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Cite as: [2010] ECHR 554
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
21724/03
by OOO VESTI and Sergey UKHOV
against Russia
The European Court of Human Rights (First Section), sitting on 18 March 2010 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 regard to the above application lodged on 19 June 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The first applicant, a Russian limited liability company called The Editorial Board of the Vesti Newspaper (ООО «Редакция газеты «Вести»»), has its registered office in Kirov. The second applicant, Mr Sergey Vladislavovich Ukhov, is a Russian national who was born in 1951 and lives in Kirov. The applicants are the publisher and the editor-in-chief of the Gubernskie Vesti, Kirov newspaper. They are represented before the Court by Mr I. Rossokhin, in-house lawyer of the first applicant.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The publication
On 16 August 2002 the Gubernskie Vesti, Kirov newspaper published an article under the headline “Chief Federal Inspector forced the media to its knees. But not the businessmen” («ГФИ поставил на колени прессу. Но не коммерсантов»). The article was written by the second applicant, who signed it using his pen-name, Semyon Volkov.
The article concerned a joint press conference held by Mr Valentin Pugach, the Chief Federal Inspector for the Kirov Region, and Mr Vasiliy Kiselyov, the Mayor of Kirov. The press conference was dedicated to the media coverage of the regional project “Kirov as the cultural capital of the Volga region in the year 2002”. The article was critical of the cultural value of the project events and spoke ironically about Mr Pugach’s “accomplishments” in that field. Mr Pugach was further quoted as saying that the allotted funds were insufficient to finance the work of the project’s organising committee and criticising local businesses for their unwillingness to sponsor the project, allegedly because the project had not received the Governor’s explicit endorsement. The article then went on as follows:
“Curiously enough, just before that meeting, I had a chance to talk to some businessmen I know. They told me that the chief federal inspector’s office literally pestered them with ‘offers’ to become sponsors. However, they do not respond to such ‘offers’, not because they fear the Governor, but because they do not want to give money. Some say that Pugach is too deeply involved in political games, in which they want no part. Others are, for some reason, anxious that their money might be wasted on the funds collector’s lovers rather than spent on cultural events.”
2. Defamation proceedings
On 30 August 2002 Mr Pugach, in his official capacity as the chief federal inspector, brought an action for defamation against “Semyon Volkov” and the editorial board of the Gubernskie Vesti newspaper. According to his statement of claim, the impugned publication had asserted that he was in charge of the allocation of contributions by the project sponsors, that he was capable of committing a crime and embezzling the funds entrusted to him and that his way of life violated moral and ethical norms. Considering that those statements were untrue and damaging to his honour, dignity and professional reputation, he sought a retraction and compensation for non-pecuniary damage.
Mr Pugach also enclosed the text of the retraction statement that he wished the editorial board of the Gubernskie Vesti newspaper to publish. It contained an apology and an acknowledgement that the last sentence of the paragraph cited above was untrue and damaging to his honour and reputation, a promise to discipline the author of the article and an undertaking to respect in future domestic law on mass media.
(a) Proceedings in respect of the first applicant
On 13 September 2002 the Leninskiy District Court of Kirov, with Judge S. sitting in the single-judge formation, granted in full Mr Pugach’s claim against the editorial board of the Gubernskie Vesti newspaper. Because the editorial board had refused to disclose the identity of the author, the claim against the author was severed for adjudication in separate proceedings. Two counsel, Mr Rossokhin and Mr Gzhibovskiy, participated in the hearing.
The court found that the final paragraph of the article contained false information about the plaintiff, who, it had been falsely alleged, was the collector of funds that might have been wasted on lovers rather than spent on cultural events. The court noted that the defendant did not produce any proof of the truthfulness of that information. It ordered that the editorial board should pay the plaintiff 20,000 Russian roubles (RUR, approximately 650 euros (EUR)) in compensation for non-pecuniary damage and RUR 1,000 in court fees. It further ordered an immediate publication of the retraction statement as drafted by Mr Pugach.
