European Court of Human Rights

 

 

THIRD SECTION

CASE OF PRONYAKIN AND OTHERS v. RUSSIA

(Applications nos. 74389/10 and 2 others - see appended list)

 

 

 

 

JUDGMENT

STRASBOURG

7 December 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Pronyakin and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          María Elósegui, President,
          Darian Pavli,
          Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 74389/10 and 2 others) 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 three Russian nationals (“the applicants”), on the various dates indicated in the appended table;

the decisions to give notice to the Russian Government (“the Government”) of the complaints concerning Article 10 of the Convention and to declare inadmissible the remainder of the applications;

the parties’ observations;

the decision to reject the Government’s objection to examination of the applications by a Committee;

Having deliberated in private on 9 November 2021,

Delivers the following judgment, which was adopted on that date:

subject-matter of the case

1.  The three applicants are journalists; Mr Pronyakin is also the owner of a Debri‑DV website that serves as an Internet archive. The applicants complained before the Court that the domestic courts examining civil defamation claims brought against them by several office holders had amounted to a disproportionate interference with their right to freedom of expression. The common facts of the applications, as submitted by the parties, may be summarised as follows. Specific details as regards each application appear in Appendix II below.

2.  In 2007-11, the applicants wrote or published online four articles. Public figures mentioned in the publications considered that certain statements had tarnished their honour, dignity, reputation, and business reputation and brought civil defamation claims before the domestic courts (six sets in total).

3.  The domestic courts in each of the six sets of defamation proceedings found for the claimant, ordered a retraction of the impugned statements and awarded compensation in respect of non-pecuniary damage to be paid by the applicants. In doing so, they limited themselves to establishing three elements: (i) whether the defendants had disseminated impugned statements; (ii) whether the statements had been of tarnishing nature; and (iii) whether the statements had been untruthful.

the court’s assessment

I.        JOINDER OF THE APPLICATIONS

4.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

5.  The applicants’ complaints that the domestic courts’ judgments in defamation proceedings against them had resulted in a violation of Article 10 are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. The applications must therefore be declared admissible.

6.  It is not in dispute between the parties that each of the six sets of civil defamation proceedings complained of amounted to an interference with the applicants’ right to freedom of expression, as well as that each instance of the interference was “prescribed by law” and pursued a legitimate aim of “the protection of the reputation ... of others”. It remains to be established whether they were “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 160, 27 June 2017).

7.  The relevant general principles of the Court’s case-law have been summarised in Bédat v. Switzerland ([GC], no. 56925/08, §§ 48-54, 29 March 2016).

8.  When examining the defamation claims against the applicants brought by public figures (see Appendix II below for details), the domestic courts limited themselves to establishing three elements only (see paragraph 3 above). The domestic courts did not assess whether the impugned statements represented value judgments not susceptible of truth rather than statements of fact (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 96, ECHR 2004‑XI, and Tolmachev v. Russia, no. 42182/11, § 50, 2 June 2020), or whether such statements should be seen in the context of the claimants’ position as public figures open to close scrutiny of word and deed by both journalists and the public at large (see Jerusalem v. Austria, no. 26958/95, § 38, ECHR 2001‑II, and Redaktsiya Gazety Zemlyaki v. Russia, no. 16224/05, § 42, 21  November 2017), or whether the publications had touched upon a matter of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999‑IV, and Fedchenko v. Russia (no. 3), no. 7972/09, § 47, 2 October 2018), or whether they had emanated from third parties (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298, and Nadtoka v. Russia (no. 2), no. 29097/08, § 48, 8 October 2019)). The domestic courts appear to have acted on the assumption that the claimants’ respective interests in protecting their reputation prevailed over the defendants’ interest in informing the public, thus failing to strike a fair balance when protecting the two competing values guaranteed by the Convention (see Skudayeva v. Russia, no. 24014/07, § 46, 5 March 2019). Moreover, they did not consider the defendants’ financial situation at all when making awards to be paid to the claimants (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49, Series A no. 316‑B, and Timakov and OOO ID Rubezh v. Russia, nos. 46232/10 et 74770/10, § 70, 8 September 2020). Lastly, in the proceedings against Mr Lobanov, the domestic courts failed to take into account the Court’s position that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions, such as, for example, the commission of a criminal offence (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004‑VIII).

9.  The Court has previously found a violation of Article 10 of the Convention in a large number of cases concerning freedom of the media in Russia for the reason that the domestic courts had failed to apply the Convention standards when deciding on a defamation dispute (see, among many others, OOO Ivpress and Others v. Russia, nos. 33501/04 and 3 others, § 79, 22 January 2013; Kunitsyna v. Russia, no. 9406/05, §§ 46-48, 13 December 2016; Terentyev v. Russia, no. 25147/09, §§ 22-24, 26 January 2017; OOO Izdatelskiy Tsentr Kvartirnyy Ryad v. Russia, no. 39748/05, § 46, 25 April 2017; Skudayeva, cited above, § 39; Novaya Gazeta and Milashina v. Russia, no. 4097/06, §§ 66‑73, 2 July 2019; Tolmachev, cited above, § 47; and Rashkin v. Russia, no. 69575/10, § 18, 7 July 2020).

