CASE OF KHARLAMOV v. RUSSIA
(Application no. 27447/07)
8 October 2015
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 Kharlamov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 15 September 2015,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (no. 27447/07) 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 Vladimir Fedorovich Kharlamov (“the applicant”), on 7 May 2007.
2. The applicant was represented before the Court by Mr V. Suchkov, a lawyer practising in Orel. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged a violation of his right to freedom of expression.
4. On 12 September 2012 the application was communicated to the Government.
5. The applicant was born in 1948 and lives in Orel. At the time of the events the applicant, a Ph.D. in Physics and Mathematics, was a tenured professor in the physics department of the Orel State Technical University.
I. THE CIRCUMSTANCES OF THE CASE
6. By Order no. 383 of 14 December 2006, the president (ректор) of the Orel State Technical University convened a university-wide conference for the election of the university’s academic senate (ученый совет), its standing governing body. The date of the conference was fixed for 26 December 2006. According to the Regulation on the Composition of the Academic Senate of the Orel University, candidates to the senate were to be nominated at staff meetings in structural entities by open majority vote (section 3 of the Regulation of 12 December 2006).
7. Unhappy about the fact that neither he nor his colleagues in the physics department had been consulted or informed about the nomination and discussion of candidates to the academic senate, the applicant took the floor at the above public conference and spoke as follows:
“... the elected academic senate may not be considered a legitimate body and its decisions likewise cannot be considered legitimate. All of them can be challenged in courts. The problem is that the staff or departments did not know anything about the candidates to the academic senate or of their academic achievements; no one nominated those candidates. This is some kind of a private party that is going on, some people have gathered and elected themselves. My rights have been violated: I, as a member of the faculty, have been excluded from the procedure which is of great importance both for me and for the university as a whole - the election of the academic senate. My rights have been breached, and I will complain to courts about the breaches of my rights. The rights of ordinary university employees, ordinary lecturers, have been breached, too: they were removed from the election to the academic senate, this is discrimination. Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.”
8. The Orel University sued the applicant in defamation, claiming that his speech had undermined the professional reputation of the university and of its academic senate. The statement of claim was signed by the university president.
9. The Sovetskiy District Court of Orel reviewed the university statutes and regulations on the procedure for the election of the academic senate and took oral evidence from witnesses. Four witnesses testified that the physics department had not held a meeting for the election of delegates to the conference or nomination of candidates to the senate because the delegates and candidates had been elected and nominated at the meeting between the heads of departments. The staff had been informed about the meeting several days in advance and anyone could attend it.
10. By judgment of 27 February 2007, the District Court found the applicant liable for defamation of the Orel University and its academic senate. According to the judgment, the applicant “publicly accused [them] of a violation of applicable laws [and] commission of a dishonest act”. It also held as follows:
“The court cannot agree with the respondent party’s argument that the statements [he had] disseminated at the conference were an expression of an opinion. The statements were made in the affirmative form which is apparent from the minutes of the conference of 26 December 2006, the audio recording of the conference, and testimony by witnesses. The witnesses K. and Sh. who had attended the conference on 26 December 2006 explained that they understood the statements as an affirmation which produced a negative impression on them ...
Every legal entity has the right to require that a public appraisal of its activities reflect the real state of affairs. Any negative appraisal of the activities of a legal entity affects its reputation and undermines it. The activity of a legal entity can only be potentially successful if its business reputation in the eyes of other organisations and ordinary citizens is maintained at a certain level, especially in a market economy.”
11. The District Court awarded the Orel University 20,000 Russian roubles (RUB) in damages and RUB 2,000 in court fees and directed that the applicant read the refutation at the following university conference.
12. The applicant filed an appeal, relying in particular on Article 10 of the Convention. He also pointed out that the award in respect of damages exceeded his monthly salary.
