FIRST SECTION
CASE OF OOO ‘VESTI’
AND UKHOV v. RUSSIA
(Application no.
21724/03)
JUDGMENT
(Merits)
STRASBOURG
30 May 2013
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 OOO ‘Vesti’ and Ukhov v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
21724/03) 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 limited liability
company, The Editorial Board of the Vesti Newspaper (ООО
«Редакция
газеты
«Вести»»,- “the first applicant”), and a Russian national, Mr Sergey Vladislavovich Ukhov (“the
second applicant”), on 19 June 2003.
The applicants were represented by Mr I.
Rossokhin, in-house lawyer of the first applicant. The Russian Government (“the
Government”) were initially represented by Mr P. Laptev, former
Representative of the Russian Federation at the European Court of Human Rights,
and subsequently by their Representative, Mr G. Matyushkin.
The applicants alleged, in particular, a
violation of their right to freedom of expression. They also claimed that the
defamation proceedings brought against them had been unfair.
By a decision of 18 March 2010, the Court
declared the application partly admissible.
The applicants and the Government each filed
further written observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first
applicant had its registered office in Kirov. The second applicant
was born in 1951 and lives in Kirov.
The first
applicant was a limited liability company founded
by the State Property Department of the Kirov Regional Government and
registered as a legal entity in 1997.
On an unspecified
date the Kirov Regional Legislative Assembly and the Kirov Regional Government
founded the Gubernskie Vesti, Kirov newspaper. On 23 August 2001 it was
officially registered as a regional news medium. The official address of its
editorial board was the same as that of the first applicant.
According to the
applicants, the editorial board of the Gubernskie Vesti, Kirov newspaper
was not registered as a legal entity and did not have articles of association.
The first applicant was the publisher of the Gubernskie Vesti, Kirov newspaper. The applicants were, however, unable to submit a publishing agreement.
According to its articles of association, as amended on 24 May 2002, the
first applicant’s main activity consisted in issuing the Gubernskie Vesti, Kirov newspaper. It also carried out publishing and advertising activities. The first
applicant was managed by its executive body, the editor-in-chief. That position
was occupied at the material time by the second applicant, who was at the same
time the editor-in-chief of the Gubernskie Vesti, Kirov newspaper.
A. The article
On 16 August 2002 the Gubernskie Vesti, Kirov newspaper published an article under the headline “The Chief Federal Inspector
has brought the media to its knees. But not the businessmen” («ГФИ
поставил на колени
прессу. Но не коммерсантов»).
The article was written by the second applicant, who signed it using his
pen-name, Semyon Volkov.
The article concerned a joint press conference
held by Mr P., the Chief Federal Inspector for the Kirov Region, and Mr K., the
Mayor of Kirov. The press conference was about the media coverage of the
regional project “Kirov, cultural capital of the Volga region for 2002”. The
article was critical of the cultural value of the events connected with the project
and spoke ironically about Mr P.’s “accomplishments” in that field. Mr P. was
further quoted as saying that the allotted funds were insufficient to finance
the work of the project’s organising committee and as criticising local
businesses for their unwillingness to sponsor the project, allegedly because
the project had not received the Governor’s explicit endorsement. The article
then went on as follows:
“Curiously enough, just before that meeting, I had a chance to
talk to some businessmen I know. They told me that the chief federal inspector’s
office had literally pestered them with ‘offers’ for them to become sponsors.
However, they do not respond to such ‘offers’, not because they fear the
Governor, but because they do not want to give money. Some say that [Mr P.] is
too deeply involved in political games, of which they want no part. Others are,
for some reason, concerned that their money might be wasted on the lovers of
the collector of funds rather than spent on cultural events.”
B. Defamation proceedings
On 30 August 2002 Mr P., in his official
capacity as the Chief Federal Inspector, brought an action for defamation
against the editorial board of the Gubernskie Vesti newspaper and the
author of the article, Semyon Volkov. According to his statement of claim, the
final paragraph of the contested article had asserted that he was in charge of
the collection and distribution of funds for the project, that he was capable
of committing a crime by embezzling the funds entrusted to him, and that he had
lovers, thereby violating moral and ethical norms. Considering that those
statements were untrue and damaging to his honour, dignity and professional
reputation, he sought a retraction and compensation for non-pecuniary damage.
Mr P. also enclosed the text of the retraction
statement that he wished the editorial board of the Gubernskie Vesti newspaper
to publish. It contained an apology and an acknowledgement that the last
sentence of the paragraph cited above was untrue and damaging to his honour and
reputation, a promise to discipline the author of the article and an
undertaking to respect the domestic law on the media in the future.
On 9 September 2002
Mr G., deputy editor-in-chief of the first applicant, signed a power of
attorney appointing Mr K. and Mr R. to act as its counsel in the defamation
proceedings.
On 13 September 2002 Judge S. of the Leninskiy
District Court of Kirov decided to sever the claim against the author of the
article for adjudication in separate proceedings because the first applicant
had refused to disclose his identity. The proceedings against the author were
stayed.
1. Proceedings in respect of the first applicant
On 13 September 2002 the Leninskiy District
Court of Kirov, sitting in a single-judge formation comprising Judge S., held a
hearing. Counsel, Mr K. and Mr R., asked that the hearing be adjourned
because the second applicant, the newspaper’s editor-in-chief and the only person
acquainted with the circumstances relating to the contested publication, was on
annual leave until 6 October 2002. The court refused the request.
Mr K. and Mr R. further submitted that the
contested statements did not concern Mr P., who was not the collector of funds for
the cultural project. The funds were being collected by the Kirov Town
Administration.
