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Решения Европейского Суда по делам
против России
На русском
FIRST SECTION
CASE OF
GRINBERG v. RUSSIA
(Application no. 23472/03)
JUDGMENT
STRASBOURG
21 July 2005
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 Grinberg v.
Russia,
The European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mr C.L.
Rozakis,
President,
Mr P.
Lorenzen,
Mrs N.
Vajić,
Mrs S.
Botoucharova,
Mr A.
Kovler,
Mrs E.
Steiner,
Mr K.
Hajiyev,
judges,
and Mr S.
Quesada,
Deputy Section
Registrar,
Having deliberated in private on 30 June 2005,
Delivers the following judgment, which was adopted on
that date:
PROCEDURE
1. The case originated in an application (no. 23472/03)
against the Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Isaak Pavlovich
Grinberg, on 23 June 2003.
2. The applicant was represented before the Court by Ms
L. Yemelyanenkova, a lawyer practising in Ulyanovsk. The Russian Government (“the
Government”) were represented by their Agent, Mr P. Laptev, Representative of
the Russian Federation at the European Court of Human Rights.
3. The applicant alleged a violation of his right to
express opinions, guaranteed by Article 10 of the Convention.
4. The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
5. By a decision of 28 October 2004, the Court declared
the application admissible.
6. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly composed
First Section (Rule 52 § 1).
7. Neither the applicant nor the Government filed
observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1937 and lives in Ulyanovsk.
9. On 6 September 2002 the
Guberniya
newspaper published a piece written and signed by the applicant. The entire text
of the piece, entitled “[My] statement” («Заявление»),
read as follows:
“The voting ballots were still being counted, but it was
already clear that General V.A. Shamanov had been elected Governor of the
Ulyanovsk Region. That very night he made the following verbatim statement: 'Let
me tell you bluntly and frankly – the local press has to be dealt with
thoroughly'.
During his electoral campaign General [Shamanov] made
many promises to the residents of Ulyanovsk. But, in my opinion, he has kept
only one: [he is] 'waging war' against the independent press, against
journalists. The judicial proceedings in Shamanov's action against the highly
talented Ulyanovsk journalist Dyomochkin are still pending. But the criminal
prosecution of a journalist is exceptional. Yulia Shelamydova, editor-in-chief
of the Simbirskiye
Izvestia newspaper, has been sentenced to one year of correctional labour.
Let us leave aside the legal aspects of that case: the full text of the court
judgment has not yet been published and I hope there will be many more judicial
proceedings, not only in Ulyanovsk, but also in Moscow. But there is a moral
dimension to this case. How can three robust men, of whom two are Generals and
one is a Hero of Russia, wage a battle against a woman who is still a young girl!
This brings to mind Shamanov's support for Colonel Budanov, who killed a
18-year-old [Chechen] girl. No shame and no scruples!”
(“Еще шел подсчет голосов, но было уже ясно: губернатором
Ульяновской области избран генерал Шаманов В.А. Этой же ночью он заявил
буквально следующее: «С местной прессой, прямо и откровенно скажу, предстоит
детально разобраться».
Во время избирательной кампании генерал обещал ульяновцам
много. Но выполнил, с моей точки зрения, только одно: «воюет» с независимой
прессой, с журналистами. Еще продолжаются суды по иску Шаманова В.А. к
талантливейшему журналисту – ульяновцу Демочкину Г.А. Но преследование
журналиста в уголовном порядке – это уникальный случай. Юлия Шеламыдова –
главный редактор газеты «Симбирские известия» - осуждена на год
исправительно-трудовых работ. Оставим пока в стороне юридический аспект этого
дела: еще не опубликован полный текст решения суда, по этому поводу будет,
надеюсь, еще много судов, причем не только в Ульяновске, но и в Москве. Но есть
моральный аспект в этом деле. Как могут три здоровых мужика, из которых два –
генерала, в том числе один – даже герой России, «воевать» с женщиной, более того
– с молоденькой девчонкой! Почему-то вспоминается поддержка Шамановым В.А.
