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ALEKSEY OVCHINNIKOV v. RUSSIA - 24061/04 [2010] ECHR 2033 (16 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/2033.html
Cite as:
[2010] ECHR 2033
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FIRST
SECTION
CASE OF ALEKSEY OVCHINNIKOV v. RUSSIA
(Application
no. 24061/04)
JUDGMENT
STRASBOURG
16
December 2010
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 Aleksey Ovchinnikov
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24061/04) 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 Aleksey Yuryevich
Ovchinnikov (“the applicant”), on 4 June 2004.
The
applicant was represented by Ms N. Murashchenko, a lawyer practising
in the Ivanovo region. The Russian Government (“the
Government”) were represented by Mr
P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant alleged a violation of his right to freedom of expression.
On
14 March 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1974 and lives in Ivanovo. He is a journalist
writing for the Ivanovo-Press newspaper.
A. Publications about the events at the summer camp
In
early July 2002 a nine-year-old boy attending the Stroitel
summer camp complained to his parents that he had been beaten up and
sexually abused by his twelve-year-old roommates. Further to a
complaint by the boy’s parents, the police found evidence of
criminal offences which, however, were not prosecutable because the
offenders were minors.
One
of the offenders was the son of two federal judges, Mr and Mrs B.
Another culprit was the stepgrandson of the deputy head of the
Ivanovo Regional Traffic Police, Mr V.
As
the offenders’ parents held prominent positions in the region,
the media took an intense interest in the story. The first article
about the incident was published on 26 August 2002 by the
Kursiv-Ivanovo weekly newspaper. The publication listed the
names and positions of the offenders’ relatives.
After
the victim’s mother had brought the police reports and the
relevant medical records to the applicant’s newspaper, the
applicant undertook independent research into the events. In
particular, he interviewed the principal of the Stroitel
summer camp, several of its teachers, an official responsible for the
supervision of summer camps in the region, a spokesman for the police
department charged with the investigation and the head of the
Judicial Qualifications Board.
On
3 September 2002 the applicant published an article about the
incident at the summer camp in the Ivanovo-Press newspaper,
under the headline “Day of reckoning” (Час
расплаты).
He wrote, in particular, as follows:
“Any story [of battery and sexual abuse] deserves
the most rapt attention. This one is particularly shameful because of
the fact that the parents of one little bastard work as judges in a
district court, and a close relative of another is one of the heads
of the regional traffic police.
It is hard to write about this matter. The case affects
children, their lives, their tragedy and their future. It is hard
because the guilt and its extent should be determined by a court, but
the underage participants in this story are, alas, not liable to
prosecution ... Their parents should be responsible for their deeds
vis-à-vis society and the State. This is why we have decided
to take the matter up ...
I believe readers will excuse me for not providing a
detailed description of the abuse to which the kid was subjected (in
fact, our colleagues from the Kursiv newspaper have already
provided one). I will say only one thing: the circumstances of those
unchildlish deeds were established by evidence. They amount to
assault and battery, punishable by Article 116, and sexual assault,
punishable by Article 132 of [the Criminal Code]. Thus, if those
moral freaks had been charged with criminal offences and committed
for trial, they would have risked long terms of imprisonment.
... [After the parents of the victim had complained to
the police,] an investigation was conducted by officers from the
Interior Department of the Teykovskiy District, who established that
the actions of the three minor rapists indeed disclosed all the
elements of criminal offences. However, no criminal proceedings were
opened because the suspects were minors. Meanwhile, the press learned
about the events and a scandal erupted.
It is not the first time that the attention of
law-enforcement bodies has been riveted to the children of
high-ranking parents. However, as a rule, such cases are abandoned at
an early stage of the inquiry. Even when they are referred for trial,
the general public hardly ever knows about it. Without any doubt, had
the administration of the Stroitel summer camp paid attention
to the facts and warned the parents in time, the investigators from
[the Interior Department of the Teykovskiy District] would have
hardly been allowed to go on with the investigation. The events were,
however, left to take their course and were made public.