10.  Having carefully examined the case materials and the parties’ submissions before it, the Court concludes that the domestic courts did not give due consideration to the principles and criteria as laid down by the Court’s case‑law for balancing the right to respect for private life and the right to freedom of expression. They thus exceeded the margin of appreciation afforded to them and failed to demonstrate that there was a reasonable relationship of proportionality between the instances of interference in question and the legitimate aim pursued (see, with further references, Tolmachev, cited above, § 56, and Timakov and OOO ID Rubezh, cited above, § 71). Nothing in the Government’s submissions indicates otherwise. It thus has not been shown that the instances of interference with the journalists’ freedom of expression were “necessary in a democratic society”.

11.  There has accordingly been a violation of Article 10 of the Convention in respect of each applicant and on the account of each set of defamation proceedings complained of.

III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  Article 41 of the Convention provides:

“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.”

13.  The applicants claimed the amounts indicated in Appendix III below.

14.  The Government considered the amounts claimed excessive.

15.  The Court awards the applicants the amounts indicated in Appendix III below, plus any tax that may be chargeable on the applicants.

16.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that there has been a violation of Article 10 of the Convention in respect of each applicant;

4.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                          María Elósegui
Deputy Registrar                                                                President

 

APPENDIX I: LIST OF APPLICATIONS

 

No.	Application no.	Case name	Lodged on	Applicant Year of Birth Place of Residence Nationality	Represented by
1.	74389/10	Pronyakin v. Russia	29/11/2010	Konstantin Anatolyevich PRONYAKIN 1977 Khabarovsk Russian	Karinna Akopovna MOSKALENKO
2.	12562/11	Lobanov v. Russia	09/02/2011	Mikhail Dmitriyevich LOBANOV 1959 Perm Russian
3.	15503/13	Kharitonova v. Russia	11/02/2013	Irina Yuryevna KHARITONOVA 1957 Khabarovsk Russian	Karinna Akopovna MOSKALENKO

 

 

