European Court of Human Rights

FIRST SECTION

Application no. 44552/07
Anna Gennadyevna MALINOVSKAYA
against Russia
lodged on 18 September 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Anna Gennadyevna Malinovskaya, is a Russian national who was born in 1977 and lives in Ulyanovsk.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 12 October 2006 the Ulyanovsk newspaper Narodnaya Gazeta (“People’s Newspaper”) published on the first page an article headed “Prison romance in the Ulyanovsk way” (???????? ????? ??-??????????) with the applicant’s photograph and that of her husband. The applicant was referred to as a “terrorist’s wife”. The article stated, in particular, that the applicant, a jury foreperson from Ulyanovsk, had recently married the “convicted terrorist from the Jamaat group” Dagestani, Mr A., who had been accused of involvement in the acts of terrorism in Kaspiysk in 2002, and that she had fallen in love with him during his trial in Ulyanovsk at which she sat as a juror. The article announced that the “exclusive details” of the story would be published in the next issues.

During the newspaper subscription campaign which lasted about two months a commercial was televised on all local channels and monitors in 130 town route taxis. It showed the newspaper issue of 12 October 2006 with the applicant’s clearly visible photograph.

The publication allegedly incited the applicant’s and her minor daughter’s persecutions by their neighbours, at work and at school and led to the applicant’s dismissal from her work as a sales representative at a private company and difficulties to find employment.

On 25 January 2007 the applicant brought defamation proceedings, seeking the publication of a retraction and compensation for non-pecuniary damage and arguing, in particular, that her husband had been acquitted on the charges of terrorism and that the newspaper should have sought her consent to the use of her photograph in the televised advertisement.

Ulyanovsk Zheleznodorozhniy District Court held an open hearing and dismissed her action against the newspaper, notably the regional state institution OGU “United Editorial Staff” (???????????? ????????), in its judgment of 14 March 2007.

It established that on 8 July 2005 the Republic of Dagestan Supreme Court had convicted Mr A. of attempted murder by a group of persons, use of a forged document and arms-related offence committed in 2002. On 8 August 2005 he had been convicted by the Republic of Dagestan Khasavyurtovskiy Town Court of robbery and arms-related offence committed in 1998 and 2000. On 8 June 2006 the Ulyanovsk Regional Court had convicted him of robbery by an organised group with the aim of misappropriating property of substantial value committed in 2003 and acquitted him on the charges of banditry and incitement of religious hostility. The applicant was sentenced to a total of thirteen years’ imprisonment.

The District Court concluded that the statement that Mr A. had been “convicted” was true.

It further found that the word “terrorist” was used in the meaning that one had been accused of involvement in the acts of terrorism in Kaspiysk in 2002. Mr A. had indeed been accused of organising the act of terrorism in Kaspiysk, Dagestan, on 9 May 2002 during the parade.

The District Court considered that the statements “terrorist’s wife” and “... Anna Malinovskaya has recently married a convicted terrorist...” could not be considered as damaging her honour and dignity because marrying a terrorist could not be regarded as a dishonest act or unethical behaviour under international and national law.

The District Court further established that on 19 October 2006 the newspaper published another article. The applicant had given her consent to its text and the use of photographs to its author, journalist P., whom the court had examined at the preliminary hearing. The photographs which appeared in the article of 12 October 2006 were among those approved by the applicant for journalist P.’s article published on 19 October.

The District Court held that the information in the annonce of 12 October 2006 was true and had not breached the applicant’s rights and interests. It also held that the applicant’s consent for the use of the already published newspaper issue of 12 October 2006 in the commercial for advertising the newspaper had not been required.

The applicant appealed against the judgment. She argued, in particular, that she had indeed given the photographs to the journalist but for the publication of a completely different character with the aim to free her husband partially from blame and not to discredit him. The disputed article suggested that while knowing that Mr A. had been involved in such a monstrous crime as the terrorism act in Kaspiysk and was guilty of so many people’s death she had still married him thereby demonstrating her indifference and disregard to the grief of the victims’ family members. It was this connotation which was damaging to her honour and dignity. The applicant also complained that her request for examination of her complaint to the RF President and documents confirming her intention to donate any monetary award to an orphanage had been rejected.

On 17 April 2007 Ulyanovsk Regional Court examined the case on appeal. It endorsed the findings of the first-instance court, adding, in particular, that the 19 October article described Mr A.’s trial in detail including his acquittal on the terrorism-related charge. It found that the publication of the photographs before P.’s article had not violated the applicant’s rights. Her complaint to the RF President and documents confirming her intention to donate any monetary award to an orphanage were not relevant, as the arguments which she wished to disprove with their help had not been taken into account by the first-instance court when deciding the case.

The Regional Court dismissed the applicant’s appeal and upheld the judgment.

COMPLAINTS

The applicant complains that she was named a convicted terrorist’s wife in the article of 12 October 2006 in the newspaper Narodnaya Gazeta, while her husband had never been convicted of terrorism, and that the information in the article damaged her honour and dignity. Furthermore, the article with her photograph was shown without her consent in the commercial advertising the newspaper. The domestic courts’ findings were arbitrary and not based on the correct assessment of facts in breach of Article 6 of the Convention. Her request for examination of her complaint to the RF President and documents confirming her intention to donate any monetary award to an orphanage were rejected.

QUESTIONS TO THE PARTIES

1.  Having regard to the article with the applicant’s photograph in the newspaper Narodnaya Gazeta of 12 October 2006 and the commercial used during the newspaper subscription campaign which showed the issue of 12 October 2006 with the applicant’s photograph, has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention?

The Government are requested to submit the newspaper Narodnaya Gazeta issues of 12 and 19 October 2006 and the commercial used during the newspaper subscription campaign which showed the issue of 12 October 2006.

2.  What was the scale of the use of the commercial, which showed the newspaper issue of 12 October 2006 with the applicant’s photograph, during the newspaper advertisement campaign (the campaign’s time period; number of local TV channels used, time and frequency of the commercial; number of the town route taxis which displayed the commercial on their monitors, time and frequency of the commercial)?

3.  Having regard to the statements in the article of 12 October 2006 that the applicant was a “jury foreperson” and that she sat as a juror at the trial of Mr A., on what facts were those statements based?

4.  Having regard to the statement in the article of 12 October 2006 that Mr A. had been accused of involvement in the acts of terrorism in Kaspiysk in 2002, on what facts was that statement based? Was Mr A. acquitted on those charges (please submit the relevant judgments of trial and appeal courts)?