We must do some serious thinking here. How can it be? A
kid whose parents work as JUDGES has committed a crime! Is it a
coincidence or a pattern? What did his parents teach him? Perhaps
they thought that the judge and the Law were one and the same thing,
that the judge was not servant but master of the law, a superhuman?
And that his children were superhumans, too; they could do whatever
they pleased, in the knowledge that their mothers and fathers would
exempt them from liability...
Another [offender] has a relative in the police force.
Not an ordinary one, but a bigwig sporting star-studded epaulettes.
So, is anything permitted? If something happened, would he ‘cover
up’ and ‘fix’ it?
How will these people carry on working in the courts and
the police force? Delivering judgments, sentencing men to prison
terms for crimes for which their progeny could have been convicted?
Or are they already used to doing this? After all, all these
conjectures are based on real grounds and it is very likely that the
case will be hushed up thanks to ‘string pulling’ by the
rogues’ parents.
We were told that pressure was being put on the victim’s
parents, that their physical integrity had been threatened. What is
more, while our editorial board was working on that publication, we
received a number of bizarre telephone calls asking us to stop the
journalistic investigation and stay out of the way of the judges and
their children. It is strange that none of the ‘well-wishers’
who called us considered the fate of the injured child, of how he
will live after what happened. Nor did they consider the fate of the
underage members of the ‘criminal trio’. What will become
of them? Could it be that, having gone unpunished once, they will
resume their ‘sexual experiments’ in a couple of years?
...
P.S. Unfortunately, because of recent amendments to the
Media Act, the newspaper may not name the young rascals or their
parents and relatives ... We will carry on investigating the matter
and in a future issue we will give concrete examples of how the
children of judges and police officials have escaped punishment.”
According to the applicant, subsequent publications in
the Kursiv Ivanovo and Rabochiy Kray newspapers
and on the Internet gave the names and official positions of the
offenders’ parents and relative.
On
17 September 2002 the applicant published a follow-up article, under
the headline “Chocolate Kids. High-ranking parents of minor
rapists seek to hush up the scandal” (“Шоколадные
детишки.
Высокопоставленные
родители малолетних
насильников
пытаются замять
скандал”).
He wrote as
follows:
“The case developed into a scandal because the
parents of one suspect were the spouses [Mr and Mrs B.], judges in a
district court of Ivanovo, and a close relative of another, [Mr V.],
was deputy head of the regional traffic police.
Quite naturally, these high-ranking parents were not
prepared to put up with the course of events. In addition to the
ethical dimension, the scandal was a potential threat to their
careers and financial well being. In the beginning they attempted to
portray the events as an ordinary fist fight! With that purpose, and
with the complicity of the regional administration, the prosecutor’s
office ordered an additional inquiry ...
Judging from the diligence with which all that has been
done, as well as from the fact that the official newspapers were
suddenly full of lengthy articles about this year’s wonderfully
organised summer holidays for children, attempts are being made to
exert pressure on the course of the resumed investigation.
Most likely, this inquiry will establish that all the
suspects are ‘warm and fuzzy’. Yet, the fact that the
abuse did indeed take place is confirmed by the fact that, precisely
because of those scandalous events, one of the little scoundrels has
been placed in a detention centre for juvenile offenders pursuant to
an order of the Oktyabrskiy District Court. It follows that the son
of simple factory workers is segregated from society, while his
accomplices, the children of judges and bigwigs from the police, are
at liberty! ...
Our journalistic inquiry uncovered sensational
information about [Mr V.] It turns out that this criminal scandal is
not the first one in his family. His eldest son, Valeriy, has been on
the list of fugitives from justice since 1995: he was suspected of
assault with intent to rob. His youngest son, also a traffic police
officer, caused a road accident a few years ago, in which a young
woman was seriously injured ... But he managed to escape
responsibility. And now this gloomy story involving [Mr V.’s]
stepgrandson. It begs a question for the management of the regional
police, who are certainly aware of these facts: how can such a person
still work in the field of law enforcement in a position of
leadership in the traffic police?
This week the [judicial] qualification board will decide
on the destiny of the judges [Mr and Mrs B]. If they carry on working
as judges, this again begs a question: how will these people sentence
others if they were unable to bring up their own child [properly]?