On 18 September 2002 the bailiffs opened enforcement proceedings. On the same day, the first applicant applied to the Leninskiy District Court for a stay of the enforcement proceedings. It submitted that the court had imposed the obligation to enforce the judgment on the editorial board of the Gubernskie Vesti newspaper, which had no legal entity status and, accordingly, could not be a defendant in civil proceedings. Furthermore, the immediate enforcement order was unlawful and violated the first applicant’s right to know the reasons for the judgment (at that time, the full text of the judgment was unavailable) and to lodge an appeal against it.
On 19 September 2002 Judge S. issued two interim decisions. By the first decision he refused the first applicant’s request for a stay of enforcement as unsubstantiated. No further reasons were given. The second decision rectified an error in the operative part of the judgment which had stated that the defendant’s name was “the limited liability company The Editorial Board of the Vesti Newspaper” rather than “the editorial board of the Gubernskie Vesti newspaper”. According to the applicants, the second decision was not notified to them.
On 20 September 2002 the Gubernskie Vesti, Kirov newspaper published the retraction statement as drafted by Mr Pugach and endorsed in the judgment of 13 September 2002.
On 24 September 2002 the first applicant lodged an appeal against the judgment of 13 September 2002. It submitted that the article had not named the collector of funds for the project or suggested that it was Mr Pugach who had collected the funds. Nor was it stated that Mr Pugach had lovers or that he had embezzled any funds entrusted to him. It was clear from the text that the contested sentence did not concern Mr Pugach at all. It further complained about the District Court’s unreasoned refusal to adjourn the hearing until the second applicant had returned from leave. The second applicant was the only person who knew the identity of the author of the article and who could give an informed response to the statement of claim.
The second applicant lodged a statement in support of the appeal. He disclosed that he was the author of the article and maintained that the judgment of 13 September 2002 had been poorly reasoned. Although Mr Pugach had failed to prove that the contested sentence concerned him personally, the District Court had accepted his claim without analysing whether the impugned statements were indeed directed at him.
(b) Proceedings in respect of the second applicant
The second applicant was cited to appear before the Leninskiy District Court as a defendant against Mr Pugach’s defamation claim of 30 August 2002. His case was heard by a bench composed of presiding Judge S. and two lay assessors. The second applicant made an objection to Judge S. who, according to him, had already expressed his position in the judgment against the editorial board. Lay assessors examined and rejected the objection without giving reasons.
On 3 October 2002 the Leninskiy District Court issued a judgment against the second applicant. The court found that he had failed to prove the truthfulness of his statements about Mr Pugach. His arguments that the contested statements had been too vague to be amenable to proof were “inadmissible evidence”. The second applicant was ordered to pay RUR 2,500 as compensation for non-pecuniary damage and RUR 10 in court fees.
The second applicant appealed. He repeated the arguments advanced in his statement in support of the first applicant’s appeal. He further argued that the outcome of his case was predetermined by the judgment against the first applicant. Judge S., who had examined the case against the first applicant, was bound to have had a preconceived opinion about his case.
(c) Appeal proceedings in respect of the applicants
On 31 October 2002 the Kirov Regional Court adjourned the examination of the appeals. It established that the interim decision of 19 September 2002 rectifying an error in the judgment of 13 September 2002 had been issued in the absence of the interested parties. Moreover, the parties had not received a copy of that decision and had thereby been deprived of an opportunity to appeal. Until that omission had been remedied, the appeal against the judgment of 13 September 2002 could not be examined, neither could the appeal against the judgment of 3 October 2002. Because both cases had been based on the same claim, the determination of one of them prejudged the outcome of the other. On that ground, the Kirov Regional Court decided that the two cases should be joined and all appeals should be examined simultaneously.
On 14 November 2002 the first applicant lodged an appeal against the interim decision of 19 September 2002. It argued that that decision had been unlawful for the following reasons: a rectification had been made by the District Court of its own motion; the decision had been made in the absence of the parties; and, in substance, the decision was a disguised substitution of a defendant rather than a correction of a clerical error or an obvious mistake. The first applicant submitted that the limited liability company The Editorial Board of the Vesti Newspaper and the editorial board of the Gubernskie Vesti newspaper were two distinct entities: the first one was registered as a legal entity, while the second one was operating without State registration. The fact that the District Court had issued a judgment against the wrong entity demonstrated that the adjudication of the case had been superficial and the crucial aspects of the case had not been examined properly.
