Постановление Европейского суда по правам человека от 08.10.2009 "Дело "Романенко и другие (romanenko and others) против Российской Федерации" [рус., англ.]

37. The Court reiterates that an interference will constitute a breach of Article 10 unless it was "prescribed by law", pursued one or more legitimate aims under paragraph 2 and was "necessary in a democratic society" for the achievement of those aims.
38. The parties agreed that civil liability for publication of untrue statements was foreseen by Article 152 of the Civil Code and in that sense the interference was "prescribed by law". The applicants, however, argued that they should have benefited from the protection afforded by the fair-reporting exception in section 57 of the Mass-Media Act, since the statement in question had been taken out of an official document. The domestic courts held that exception to be inapplicable in the applicants' case because the document at issue had been signed by "municipal officials" rather than "State officials" and had been circulated by an "autonomous non-commercial organisation" rather than a "public association". While the Court cannot but note the artificial nature of the distinction made, it considers that this issue will be more appropriately dealt with below, under the proportionality limb of its analysis.
39. The Government claimed that the interference pursued the legitimate aim of the "protection of the reputation or rights of others". The applicants and the third parties disagreed that public bodies and authorities, such as the courts' management department in the instant case, should fall within the meaning of "others" in Article 10 § 2 of the Convention. The third parties cited examples from jurisdictions around the world in which the courts prevented public authorities from suing in defamation because of the public interest in such authorities being open to uninhibited public criticism. The report to the Parliamentary Assembly of the Council of Europe on the honouring of obligations and commitments by the Russian Federation also suggested that "the possibility of filing lawsuits against media and journalists by public authorities should be abolished as the latter per se cannot possess any dignity, honour, or reputation" (see paragraph 25 above). The Court acknowledges that there may be sound policy reasons to decide that public bodies should not have standing to sue in defamation in their own capacity; however, it is not its task to examine the domestic legislation in the abstract but rather consider the manner in which that legislation was applied to, or affected, the applicant in a particular case (see Karhuvaara and Iltalehti v. Finland, No. 53678/00, § 49, ECHR 2004-X). Accordingly, this issue will also be examined in the analysis of the proportionality of the interference.
40. Turning to the issue whether the interference was "necessary in a democratic society", the Court must determine whether the interference corresponded to a "pressing social need", whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. In assessing whether such a "need" exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not however unlimited, but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The Court's task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Grinberg v. Russia, No. 23472/03, § 27, 21 July 2005).
41. In examining the necessity of the interference in the particular circumstances of the case, the Court will take the following elements into account: the subject matter of the publication, the position of the applicants, the position of the person against whom the criticism was directed, characterisation of the contested statements by the domestic courts, the wording used by the applicants, and the penalty imposed on them (see Krasulya v. Russia, No. 12365/03, § 35, 22 February 2007).
42. Both publications in the applicants' newspaper concerned the unlawful felling of trees and undocumented sale of timber to Chinese companies, a matter of intense public interest for residents of the Primorskiy region, where the timber industry was one of the main employers. It was stated that the inclusion of the regional police department and the courts' management department in the number of timber purchasers had resulted in an increase in irregularities in the sale of timber. As the Court has held on many occasions, reporting on matters relating to management of public resources lies at the core of the media's responsibility and the right of the public to receive information (see Busuioc v. Moldova, No. 61513/00, §§ 63 - 64 and 84, 21 December 2004; and {Cumpana} and {Mazare} v. Romania [GC], No. 33348/96, §§ 94 - 95, ECHR 2004-XI). However, there is no evidence in the domestic judgments that the courts performed a balancing exercise between the need to protect the plaintiffs' reputation and the right of the members of the press to impart information on issues of general interest. They confined their analysis to the discussion of the damage to the plaintiffs' reputation without giving any consideration to the Convention standard which requires very strong reasons for justifying restrictions on debates on questions of public interest (see Godlevskiy v. Russia, No. 14888/03, § 41, 23 October 2008, and Krasulya, cited above, § 38). The Court therefore finds that the Russian courts failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of a reputation (see Dyundin v. Russia, No. 37406/03, § 33, 14 October 2008).
43. Further, it is undisputed that the applicants were not the source of the allegation about the increasing irregularities in the timber business. The first publication reproduced an extract from an open letter by seventeen persons concerned, namely State and municipal employees and private businessmen, to the Presidential representative in the region. The source of the quotation was identified and the quotation itself was printed in bold and placed within quotation marks. The second publication reprinted the entire text of the letter together with the statement that the courts' management department of the Primorskiy Region had not been the one targeted in the initial publication. That additional statement was not found to contain any defamatory information per se and the finding of the applicants' liability in the proceedings in connection with the second publication was likewise founded on the text of the open letter.