...”
B. Civil actions for defamation
1. Civil action by Mr and Mrs B.
Mr
and Mrs B. brought a civil action for defamation and disclosure of
private information on their own behalf and on behalf of their minor
son. They named as defendants the founders of the Kursiv-Ivanovo
newspaper and its journalists, as well as the applicant and the
company that owned his newspaper. They sought a retraction and
compensation for non-pecuniary damage. They enclosed the text of the
retraction, containing an apology that they wished the applicant’s
newspaper to publish.
On 12 March 2003 the Sovetskiy District Court of
Ivanovo gave judgment. It noted that the statements accusing Mr and
Mrs B.’s son of violent acts were true because the police had
found evidence of a criminal offence. The allegedly insulting
statements (“little bastards”, “young rascals”
and the like) were not actionable because they constituted value
judgments not amenable to verification. The alleged breach of the
duties of a journalist arising out of the Media Act, namely,
disclosure of confidential or private information, was not actionable
in civil proceedings because the Media Act provided for criminal or
disciplinary, rather than civil, sanctions for such breaches. On the
other hand, relying on Article 152 of the Civil Code, the court
granted the claimants’ request for a retraction of the
allegation that they “had attempted to interfere with the
investigation” because the journalists had not produced any
proof of such interference. It ordered that the newspaper and the
applicant publish a retraction containing an apology to Mr and Mrs B.
It further ordered that the applicant pay Mr and Mrs B compensation
in respect of non-pecuniary damage in the amount of 3,000 Russian
roubles (RUB, approximately 85 euros (EUR)).
The
applicant appealed. He submitted, in particular, that the articles
authored by him did not contain any statements accusing Mr and Mrs B.
of interfering with the investigation. He further complained that the
order to publish a retraction containing an apology had had no basis
in domestic law.
On
16 April 2003 the Ivanovo Regional Court upheld the judgment on
appeal, finding that it had been lawful, well-reasoned and justified.
As regards the order to publish an apology, the Regional Court found
that it was for the District Court to determine the contents of the
retraction.
2. Civil action by Mr V.
Mr
V., on his own behalf, and his daughter-in-law, on behalf of her son,
brought a civil claim against the same defendants for defamation and
disclosure of information about their private life. They sought
compensation for non-pecuniary damage under Article 152 of the Civil
Code. They also sought a retraction and submitted a draft retraction
containing an apology.
On 19 February 2004 the Sovetskiy District Court
granted the claim in part. It found that the journalists had failed
to prove the allegation that Mr V. “had interfered with
the investigation”, as required by Article 152 of the Civil
Code. It rejected as unsubstantiated, without further reasoning, the
applicant’s argument that his articles had not contained any
such statements. It also held the journalists liable for a violation
of the claimants’ constitutional right to the inviolability of
their private lives, finding as follows:
“Under Article 151 of the Russian Civil Code, if a
citizen has incurred non-pecuniary damage through actions impairing
his personal non-pecuniary rights ... the court may order the person
responsible to compensate for the damage.
In accordance with Articles 23 § 1 and 24 § 1
of the Russian Constitution, everyone has the right to the
inviolability of his private life, to personal and family secrets,
[and] to the protection of his honour and goodwill; it is an offence
to collect, keep, use or disseminate information about a person’s
private life without that person’s consent.
The court has not seen any proof that the authors of the
articles published in the Kursiv-Ivanovo and Ivanovo-Press
newspapers obtained consent to the dissemination of information about
the private lives of [Mr V. and his minor stepgrandson]. Accordingly,
[their] constitutional right to the inviolability of their private
lives has been breached.”
The
court ordered that the newspaper and the applicant publish a
retraction containing an apology to Mr V. and his family. It further
ordered that the applicant pay compensation to Mr V. and his
daughter-in-law in the amount of RUB 2,000 (approximately EUR 55).
In
his grounds of appeal the applicant complained about the District
Court’s inconsistent approach to the issue of whether
disclosure of private information was actionable in the civil
proceedings. In holding the applicant responsible for dissemination
of personal information, the District Court had disregarded the fact
that the information had been first published by another newspaper,
Kursiv-Ivanovo, and that from that moment it had entered the
public domain. Furthermore, the District Court had not identified any
statements which could be construed as implying that Mr V. had
interfered with the investigation.
