ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 21.07.2005<ДЕЛО ГРИНБЕРГ (grinberg) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF GRINBERG v.
RUSSIA
(Application No. 23472/03)
JUDGMENT <*>
(Strasbourg,
21.VII.2005)
--------------------------------
<*> 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 Grinberg
v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P.
Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по
тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными
скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev, judges,
and Mr S. Quesada, Deputy Section
Registrar,
Having deliberated in private on 30 June 2005,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (No. 23472/03) 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 Isaak Pavlovich Grinberg, on 23 June 2003.
2. The applicant was
represented before the Court by Ms L. Yemelyanenkova, a lawyer practising in
Ulyanovsk. The Russian Government ("the Government") were represented by their
Agent, Mr P. Laptev, Representative of the Russian Federation at the European
Court of Human Rights.
3. The applicant alleged a violation of his right
to express opinions, guaranteed by Article 10 of the Convention.
4. The
application was allocated to the First Section of the Court (Rule 52 § 1 of the
Rules of Court). Within that Section, the Chamber that would consider the case
(Article 27 § 1 of the Convention) was constituted as provided in Rule 26 §
1.
5. By a decision of 28 October 2004, the Court declared the
application admissible.
6. On 1 November 2004 the Court changed the
composition of its Sections (Rule 25 § 1). This case was assigned to the newly
composed First Section (Rule 52 § 1).
7. Neither the applicant nor the
Government filed observations on the merits (Rule 59 § 1).
THE FACTS
I.
The circumstances of the case
8. The applicant was born in 1937 and lives in
Ulyanovsk.
9. On 6 September 2002 the Guberniya newspaper published a
piece written and signed by the applicant. The entire text of the piece,
entitled "[My] statement" ("Заявление"), read as follows:
"The
voting ballots were still being counted, but it was already clear that General
V.A. Shamanov had been elected Governor of the Ulyanovsk Region. That very night
he made the following verbatim statement: "Let me tell you bluntly and frankly -
the local press has to be dealt with thoroughly".
During his electoral
campaign General [Shamanov] made many promises to the residents of Ulyanovsk.
But, in my opinion, he has kept only one: [he is] "waging war" against the
independent press, against journalists. The judicial proceedings in Shamanov"s
action against the highly talented Ulyanovsk journalist Dyomochkin are still
pending. But the criminal prosecution of a journalist is exceptional. Yulia
Shelamydova, editor-in-chief of the Simbirskiye Izvestia newspaper, has been
sentenced to one year of correctional labour. Let us leave aside the legal
aspects of that case: the full text of the court judgment has not yet been
published and I hope there will be many more judicial proceedings, not only in
Ulyanovsk, but also in Moscow. But there is a moral dimension to this case. How
can three robust men, of whom two are Generals and one is a Hero of Russia, wage
a battle against a woman who is still a young girl! This brings to mind
Shamanov"s support for Colonel Budanov, who killed a 18-year-old [Chechen] girl.
No shame and no scruples!"
("Еще шел подсчет голосов,
но было уже ясно: губернатором Ульяновской
области избран генерал Шаманов В.А. Этой же
ночью он заявил буквально следующее: "С
местной прессой, прямо и откровенно скажу,
предстоит детально разобраться".
Во
время избирательной кампании генерал
обещал ульяновцам много. Но выполнил, с моей
точки зрения, только одно: "воюет" с
независимой прессой, с журналистами. Еще
продолжаются суды по иску Шаманова В.А. к
талантливейшему журналисту - ульяновцу
Демочкину Г.А. Но преследование журналиста
в уголовном порядке - это уникальный случай.
Юлия Шеламыдова - главный редактор газеты
"Симбирские известия" - осуждена на год
исправительно-трудовых работ. Оставим пока
в стороне юридический аспект этого дела:
еще не опубликован полный текст решения
суда, по этому поводу будет, надеюсь, еще
много судов, причем не только в Ульяновске,
но и в Москве. Но есть моральный аспект в
этом деле. Как могут три здоровых мужика, из
которых два - генерала, в том числе один -
даже герой России, "воевать" с женщиной,
более того - с молоденькой девчонкой!
Почему-то вспоминается поддержка Шамановым
В.А. полковника Буданова, убившего 18-летнюю
девушку. Ни стыда, ни совести!")
10. On 10
September 2002 Mr Shamanov brought a civil defamation action against the
applicant, the editor"s office and the newspaper"s founder - the Fund for
Assistance to Disenfranchised Communities Goryachev-Fond ("the Fund"). He
claimed that the assertion alleging that he had no shame and no scruples was
untrue and damaging to his honour and reputation. He sought 500,000 roubles
((RUR), approximately 20,000 euros (EUR)) in compensation for non-pecuniary
damage.
11. On 14 November 2002 the Leninskiy District Court of Ulyanovsk
found for the plaintiff. The court held as follows:
"In the article the
author asserts that Shamanov, Governor of the Ulyanovsk Region, has no shame and
no scruples. The very tenor of the article confirms that the contested
statements contain precisely such an assertion. [The applicant"s] assertion in
this article that the plaintiff has no shame and no scruples is clearly damaging
because it impairs his honour, dignity and professional reputation... The
[applicant] did not produce before the court any evidence showing the
truthfulness of that statement about the plaintiff..."