Counsel for Mr P. submitted that the article had
been entirely devoted to Mr P. It stated, in particular, that he had “pestered”
local businessmen with requests to become sponsors of the cultural project. The
last sentence of the article, which concerned the collector of funds, could
easily be interpreted as directed at Mr P. Such an interpretation had indeed
been made by a number of local newspapers, which had also understood the last
sentence of the article as referring to Mr P.
On 13 September 2002
the Leninskiy District Court of Kirov granted Mr P.’s claim against the
editorial board of the Gubernskie Vesti newspaper in full. The court
found that the final paragraph of the article contained false information about
the plaintiff, who it had falsely alleged was the collector of funds that might
have been wasted on lovers rather than spent on cultural events. The court
noted that the defendant had not produced any proof of the truthfulness of that
information. It ordered the editorial board to pay the plaintiff 20,000 Russian
roubles (RUR) (approximately 650 euros (EUR)) in compensation for non-pecuniary
damage, and RUR 1,000 in court fees. It further ordered an immediate
publication of the retraction statement as drafted by Mr P.
On 18 September 2002 enforcement proceedings
were opened. On the same day, the first applicant applied to the Leninskiy
District Court for a stay in the enforcement proceedings. It submitted that the
court had ordered the enforcement of the judgment against the editorial board
of the Gubernskie Vesti newspaper, which had no legal entity status and,
accordingly, could not be a defendant in civil proceedings. Furthermore, the
order for immediate enforcement was unlawful and violated the first applicant’s
right to know the reasons for the judgment (at that time, the full text of the
judgment was unavailable) and to lodge an appeal against it.
On 19 September 2002 Judge S. issued two interim
decisions. By the first decision he refused the first applicant’s request for a
stay of enforcement as unsubstantiated. No further reasons were given. The
second decision rectified an error in the operative part of the judgment. It
held that the defendant’s name was “the limited liability company The Editorial
Board of the Vesti Newspaper” rather than “the editorial board of the Gubernskie
Vesti newspaper”.
On 20 September 2002 the Gubernskie Vesti, Kirov newspaper published the retraction statement as drafted by Mr P. and endorsed in
the judgment of 13 September 2002.
On 24 September 2002 the first applicant lodged
an appeal against the judgment of 13 September 2002, submitting that the
article had not named the collector of funds for the project or suggested that
it was Mr P. who had collected the funds. Nor had it stated that Mr P. had
lovers or that he had embezzled any funds entrusted to him. It was clear from
the text that the contested sentence did not concern Mr P. at all. The first
applicant further complained about the District Court’s unreasoned refusal to
adjourn the hearing until the second applicant had returned from leave. The
second applicant was the only person who knew the identity of the author of the
article and who was able to give an informed response to the statement of
claim.
The second applicant lodged a statement in
support of the appeal. He disclosed that he was the author of the article and stated
that the judgment of 13 September 2002 had been poorly reasoned. Although
Mr P. had failed to prove that the contested sentence concerned him
personally, the District Court had accepted his claim without analysing whether
the impugned statements were indeed directed at him.
2. Proceedings in respect of the second applicant
On an unspecified date the proceedings against
the author of the article were resumed and the second applicant was summoned to
appear before the Leninskiy District Court as the defendant in Mr P.’s defamation
case instituted on 30 August 2002. His case was heard by a bench composed
of the presiding judge S. and two lay assessors. The second applicant lodged an
objection against Judge S. on the ground that he had already expressed his
position in the judgment against the editorial board. Lay assessors examined
and rejected the objection, finding that the second applicant’s fears as to Mr
S.’s impartiality were not justified.
At the hearing on 2 October
2002 the second applicant was represented by Mr R. as counsel. The second
applicant and his counsel both argued that the last sentence of the article did
not concern Mr P. It concerned the collector of funds, who had not been
identified in the article. The fact that other newspapers had interpreted the
last sentence as directed at Mr P. was irrelevant because the second
applicant could not be held responsible for the actions of other people. They
further submitted that the second applicant had simply repeated the reservations
expressed by businessmen with regard to the distribution of the funds collected
for the project.
Counsel for Mr P. repeated the arguments he had advanced
at the hearing of 13 September 2002, in particular the reasons why Mr P.
believed that the contested statements were directed at him. He submitted, in
particular, that the title and the structure of the article showed that it was
entirely about Mr P. and that other people had understood the last sentence of
the article as concerning Mr P., and this had been proved by articles in other newspapers.
On 3 October 2002 the
Leninskiy District Court issued a judgment against the second applicant. The
court found that the article read as a whole gave the impression that the
contested statements concerned Mr P. The same interpretation had been arrived
at by other newspapers, which had been unanimous in considering that the last sentence
had been about Mr P. The contested statements, which accused Mr P. of spending
public funds on lovers, were damaging to his honour, dignity and professional
reputation. The second applicant had failed to prove the truthfulness of his
statements about Mr P. The second applicant was ordered to pay RUR 2,500 (approximately
80 euros) in compensation for non-pecuniary damage, and RUR 10 in court fees.
The second applicant appealed. He repeated the
arguments advanced in his statement in support of the first applicant’s appeal.
He further argued that the outcome of his case had been predetermined by the
judgment against the editorial board. Judge S., who had examined the case
against the editorial board, was bound to have had a preconceived opinion on his
case.
3. Appeal proceedings in respect of the applicants
On 31 October 2002 the Kirov Regional Court
adjourned the examination of the appeals. It established that the interim
decision of 19 September 2002 rectifying an error in the judgment of
13 September 2002 had been issued in the absence of the interested
parties. Moreover, the parties had not received a copy of that decision and had
thereby been deprived of an opportunity to appeal. Until that omission had been
remedied, the appeal against the judgment of 13 September 2002 could not be
examined, nor could the appeal against the judgment of 3 October 2002. Because
both cases were based on the same claim, the determination of one of them would
prejudge the outcome of the other. On that ground, the Kirov Regional Court
decided that the two cases should be joined and all appeals should be examined
simultaneously.
