(Application no. 5433/02)
14 December 2006
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 Shabanov and Tren v. Russia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr A. Kovler,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 20 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Defamation action by Ms P.
“For the sake of clarity, let us look at the elements that make up the wages. Let's take, for example, those of the head of the legal department...
In total... 5,805 roubles.
Not bad for a twenty-year-old professional who recently graduated from a teachers' college.”
“Having indicated in the article the salary of the head of the legal department and having referred to a twenty-year-old professional just out of college, the [applicants] related inaccurate information, given that Ms P., whom the [applicants] described as having graduated from a teachers' college four years previously, was at the material time the head of the legal department and had higher legal education.
The article 'What power costs: part 2' implies that municipal employees receive high wages, paid out of the budget, and cites as an example a young professional with college-level education and no work experience.
The court considers that such information damages Ms P.'s professional reputation and honour, in that it was disseminated to a large readership and begs the conclusion that the position of head of the legal department is occupied by an employee who lacks the requisite qualifications and work experience, which undermines the authority of the local administration and of Ms P.”
The court ordered the applicants to publish a rectification and pay 300 roubles (RUR, 12 euros (EUR)) each to Ms P.
B. Defamation action by Mr K.
“So, our character '...had to visit a psychiatrist on 13 February 2001...'. 'Intellect with no peculiarities', noted the doctor, [who] found that K. had ... moderately pronounced asthenia syndrome and prescribed treatment. Asthenia means impotence, a kind of disease. It means that the commander of the regiment is not quite healthy. Or quite unhealthy?”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
B. Civil Code of the Russian Federation (of 30 November 1994)
Article 150. Incorporeal assets
“1. An individual's life and health, dignity, personal integrity, honour and goodwill, professional reputation, the inviolability of one's private life, personal and family secrets, the right to liberty of movement and to choose one's place of temporary and permanent residence, the right to a name, copyright, other personal non-property rights and other incorporeal assets which a person possesses by virtue of birth or by operation of law shall be inalienable and untransferable by any means...”
Article 151. Compensation for non-pecuniary damage
“If certain actions impairing an individual's personal non-property rights or encroaching on other incorporeal assets caused him or her non-pecuniary damage (physical or mental suffering)... the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage...”
Article 152. Protection of honour, dignity and professional reputation
“1. An individual shall be entitled to claim, before a court, a rectification of information damaging his honour, dignity and professional reputation, unless the person who disseminated the information proves that it was true...
5. The individual about whom information damaging to his or her honour, dignity and professional reputation was disseminated shall be entitled to claim, in addition to rectification, compensation for pecuniary and non-pecuniary damage caused by the perpetrator.”
C. Lay Judges Act
D. The RSFSR Code of Civil Procedure
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal established by law.”
A. Submissions by the parties
B. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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.”
A. Submissions by the parties
B. The Court's assessment
1. Proceedings instituted by Ms P.
There has therefore been no violation of Article 10 of the Convention in the proceedings instituted by Ms P.
2. Proceedings instituted by Mr K.
Accordingly, there has been no violation of Article 10 of the Convention in the proceedings instituted by Mr K.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 500 (five hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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;
Done in English, and notified in writing on 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Mr P. Lorenzen, Mr R. Maruste and Mr J. Borrego Borrego, is annexed to this judgment.
JOINT PARTLY DISSENTING OPINION OF JUDGES LORENZEN, MARUSTE AND BORREGO BORREGO
We disagree with the majority's assessment of the defamation action brought by Mr K.
We accept that Mr K. was under no legal obligation to submit information about his visit to a psychiatrist during the defamation proceedings. He did so on his own initiative, apparently seeking to convince the court that the applicants' first publication had perturbed him and caused him damage. However, as the majority rightly stressed, the document was made available to the applicants in their standing as defendants and it must be assumed that it was read out in court as part of the written evidence, in accordance with the procedural requirements of the RSFSR Code of Civil Procedure. Thus, the information was accessible not only to the parties to the case but also to those members of the general public present in the courtroom. Although the applicants' publication of it undeniably contributed to wider dissemination of the information in question, Mr K. could not reasonably have expected that it would be afforded the same degree of protection as that enjoyed by confidential medical material held in private files. For that reason we cannot subscribe to the domestic courts' finding that the applicants should be liable for the disclosure of information received in confidence.
Admittedly, the applicants commented on Mr K.'s visit to a psychiatrist in a jesting way, implying that he might be not fit for military command. In this connection the Court has reiterated that journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, § 38). We are of the opinion that the impugned publication did not resort to offensive or intemperate language and did not go beyond a generally acceptable degree of exaggeration or provocation. Granted, the commanding officer of a regiment is not a politician. However, he is certainly a public figure, who has authority over 200 soldiers and is responsible for their wellbeing. Consequently, he is also subject to closer than usual public scrutiny and criticism.
Further, we would note that the problems faced by the military command and the professional aptitude of military personnel are issues of general interest, on which journalists have the task of informing the general public (see, mutatis mutandis, Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, § 63). We recall that, in this particular case, that interest was further aroused by the fact that a very large number of soldiers had fallen ill. The mental health problems of a military officer with more than two hundred conscripts under his command was undeniably a matter of general and particular public concern. We consider that public concern about the facts involved in this case overweighs the individual interests.
In these circumstances, we find that the domestic courts did not convincingly establish any “relevant and sufficient” reasons for giving priority to the protection of Mr K.'s personality rights, rather than to the applicants' right to freedom of expression and to the general interest in promoting that freedom. Accordingly, the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. There has therefore been a violation of Article 10 of the Convention in connection with the proceedings instituted by Mr K.