полковника Буданова, убившего
18-летнюю девушку. Ни стыда, ни совести!”)
10. On 10 September 2002 Mr Shamanov brought a civil
defamation action against the applicant, the editor's office and the newspaper's
founder – the Fund for Assistance to Disenfranchised Communities
Goryachev-Fond
(“the Fund”). He claimed that the assertion alleging that he had no shame and no
scruples was untrue and damaging to his honour and reputation. He sought 500,000
roubles ((RUR), approximately 20,000 euros (EUR)) in compensation for
non-pecuniary damage.
11. On 14 November 2002 the Leninskiy District Court of
Ulyanovsk found for the plaintiff. The court held as follows:
“In the article the author asserts that Shamanov,
Governor of the Ulyanovsk Region, has no shame and no scruples. The very tenor
of the article confirms that the contested statements contain precisely such an
assertion. [The applicant's] assertion in this article that the plaintiff has no
shame and no scruples is clearly damaging because it impairs his honour, dignity
and professional reputation... The [applicant] did not produce before the court
any evidence showing the truthfulness of that statement about the plaintiff...”
The court ruled:
“... the statement to the effect that the plaintiff has
no shame and no scruples, published in [the applicant's] piece... [is] untrue
and damaging to Shamanov's honour, dignity and professional reputation”.
12. The court held the Fund liable for RUR 5,000 (EUR
200) and the applicant liable for RUR 2,500 (EUR 100) in respect of
non-pecuniary damage to the plaintiff. The Fund was also ordered to publish, by
way of rectification, the operative part of the judgment.
13. The applicant and the Fund lodged an appeal. The
applicant pointed out that the District Court had failed to distinguish
“opinions” from “statements”. He submitted that his right to hold and impart
opinions was guaranteed by Article 29 of the Russian Constitution and the
contested statement was his personal assessment of Mr Shamanov's actions.
Furthermore, he argued that the contested expression was an idiom in the Russian
language, and was commonly used to give an ethical appraisal of a person's deeds.
14. On 24 December 2002 the Ulyanovsk Regional Court
upheld the judgment of 14 November 2002. The court endorsed the conclusions of
the first-instance court and added:
“The arguments... about the court's confusion of the term
'opinions' and the term 'statements' (сведения)
cannot be taken into account because [the applicant's] opinion had been printed
in a public medium and from the moment of publication it became a statement.”
15. The applicant's subsequent attempts to initiate
supervisory review proceedings proved unsuccessful. On 22 August 2003 the
Supreme Court of the Russian Federation dismissed his application for the
institution of supervisory-review proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Constitution of the Russian Federation
16. Article 29 guarantees freedom of thought and
expression, together with freedom of the mass media.
Civil Code of the Russian Federation of 30
November 1994
17. Article 152 provides that an individual may apply to
a court with a request for the rectification of “statements” (“сведения”)
that are damaging to his or her honour, dignity or professional reputation if
the person who disseminated such statements does not prove their truthfulness.
The aggrieved person may also claim compensation for losses and non-pecuniary
damage sustained as a result of the dissemination of such statements.
Resolution no. 11 of the Plenary Supreme Court of the Russian Federation of 18
August 1992 (amended on 25 April 1995)
18. The Resolution (in force at the material time)
provided that, in order to be considered damaging, statements (“сведения”)
had to be untrue and contain allegations of a breach, by a person or legal
entity, of laws or moral principles (commission of a dishonest act, improper
behaviour at the workplace or in everyday life, etc.). Dissemination of
statements was understood as the publication of statements or their broadcasting,
inclusion in professional references, public speeches, applications to State
officials and communication in other forms, including oral, to at least one
another person (section 2).
19. Section 7 of the Resolution governed the
distribution of the burden of proof in defamation cases. The plaintiff was to
show that the statements had indeed been disseminated by the defendant. The
defendant was to prove that the disseminated statements had been true and
accurate.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
20. The applicant complained under Article 10 of the
Convention about a violation of his right to impart information and ideas.
Article 10 provides 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...
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...”