On 14 November 2002 the first applicant lodged
an appeal against the interim decision of 19 September 2002. It argued that
that decision was unlawful for the following reasons: the rectification had
been made by the District Court of its own motion; the decision had been taken in
the absence of the parties; and, in substance, the decision was the disguised
substitution of a defendant rather than a correction of a clerical error or an
obvious mistake. The first applicant submitted that the limited liability company
The Editorial Board of the Vesti Newspaper and the editorial board of
the Gubernskie Vesti newspaper were two distinct entities: the first was
registered as a legal entity, while the second was operating without State
registration. The fact that the District Court had issued a judgment against
the wrong entity demonstrated that the adjudication of the case had been
superficial and the essential aspects of the case had not been examined
properly.
On 29 November 2002 the Leninskiy District
Court, by a new interim decision, confirmed its earlier decision of
19 September 2002 on the rectification of the error regarding the
defendant’s name. The first applicant lodged an appeal repeating the arguments
advanced in the appeal statement of 14 November 2002.
On 24 December 2002 the Kirov Regional Court
examined all the appeals. Both applicants were represented at the hearing by Mr
R.
The Kirov Regional Court quashed the interim decision of 19 September 2002 on the ground
that it had been issued in the absence of the parties, but upheld the interim
decision of 29 November 2002, which, in its view, was lawful. Thus, it
found that counsel who had taken part in the hearing of 13 September 2002 had represented
the interests of the first applicant, the limited liability company The
Editorial Board of the Vesti Newspaper. It was clear that the judgment
of 13 September 2002 defined the rights of, and imposed obligations on,
the first applicant, because no other organisation had been involved in the
proceedings. The amendment of the defendant’s name had therefore been no more
than a rectification of a clerical error not related to the merits of the case
and having no effect on the substance of the judgment.
The Regional Court further upheld the judgments of 13 September and 3 October 2002 in
substance. In particular, it found that the District Court had addressed the
applicants’ arguments relating to the existence of an objective link between
the contested statements and the plaintiff. It had analysed the tile, structure
and contents of the impugned article and had correctly found that its last
sentence concerned Mr P. Moreover, it had taken into account that Mr P.
was not the only one to have understood that the sentence had been directed at
him; other newspapers had also drawn the same conclusion. The District Court
had therefore correctly required the defendants to prove the truthfulness of
their allegations, which they had failed to do. Both applicants had been
represented at hearings by counsel, and their procedural rights had therefore been
respected. Finally, the Regional Court held that the severance of the claim
against the second applicant from the proceedings “had not involved a substantially
incorrect determination of the dispute”.
The Regional Court found,
however, that the District Court had incorrectly required the first applicant
to publish the retraction statement drafted by the plaintiff. The requirement
for an apology, a promise to discipline the author and an undertaking to
respect domestic law contained in the retraction statement had no basis in
domestic law. The order for immediate enforcement had also been unlawful. The
court ordered that the first applicant publish an amended retraction statement.
It also reduced the award payable by the first applicant to RUR 10,000
(approximately 325 euros).
On 14 January 2003 the first applicant published
the amended retraction statement.
On 6 August 2007 the first applicant was
declared insolvent and dissolved.
II. RELEVANT DOMESTIC LAW
A. Civil actions for defamation
Article 152 of the Civil Code provides that an
individual may apply to a court with a request for the retraction of statements
(svedeniya) that are damaging to his or her honour, dignity or
professional reputation, if the person who disseminated such statements does
not prove their truthfulness. The aggrieved person may also claim compensation
for losses and non-pecuniary damage sustained as a result of the dissemination
of such statements.
41.
Ruling no. 11 of the Plenary
Supreme Court of the Russian Federation, adopted on 18 August 1992 (as amended
on 25 April 1995 and in force at the material time), provided that, in order to
be considered damaging, statements had to be untrue and contain allegations of
a breach of laws or moral principles (for example, the commission of a
dishonest act, or improper behaviour in the workplace or in everyday life).
Dissemination of statements was understood as the publication of statements or
their broadcasting (paragraph 2). The burden of proof was on the defendant to
show that the disseminated statements were true and accurate (paragraph 7).
On 24 February 2005 the
Plenary Supreme Court of the Russian Federation adopted Ruling no. 3, requiring
courts hearing defamation claims to distinguish between statements of facts
which could be checked for veracity and evaluative judgments, opinions and
convictions, which were not actionable under Article 152 of the Civil Code
because they were expressions of a defendant’s subjective opinion and views and
therefore could not be checked for veracity (paragraph 9). Furthermore, it
prohibited the courts from ordering defendants to make an apology to a
plaintiff, because that form of redress had no basis under Russian law,
including Article 152 of the Civil Code (paragraph 18).
B. Defendants in an action for defamation
The Mass Media Act
(Law no. 2124-I of 27 December 1991) defines an editorial board of a news
medium as an organisation, citizen or group of citizens producing and issuing that
news medium. An editorial board may start functioning after State registration
of the news medium (section 8). An editorial board may - but is not required to
- obtain legal entity status through State registration (section 19). An
editorial board must have articles of association adopted by the general
assembly of journalists and approved by the founder of the news medium (section
20).
A publisher of a news
medium is defined in the Mass Media Act as a company or business person
responsible for the technical, material and logistical aspects of a production
process (section 2). The editorial board or the editor-in-chief and the
publisher must conclude a publishing agreement (section 22). The functions of
an editorial board and a publisher may be combined in one legal entity (section
21).
