European Court of Human Rights

 

 

THIRD SECTION

 

CASE OF ORISHCHENKO AND REGION-36 v. RUSSIA

(Application no. 50690/11)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

20 September 2022

 

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

In the case of Orishchenko and Region-36 v. Russia,

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

          Darian Pavli, President,

          Andreas Zünd,

          Mikhail Lobov, judges,

and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 50690/11) 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”) on 11 July 2011 by a Russian national, Mr Dmitriy Vasilyevich Orishchenko, born in 1981 and living in Voronezh, and a limited liability company registered under Russian law, Region-36 (“the applicants”) who were represented by Mr Stanislav Ryvkin and Ms Galina Arapova, lawyers practising in Voronezh;

the decision to give notice of the complaint concerning Article 10 of the Convention to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov;

the parties’ observations;

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

Having deliberated in private on 30 August 2022,

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

SUBJECT-MATTER OF THE CASE

1.  Mr Orishchenko is the owner of the website domain and a CEO of Region-36, a PR-company providing informational consulting services and publishing information on the website www.abireg.ru.

2.  On 17 April and 19 May 2009 Region-36 posted on the website two articles about the food products produced by a limited liability company “OOO LiskoBroiler” (for details see the Appendix). The latter claimed that these publications tarnished its business reputation and brought a civil defamation claim against the applicants. The domestic courts held in favour of the claimant and ordered the applicants to delete the defamatory passages, publish retractions and pay non-pecuniary damage to the claimant (see the Appendix).

3.  The applicants complained that the domestic courts’ finding of their liability for defamation and an order to pay compensation to “OOO LiskoBroiler” amounted to a disproportionate interference with their right of freedom of expression.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

4.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

5.  For the summary of the relevant general principles concerning Article 10 and the freedom of the press see OOO Regnum v. Russia (no. 22649/08, §§ 35-39 and §§ 55-81, 8 September 2020).

6.  It is undisputed between the parties that the civil defamation proceedings complained of amounted to an interference with the applicants’ right to freedom of expression and pursued a legitimate aim of the “the protection of the reputation ... of others”. The Court is also satisfied that the interference in question was “prescribed by law”, notably by Article 152 of the Russian Civil Code. It remains to be established whether such interference was “necessary in a democratic society”, which requires to ascertain whether it was proportionate to the legitimate aim pursued in accordance with the criteria established by the Court (see Morice v. France [GC], no. 29369/10, § 144, ECHR 2015).

7.  The Court is satisfied that the impugned publications concerned a matter of public interest, such as human health and consumer protection (see OOO Regnum, cited above, §§ 68-69). The publications relied on a sufficiently accurate and reliable factual basis which was proportionate to the nature and degree of the allegation made by the applicants (see Morice, cited above, § 126, with further references). The applicants offered the domestic courts documentary and other evidence to demonstrate the veracity of the impugned statements. In particular, they presented pictures of past waybills for the products of “OOO LiskoBroiler” to be returned because of their poor quality and a letter from the retailer mentioned in the impugned publications explaining that the claimant’s products were returned because of poor quality (see the Appendix). However, the domestic courts refused to consider this evidence referring to its non-contemporaneous nature. The Court further observes that the impugned statements did not contain the applicants’ own evaluation, but information emanating from third persons (see the Appendix). The domestic courts paid no heed to that (see Nadtoka v. Russia (no. 2), no. 29097/08, § 48, 8 October 2019).

8.  The domestic courts also failed to distinguish value judgments from factual statements in the impugned publications (see, among many other authorities, Margulev v. Russia, no. 15449/09, § 48, 8 October 2019, and Tolmachev v. Russia, no. 42182/11, § 50, 2 June 2020). While the domestic courts drew a formal distinction between value judgments not susceptible of truth and statements of facts, they did not provide any in-depth analysis of the nature of the impugned publications and did not examine whether there was a “pressing social need” capable of justifying interference with the exercise of freedom of expression (ibid., § 50). Upon examination of the documents before it, the Court considers that the evidence offered by the applicants to the domestic courts may have been relevant to show a prima facie case that the expressed value judgment as reflected in the impugned statements was fair comment. The Court has already found that when domestic courts require to prove the truthfulness of the statements but at the same time deprive applicants of an effective opportunity to adduce evidence in support of their statements, they overstep their margin of appreciation (Jerusalem v. Austria, no. 26958/95, § 45, ECHR 2001 II).

9.  As for the gravity of the penalty imposed on the applicant company, the Court notes the sizeable award made to the claimant, which had a “chilling effect” on the applicants’ freedom of expression (see OOO Regnum, cited above, § 77). Moreover, the domestic courts failed to assess the proportionality of the sizeable amount claimed by the commercial company in respect of non-pecuniary damage to the alleged damage to its business reputation (see Timakov and OOO ID Rubezh v. Russia, nos. 46232/10 and 74770/10, § 70, 8 September 2020).