On 29 November 2002 the Leninskiy District Court, by a new interim decision, confirmed its earlier decision of 19 September 2002 on rectification of the error in the defendant’s name. The first applicant lodged an appeal repeating the arguments advanced in the appeal statement of 14 November 2002.
On 24 December 2002 the Kirov Regional Court examined all appeals. Both applicants were represented at the hearing by Mr Rossokhin.
Firstly, the Kirov Regional Court quashed the interim decision of 19 September 2002 on the ground that it had been issued in the absence of the parties, but upheld the interim decision of 29 November 2002 which, in its view, had been “incorrect in form but correct in substance”. Thus, it found that counsel, who had taken part in the hearing of 13 September 2002, represented the interests of the first applicant, the limited liability company The Editorial Board of the Vesti Newspaper. It was clear that the judgment of 13 September 2002 defined the rights of, and conferred obligations on, the first applicant, because no other organisation had been involved in the proceedings. The amendment of the defendant’s name was therefore no more than a rectification of a clerical error not related to the merits of the case and having no effect on the substance of the judgment.
The Regional Court further upheld in substance the judgments of 13 September and 3 October 2002. In particular, it found that it was evident from the article’s title that the last sentence concerned Mr Pugach. Mr Pugach was not the only one who had understood that the sentence had been directed at him, other newspapers had also drawn the same conclusions. The District Court had therefore correctly required the defendants to prove the truthfulness of their allegations, which they had failed to do. Finally, the Regional Court held that the severance of the claim against the second applicant from the proceedings “had not involved a substantially incorrect determination of the dispute”.
The Regional Court, however, found that the District Court had incorrectly required the first applicant to publish the retraction statement drafted by the plaintiff. An apology, a promise to discipline the author and an undertaking to respect domestic law contained in the retraction statement had no basis in domestic law. The immediate enforcement order was also unlawful. The court ordered that the first applicant publish an amended retraction statement. It also reduced the award payable by the first applicant to RUR 10,000.
On 14 January 2003 the first applicant published the amended retraction statement.
The applicants’ applications for supervisory review of the judgments were rejected.
B. Relevant domestic law
1. Civil actions for defamation
Article 152 of the Civil Code provides that an individual may apply to a court, with a request for a retraction 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.
The 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 as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7).
On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Resolution no. 3, requiring the courts hearing defamation claims to distinguish between 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 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 make an apology to a plaintiff, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18).
2. Defendants in an action for defamation
The Mass Media Act (Law no. 2124-I of 27 December 1991) defines an editorial board of a mass medium as an organisation, citizen or group of citizens producing and issuing a mass medium. An editorial board may start functioning after State registration of its mass medium (section 8). Also, an editorial board may – but is not required to – obtain legal entity status through State registration (section 19). A publisher of a mass medium is defined as a company or business person responsible for technical, material and logistical aspects of a production process (section 2).
In cases in which articles have been published in a newspaper, the defendants in an action for defamation must be the article’s author and the newspaper’s editorial board. If the author is not indicated, the editorial board will be the sole defendant. If the editorial board does not have legal entity status, the founder of the newspaper shall be cited as a defendant (paragraph 6 of Ruling no. 11 of the Plenary Session of the Supreme Court of the Russian Federation of 18 August 1992 “On certain issues that arose in the course of judicial examination of claims for the protection of honour and dignity of individuals, and professional reputation of individuals and legal entities”, amended on 25 April 1995, in force at the material time).
3. Rectification of a judgment
The RSFSR Code of Civil Procedure (in force until 1 February 2003) provided that, after pronouncing a judgment, the court could not quash or amend it. However, the court could, of its own motion or at the request of a party, rectify clerical errors or obvious errors in calculation. In such a case the court had an obligation to hold a hearing and notify the parties about its date. The parties could appeal against the rectification order (Article 204).
COMPLAINTS
THE LAW
I. ARTICLE 10 OF THE CONVNETION
The applicants complained of a violation of their right to freedom of expression as provided 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...
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.”