Founders, editorial boards, publishers and distributers of mass media, as
well as journalists and authors of distributed statements may be held liable
for a breach of the legal provisions governing mass media (section 56 of the
Mass Media Act). Ruling no. 11 of the Plenary
Supreme Court of the Russian Federation (cited in paragraph 41 above) provides that in cases where
articles have been published in a newspaper, the defendants in an action for
defamation must be the article’s author and the newspaper’s editorial board. If
the author is not indicated, the editorial board will be the sole defendant. If
the editorial board does not have legal entity status, the founder of the
newspaper will be cited as the defendant (paragraph 6).
C. Rectification of a judgment
The RSFSR Code of Civil Procedure (in force up
to 1 February 2003) provided that after pronouncing a judgment, a court could
not quash or amend it. However, the court could, of its own motion or at the
request of a party, rectify clerical errors or obvious errors in calculation.
In such a case the court had an obligation to hold a hearing and notify the
parties of its date. The parties could appeal against the rectification order
(Article 204).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicants complained of a violation of
their right to freedom of expression as provided 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.”
The applicants submitted that there had been an unlawful
interference with their freedom of expression. In particular, they submitted
that the order to publish a retraction statement containing an apology and the order
for immediate enforcement had had no basis in domestic law. Although the appeal
court had acknowledged that those orders had been unlawful, it had not remedied
the violation. On the contrary, the Appeal Court had aggravated the situation
by requiring the first applicant to publish a second retraction statement. Thus,
the first applicant had been punished twice. The applicants also argued that
the first applicant, the publisher of the Gubernskie Vesti, Kirov newspaper, could not be cited as a defendant. Under domestic law, an action for
defamation had to be brought against the editorial board. Because the editorial
board of the newspaper did not have legal entity status, the action had to be
brought against its founders, the Government of the Kirov Region and the
Legislative Assembly of the Kirov Region, who should have been cited as the defendants
(see the Supreme Court’s Ruling of 18 August 1992, cited in paragraph 45 above).
Therefore, there had been no legal basis for bringing an action for defamation
against the publisher.
The applicants further argued that the
interference had been disproportionate to the legitimate aim pursued. The
article had denounced the administrative pressure placed on businessmen with
the aim of compelling them to sponsor government projects. It had also voiced
the apprehensions of those businessmen that the funds thus collected might be
misappropriated. It had therefore raised questions of public concern. Moreover,
the author had simply shared with his readers the opinions held by others,
without stating that those opinions were true or valid. Accordingly, the
interference with the applicants’ freedom of expression had not corresponded to
a “pressing social need”.
The Government submitted, firstly, that the
interference with the applicants’ freedom of expression had been lawful. The
first applicant had been cited as a defendant in the defamation proceedings in
accordance with domestic law. As to the allegedly unlawful order to publish a
retraction statement containing an apology, the Government submitted that that
order had later been quashed on appeal.
The Government conceded that the contested article
had raised questions of public concern and that the
limits of acceptable criticism in respect of Mr P., a civil servant, were wider than in the case of a private individual. They
submitted, however, that the article had not been limited to criticism of Mr P.’s
actions in an official capacity; it had also encroached on the private sphere,
claiming that Mr P. had lovers. The Government disputed the applicants’
arguments that there had been no objective link between those statements and
Mr P. The contested article had been entirely devoted to the activities of
the Chief Federal Inspector Mr P. Taking into account the article’s title,
structure and contents, there could be no doubt that the statements concerning
the collector of funds had been directed at Mr P. Those statements had
been intended as statements of fact and the applicants had failed to prove
their truthfulness. Given that the statements published by the applicants were
damaging to Mr P.’s honour and reputation, the interference with their
freedom of expression had been justified.
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 applicants’
right to freedom of expression guaranteed by Article 10 § 1. It is not
contested that the interference pursued a legitimate aim, that of protecting
the reputation or rights of others, within the meaning of Article 10 § 2. The
dispute in the case relates to whether the interference was prescribed by law
and whether it was “necessary in a democratic society”.
53. The Court notes
that Article 152 of the Civil Code provides a legal basis for civil liability
for defamation. The applicants, however, argued, in accordance with the 1992
ruling by the Plenary Supreme Court (see paragraph 45 above), that an
action for defamation had to be brought against the editorial board and that there
was therefore no legal basis for holding the first applicant, the publisher of
the Gubernskie Vesti, Kirov newspaper, liable. The Court observes that
the applicants’ assertion that the first applicant and the editorial board of
the Gubernskie Vesti newspaper were separate entities is not supported by
any evidence. The applicants were unable to submit any document showing that
the editorial board of the Gubernskie Vesti newspaper existed as a
distinct, though unregistered, legal entity. The Court notes that under
domestic law an editorial board must have articles of association even if it
has not been registered as a legal entity (see paragraph 43 above). However,
the applicants did not submit a copy of the editorial board’s articles of
association, although they were requested to do so by the Court. Nor did they
produce a copy of the compulsory publishing agreement between the editorial
board or the editor-in-chief and the publisher (see paragraph 44 above).
Further, it is clear from the first applicant’s
articles of association that its activities consisted in issuing, as well as
publishing, the Gubernskie Vesti, Kirov newspaper (see paragraph 10
above). Given that domestic law provides that the issuing of the news medium is
the main function of an editorial board (see paragraph 43 above), the Court
cannot but conclude that the first applicant was acting both as the newspaper’s
editorial board and its publisher. This conclusion finds further confirmation
in the fact that the newspaper’s editorial board was registered at the first
applicant’s official address and that the second applicant occupied the
positions of both editor-in-chief of the first applicant and editor-in-chief of
the newspaper. Finally, the Court finds it significant that the applicants
never claimed in the domestic proceedings that there was no legal basis for the
first applicant’s liability on the ground that it was the publisher rather than
the editorial board of the Gubernskie Vesti, Kirov newspaper.