A. Arguments by the parties
21. The applicant submitted that the article at issue
had been part of an on-going political debate. He emphasised that Mr Shamanov
had not challenged the facts on which the article had been based and that the
contested sentence had assessed the latter's deeds rather than his personality.
Furthermore, the applicant submitted that the Russian idiom in question was a
typical value judgment, not susceptible of proof or refutation. It was an
ethical appraisal and one person's opinion about the deeds of another,
universally perceived as a value judgment and not as a statement of fact.
22. The Government submitted that, pursuant to Article
152 of the Civil Code, it was incumbent on the applicant to show that the
information had been true, and he had failed to satisfy the burden of proof.
They conceded that there had been an interference with the applicant's right to
freedom of expression and that the article had concerned the governor's
relations with the press, a subject which could be considered a matter for
political debate. However, they maintained that the contested statement had
referred to Mr Shamanov's personality rather than to his political activities
and that the applicant could have couched his criticism in different terms
without resorting to the defamatory assertion that Mr Shamanov had “no shame and
no scruples”. The Government considered that the interference had been justified
and necessary in a democratic society for the protection of the reputation and
rights of others.
B. The Court's assessment
1. General principles
23. According to the Court's well-established case-law,
freedom of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress and each
individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is
applicable not only to “information” or “ideas” that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no “democratic society” (see
Handyside v. the
United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23,
§ 49; and Jersild
v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26,
§ 37).
24. The press fulfils an essential function in a
democratic society. Although it must not overstep certain bounds, particularly
as regards the reputation and rights of others and the need to prevent the
disclosure of confidential information, its duty is nevertheless to impart – in
a manner consistent with its obligations and responsibilities – information and
ideas on all matters of public interest (see
De Haes and Gijsels
v. Belgium, judgment of 24 February 1997,
Reports of Judgments
and Decisions 1997-I, pp. 233-34, § 37; and Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). Not only
does it have the task of imparting such information and ideas: the public also
has a right to receive them. Were it otherwise, the press would be unable to
play its vital role of “public watchdog” (see
Thorgeir Thorgeirson
v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 28, § 63).
Journalistic freedom covers possible recourse to a degree of exaggeration, or
even provocation (see
Prager and Oberschlick v. Austria (no. 1),
judgment of 26 April 1995, Series A no. 313, p. 19, § 38). This freedom
is subject to the exceptions set out in Article 10 § 2, which must, however, be
construed strictly. The need for any restrictions must be established
convincingly.
25. 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
Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).
Moreover, the limit of acceptable criticism is wider with regard to a politician
acting in his public capacity than in relation to a private individual, as the
former inevitably and knowingly lays himself open to close scrutiny of his every
word and deed by both journalists and the public at large, and he must display a
greater degree of tolerance. A politician is certainly entitled to have his
reputation protected, even when he is not acting in his private capacity, but
the requirements of that protection have to be weighed against the interests of
the open discussion of political issues (see
Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26,
§ 42).
2. Application to the present case
26. The Court notes that it is common ground between the
parties that the judgments pronounced in the defamation action constituted an
“interference” with the
applicant's
right to freedom of expression as protected 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, for the purposes of Article 10 § 2. The dispute
in the case relates to whether the interference was “necessary in a democratic
society”.
27. The test of necessity in a democratic society
requires the Court to determine whether the “interference” complained of
corresponded to a “pressing social need”, whether it was proportionate to the
legitimate aim pursued and whether the reasons given by the national authorities
to justify it were relevant and sufficient. In assessing whether such a “need”
exists and what measures should be adopted to deal with it, the national
authorities are left a certain margin of appreciation. This power of
appreciation is not however unlimited, but goes hand in hand with a European
supervision by the Court, whose task it is to give a final ruling on whether a
restriction is reconcilable with freedom of expression as protected by Article
10. The Court's task in exercising its supervisory function is not to take the
place of the national authorities, but rather to review under Article 10, in the
light of the case as a whole, the decisions they have taken pursuant to their
margin of appreciation. In so doing, the Court has to satisfy itself that the
national authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they based their decisions
on an acceptable assessment of the relevant facts (see
Dichand and Others v. Austria, no. 29271/95, § 38, 26 February 2002).
