(Application no. 8237/03)
8 October 2009
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 Porubova v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Once upon a time there lived the head of the Sverdlovsk Regional Government Mr V. He had everything: his position, high esteem and respect. And also the governor's love.
But V. fell in love ... not with the governor or with his work, but with a twenty-five year-old employee of the region's representative office in Moscow, Mr K.
How does one become a homosexual? Where does this “love” come from?
We are simple unsophisticated people ... And we cannot imagine the scene that took place between them in the sumptuous building of the region's representative office in Moscow ... Rumour has it that the governor, on having learnt certain details, was furious ... and even fired K. from his position.
But love, as we know, can overcome any obstacle. It finds not only a time, but also a place.”
“The flat was bought in Moscow at the following address: 9 Orshanskaya St., building 1, flat no. ...
Initially the flat was even entered in the Government's balance sheet. However, after a while V. made a gift of the flat ... No, please do not think that he gave it to Mr K... [He gave it] to Mr K.'s father. Apparently, as a 'thank-you' for the upbringing of his son...”
“It might have been a private matter if it were not for two 'buts'.
[Firstly,] two public figures, rather than private individuals, were linked together by Shakespearean passions in this story. In the instant case: the head of the Sverdlovsk regional government, V., and a member of the regional parliament, K...
Secondly, the flat was purchased at our expense, at the expense of our budget. Two billion roubles disappeared in 1997 into thin air. To date there has been no reimbursement or sanctions on the part of the tax authorities. The [character from a well-known Soviet picaresque novel] blushed a lot as he was stealing official property, but his like-minded accomplice V. never blushes.
And yet, to this day the entire budget of the region is channelled through his hands. How can we ensure that he handles that money honestly?”
“Tolerance towards the customs and mores of others is, in general, uncharacteristic of the Russian mentality, which is also evident in the attitude towards 'sexual minorities'. The Russian popular mindset and the Russian language retain a rigidly negative, rude and discourteous attitude to people of non-traditional sexual orientation (homosexuals and lesbians).”
The expert noted that the author of the first publication had “a preference for emotional value-judgments”. The report concluded:
“In this context the information on the sale and purchase of a flat in Moscow at the expense of the budget becomes sensational and seeks to persuade the reader to view V. as a dishonest manager, embezzler of public funds, and, in addition, an immoral person who craves sensual pleasure and physical attraction and is wanton and lustful. The pragmatic aim of the articles ... is to undermine [readers'] trust in V. and K. as politicians...”
“Indeed, it has been established beyond doubt that the editor-in-chief of D.S.P., Ya. V. Porubova, deliberately published ... [the impugned articles] which she had drafted. In these articles she stated that the Chairman of the Sverdlovsk Regional Government, Mr V., and a member of the House of Representatives of the Legislative Assembly of the Sverdlovsk Region, K., were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is to say, she disseminated information based on her insinuations and which she knew to be untrue and defamatory in respect of the victims. In an attempt to slander the victims, she arranged for the printing of 500,000 copies of the newspaper and distributed them in the Sverdlovsk Region. The investigating authorities correctly characterised her actions as libel under Article 129 § 2 of the Criminal Code, i.e., dissemination via the mass media of information known to be untrue and damaging to other persons' honour, dignity and reputation.
In addition, Mrs Porubova related in these articles untrue information to the effect that [V. and K.] were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is, she deliberately assessed the personal qualities and conduct of the victims [in terms] which were grossly degrading to their human dignity and which contradicted society's prevailing approach to the treatment of individuals. Such treatment of the victims must be considered obscene and damaging to their dignity. In order to make the first issue of the newspaper appear important and sensational, she undermined the honour and dignity of the victims in the mass media. Therefore, the investigating authorities correctly characterised her actions as an offence under Article 130 § 2 of the Criminal Code.”
II. RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“1. In the determination of ... any criminal charge against him, everyone is entitled to a ... public hearing ... by a ... tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
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
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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 8 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President