In view of the above, the
Court concludes that the first applicant combined the functions of editorial
board and publisher of the Gubernskie Vesti, Kirov newspaper and could
be therefore held liable for defamation under domestic law.
Further, as regards the applicants’ argument
that the order to publish a retraction statement containing an apology and the
order for immediate enforcement had no basis in domestic law, the Court notes that
it has previously found that before the 2005 ruling of
the Plenary Supreme Court (see paragraph 42 above),
Russian courts could reasonably interpret Article 152 of the Civil Code as
providing for an apology as part of the redress for defamation (see Kazakov
v. Russia, no. 1758/02, §§ 23 and 24, 18 December 2008). Thus, in the circumstances of the present case, the Court is
ready to accept that the interpretation of the relevant legislation by the
Russian courts was not such as to render the impugned interference unlawful in
Convention terms. In any event, the order to publish a retraction
statement containing an apology and the order for immediate enforcement were
quashed on appeal (see paragraph 37 above). The irregularity alleged was
thereby expressly acknowledged and adequately redressed.
In view of the above, the Court finds that the interference with the applicants’ freedom of expression was
“prescribed by law”. It remains to be determined whether it 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 margin 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, among many others, Grinberg
v. Russia, no. 23472/03, § 27, 21 July 2005; Stoll
v. Switzerland [GC], no. 69698/01, § 101, ECHR 2007-V; Krasulya v. Russia, no.
12365/03, § 34, 22 February 2007, Mouvement raëlien suisse v.
Switzerland [GC], no. 16354/06, § 48, 13 July 2012; and,
most recently, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, 22 April 2013).
. In
the present case the second applicant expressed his views by having them
published in a newspaper edited by the first applicant. They were found civilly
liable for that publication, therefore the impugned interference must be seen
in the context of the essential role of the press in ensuring the proper
functioning of a democratic society (see Lingens
v. Austria, 8 July 1986, Series A no.
103, § 41, and Sürek v. Turkey (no. 1) [GC], no. 26682/95,
§ 59, ECHR 1999-IV). It is also significant that
the plaintiff Mr P., the Chief Federal Inspector of the Kirov Region, was a
civil servant. Although it cannot be said that civil servants knowingly lay
themselves open to close scrutiny of their every word and deed to the extent
politicians do, civil servants acting in an official capacity are, like
politicians, subject to wider limits of acceptable criticism than private
individuals (see Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001-III). Further, the
allegations of misappropriation of public funds were obviously a matter of
great public concern and therefore came within the scope of a public debate on
a matter of general importance. The Court
reiterates that there is little scope under Article 10 § 2 of the Convention
for restrictions on political speech or debates on questions of public interest
(see Feldek v. Slovakia, no. 9032/95, § 83, ECHR 2001-VIII, and Sürek, cited above, § 61).
60. That being said,
the Court reiterates that Article 10 of the Convention protects journalists’
right to divulge information on issues of general interest provided that they
are acting in good faith and on an accurate factual basis and provide “reliable
and precise” information in accordance with the ethics of journalism. Under the
terms of paragraph 2 of Article 10 of the Convention, freedom of expression
carries with it “duties and responsibilities”, which also apply to the media
even with respect to matters of serious public concern. Moreover, these “duties
and responsibilities” are liable to assume significance when there is a
question of attacking the reputation of a named individual and infringing the
“rights of others”. Thus,
special grounds are required before the media can be dispensed from their
ordinary obligation to verify factual statements that are defamatory of private
individuals. Whether such grounds exist depends in particular on the nature and
degree of the defamation in question and the extent to which the media can
reasonably regard their sources as reliable with respect to the allegations
(see Lindon, Otchakovsky-Laurens and July v.
France [GC], nos. 21279/02 and 36448/02, § 67,
ECHR 2007-..., and Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, §
78, ECHR 2004-XI).
. The
Court observes that the applicants were found civilly liable for disseminating
a statement, which they had been unable to prove, to the effect that the
collector of funds for a regional cultural project might misappropriate the
collected funds and spend them on his lovers.
The main dispute between
the parties related to whether the contested statement concerned the plaintiff.
The Court has repeatedly stated that for an interference with the right
to freedom of expression to be proportionate to the legitimate aim of the
protection of the reputation of others, the existence of an objective link
between the impugned statement and the person suing for defamation is a
requisite element. Mere personal conjecture or a subjective perception of a
statement as defamatory does not suffice to establish that the person was
directly affected by it. There must be something in the circumstances of a
particular case to make the ordinary reader feel that the statement reflected
directly on the individual claimant or that he was targeted by the criticism
(see Filatenko v. Russia, no. 73219/01, § 45, 6 December 2007, and Dyuldin and Kislov v. Russia, no. 25968/02, § 44, 31 July 2007).
. The
Court notes that the question whether there was an objective link between the
impugned statement and the plaintiff Mr P. was extensively debated in the
domestic proceedings. After hearing the parties, analysing the title, structure
and contents of the impugned article, and studying how it was understood by
other newspapers, the courts found that the statement was directed at Mr P.
(see paragraphs 29 and 36 above). The Court does not see any reason to depart
from that finding. It is true that the collector of funds was not mentioned by
name and that Mr P. did not officially perform that function, as the funds were
formally collected by the local administration. However, when read in context,
in particular in conjunction with the article’s title and such statements as “the
Chief Federal Inspector’s Office literally pestered them with offers to become
sponsors”, the contested statement might convey to an ordinary reader the
impression that it was the Chief Federal Inspector Mr P. who was the collector
of funds referred to in the contested statement. Indeed, that was the
interpretation made by a number of the local newspapers, which also understood
that the contested statement was directed at Mr P. The Court therefore accepts
the finding of the domestic courts that the applicant had disseminated a
statement that the plaintiff Mr P. might spend public funds on his lovers.