10.  In view of the above, 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 weighing the reputational interests of a commercial company against the interests of members of the media in purveying information and the public interest in obtaining it. 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, cited above, § 71).

11.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  The applicants claimed, jointly, 3,753 euros (EUR) in respect of pecuniary damage and EUR 3,000 in respect of non-pecuniary damage. They also claimed EUR 6,755 in total in respect of costs and expenses incurred before the domestic courts and for those incurred before the Court.

13.  The Government insisted that the applicants’ rights had not been violated and considered the amount claimed to be excessive.

14.  Having regard to the documents in its possession, the Court awards the applicants, jointly, the following amounts, plus any tax that may be chargeable on the applicants: (i) EUR 3,753 in respect of pecuniary damage (see OOO Regnum, cited above, §§ 83-88); (ii) EUR 3,000 in respect of non‑pecuniary damage; and (iii) EUR 2,034 in respect of costs and expenses incurred before the Court.

15.  The Court further 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.      Declares the application admissible;

2.      Holds that there has been a violation of Article 10 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,753 (three thousand seven hundred and fifty-three euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 2,034 (two thousand and thirty-four euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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.

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

Done in English, and notified in writing on 20 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Olga Chernishova                                                   Darian Pavli
          Deputy Registrar                                                      President

APPENDIX: FACTS

Impugned publications	Relevant extracts	Other parties in the domestic proceedigns	Grounds advanced in the statement of defamation claims	Applicants’ arguments and evidence before domestic courts	Domestic courts and dates of their judgments		Reasons to find for claimant	Award to the claimant
On 17 April and 19 May 2009 the applicants posted on their website two articles about the food products of the company “OOO LiskoBroiler”.		Claimant:   “OOO LiskoBroiler”, a limited liability company   Co-defendant:   “ZAO VISANT-torg”, closed joint-stock company and owner of the retail chain, against which the proceedings were terminated once the domestic courts established that the company’s staff member (Ms. L.) did not disseminate the impugned information.	The articles tarnished LiskoBroiler’s business reputation	The applicants argued that the information in the impugned publications was true and constituted a value judgment. The applicants presented the following evidence to prove the veracity of the information provided: (i) waybills of returned goods to LiskoBroiler of 18/06/2008, 01/07/2008, 25/07/2008 indicating the reason for their return as ‘compromised marketable appearance’; (ii) a letter from “ZAO VISANT-torg” of 11/06/2008 which warned “OOO LiskoBroiler” that ‘poultry meat with blood stains will not be accepted’ and 24/12/2009 VISANT-torg’s reply to the applicants lawyer’s request which confirmed the goods were returned in 2008 because of the bloodstains (iii) an explanatory note by the trainee at Region-36 which supported the fact that Ms. L. had provided the impugned information in a telephone conversation with him; (iv) photos of “OOO LiskoBroiler” poultry meat with bloodstains packaged on 12/06/2009 (i.e. after the impugned publications).	First instance: Commercial Court of the Voronezh Region, 11/01/2010; Appeal: the Nineteenth Commercial Appellate Court of Voronezh, 05/05/2010. Federal Commercial Court for the Tsentralnyy District 01/09/2010 Final decision: the Supreme Court of Russia, 11/01/2011.	The disseminated statements were untrue and tarnished the claimant’s business reputation. In view of the domestic courts, the defendant failed to show the truthfulness of the impugned statements. The domestic courts disregarded the fact that both news items emanated from the defendant’s interview with a third party (Ms. L.) as they were unable to establish that she had indeed shared such information. The courts rejected the admission of the written statement of the defendant’s trainee who claimed to have interviewed Ms L. Other documentary evidence was also rejected as, in the view of the domestic courts, it could not have served as an information source for the applicants due to the non‑contemporaneous nature of the evidence presented. The decision was upheld on appeal in its entirety.		The domestic courts ordered the applicant to delete the defamatory passages, publish retractions and pay compensation in the amount of RUB 100,000 (~EUR 2,596).
17 April 2009   “The Voronezh branch of VTB Bank demonstrated to A.G. their OOO LiskoBroiler project - the largest project in regional agriculture and industry”	“...the [supermarket] chain used to work with LiskoBroiler, but their products turned out to be non-competitive. ‘We received broiler drumsticks with blood stains. And we refused to work with the company.’...
19 May 2009   “Rospotrebnadzor [state‑run service responsible for consumer protection in Russia] found violations at LiskoBroiler’s facilities”.	The local retailers also expressed their concern with regard to the quality of LiskoBroiler’s products. ... [Ms. L.], the manager of the ‘Pyaterochka’ supermarket chain in Voronezh, noted that the company had supplied [broiler] drumsticks with blood stains.”