13. On 11 April 2007 the Orel Regional Court upheld the District Court’s judgment on the merits but partly amended it. Firstly, it considered that the sentences “All of them can be challenged in courts ... Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.” did not contain any statements about the plaintiff and could not therefore be damaging for its reputation. Secondly, it noted that the sentence “no one nominated those candidates [in the departments]” was actually true because candidates had been nominated at the meetings of department heads. Thirdly, the Regional Court considered it appropriate that the operative part of the District Court’s judgment be read out at the following conference by the president rather than by the applicant. Finally, it offered a more nuanced characterisation of the disputed phrases as a statement of fact:
“Mr Kharlamov’s speech contained a statement of fact: the elected academic senate may not be considered a legitimate body and all of its decisions are likewise illegitimate, in other words, the academic senate was unlawfully elected and its decisions are unlawful. This is a verifiable statement. Accordingly, this information is not a subjective opinion of the defendant but a factual allegation.”
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
14. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
B. Civil Code of the Russian Federation
15. Article 152 provides that an individual may apply to a court with a request for the rectification 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.
C. Resolution of the Plenary Supreme Court of the Russian Federation no. 3 of 24 February 2005
16. The Resolution requires the courts hearing defamation claims to distinguish between the statements of facts which can be checked for veracity and evaluative judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code, being an expression of the defendant’s subjective opinion and views that cannot be checked for truthfulness (paragraph 15 above).
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
17. The applicant complained under Article 10 of the Convention about a violation of his right to freedom of expression in connection with the defamation proceedings brought against him by the Orel State University. Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Submissions by the parties
19. The Government accepted that the domestic judgments constituted an interference with the applicant’s right to freedom of expression. That interference had a lawful basis in Article 152 of the Civil Code and pursued a legitimate aim of the protection of the reputation of others.
20. According to the Government, the District Court drew a clear distinction between value judgments and statements of fact. Thus, it correctly considered that the applicant’s statement about “illegitimacy” of the academic senate was a statement of fact as it amounted to an assertion that the elected academic body had been composed in breach of the applicable regulations. They further insisted that the academic senate elections had been run in full compliance with the internal regulations of the University and that the applicant had no factual basis to make the impugned statement.
21. The applicant submitted that the interference was unlawful as his statement did not fall within the scope of Article 152 of the Civil Code (see paragraph 15 above). He argued that his speech at the conference of 26 December 2006 was an expression of personal opinion rather than “dissemination of statements”, as envisaged by this provision of the Civil Code.
22. He further argued that the impugned statement was merely an expression of his personal opinion based on facts known to him concerning designation of candidates to the academic senate elections. When deciding on the defamation claim, the District Court failed to distinguish between a statement of fact and a value judgment and disregarded the testimonies of four witnesses called by the applicant (see paragraph 9 above).
2. Assessment by the Court
23. It is common ground between the parties that the District Court’s judgment in the defamation proceedings constituted an interference with the applicant’s right to freedom of expression guaranteed by Article 10 § 1.
24. The Government submitted that the interference had a lawful basis; the applicant disagreed. The Court observes that the domestic courts relied on Article 152 of the Civil Code, which allowed the aggrieved party to seek the judicial protection of its reputation and claim compensation in respect of non-pecuniary damages, and the Plenary Supreme Court’s Resolution, which gave an authoritative guidance to the courts hearing defamation claims. The Court therefore finds that the interference was in accordance with law, within the meaning of Article 10 § 2 of the Convention.
25. Turning to the question of whether the interference pursued a legitimate aim, the Court reiterates that a measure proscribing statements criticising the acts or omissions of an elected body can be justified with reference to “the protection of the rights or reputations of others” only in exceptional circumstances (see Lombardo and Others v. Malta, no. 7333/06, § 50, 24 April 2007). In the instant case, the Court considers that the issue will be more appropriately dealt with in the analysis of the proportionality of the interference.
26. 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, among many other authorities, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV). In carrying out its supervisory role the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their margin of appreciation are compatible with the provisions of the Convention relied on (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 105, ECHR 2012, and Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).