. The
Court considers it regrettable that the domestic courts did not express any opinion
as to whether the above statement constituted a factual allegation or a value
judgment before holding the applicants liable for their failure to prove its
veracity. The Court finds it difficult to determine whether that
statement was a statement of fact or a value judgment. The use of the modal
verb “might” suggests that it was a supposition rather than a statement of
fact. Indeed, from a grammatical point of view, modality deals
with uncertainties and attitudes, rather than certainties and facts. However,
it is not necessary to determine this issue because, 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 Jerusalem v. Austria,
no. 26958/95, § 43, ECHR 2001-II).
The Court notes that the applicants
never endeavoured to establish a sufficiently accurate and reliable factual
basis for their allegation that Mr P. had lovers and might spend public funds
on them. Although the second applicant claimed that he had obtained that
information from some, unnamed, businessmen he knew (see paragraph 27 above),
he never attempted to verify the rumours. The Court reiterates in this
connection that even public figures may legitimately expect to be protected
against the propagation of unfounded rumours relating to their private life (see Standard Verlags
GmbH v. Austria (no. 2), no. 21277/05 § 53, 4 June 2009). Given that the applicants were unable to adduce sufficient
evidence in support of their allegations, the Court considers that they
disseminated unverified information about Mr P.’s alleged involvement in
extramarital affairs and a gratuitous accusation of misappropriation of public
funds. The Court sees no reason to disagree with the domestic courts’
assessment that the contested statement was of such a nature and gravity as to
be capable of causing considerable harm to the reputation of Mr P. It therefore
finds the statements about Mr P.’s private life and his alleged mismanagement
of public funds frivolous and unfounded. The applicants must be therefore taken
to have gone beyond the limits of responsible journalism set out in
paragraph 60 above.
. Finally,
in assessing the proportionality of an interference, the nature and severity of
the penalties imposed are also factors to be taken into account (see Skałka v. Poland, no. 43425/98, § 38, 27 May 2003).
In this connection, the Court notes that the amount of damages the applicants were
ordered to pay to the plaintiff does not appear excessive.
. In
the light of these considerations, it cannot be said that the decisions of the
domestic courts overstepped the margin of appreciation afforded to them. Thus,
the Court accepts that the interference complained of was not disproportionate
to the legitimate aim pursued and can therefore be considered “necessary in a
democratic society” within the meaning of Article 10 § 2 of the Convention.
. Accordingly,
there has been no violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants complained under Article 6 § 1 of
the Convention that the courts that examined the defamation claim against them
had been biased and that the principles of adversarial proceedings and equality
of arms had been breached. The relevant parts of Article
6 § 1 read as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent and impartial
tribunal ...”
A. Impartiality of the courts
The applicants submitted that Judge S., the only
professional judge in the formation examining the claims against the second
applicant, had been biased. Firstly, he had adjudicated the claims against the
first applicant and had already stated his position on the merits of the case.
In the applicants’ opinion, in order to maintain the appearance that his
position was consistent, Judge S. had to arrive at the same conclusions in
respect of the claims against the second applicant. Secondly, by resuming, of
his own motion, the case against the second applicant, Judge S. had acted in
the interests of the plaintiff, thereby demonstrating his prejudice against the
applicants.
The Government argued that the claims against
the author had been correctly and lawfully severed from the claims against the
editorial board. The editorial board had refused to reveal the identity of the
author of the impugned article and the courts had had no other choice but to
sever the claims. After the name of the author had been revealed and the
proceedings against him had resumed, there had been no procedural obstacles to
prevent Judge S., who had adjudicated the claims against the editorial board, from
examining the claims against the author. Under domestic law there were no
grounds for objecting to Judge S.
The Court reiterates that impartiality
normally denotes the absence of prejudice or bias, and its existence or
otherwise can be tested in various ways. The Court has thus distinguished
between a subjective approach, that is, endeavouring to ascertain the personal
conviction or interest of a given judge in a particular case, and an objective
approach, that is, determining whether he or she offered sufficient guarantees
to exclude any legitimate doubt in this respect (see, among many other
authorities, Gautrin and Others v. France, 20 May 1998, § 58, Reports of
Judgments and Decisions 1998-III, and Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII).
. As
to the subjective test, the personal impartiality of a judge must be presumed
until there is proof to the contrary (see Padovani
v. Italy, 26 February 1993, § 26, Series
A no. 257-B). In the instant case, the judge’s subjective impartiality
was not disputed by the parties.
. As
to the objective test, when applied to a single judge or a body sitting as a
bench, it means determining whether, quite apart from the personal conduct of the
judge or of any of the members of the judicial bench, there are ascertainable
facts which may raise doubts as to the judge’s or the bench’s impartiality. In
this regard, even appearances may be of some importance. What is at stake is
the confidence which the courts in a democratic society must inspire in the
public. It follows that when it is being decided whether in a given case there
is a legitimate reason to fear that a particular judge or judicial bench lacks
impartiality, the standpoint of those claiming that the judge or the bench is
not impartial is important but not decisive. What is decisive is whether the
fear can be held to be objectively justified (see Gautrin
and Others and Kyprianou, both cited above, § 58 and
§ 118 respectively).
. In
the present case, the fears of bias stemmed principally from the fact that
Judge S., one of the three judges on the bench examining the claims against the
second applicant, had already stated his position that the contested statements
were defamatory in the case against the first applicant. The Court accepts that
that situation could raise doubts about the impartiality of Judge S. in the
applicants’ mind. It has thus to decide whether those doubts were objectively
justified.