On
19 April 2004 the Ivanovo Regional Court upheld the judgment, finding
that disclosure of personal information was actionable under
Article 151 of the Civil Code.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
Article
24 prohibits collecting, storing, using or disseminating information
about a person’s private life without that person’s
consent.
Article
29 guarantees freedom of thought and expression and freedom of the
mass media.
B. Civil Code of the Russian Federation of 30 November
1994
Article
151 provides that a court may award compensation for non-pecuniary
damage to an individual who has incurred such damage as a consequence
of acts that have violated his personal non-pecuniary rights. Article
150 lists, among other personal non-pecuniary rights, the
inviolability of a person’s private life, and personal and
family secrets.
Article
152 provides that an individual may apply to a court with a request
for a retraction of “statements” (сведения)
that are damaging to his or her honour, dignity or professional
reputation if the person who disseminated the 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 the statements.
C. The Mass Media Act
The
Mass Media Act (Law no. 2124-I of 27 December 1991) provides that the
mass media may not publish information which permits a minor who has
committed a criminal or an administrative offence or is suspected of
such an offence to be identified, directly or indirectly, unless the
minor concerned and his or her guardian has consented to the
publication (section 41(3)).
An
individual or an organisation is entitled to require that the
editorial board of a mass medium publish a retraction of untrue
statements that are damaging to his/her/its honour, dignity or
professional reputation. If the editorial board is unable to prove
the truthfulness of the contested statements, it must publish a
retraction in the same mass medium. If the individual or the
organisation submits a draft text of the retraction, the editorial
board must publish the submitted text, provided that it is compatible
with the Act (section 43). A retraction must specify which statements
are untrue, as well as where and when they were published (section
44(1)).
A
journalist is entitled to express his personal opinions and
value judgments in the publications bearing his name (section 47
(9)).
A
journalist must check the truthfulness of the information he
publishes. Before publishing information about an individual’s
private life, a journalist must obtain the consent of the individual
concerned or his or her guardian, except in cases where the
publication of such information serves the public interest (section
49(2) and (5). A journalist who has not complied with these duties
may be held criminally, administratively or disciplinarily liable in
accordance with the law (section 59(2)).
Editorial
boards, editors-in-chief and journalists are not liable for untrue
statements damaging the honour and dignity of individuals or
organisations, or for statements infringing the rights and lawful
interests of citizens, if such statements are a verbatim reproduction
of statements or materials, or extracts of them, that have been
published earlier by another mass medium that may be identified and
held liable (section 57(6)).
D. Resolutions of the Plenary Supreme Court
Resolution of the Plenary Supreme Court of the Russian Federation
no. 11 of 18 August 1992 (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 at the workplace or in everyday
life). “Dissemination of statements” was understood to be
the publication of statements or their broadcasting (section 2). The
burden of proof was on the defendant to show that the disseminated
statements were true and accurate (section 7).
On 24 February 2005 the Plenary Supreme Court of the
Russian Federation adopted Resolution no. 3, which required the
courts examining defamation claims to distinguish between statements
of facts which can be checked for veracity, and value judgments,
opinions and convictions which are not actionable under Article 152
of the Civil Code because they are expressions of a defendant’s
subjective opinion and views and cannot be checked for veracity
(paragraph 9). Furthermore, it prohibited the courts from ordering
defendants to extend an apology to a claimant, because that form of
redress had no basis under Russian law, including Article 152 of the
Civil Code (paragraph 18).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained of a violation of his right to freedom of
expression, provided for 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.”
A. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
The
applicant submitted that the domestic courts had held him liable for
the allegation that the claimants had interfered with the
investigation into the incident at the Stroitel summer camp.
However, the articles published by him had not contained any such
allegation. The articles had indeed mentioned that some interference
with the investigation might be possible. That statement had been a
supposition rather than a statement of fact. It had not been amenable
to proof. The perpetrators of the possible interference with the
investigation had not been identified in the articles. The claimants
had therefore had no reason to allege that the statement had been
directed against them.