27. In the present case the applicant expressed his views at an academic assembly open to all University staff. He was found civilly liable for his speech, and therefore the impugned interference must be assessed in the context of professional environment. The Court has previously observed that employees owe to their employer a duty of loyalty, reserve and discretion (see, for instance, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, and Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts)), and that in striking a fair balance the limits of the right to freedom of expression and the reciprocal rights and obligations specific to the professional environment must be taken into account (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 74, ECHR 2011). At the same time the Court does not lose sight of the academic context of the debate. The principle of open discussion of issues of professional interest must thus be construed as an element of a broader concept of academic autonomy which encompasses the academics’ freedom to express their opinion about the institution or system in which they work (see Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, § 40, 27 May 2014, and Sorguç v. Turkey, no. 17089/03, § 35, 23 June 2009). Therefore the Court must look at the interference in the light of the case as a whole, including the nature of the remarks held against the applicant and the professional and academic context in which he made them (see Palomo Sánchez and Others, cited above, § 70, and Lingens v. Austria, 8 July 1986, § 40, Series A no. 103).
28. The Court first observes that the applicant’s speech brought to light a matter of professional concern, namely opacity of the academic senate election. The composition of the ruling body of the University and the procedure for designation of candidates to the election are of central importance for the University staff, and discussion around these issues at a University-wide conference forms an integral part of the organisation of the academic life and self-governance. The debate was therefore not a purely private one. On the contrary, it took place in public and the issue raised by the applicant concerned a matter of general interest, which the applicant was entitled to bring to the attention of his colleagues (see Palomo Sánchez and Others, cited above, § 72, Rubins v. Latvia, no. 79040/12, § 84-85, 13 January 2015, and Boldea v. Romania, no. 19997/02, § 57, 15 February 2007).
29. According to the Court’s constant case-law, there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest and very strong reasons are required for justifying such restrictions (see Krasulya v. Russia, no.12365/03, § 38, 22 February 2007, with further references). In the present case there is no evidence that the domestic courts performed a balancing exercise between the need to protect the University’s reputation and the applicant’s right to impart information on issues of general interest concerning the organization of the academic life. They merely confined their analysis to the discussion of the damage to the plaintiff’s reputation (see paragraph 10 above) without giving any due consideration to the Convention standards described above. Neither did the domestic courts consider that the “dignity” of an institution cannot be equated to that of human beings. The Court considers that the protection of the University’s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). The Court therefore finds that the domestic courts did not take into account specific features of academic relations and failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of reputation (see Dyundin v. Russia, no. 37406/03, § 33, 14 October 2008).
30. Turning to the content of the applicant’s speech, the Court reiterates that a distinction must be drawn between the statements of fact, amenable to proof, and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible to proof (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997-I, and Lingens v. Austria, 8 July 1986, § 46, Series A no. 103). The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004-XI).
31. In the present case the domestic courts found that the applicant’s statement was untrue and that he had failed to discharge the burden of proof resting on him. The courts focused their attention on the applicant’s describing the elected senate as “illegitimate” and found, on the strength of the available evidence, that the academic senate elections had been run in full compliance with the applicable regulations (see paragraph 13 above). The Court observes at the outset that the thrust of the applicant’s speech was his severe discontent with the manner in which the academic senate had been elected. Seeking to attract his colleagues’ attention to the shortcomings in the election procedure, the applicant argued that the heads of department had failed to initiate any public discussion, and claimed that the election had been “in breach of the ordinary professors’ rights” because the candidates had been appointed directly by the heads of departments. The applicant has thus voiced his personal comment on a matter of public interest for the University staff while the domestic courts considered the applicant’s subjective appraisal of the election procedure to be a factual accusation (see, for similar reasoning, Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 22 January 2015). In his defence, the applicant relied on statements of four fellow professors heard by the District Court. They corroborated the applicant’s claim that no meetings had been held in the University departments and that no candidates had been nominated by open majority vote (see paragraph 6 above). The Court considers that by calling these four witnesses to testify before the District Court the applicant succeeded in showing that the impugned value judgment had a sufficient factual grounding, and that the situation described by the witnesses, namely the absence of an open discussion of candidates for the academic senate election, could have prompted him to speak the way he did. Against this background, the Court finds irrelevant the Government’s argument about formal compliance of the election procedure with the University internal regulations. The applicant based his opinion about “illegitimacy” of the academic senate on his own assessment of facts which might be accurate or not (see Brosa v. Germany, no. 5709/09, § 45, 17 April 2014) and discharged the obligation to back up his statement with evidence.