. The
Court has found in a number of cases that the involvement of the same
judge in two sets of the proceedings concerning the same events may, under
certain circumstances, cast doubts on that judge’s impartiality (see, for
example, Ferrantelli and Santangelo v. Italy, 7 August 1996, § 59, Reports
1996-III, and Rojas Morales v. Italy, no. 39676/98, § 33,
16 November 2000, where a violation of Article 6 § 1 was found because a
judge sitting in a criminal case had earlier tried a co-accused; and, by
contrast, Schwarzenberger v. Germany, no. 75737/01, §§ 37 et
seq., 10 August 2006; Martelli v. Italy (dec.), no. 20402/03,
12 April 2007, and Poppe v. the Netherlands, no. 32271/04, §§ 22
et seq., 24 March 2009, where no violation of Article 6 § 1 was found in
similar circumstances; see also Fatullayev
v. Azerbaijan, no. 40984/07, §§ 135-140,
22 April 2010, where the same judge examined
questions of both civil liability and criminal liability arising from the same
facts).
At the same time, the Court reiterates that the
mere fact that the same judge adjudicated two sets of proceedings arising out
of the same events is not, in itself, sufficient to undermine that judge’s
impartiality, and that the answer to the question whether an applicant’s fears are
objectively justified depends on the circumstances and the special features of
each particular case (see Schwarzenberger, cited above, § 42; Poppe,
cited above, § 26; see also Delage and Magistrello v. France (dec.), no. 40028/98, 24 January 2002; Lindon,
Otchakovsky-Laurens and July, cited above, §§ 78-80; and Cañas Gómez v. Spain (dec.), no. 17455/09, § 25, 4 September 2012, all concerning
involvement of the same judge in two civil cases arising out of the same
events).
Turning to the circumstances of the present
case, the Court notes that the plaintiff Mr P. submitted claims simultaneously
against the editorial board of the newspaper and the author of the contested article,
whose identity was unknown. The case was attributed to Judge S. Given that the
first applicant, the editorial board of the newspaper, refused to disclose the
identity of the author, Judge S. severed the claims against the author for
adjudication in separate proceedings and stayed those proceedings. After the
pronouncement by Judge S., on 13 September 2002, of the judgment against
the first applicant, and while the appeal against that judgment was pending,
the second applicant disclosed that he was the author of the article.
Immediately after that, Judge S. resumed the proceedings against the author. On
3 October 2002 Judge S., presiding over a bench of two lay assessors, issued
the judgment against the second applicant. The two sets of proceedings were
then joined and examined simultaneously by the appeal court.
In order to determine whether the involvement of
Judge S. in the proceedings against the second applicant after he had
participated in the proceedings against the first applicant casts objectively
justified doubts on his impartiality, the Court must take into account the
following circumstances: the nature and extent of Judge
S.’s functions during both sets of proceedings; whether the text of the
judgment against the first applicant contained any statements concerning
the second applicant and created the impression that Judge S. considered the
second applicant liable for defamation; and whether, in the course of the
proceedings against the second applicant, Judge S. gave fresh consideration to
the case, taking into account the new evidence submitted by the second
applicant (see Ferrantelli and Santangelo, cited above, § 59; Rojas
Morales, cited above, § 33; Delage and Magistrello, cited above; Schwarzenberger,
cited above, §§ 43 and 44; Martelli,
cited above; Lindon,
Otchakovsky-Laurens and July, cited above, § 78; Poppe, cited above,
§§ 27 and 28; and Cañas Gómez, cited above, § 26).
The Court notes that in the judgment of 13
September 2002 Judge S. found, on the basis of the evidence available to him at
that time, that the first applicant was liable for defamation because it had
failed to prove the truthfulness of the allegations published by it. He did not
make any findings as to the liability of the author of the article. Nor did he
use any expressions which might create the impression that he had formed any opinion
as to the liability of the author (see paragraph 20 above).
Further, the Court observes that when examining
the claims against the second applicant, Judge S. was in no way bound by his
first decision, which was not yet final. Indeed, the judgment of 3 October
2002 against the second applicant did not contain any references to the
judgment of 13 September 2002. Judge S. gave fresh consideration to the
entire case, in adversarial proceedings, with the benefit of the more
comprehensive information obtainable from the second applicant, the author of
the contested article. The second applicant was free to advance new legal
arguments or submit evidence showing that the impugned statement authored by
him had had a sufficient factual basis or was otherwise justified. As can be
seen from the text of the judgment of 3 October 2002, the judge took such new
arguments and evidence into account when deciding whether the second applicant
was liable for defamation (see paragraph 29 above).
In view of the above, the Court does not see any
reason to suspect that Judge S., a professional judge who possessed the
necessary experience and training to allow him to judge a particular dispute fairly
on the basis of its own circumstances (see, mutatis mutandis, Craxi
v. Italy (no. 1), no. 34896/97, § 104, 5 December 2002), was
prejudiced against the second applicant because of his previous involvement in
the proceedings against the first applicant. As Judge S. never made any
statements implying that he had formed an unfavourable opinion of the second
applicant’s case before presiding over the court that had to decide it, the
presumption of impartiality cannot be said to have been rebutted.
Finally, it is relevant that when examining the
claims against the second applicant, Judge S. was not sitting in a single-judge
formation but was assisted by two lay assessors whose impartiality the
applicants did not question (see, mutadis mutandis, Diennet v. France,
26 September 1995, § 38, Series A no. 325-A).
Consequently, any doubts the applicants may have
had as regards the impartiality of Judge S. cannot be held to be objectively
justified.