The applicants submitted that there had been unlawful interference with their freedom of expression. In particular, they submitted that the order to publish a retraction statement containing an apology and the immediate enforcement order had had no basis in domestic law. Although the appeal court had acknowledged that those orders had been unlawful, it had not remedied the violation. On the contrary, the Appeal Court had aggravated the situation by requiring the first applicant to publish a second retraction statement. Accordingly, the first applicant had been punished twice. The applicants also argued that the first applicant, the publisher of the Gubernskie Vesti, Kirov newspaper, could not be cited as a defendant. Under domestic law, an action for defamation had to be brought against the editorial board. Because the editorial board of the newspaper had no legal entity status, the action had to be brought against its founders, the Government of the Kirov region and the Legislative Assembly of the Kirov region, who should have been cited as defendants (see the Supreme Court’s ruling of 18 August 1992, cited above). Therefore, there had been no legal basis for bringing an action for defamation against the publisher.
The applicants further argued that the interference had been disproportionate to the legitimate aim pursued. The article had denounced the administrative pressure laid on businessmen with the aim of compelling them to sponsor government projects. It had also voiced the apprehensions of those businessmen that the funds thus collected might be misappropriated. It therefore raised questions of public concern. Moreover, the author had simply shared with his readers the opinions held by others without stating that those opinions had been true or valid. Accordingly, the interference with their freedom of expression had not corresponded to a “pressing social need”.
The Government submitted that the statements published by the applicants had been intended as statements of fact. The applicants had failed to prove the truthfulness of those statements. The interference with their freedom of expression had therefore been justified.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
II. ARTICLE 6 OF THE CONVENTION
The applicants complained that the defamation proceedings had allegedly been unfair. They relied on Article 6, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
A. Equality of arms
The applicants submitted that the judgment of 13 September 2002 had been issued against the editorial board of the Gubernskie Vesti newspaper. However, on 19 September 2002, six days after the pronouncement of the judgment, the first applicant had been made a defendant by an interim decision issued in its absence. The substitution of a defendant, disguised as a rectification of a clerical error, had resulted in a violation of the applicants’ procedural rights. The applicants had been absent from the hearing of 13 September 2002 and had been given no opportunity to present their case or submit evidence to the District Court. Counsel, who had attended the hearing of 13 September 2002, had represented the interests of the editorial board of the Gubernskie Vesti newspaper. That the first applicant had subsequently retained the same counsel to represent it before the Appeal Court could not remedy the disadvantage created on 13 September 2002. The fact remained that, at the crucial first-instance hearing, the applicants had been absent and unrepresented and had been deprived of an opportunity to defend their position and comment on the plaintiff’s claims.
The Government submitted that the first applicant’s representatives had been present at the hearing of 13 September 2002 and had defended the first applicant’s interests. They referred to the decision of 24 December 2002 by the Regional Court which found that the judgment of 13 September 2002 had defined the rights of, and conferred obligations on, the first applicant because no other organisation had been involved in the proceedings. The indication of the editorial board of the Gubernskie Vesti newspaper as the defendant had been no more than a clerical mistake.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. Impartiality of the courts
The applicants submitted that Judge S., who had been the only professional judge in the formation examining the claims against the second applicant, had been biased. Firstly, he had adjudicated the claims against the first applicant and had already stated his position on the merits of the case. In the applicants’ opinion, to maintain the appearance that his position was consistent, Judge S. had to arrive at the same conclusions in respect of the claims against the second applicant. Secondly, by, of his own motion, resuming the case against the second applicant, Judge S. had acted in the interests of the plaintiff, thereby demonstrating his prejudice against the applicants.
The Government argued that the claims against the author had been correctly severed from the claims against the editorial board. The editorial board had refused to reveal the identity of the author and the courts had had no other choice but to sever the claims. After the name of the author had been revealed and the proceedings against him had resumed, there had been no procedural obstacles for Judge S., who had adjudicated the claims against the editorial board, to examine the claims against the author. Under domestic law there had been no grounds for objecting to Judge S.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
C. Other issues
Lastly, the Court has examined the remainder of the applicants’ complaints under Article 6 as submitted by them.
However, having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares admissible, without prejudging the merits, the applicants’ complaints concerning:
(a) the alleged violation of their right to freedom of expression;
(b) the alleged violation of the principle of equality of arms;
(c) the alleged lack of independence and impartiality of the courts;
Declares inadmissible the remainder of the application.
Søren
Nielsen Christos Rozakis
Registrar President