The court
ruled:
"... the statement to the effect that the plaintiff has no shame
and no scruples, published in [the applicant"s] piece... [is] untrue and
damaging to Shamanov"s honour, dignity and professional reputation".
12.
The court held the Fund liable for RUR 5,000 (EUR 200) and the applicant liable
for RUR 2,500 (EUR 100) in respect of non-pecuniary damage to the plaintiff. The
Fund was also ordered to publish, by way of rectification, the operative part of
the judgment.
13. The applicant and the Fund lodged an appeal. The
applicant pointed out that the District Court had failed to distinguish
"opinions" from "statements". He submitted that his right to hold and impart
opinions was guaranteed by Article 29 of the Russian Constitution and the
contested statement was his personal assessment of Mr Shamanov"s actions.
Furthermore, he argued that the contested expression was an idiom in the Russian
language, and was commonly used to give an ethical appraisal of a person"s
deeds.
14. On 24 December 2002 the Ulyanovsk Regional Court upheld the
judgment of 14 November 2002. The court endorsed the conclusions of the
first-instance court and added:
"The arguments... about the court"s
confusion of the term "opinions" and the term "statements" (сведения)
cannot be taken into account because [the applicant"s] opinion had been printed
in a public medium and from the moment of publication it became a
statement."
15. The applicant"s subsequent attempts to initiate
supervisory review proceedings proved unsuccessful. On 22 August 2003 the
Supreme Court of the Russian Federation dismissed his application for the
institution of supervisory-review proceedings.
II. Relevant domestic law and
practice
Constitution of the Russian Federation
16. Article 29
guarantees freedom of thought and expression, together with freedom of the mass
media.
Civil Code of the Russian Federation of 30 November 1994
17. Article 152 provides that an individual may apply to a court with a request
for the rectification of "statements" ("сведения") 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.
Resolution No. 11 of
the Plenary Supreme Court of the Russian Federation of 18 August 1992 (amended
on 25 April 1995)
18. The Resolution (in force at the material time)
provided that, in order to be considered damaging, statements
("сведения") had to be untrue and contain allegations of a breach, by a
person or legal entity, of laws or moral principles (commission of a dishonest
act, improper behaviour at the workplace or in everyday life, etc.).
Dissemination of statements was understood as the publication of statements or
their broadcasting, inclusion in professional references, public speeches,
applications to State officials and communication in other forms, including
oral, to at least one another person (section 2).
19. Section 7 of the
Resolution governed the distribution of the burden of proof in defamation cases.
The plaintiff was to show that the statements had indeed been disseminated by
the defendant. The defendant was to prove that the disseminated statements had
been true and accurate.
THE LAW
I. Alleged violation of Article 10 of
the Convention
20. The applicant complained under Article 10 of the
Convention about a violation of his right to impart information and ideas.
Article 10 provides 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...
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..."
A. Arguments by the parties
21. The applicant submitted
that the article at issue had been part of an on-going political debate. He
emphasised that Mr Shamanov had not challenged the facts on which the article
had been based and that the contested sentence had assessed the latter"s deeds
rather than his personality. Furthermore, the applicant submitted that the
Russian idiom in question was a typical value judgment, not susceptible of proof
or refutation. It was an ethical appraisal and one person"s opinion about the
deeds of another, universally perceived as a value judgment and not as a
statement of fact.
22. The Government submitted that, pursuant to Article
152 of the Civil Code, it was incumbent on the applicant to show that the
information had been true, and he had failed to satisfy the burden of proof.
They conceded that there had been an interference with the applicant"s right to
freedom of expression and that the article had concerned the governor"s
relations with the press, a subject which could be considered a matter for
political debate. However, they maintained that the contested statement had
referred to Mr Shamanov"s personality rather than to his political activities
and that the applicant could have couched his criticism in different terms
without resorting to the defamatory assertion that Mr Shamanov had "no shame and
no scruples". The Government considered that the interference had been justified
and necessary in a democratic society for the protection of the reputation and
rights of others.
B. The Court"s assessment
1. General
principles
23. 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 and each individual"s
self-fulfilment. 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, judgment of 7 December 1976, Series A No. 24, p. 23, § 49; and Jersild
v. Denmark, judgment of 23 September 1994, Series A No. 298, p. 26, § 37).
24. 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, judgment of 24 February
1997, Reports of Judgments and Decisions 1997-I, pp. 233 - 34, § 37; and Bladet
{Tromso} 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, judgment of 25 June 1992, Series A No. 239, p. 28, § 63). Journalistic
freedom covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria (No. 1), judgment of 26 April
1995, Series A No. 313, p. 19, § 38). 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.
25. 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 {Surek} v. Turkey (No. 1) [GC], No. 26682/95, § 61, ECHR 1999-IV).
Moreover, the limit of acceptable criticism is wider with regard to a politician
acting in his public capacity than in relation to a private individual, as the
former inevitably and knowingly lays himself open to close scrutiny of his every
word and deed by both journalists and
