of the Plenary Supreme Court of the Russian Federation untrue
information constitutes statements concerning facts or events which
did not take place in reality at the time to which the information
relates. The Resolution further provides that if a subjective opinion
is expressed in an insulting form damaging the honour, dignity or
business reputation of the plaintiff, the defendant may be held
liable to pay damages for the harm caused by the insult.
- The
Court notes that the passage at issue contained two statements of
fact: that there was heavy expenditure in the educational sector in
the region and that a number of boarding school pupils turned out to
be social misfits. The veracity of either of those statements was
neither contested by the plaintiff nor examined by the domestic
courts.
- At
the same time the domestic courts found defamatory the authors’
assertion that despite that heavy expenditure many boarding school
pupils had turned out to be social misfits because of the educational
system in the region created, among others, by the plaintiff. In the
Court’s view, the assertion at issue constituted a value
judgment which the domestic courts failed to distinguish from a
statement of fact. It is clearly the authors’ subjective
opinion that the regional educational system is faulty and that that
affects the boarding school pupils. Thus, they offered their
assessment of a complex social situation and drew their conclusions
concerning the particular aspects involved. By criticising what in
their view were undue public policies they have done no more than
fulfil the essential role of the press, that is, to impart
information and solicit debate on a matter of public concern.
2. Statement concerning appraisal of teachers
- The
statement read as follows:
“Not only are the teachers and headmasters of the
schools deprived of money that is due to them, they cannot even rebel
against it, the point being that the rector of the ‘Institute
of Advanced Training’ is the selfsame Mr Geraschenkov, who
heads the Department. He is responsible not only for training, but
for performance appraisal as well. If a teacher claims that he was
offered a poor-quality or uninteresting course, the training
specialist who appraises him will unnerve and humiliate him, and
perhaps reduce his marks and leave him with a pittance.”
- The
domestic courts at two levels of jurisdiction found the authors
liable for their failure to provide “incontrovertible evidence”
of a correlation between the possibly improper working methods of
training specialists when appraising teaching staff and the head of
the Department responsible for the appraisal.
- The
Court observes that it was not contested that the plaintiff, as well
as holding the position of head of the Bryansk Department of
Education, was the rector of the Institute of Advanced Training which
carried out the appraisal of teachers. Accordingly, the Court has no
reasons to doubt the veracity of this statement. However, the authors
were held liable for their assertion that that situation might keep
teachers from voicing their discontent with the plaintiff’s
actions as the head of the Bryansk Department of Education out of
fear of possible reprisals on the part of the staff of the Institute
of Advanced Training subordinate to him.
- The
assertion at issue was the authors’ opinion that in the given
situation teachers might be afraid to voice their concerns and thus
constituted a value judgment. The requirement to provide any
evidence, let alone “incontrovertible”, to corroborate
the authors’ view was obviously impossible to fulfil.
Therefore, in this instance as well, the domestic courts failed to
distinguish between a statement of fact and a value judgment.
3. Statement concerning dismissal of uncooperative
staff and unauthorised budget expenditures
- The
statement read as follows:
“Then followed the dismissal of uncooperative
members of staff presumptuous enough to hold their own point of view.
This was followed by multimillion purchases without tenders and the
concealment of the unauthorised expenditure by subordinate entities.”
- The
domestic courts at two instances found the authors liable for their
failure to provide any evidence, such as a court decision, the
Department’s decree in respect of the claimant or documentary
evidence concerning the inquiries into the expenditure, concerning
the alleged multimillion purchases without tenders and the
concealment of the unauthorised expenditure by subordinate entities.
Likewise, the courts found that no evidence was presented with
respect to the alleged dismissal of uncooperative staff. In the
courts’ view, the statements did not constitute suppositions or
speculations on the authors’ part, but assertions, since they
were phrased not interrogatively but affirmatively. The court will
proceed to examine each phrase of the statement separately.
a. Dismissal of uncooperative staff
- The
Court notes that one of the authors, S.F., used to hold a position at
the Bryansk Department of Education and was subsequently dismissed
allegedly without any reasons for the dismissal having been provided
to him. From the applicant’s submissions it follows that the
passage at issue referred to, in the first place, S.F.’s
dismissal.
- The
Court is satisfied that the passage at issue might have been based to
a significant extent on S.F.’s dismissal. It also accepts that
S.F. might believe himself to have been dismissed for disagreeing
with the policies of the plaintiff. To this extent the statement at
issue might be regarded as his personal view of the circumstances of
his dismissal. However, the text of the article did not refer
specifically to S.F.’s dismissal or, for that matter, to a
dismissal of a single member of staff, but to “uncooperative
members of staff”, thus creating the impression that there had
been numerous dismissals. At the same time, no evidence of other
dismissals was provided either to the domestic courts or to the
Court.
- The
Court observes that the aim of the article was to discuss problems in
the educational sphere in the region. To that end the authors
highlighted certain issues which, in their view, contributed to what
they considered to be the overall unsatisfactory state of the
educational system. One of those issues was what they perceived to be
the general climate preventing teachers (see paragraphs 44-47 above),
and even the staff of the Bryansk Department of Education, from
expressing their discontent with the policies of its head. Given the
sensitivity of the problem for the region, the issue was definitely
one of serious public concern. Therefore, even though the authors
failed to present any evidence of dismissals other than that of S.F.,
the Court considers that their reference to the “dismissal of
uncooperative members of staff” may be regarded as an
exaggeration not exceeding the boundaries of the protection afforded
by Article 10 (see paragraph 34 above).
b. Purchases without tenders and
concealment of the unauthorised expenditure
- The
Court notes that in September 2004 the newspaper Bryanskoye Vremya
published an article discussing problems related to the publication
and supply of textbooks. In particular, it mentioned a “mysterious”
publisher of textbooks which it linked to the dismissal of the
plaintiff from the post of head of the Bryansk Department of
Education, who was later reappointed to the post. An audit report
which had revealed numerous financial irregularities in the supply of
textbooks was also referred to in the article.