Further,
as regards liability for dissemination of information about a
person’s private life, the applicant argued that the domestic
courts had not applied section 49(5) of the Mass Media Act, which
provided that in cases where the publication of information about a
person’s private life served the public interest, it was not
necessary to obtain the prior consent of the individual concerned.
Moreover, the applicant had not in fact disclosed any confidential
information about the claimants’ private lives. By the time he
had published his articles, the information about the incident at the
Stroitel summer camp and the names of those involved had
already entered the public domain through publication in other
newspapers.
Finally,
the applicant submitted that the order to publish a retraction
containing an apology had had no basis in domestic law. He argued
that only a voluntary apology might be acceptable under the
Convention. It was clearly excessive to compel someone to make an
apology, thereby forcing him to express an opinion that did not
correspond to his personal convictions.
The
Government submitted that the interference with the applicant’s
right to freedom of expression had been “prescribed by law”,
notably Article 152 of the Civil Code, and had pursued the legitimate
aim of protecting the reputation and rights of others. It had also
been “necessary in a democratic society”, given that the
applicant had published false information about the claimants. The
courts had drawn a distinction between value judgments and statements
of fact and had held the applicant liable only in respect of the
statements of fact that he had been unable to prove. The applicant
had also been held liable for disseminating information about the
claimants’ private lives without their explicit consent. The
applicant had been ordered to pay a purely symbolic amount of
compensation to the claimants. The courts had not required that the
applicant extend a personal apology to the claimants; rather, in
accordance with section 43 of the Mass Media Act, they had ordered
that the applicant and his newspaper publish a retraction drafted by
the claimants.
2. The Court’s assessment
(a) General principles
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. 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,
7 December 1976, § 49, Series A no. 24, and Jersild v.
Denmark, 23 September 1994, § 37, Series A no. 298).
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).
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,
24 February 1997, § 37, Reports of Judgments and
Decisions 1997-I, 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, 25 June 1992, § 63,
Series A no. 239). Journalistic freedom covers possible recourse to a
degree of exaggeration, or even provocation (see Prager and
Oberschlick v. Austria (no. 1), 26 April 1995, §
38, Series A no. 313 ). 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.
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).
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, as
regards criticism directed against judges, the Court has found that
the work of the courts, which are the guarantors of justice and which
have a fundamental role in a State governed by the rule of law, needs
to enjoy public confidence. It should therefore be protected against
unfounded attacks. The courts are however not immune from criticism
and scrutiny. It is important that a clear distinction is made
between criticism and insult. If the sole intent of any form of
expression is to insult a court, or members of that court, an
appropriate punishment would not, in principle, constitute a
violation of Article 10 § 2 of the Convention (see Skałka
v. Poland, no. 43425/98, § 34, 27 May 2003).
(b) Application to the present case
It
is common ground between the parties that the judgments pronounced
against the applicant constituted an “interference” with
his right to freedom of expression as protected by Article 10 §
1. The Court’s task is to determine whether the interference
was justified within the meaning of paragraph 2 of that Article, that
is, whether it was “prescribed by law”, pursued a
legitimate aim and was “necessary in a democratic society”.
The
Court accepts that the interference was based on Articles 151 and 152
of the Civil Code and pursued the legitimate aim of protecting the
reputation and rights of others. As regards the applicant’s
argument that the judicial order to extend an apology had no legal
basis in domestic law, the Court has already found that at the
material time, that is, before the adoption in 2005 of Resolution no.
3 by the Plenary Supreme Court (see paragraph 32 above), the
domestic courts reasonably interpreted the notion of retraction as
possibly including an apology. The Court has accepted that that
interpretation of the relevant legislation by the Russian courts was
not such as to render the impugned interference unlawful in
Convention terms (see Kazakov v. Russia, no. 1758/02, §§
21-24, 18 December 2008). The Court sees no reason to reach a
different conclusion in the present case. Accordingly, it remains to
be examined whether the interference was “necessary in a
democratic society”.