44. The Court reiterates its constant approach that a distinction needs to be made according to whether the statements emanate from a journalist or are quotations from others, since punishment of a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Dyundin, cited above, §§ 29 and 34; Pedersen and Baadsgaard v. Denmark [GC], No. 49017/99, § 77, ECHR 2004-XI; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 65, Series A No. 239; and Jersild, cited above, § 35). In finding the applicants liable, the Russian courts treated as irrelevant the fact that they were not the source of the impugned allegation and that under Russian law, being the founders of the newspaper, they had no control over its editorial policy (see paragraph 23 above). Although the contested allegation was clearly identified as one proffered by other persons, the courts failed to advance any justification for imposing a punishment on the applicants for reproducing statements made by others, a failure which was incompatible with the Convention requirements.
45. Furthermore, such imposition of liability appears also to be at variance with the requirements of the Russian Mass-Media Act, which provides that a person should be exempted from liability if the statement in question emanated from State officials, bodies, organisations, agencies, companies or public associations (section 57). That exemption clause is perfectly consonant with the Court's own approach to the effect that the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the content of official reports without having to undertake independent research (see Colombani and Others, cited above, § 65). The list of protected sources of information in section 57 of the Mass-Media Act is broad and it does not appear plausible that bodies of local self-government and their officials should be excluded from the scope of the fair-reporting exception. Thus, the distinction between State bodies and municipal bodies, drawn by the domestic courts in order to overrule the applicants' reliance on that exception, was rather formalistic and artificial. In any event, the letter had been signed, among others, by the local police chief and an official of the tax inspectorate, both of whom obviously fall within the ranks of officials explicitly listed in section 57.
46. Similarly, the Russian courts did not show in a convincing manner that the applicants could not avail themselves of the fair-reporting exception because the document at issue had been distributed at a press-conference organised by an "autonomous non-commercial organisation" rather than by a public association. Firstly, under Russian law, a "public association" is a generic term covering all types of non-governmental associations, including "autonomous non-commercial organisations". Secondly, as the applicants correctly pointed out, it was of little relevance on whose premises the press-conference had been organised, the important fact being that the document had originated from public officials. The Court notes that it was not alleged that the applicants had distorted or otherwise modified the text of the original open letter. Accordingly, it finds that, in reprinting an official non-confidential document, the applicants acted in good faith and were mindful of the "duties and responsibilities" of the members of the press referred to in paragraph 2 of Article 10.
47. The Court further observes that the Russian courts characterised the contested allegation about "irregularities" as a statement of fact and found the applicants liable for failure to show its veracity. The Court reiterates that in the context of the balancing exercise under Article 10, in particular where the reporting by a journalist of statements made by third parties is concerned, the relevant test is not whether the journalist can prove the veracity of the statements but whether a sufficiently accurate and reliable factual basis proportionate to the nature and degree of the allegation can be established (see Dyundin, cited above, § 35, and Pedersen and Baadsgaard, cited above, § 78). The fact that the regional police and the regional courts' management department had obtained unusually high timber purchasing quotas was not disputed in the domestic proceedings. Likewise, the fact was not contested that wholesale companies purchasing timber without appropriate licences had been allowed to operate without hindrance in the region. The Court stresses that where the impugned statement was made in the course of a lively debate at local level, elected officials and journalists should enjoy a wide freedom to criticise the actions of a local authority, even where the statement may lack a clear basis in fact (see Lombardo and Others v. Malta, No. 7333/06, § 60, 24 April 2007). In sum, the Court finds that the contested statement, albeit expressed provocatively, did not overstep the bounds of journalistic freedom, bearing in mind that State bodies and civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals.
48. Lastly, the Court will assess the penalty imposed on the applicants. It notes that they were each ordered to pay a substantial amount, first to Mr Shulga in his private capacity and then an even greater amount to the courts' management department. The domestic courts did not analyse what part of the applicants' income those amounts represented and whether an excessive burden would thereby be imposed on them. In the applicants' submission, undisputed by the Government, the sanction was equivalent to their income for four months and was thus obviously a severe penalty.
49. In conclusion, the Court finds that the Russian authorities did not adjudicate the defamation claims in compliance with the Convention standards and did not adduce relevant and sufficient reasons for the interference with the applicants' right to freedom of expression. Accordingly, the interference complained of was not "necessary in a democratic society" within the meaning of Article 10 § 2 of the Convention.
50. There has therefore been a violation of Article 10 of the Convention.
II. Application of Article 41 of the Convention
51. 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."
A. Pecuniary damage
52. The applicants each claimed 860 euros (EUR) as compensation in respect of pecuniary damage. That sum corresponded to the amount which they had each had to pay to the plaintiffs as a result of the domestic courts' judgments.
53. The Government accepted that the applicants' claims were reasonable in so far as those expenses had actually been incurred.
54. The Court finds that there is a causal link between the violation found and the alleged pecuniary damage in so far as the applicants referred to the amounts which they had paid under the domestic judgments. Consequently, the Court awards each applicant EUR 860 in respect of the pecuniary damage, plus any tax that may be chargeable on that amount.
B. Non-pecuniary damage
55. The applicant Mr Trubitsyn claimed EUR 3,000 and the applicants Ms Romanenko and Ms Grebneva each claimed EUR 1,000