There has therefore been no violation of Article
6 § 1 of the Convention as regards the impartiality of the courts.
B. Equality of arms
The applicants further submitted that the
judgment of 13 September 2002 had been given against the editorial board of
the Gubernskie Vesti newspaper. However, on 19 September 2002, six days
after the pronouncement of the judgment, the first applicant had been made a
defendant by an interim decision issued in its absence. The substitution of a
defendant, disguised as the rectification of a clerical error, had resulted in
a violation of the applicants’ procedural rights. The applicants had been
absent from the hearing of 13 September 2002 and had been given no
opportunity to present their case or submit evidence to the District Court.
Counsel, who had attended the hearing of 13 September 2002, had
represented the interests of the editorial board of the Gubernskie Vesti newspaper.
That the first applicant had subsequently retained the same counsel to
represent it before the Appeal Court could not remedy the disadvantage created
on 13 September 2002. The fact remained that, at the crucial
first-instance hearing, the applicants had been absent and unrepresented and
had been deprived of an opportunity to defend their position and comment on the
plaintiff’s claims.
The Government submitted that the first
applicant’s representatives had participated in the defamation proceedings from
the beginning and had been present at the hearing of 13 September 2002. In
support of their submissions, they produced a power of attorney signed by a
deputy editor-in-chief of the first applicant on 9 September 2002 appointing Mr
K. and Mr R. to act as the first applicant’s counsel in the defamation
proceedings (see paragraph 15 above). They also produced materials from the
case file showing that all written pleadings had been submitted on behalf of
the first applicant rather than on behalf of the editorial board of the Gubernskie
Vesti newspaper. They also referred to the decision of 24 December 2002 by
the Regional Court which found that the judgment of 13 September 2002 had
defined the rights of, and imposed obligations on, the first applicant because
no other organisation had been involved in the proceedings. The naming of the
editorial board of the Gubernskie Vesti newspaper as the defendant had
been no more than a clerical mistake.
The Court reiterates that it is central to the concept of a fair trial, in civil as in
criminal proceedings, that a litigant is not denied the opportunity to present
his or her case effectively before the court and that he or she is able to
enjoy equality of arms with the opposing side (see Steel and Morris v. the United Kingdom,
no. 68416/01, § 59, ECHR 2005-II). The principle of adversarial
proceedings and equality of arms requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made or
evidence adduced by the other party and to present its case under conditions
that do not place it at a substantial disadvantage vis-à-vis its opponent (see Krčmář and Others v. the Czech
Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands,
27 October 1993, § 33, Series A no. 274).
Article 6 § 1
leaves to the State a free choice of the means to be used in guaranteeing
litigants these rights (see Steel and
Morris, cited above, § 60). Thus, given that Article 6 of the
Convention does not guarantee a right to personal presence before a civil
court, representation may be an appropriate solution in cases where a party
cannot appear in person (see Gryaznov v. Russia, no. 19673/03, § 45, 12 June 2012).
90. Turning to the citcumstances of the
present case, the Court notes that the applicants’ assertion that the first
applicant was neither present nor represented at the hearing of 13 September
2002 is refuted by the documents in the case file. It is clear from the materials
in the Court’s possession that from 9 September 2002, that is, from the very beginning of the defamation
proceedings, the first applicant was represented by counsel Mr K. and Mr R.
(see paragraph 15 above).
They submitted written pleadings on the first applicant’s behalf and
participated in all hearings, including the hearing of 13 September 2002 and
the appeal hearings, where they made submissions on behalf of the first
applicant. The applicants’ allegation that Mr K. and Mr R. acted on behalf of the
editorial board of the Gubernskie Vesti newspaper does not
therefore find confirmation in the case file.
91. Moreover, the Court has already
found that the first applicant and the editorial board of the Gubernskie
Vesti newspaper were one and the same entity (see paragraphs 53 to 55 above). It is therefore not persuaded by the
applicants’ argument that the interim decision of 19 September 2002 was the substitution
of a defendant in disguise. It is convinced by the domestic court’s finding
that “the judgment of 13 September 2002 defined the rights of, and imposed
obligations on, the first applicant, because no other organisation had been
involved in the proceedings” (see paragraph 35 above). The amendment of the
defendant’s name was therefore no more than a rectification of a clerical error,
correcting a misspelling of the name of the first applicant, which acted as the editorial board of the Gubernskie
Vesti newspaper and which had effectively participated as a defendant in
the defamation proceedings from their beginning.
The Court concludes that the first applicant’s representatives
participated throughout the defamation proceedings and the first applicant was
therefore given an effective opportunity to present its case by commenting on
the plaintiff’s claims, making submissions and adducing evidence.
93. As regards the second applicant’s
absence from the hearing of 13 September 2002, it is significant that he
was informed in advance about that hearing. He was therefore given a reasonable
opportunity to arrange either for his personal presence or for representation
by counsel. However, he failed to act with reasonable diligence and take the
necessary steps to ensure that his case was effectively presented before the
court (see, for similar reasoning, Milovanova v. Ukrain (dec.), no. 16411/03, 2 October 2007, and Belan v. Russia (dec.), no. 56786/00,
2 September 2004). It is also relevant that the second applicant was personally
present and represented by counsel at the hearing of 2 October 2002 and at all
appeal hearings.
94. In view of the above, the Court
finds that the applicants were given a reasonable opportunity to present their case effectively before the courts and were able to
enjoy equality of arms with the opposing side.
There has been therefore no violation of Article
6 § 1 of the Convention as regards the principles of adversarial proceedings
and equality of arms.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of
Article 10 of the Convention;
2. Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the alleged partiality of the
courts;
3. Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the principles of adversarial
proceedings and equality of arms.
Done in English, and notified in writing on 30 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