32. The Court notes that the applicant had recourse to a certain degree of hyperbole in his address. At the same time, employees, while engaging in a debate of public interest, are entitled to have recourse to exaggerations as long as they do not overstep the limits of admissible criticism (see, mutatis mutandis, Vellutini and Michel v. France, no. 32820/09, § 39, 6 October 2011). The Court considers that the applicant did not resort to offensive and intemperate language and did not go beyond the generally acceptable degree of exaggeration.
33. In conclusion, the Court finds that the domestic courts failed to strike a fair balance between the relevant interests and to establish a “pressing social need” for putting the protection of the plaintiff’s reputation above the applicant’s right to freedom of expression. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them in the matters of debate of public interest and that the interference was not “necessary in a democratic society”.
34. There has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
35. 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.”
36. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
37. The Government submitted that that the claim was excessive and uncorroborated with any evidence of the applicant’s distress.
38. In the Court’s view, the applicant suffered non-pecuniary damage as a result of the domestic courts’ judgments which were incompatible with the Convention requirements. The damage cannot be sufficiently compensated by a finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500, plus any tax that may be chargeable on that amount.
B. Costs and expenses
39. The applicant did not claim any costs or expenses. Accordingly, there is no need to make an award under this head.
C. Default interest
40. The Court considers it appropriate that the default interest rate 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. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
(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 the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros) in respect of non-pecuniary damage;
(ii) any tax that may be chargeable to the applicant on the above amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach András
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Dmitry Dedov is annexed to this judgment.
CONCURRING OPINION OF JUDGE DEDOV
1. In my view, the present case provides an exclusive opportunity for the Court, and the domestic courts, to enrich and develop their case-law on defamation cases. The reason why I consider it necessary to write a separate opinion is that in defamation cases the European Court of Human Rights and the domestic courts adopt a completely different approach to and legal assessment of the same situation after applying the same methodology. Moreover, the position of the Court (expressed in general and even vague terms) does not explain or attempt to explain why the domestic courts were wrong.
2. The fact is that Russian judges are very well aware of the difference between statements of facts and value judgments. They also know that value judgments should be based - at least to some degree - on factual circumstances: “even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive” (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II; among Russian cases see, for example, Novaya Gazeta v Voronezhe v. Russia, no. 27570/03, 21 December 2010, § 38). Both the Court and the domestic courts referred to the Resolution of the Plenary Supreme Court no. 3 of 24 February 2005, which is a principal source for the courts on the substantive and procedural aspects of defamation cases and refers to the Convention and to the implementation of the Court’s case-law.
3. Turning to the application of the election procedure examined by the Russian courts in the context of domestic defamation proceedings, the courts found that the elections had been organised in accordance with those rules. The courts concluded that, according to the regulations on the election of the academic senate of the Orel State Technical University, only faculty councils were entitled to nominate their candidates to the senate, and that this right was not granted to smaller units like departments (кафедры) at the faculties; accordingly, the candidates were not to be discussed at the physics department where the applicant worked at the material time. I ought to mention that those regulations are widely accepted by other universities in Russia.
The courts established that the council of the Faculty of Electronics and Instrumentation had discussed the candidates and nominated its candidate (in fact a representative in the senate I believe) and that the physics department had not discussed the candidates. The courts concluded that the applicant had failed to prove that the newly elected senate was illegitimate. It seems that the domestic courts did comply with international standards in principle, so it is not sufficient, in my view, for the Chamber to find a violation of Article 10 of the Convention by mere reference to self-governance in the “academic” or “professional” context, or to “acts or omissions of an elected body” (the latter was not the subject of any criticism by the applicant at all) or to “exaggerations as long as they do not overstep the limits of admissible criticism” (see paragraphs 25-27 and 33 of the judgment). It is hard to say that the case-law of the Court referred to by the Chamber (including the case of Palomo and Sanchez and Others v. Spain) is capable of supporting a finding of a violation in the present case, so the position of the Court needs further clarification. Further, I would like to explain some deficiencies in the domestic proceedings which, in my opinion, led to the violation of Article 10 of the Convention.