The
Court reiterates that the test of “necessity in a democratic
society” requires it 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, Krasulya
v. Russia, no. 12365/03, § 34, 22 February 2007, and
Grinberg v. Russia, no. 23472/03, § 27, 21 July 2005).
Turning
to the facts of the present case, the Court notes that the applicant,
a journalist at a local newspaper, published two articles about a
violent incident at a summer camp where minor children of
high-ranking officials had assaulted their younger roommate. It is
significant that the domestic courts found that all the information
published about the assault was based on the results of the official
investigation and was accordingly true. They nevertheless found the
applicant liable for disclosing private information about the
offenders and their relatives and for disseminating a statement,
which he had been unable to prove, to the effect that the offenders’
relatives had attempted to interfere with the investigation. The
Court will examine those two aspects in turn.
As
to the first aspect, the Court observes that the applicant was found
civilly liable for disclosing information about the private life of
Mr V., a high-ranking traffic police official. A similar claim
lodged by the judges Mr and Mrs B. was dismissed by the domestic
courts. The Court will therefore focus its assessment on the
applicant’s statements about Mr V.
It
is important to note that in his first publication of 3 September
2002 the applicant outlined the violent incident at the summer camp
in general terms without naming its participants or describing them
in an identifiable manner. It was only in his second publication of
17 September 2002 that the applicant mentioned the names of the
juvenile offenders, including the name of Mr V.’s stepgrandson,
and the official positions of their relatives. However, before that
date that information had already been disclosed by another newspaper
and the incident in all its details had been widely discussed in the
press and on the Internet (see paragraph 11 above). It has not been
submitted in the domestic proceeding or before the Court that the
applicant’s publications introduced any new personal details
previously unknown to the public. It follows that by the time of the
second publication the offenders’ personal information had
ceased to be confidential and was already in the public domain. Thus,
the interest in protecting the identity of the juvenile offenders and
their relatives had been substantially diminished, so that the
preservation of confidentiality in this matter could no longer
constitute an overriding requirement (see Editions Plon v. France,
no. 58148/00, § 53, ECHR 2004 IV; Sürek v. Turkey
(no. 2) [GC], no. 24122/94, § 40, 8 July 1999, and,
mutatis mutandis, Weber v. Switzerland, 22 May
1990, §§ 49 and 51, Series A no. 177; Observer and
Guardian v. the United Kingdom, 26 November 1991, §§ 68
and 69, Series A no. 216; Sunday Times v. the United Kingdom
(no. 2), 26 November 1991, §§ 54 and 55, Series A
no. 217; and Vereniging Weekblad Bluf! v. the
Netherlands, 9 February 1995, §§ 43 and 44, Series A
no. 306 A).
That
being said, the Court considers that in certain circumstances a
restriction on reproducing information that has already entered the
public domain may be justified, for example to prevent further airing
of the details of an individual’s private life which do not
come within the scope of any political or public debate on a matter
of general importance. The Court reiterates in this connection that
in cases of publications relating the details of an individual’s
private life with the sole purpose of satisfying the curiosity of a
particular readership, the individual’s right to the effective
protection of his or her private life prevails over the journalist’s
freedom of expression (see Von Hannover v. Germany, no.
59320/00, § 65, ECHR 2004 VI; Campmany y Diez de Revenga
and López Galiacho Perona v. Spain (dec.), no.
54224/00, ECHR 2000-XII; Société Prisma
Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July
2003; and Bou Gibert and El Hogar y La Moda J.A. v. Spain (dec.),
no. 14929/02, 13 May 2003). The Court must therefore determine
whether the articles authored by the applicant made a contribution to
a debate of general interest to society.
The Court considers that information about the involvement of Mr V.’s
minor stepgrandson in a violent incident made no such contribution.
The public did not have a legitimate interest in knowing about Mr
V.’s family affairs, which were not in any way related to his
official functions. The Court reiterates that it is unacceptable that
an official should be exposed to opprobrium because of matters
concerning a member of his family (see De Haes and Gijsels v.