- The
Court further notes that S.F. provided the domestic courts with
copies of decrees of the Bryansk Regional Authority of 14 and 28 July
2005 respectively instituting commissions to investigate the facts
presented in the articles “Where does the ‘children’s
money’ disappear’ to?” and “Teachers’
Instructors” and the results of the enquiries. The domestic
courts stated that the commissions had found no evidence of unlawful
expenditure or of textbooks being purchased without a tender.
- The
Court observes that the results of the inquires, which had not been
instituted at the time of publication of the article, could not have
been available to the authors then. At the same time the purchase of
textbooks with the alleged irregularities and the related budgetary
expenditures, with reference to an audit report, had been discussed
in an article published in a different newspaper by a different
author several months prior to the publication at issue. The question
is, therefore, whether there existed an underlying basis of fact for
the authors’ assertion.
- In
the Court’s view, the defendant in a defamation case concerning
criticism of a public official’s performance of his duties may
not be required to prove the truth of all his factual assertions.
This would but stifle public debate on matters of genuine public
concern.
- Therefore,
despite the fact that the enquiries conducted after the publication
of the article found no irregularities in the purchase of textbooks
or budget expenditure, the Court considers that, taking into account
the article published in the newspaper Bryanskoye Vremya in
September 2004, the authors of the article at issue had a sufficient
underlying factual basis for their statement. It does not consider
that they were required to carry out their own research into the
accuracy of the facts presented in that newspaper and sees no reason
to doubt that they acted in good faith in this respect (see, mutatis
mutandis, Bladet Tromsø and Stensaas, cited above,
§ 72).
4. General findings of the domestic courts concerning
the three statements
- In
the judgment of 22 May 2006 the Sovetskiy District Court stated that
the authors of the articles conveyed to the reader “the idea
that there were negative aspects” to the plaintiff’s work
“without providing evidence of this to the court”. In
this regard the Court points out, once again, that the domestic
courts failed to distinguish between a statement of fact and a value
judgment, the truth of which cannot be proved.
- Furthermore,
in the same judgment the Sovetskiy District Court dismissed S.F.’s
arguments that the article provided critical coverage of problems in
the regional educational system and aimed to bring about its change
on the ground that the author had specifically referred to the
plaintiff’s activity and that the article had mentioned
specific figures and given the surnames of senior officials. The
Court observes that effective criticism is impossible without
reference to specific figures and persons. Holding otherwise would
mean extinguishing the essence of the right to public debate over
matters of public concern and turn it into a purely fictitious
concept. In the present case the plaintiff held the position of the
most senior official in the regional educational system. A public
debate on the state of the educational system in the region is hardly
conceivable without mentioning the name of its most senior official.
At the same time, having agreed to hold that office, the plaintiff
must have been prepared to tolerate a significant amount of public
criticism (see paragraph 35 above).
5. Conclusion
- In
the light of the above considerations the Court finds that the
domestic courts failed to establish convincingly any pressing social
need for putting the civil servant’s personality rights above
the applicant’s rights and the general interest in promoting
the freedom of press where issues of public interest are concerned.
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 domestic courts were
not compatible with the principles embodied in Article 10 since they
did not adduce “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 been, accordingly, 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 485 euros (EUR), which at the time when the claim
was submitted equalled 16,324 Russian roubles (RUB), in respect of
pecuniary damage and EUR 8,000 in respect of non-pecuniary damage.
The applicant produced copies of receipts for payment of RUB 16,324
to the plaintiff, including bank charges.
- The
Government contested the claim. In their view, a finding of a
violation would constitute sufficient just satisfaction. However,
should the Court decide to award the applicant compensation for
pecuniary damage, the Government insisted that the award be made in
Russian roubles or in euros at the exchange rate applicable at the
date of payment.
- The
Court finds that in the circumstances of the case there is a causal
link between the violation found and the alleged pecuniary damage
claimed. It further notes that it is its standard practice to make
awards in euros rather than in the currency of the respondent State,
should it be different, on the basis of the exchange rate which
existed at the time when the claim was submitted to the Court.
Consequently, the Court awards the applicant EUR 485 in respect
of pecuniary damage, plus any tax that may be chargeable on that
amount.
- The
Court accepts that the applicant has also suffered distress and
frustration resulting from the judicial decisions incompatible with
Article 10 which cannot be sufficiently compensated solely by the
finding of a violation of the Convention. Making its assessment on an
equitable basis, the Court awards the applicant EUR 8,000 under this
head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed RUB 157,20 (approximately EUR 5) for costs and
expenses incurred before the Court.
- The
Government expressed their doubts that the applicant’s claim
should be granted.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5 for the costs and
expenses incurred before the Court.
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 application admissible;
- 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
485 (four hundred and eighty-five euros) in respect of pecuniary
damage;
(ii) EUR
8,000 (eight thousand euros) in respect of non-pecuniary damage;
(iii) EUR
5 (five euros) in respect of costs and expenses;
(iv) 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 amount[s] 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 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