4. With regard to statements of facts and value judgments, the Court noted that “the domestic courts considered the applicant’s subjective appraisal of the election procedure to be a factual accusation” (see paragraph 31 of the judgment). It was neither just an appraisal, nor a statement of fact. The applicant concluded that the elections were unlawful and that therefore all the senate’s decisions should be deemed unlawful. That was a legal opinion. Therefore, the Orel Regional Court was wrong to say that the issue of the legitimacy of a governing body was a factual statement, even if the allegation that the academic senate could not be considered a legitimate body was verifiable in court (see paragraph 13 of the judgment). It is clear that the verification of that opinion includes a legal analysis, not the establishment of facts alone.
Paragraph 7 of the above-mentioned Resolution of the Plenary Supreme Court provides that statements damaging honour, dignity or professional reputation include statements on the violation of laws or the commission of dishonest or unethical acts. In my view, this position is fair in relation to those violations of laws which could be considered to be dishonest or unethical acts. The shortcomings of the election procedure themselves could not be considered dishonest or unethical, so the national courts had to dismiss the defamation claim lodged by the university.
The District Court stressed, however, that the applicant had accused the newly elected senate of dishonest acts. That was a further mistake. One may conclude that the applicant in fact accused the management of the university of converting public elections into a private affair. I assume that the management, not the university itself, had to bring the case before the court. This position complies with the principles of corporate law according to which a conflict may arise between the shareholders and the management, but not between the shareholders and the company. The only exception relates to criticism of the activity and results of the organisation as a whole. The applicant did not mention anyone’s name, but it was clear that his message was personalised with respect to those who were responsible for organising the election process and their families.
The issue is whether the applicant “overstepped the limits of admissible criticism” (see paragraph 32 of the judgment). It may be possible to agree with the conclusion of the domestic courts if we take into account part of the recommendation issued by the Russian Education Ministry on 21 September 2006 (no. 18-02-10/08) on the procedure for electing a rector of a university. According to this document, the senate of the university approves the list of candidates to be elected at the conference of delegates. The senate election procedure is similar to that recommendation, so it is not so easy to find someone personally liable.
On the other hand, there are governing standards for universities approved by the Russian Government on 14 February 2008 and amended on 2 November 2013 (Resolution no. 71) which provide in section 57 that the senate is an elected representative governing body (выборный представительный орган) of the university which is to be elected at the general meeting of the staff or at the conference of delegates. The internal regulations of the university establish the number of representatives (нормы представительства) so that each structural unit can be represented at the senate.
The University’s internal regulations allow faculties, not their departments, to be represented in the senate. Each faculty is allowed only one representative in the senate. The regulations do not empower the faculty councils to nominate the candidates and do not explicitly preclude the staff members from evaluating the candidates. Nor do the internal regulations allow the staff members to nominate themselves to stand for election as candidates (under section 60 of Resolution no. 71, such an opportunity does exist, for example in relation to the self-nomination of candidates for the position of rector).
Democratic elections cannot be effective without alternative candidates. This principle was vital for the contested election of the University of Cambridge Chancellor in 2011 as the election was the first time the Chancellorship had been contested since 1950, and the first actively fought contest since 1847. Three other candidates were nominated to oppose the candidate proposed by the University’s Nomination Board. On hearing of his success, Lord Sainsbury, who won the election, said: “I am delighted and honoured to have been elected as the next Chancellor of Cambridge University, and would like to thank all those who have supported me, and the other candidates who have made this such a friendly election. I am particularly pleased that the election did not turn into a battle between the arts and humanities and science, or between political parties, and I look forward to championing the University in its entirety at home and abroad in the years ahead”. These words reflect an impressive development of democratic society and election culture.