Belgium, 24 February 1997, § 45, Reports of Judgments and
Decisions 1997 I). It is also of significance that Mr V.’s
stepgrandson was a minor, and for that reason his deeds were not
prosecutable under Russian law. He was never charged with a criminal
offence and no criminal proceedings were opened against him. The
instant case is therefore distinguishable from those cases in which
journalists have reported on ongoing criminal proceedings, thereby
exercising their right and duty to impart information on a matter of
public concern (see, for example, News Verlags GmbH & Co.KG v.
Austria, no. 31457/96, §§ 55 and 56, ECHR 2000 I).
In the Court’s view, in cases such as the present one where an
offence has been committed by a minor who has not reached the
statutory age of criminal responsibility and who is not considered
responsible for his actions, a journalist’s right to impart
information on a serious criminal offence must yield to the minor’s
right to the effective protection of his private life. There can be
little doubt that his repeated naming in the press in connection with
the reprehensible summer camp incident was particularly harmful to Mr
V.’s stepgrandson’s moral and psychological development
and to his private life.
The
Court concludes from the above that publication by the applicant of
the names of the juvenile offenders and the official positions of
their relatives did not make any contribution to a discussion of a
matter of legitimate public concern. Although that information had
been previously published by other newspapers, the civil liability
imposed on the applicant was justified in the circumstances by the
need to prevent further airing in the press of the details of the
claimants’ private lives.
As
to the second aspect of the case against the applicant, the Court
notes that he was found liable for disseminating the statement that
“[Mr and Mrs B. and Mr V. had] attempted to interfere with the
investigation”. The Court notes that that wording was not
actually contained in the articles authored by the applicant. The
article of 17 September 2002, however, mentioned that “attempts
are being made to exert pressure on the course of the resumed
investigation”. It is true that that statement is impersonal
and the individuals who allegedly exercised such pressure are not
referred to by name. However, when read in context, in particular in
conjunction with such statements as “high-ranking parents of
minor rapists seek to hush up the scandal”, that statement
might convey to an ordinary reader the impression that it had been
the claimants, Mr and Mrs B and Mr V., who had made the attempts to
influence the investigation referred to in the article. The Court
therefore accepts the finding of the domestic courts that the
applicant had disseminated a statement accusing the claimants of
interfering with the investigation.
The
Court further observes that the Russian courts characterised the
statement about the attempted exertion of influence on the
investigation as a statement of fact and found the applicant liable
for his failure to show its veracity. The Court agrees that the
applicant published a serious factual allegation against the
claimants and that that allegation was susceptible of proof. The
applicant, however, never endeavoured to prove that allegation or
establish a sufficiently accurate and reliable factual basis for it.
It follows that the applicant disseminated a defamatory accusation
against the judges Mr and Mrs B. and the traffic police officer Mr
V., which was likely to lower them in public esteem and was put
forward without any supporting evidence (see Barfod v. Denmark,
22 February 1989, § 35, Series A no. 149).
Finally,
in assessing the proportionality of the 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 that the applicant was ordered to pay to the claimants
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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 16 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
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
Kovler is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE KOVLER
Not
without some hesitation, I have joined the conclusions of the Chamber
that there has been no violation of Article 10 of the Convention in
this particular case.
Nevertheless,
I would like to express my opinion about the fact that the applicant
was ordered not only to publish a retraction and to pay the claimants
a symbolic amount of damages, but also to issue an apology. Firstly,
the Court has already found that “an apology” cannot be
considered “necessary” under Article 10 (see Kazakov
v. Russia, no. 1758/02, § 30, 18 December 2008); thus,
the domestic courts overstepped to a certain extent the narrow margin
of appreciation afforded to them for
restrictions on debates of public interest. Secondly, the judicial
order to extend an apology had no clear legal basis in domestic law:
at the material time (2003-2004) the domestic courts interpreted the
notion of retraction as possibly including an apology. And only
Resolution no. 3 of 24 February 2005 of the Plenary Supreme Court of
the Russian Federation prohibited the courts from ordering defendants
to extend an apology to a claimant, because that form of redress had
no basis under Russian law, including Article 152 of the Civil Code
(see paragraph 32 of the judgment).
Only
the fact that this clarification was issued after the adoption of the
judgments by the domestic courts in the present case swayed my
position to finding no violation of Article 10 of the Convention.