APPENDIX II: FACTS

No.	Application no.	Impugned publication(s)	Claimant(s)	Grounds advanced in the statement of defamation claims	Applicants’ arguments before domestic courts	Domestic courts and dates of their judgments	Reasons to find for claimant(s)	Award to the claimant(s)
1	74389/10*	Two articles written by third parties and originally published on third websites in December 2009, the copies of which the applicant had published on the Debri‑DV website.	Mr B.R., member of the Russian State Duma	The articles tarnished Mr B.R.’s honour, dignity, and business reputation of an honorary citizen of Khabarovsk.	Mr Pronyakin had not written the impugned articles; the authorship and the original sources of publication had been clearly marked on the applicant’s website.	First instance: Zheleznodorozhny District Court of Khabarovsk, 09/10/2010. Appeal: Khabarovsk Regional Court, 01/09/2010.	The disseminated statements were untrue and tarnished the claimant’s reputation. That the defendant was not the author of the articles was irrelevant as he had disseminated them on his website. When determining the amount of compensation, the first-instance court emphasised “the high status of the claimant in society”. The appeal court upheld its judgment in its entirety.	A retraction and compensation of non‑pecuniary damage: Russian roubles 300,000 (RUB)
						Supervisory review: Presidium of the Khabarovsk Regional Court, 15/11/2010	The reference to “the high status of the claimant in society” was deleted as incompatible with the Constitutional principle of equality before the law.	A retraction and compensation of non‑pecuniary damage: RUB 70,000
2	12562/11	An article written by Mr Lobanov and published on 18/05/2007 in the Permskiye Novosti newspaper. The publication was entitled “Entertainment for a racketeer?” and described Mr S.S., an office holder at the Government of the Perm Region, as “an experienced criminal” and “racketeer”. The article reported on the recently opened criminal proceedings against Mr S.S. In 2001 Mr S.S. had been found guilty by a final court judgment of two crimes: extortion and robbery.	Mr S.S., deputy head of an architectural-construction inspection of the Perm Region	The disseminated statements had tarnished the claimant’s reputation because the record of his criminal convictions for robbery and extortion had been expunged by the time of the publication of the article. The criminal proceedings mentioned in the article of 18/05/2007 had resulted in his acquittal on 14/04/2008.	Despite the expungement, the fact that Mr S.S. had repeatedly committed serious crimes remained and accordingly could be referred to in the article.	First instance: Leninskiy District Court of Perm, 18/08/2010; Appeal: Perm Regional Court, 30/09/2010	The statements had been disseminated and had been untrue because the criminal record had been expunged and because the claimant would be later acquitted of the crime imputed at the time of the publication.	A retraction and compensation of non‑pecuniary damage: RUB 30,000 to pe paid by the publisher of the Permskiye Novosti newspaper and RUB 10,000 to be paid by Mr Lobanov
3	74389/10** and 15503/13	An article, written by Ms Kharitonova and Mr Pronyakin and published on 13/04/2011 on the Debri-DV website and in the Khabarovskiy Express newspaper. This publication was entitled “The Plenipotentiary Tree of Viktor Ishayev” and contained a picture of a “genealogical tree” with photos and brief biographies of a number of influential persons in the Khabarovsk Region connected to Viktor Ishayev, then the Plenipotentiary Representative of the President of the Russian federation in the Far-East Federal Circuit. The article was based on a number of previously published materials, which was expressly mentioned in the publication.	Mr A.Sh,, member of the Russian State Duma	“It follows from the context of the article that in the Khabarovsk Region there is a criminal syndicate - a ‘tree’ - headed by high-ranking State officials”. “The statement that I had received ‘protection’ when standing for the State Duma discredits me and our electoral system.”	Mr A.Sh. as a member of the State Duma is a public person whose activities should be subject to media scrutiny.	The Tsentralnyy District Court of Khabarovsk dismissed the claims in their entirety on 26/08/2011; the Khabarovsk Regional Court on 21/12/2011 quashed it and remitted for a fresh examination in the first instance. The Tsentralny District Court again dismissed the claims on 05/05/2012. The Khabarovsk Regional Court quashed the judgment and delivered a new judgment on 22/08/2012. Cassation appeal was unsuccessful.	The defendants had disseminated tarnishing statements the truthfulness of which they had not proved. That the article had been based on previously published materials was irrelevant as the borrowings were not verbatim. The amount of the award was determined “taking into account the personality of the claimant, a member of the State Duma, that is, a public person, and the degree of his physical and psychological suffering”.	A retraction and compensation of non‑pecuniary damage: RUB 30,000 in compensation of non‑pecuniary damage to be paid by Ms Kharitonova and Mr Pronyakin, each; RUB 5,000 in court fees
			Colonel General V.Ch., former Commander of the Far-East Military Circuit, the Head of the Russian Customs Academy	The article contained untrue and tarnishing statements of fact.	The impugned statements were value judgments that had had sufficient factual basis; the article contained references to the sources used.	First instance: the Zheleznodorozhny Court of Khabarovsk, 29/05/2012. Appeal: the Khabarovsk Regional Court, 12/09/2012. Cassation appeals unsuccessful.	“The defendants did not produce the evidence to prove the truthfulness of the statements disseminated in [the impugned] article”.	A retraction and compensation of non‑pecuniary damage: RUB 30,000 to be paid by Ms Kharitonova and Mr Pronyakin, each
			Major General V.B., former Head of the Department of the Interior of the Khabarovsk Region	The article contained untrue and tarnishing statements of fact.	The impugned statements were value judgments that had had sufficient factual basis; the article contained references to the sources used.	First instance: the Tsentralny District Court of Khabarovsk, 20/09/2012. Appeal: the Khabarovsk Regional Court, 23/01/2013. Cassation appeals unsuccessful.	The defendants had disseminated tarnishing statements the truthfulness of which they had not proved.	A retraction and compensation of non‑pecuniary damage: RUB 20,000 to be paid by Ms Kharitonova and Mr Pronyakin, each.
			Colonel General V.N., former Commander of the Commander of the Far-East Military Circuit	The article tarnished the claimant’s reputation.	The impugned statements were value judgments that had had sufficient factual basis; the article contained references to the sources used.	First instance: the Tsentralny District Court of Khabarovsk, 20/09/2012. Appeal: the Khabarovsk Regional Court, 18/01/2013. Cassation appeals unsuccessful.	The defendants had disseminated tarnishing statements the truthfulness of which they had not proved.	A retraction and compensation of non‑pecuniary damage: RUB 20,000 to be paid by Ms Kharitonova and Mr Pronyakin, each

*Application form of 29 November 2010

** Additional application forms of 28 January 2013, 11 February 2013, 2 June 2013, and 3 June 2013

APPENDIX III: ARTICLE 41 OF THE CONVENTION

No.	Application no.	Applicants’ claims for just satisfaction (Article 41 of the Convention)			The Court’s award
		Pecuniary damage	Non-pecuniary damage	Costs and expenses	Pecuniary damage	Non-pecuniary damage	Costs and expenses
1.	74389/10	1,000 euros (EUR) (no documents in support of the claim)	EUR 250,000	EUR 50 (no documents in support of the claim)	No award owing to the lack of supporting documents	EUR 9,750	No award owing to the lack of supporting documents
2.	12562/11	RUB 10,000 (no documents in support of the claim)	EUR 10,000	EUR 1,000 in legal fees (no documents in support of the claim) EUR 100 in postal expenses (no documents in support of the claim)		EUR 7,500
3.	15503/13	EUR 1,400 (no documents in support of the claim)	EUR 500,000	EUR 200 (no documents in support of the claim)		EUR 9,750