Turning to the present case, the election regulations seem to be controversial: the faculty council is authorised to discuss and to nominate its candidate/representative, but the ordinary professors have to vote in favour of this candidate/representative without any alternatives. Such a distinction between the choice of the best candidates by faculty councils and the voting at the conference by ordinary professors within the election process (two consecutive, but equal, steps to be made by different groups) leads to the conclusion that the subsequent step (voting) becomes pointless and that the ordinary professors are excluded from the election of their representatives.
Hence, in my opinion, the present case cannot be examined without an analysis of the nature of the impugned relations in the context of a representative democracy. This analysis should have been done by the courts at both the international and the domestic level, but they failed to do so.
5. Democracy: 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 for individual 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 Jerusalem, cited above, § 32).
The Court preferred not to take this position as a basis for its judgment. Moreover, the phrase “the test of necessity” mentioned in paragraph 26 of the judgment does not have the standard extension “in a democratic society” (see, for example, Jerusalem, cited above, § 33). This creates the impression that the Court preferred to limit itself to the professional and academic context in order to separate this category of defamation cases from “political” ones where journalists, members of parliament or other political figures are involved.
I cannot agree with this approach. I believe that the present case relates, more fully, to democracy in the professional and academic context. The Court acknowledged that the applicant had commented on a matter of public interest for the University staff (see paragraph 31 of the judgment), but this is insufficient to conclude that there was a violation of the Convention. The State regulations mentioned above and the University’s internal regulations do not prohibit or otherwise preclude the staff members from discussing candidates. But the nature of the democratic process requires such a discussion. The members of the senate are representatives of their units, and no alternative candidates were presented at the conference. This means that a proper election should be organised at the level of the faculty. This level should include the participation of all the staff members, otherwise the election process is actually replaced by a nomination, and stuff members are excluded from the election process under the regulations of the University (and potentially of other universities in Russia). The heads of departments are not automatically entitled to speak on behalf of their staff at the faculty council on the issue of a representative government of the University.
Therefore, the applicant raised the issue of voting rights and the University management reacted inadequately in the form of a defamatory claim instead of organising a public debate on this issue at the conference. The domestic courts obliged the applicant not merely to pay compensation, but also to read out a statement at another conference of the University that his allegations did not match the reality. In my view, the national courts’ decisions had a chilling, or even humiliating, effect on the applicant.
I ought to mention that, according to the Code of Good Practice in Electoral Matters (Guidelines and explanatory report adopted by the Venice Commission at its 52nd session on 18-19 October 2002), universal suffrage means in principle that all human beings have the right to vote and to stand for election. The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging participation in debates on matters of legitimate public concern (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298). This means that the Convention inherently protects democratic principles through the freedom of expression applicable to any organisation. It is vital that democracy start much earlier than parliamentary elections; it starts at the level of local municipalities, associations and organisations. I believe that the protection of representative democracy should prevail over the autonomy of an organisation such as the University, which enjoys a certain degree of autonomy under Russian law in relation to its self-government.
Further to the findings above, I conclude that the domestic courts and the management of the University revealed an apparent lack of any genuine concern to combat the deficiencies in the senate election process. On the contrary, they did their best to prove that there was no problem with democracy. Such a perception of democracy should be improved in order to protect human dignity and safeguard the progress of society.
My analysis is quite detailed, but the values of the Convention cannot be protected by mere reference to the importance of a public debate without identifying those values which may be regarded as a matter of general interest and the subject of public debate. For this purpose the Court undertook a very detailed analysis in the Von Hannover v. Germany (no. 2) judgment and concluded in paragraph 124 that “the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest”.
In the present case the national courts - after a detailed analysis of the facts and law - established that there was no general interest or subject of public debate. The mere reference to the applicant’s dissatisfaction with violation of ordinary professors’ rights is, in my view, not enough to rebut the conclusions of the national courts.