28. One factor of particular importance for the Court's
determination in the present case is the distinction between statements of fact
and value judgments. The domestic courts held the applicant liable for his
failure to prove the truthfulness of his assertion that Mr Shamanov had “no
shame and no scruples”.
29. The Court notes that the Russian law on defamation,
as it stood at the material time, made no distinction between value judgments
and statements of fact, as it referred uniformly to “statements” («сведения»)
and proceeded from the assumption that any such statement was amenable to proof
in civil proceedings (see paragraphs 17 and 18 above). Irrespective of the
actual contents of the “statements”, the person who disseminated the
“statements” had to satisfy the courts as to their truthfulness (see, in
particular, section 7 of the Resolution of the Plenary Supreme Court, paragraph
19 above). Having regard to these legislative provisions, the domestic courts
did not embark on an analysis of whether the applicant's contested statement
could have been a value judgment not susceptible of proof.
30. However, it has been the Court's constant view that,
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
Lingens, cited
above, § 46, and
Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no.
204, p. 27, § 63).
31. The Court considers the contested comment was a
quintessential example of a value judgment that represented the applicant's
subjective appraisal of the moral dimension of Mr Shamanov's behaviour. The
finding of the applicant's liability for the pretended damage to Mr Shamanov's
reputation was solely based on his failure to show that Mr Shamanov had indeed
lacked “shame and scruples”. This burden of proof was obviously impossible to
satisfy.
32. It is also relevant for the Court's assessment that
the contested statement was made in the context of an article concerning an
issue of public interest, that of freedom of the media in the Ulyanovsk region.
It criticised the conduct of the regional governor, elected by a popular vote -
in other words, a professional politician in respect of whom the limits of
acceptable criticism are wider than in the case of a private individual (see
paragraph 25 above). The facts which gave rise to the criticism were not
contested and the applicant expressed his view in an inoffensive manner.
33. The domestic courts did not convincingly establish
any pressing social need for putting the protection of the politician's
personality rights above the applicant's right to freedom of expression and the
general interest in promoting this freedom where issues of public interest are
concerned. In particular, it does not appear from the domestic courts' judgments
that the applicant's statement affected Mr Shamanov's political career or his
professional life.
34. In conclusion, the Court finds that the Russian
authorities overstepped the margin of appreciation afforded to member States
under the Convention. Accordingly, the interference complained of was not
“necessary in a democratic society” within the meaning of Article 10 § 2 of the
Convention.
35. There has therefore been a
violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
36. 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
37. The applicant claimed 10,000 euros (EUR) in respect
of compensation for pecuniary and non-pecuniary damage.
38. The Government contested the claim. In their view, a
finding of a violation would constitute sufficient just satisfaction.
39. The Court finds that in the circumstances of the
case there is a causal link between the violation found and the alleged
pecuniary damage insofar as the applicant refers to the amount which he had to
pay to Mr Shamanov under the domestic judgments. Moreover, some pecuniary loss
must have been occasioned on account of the period that elapsed from the time
when the above amount was paid until the Court's award (see
Dichand and Others,
cited above, § 62, with further references). Consequently, the Court awards the
applicant EUR 120 in respect of the pecuniary damage, plus any tax that may be
chargeable on that amount.
40. The Court accepts that the applicant has also
suffered non-pecuniary damage – such as distress and frustration resulting from
the judicial decisions incompatible with Article 10 – which is not sufficiently
compensated by the finding of a violation of the Convention. However, it finds
the particular amount claimed by the applicant excessive. Making its assessment
on an equitable basis, the Court awards the applicant EUR 1,000 under this head,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
41. The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
42. 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
1. Holds
that there has been a violation of Article 10 of the Convention;
2. 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 120 (one hundred twenty euros) in respect
of the pecuniary damage;
(ii) EUR 1,000 (one thousand euros) in respect of
the non-pecuniary damage;
(iii) any tax that may be chargeable on the above
amounts;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
3. Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 21
July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Christos
Rozakis
Deputy Registrar President
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