Communicated on 10 January 2017
THIRD SECTION
Application no. 50080/13
I.A. and R.A
against Russia
lodged on 18 July 2013
STATEMENT OF FACTS
The applicants, Mr I.A. and Ms R.A., are Russian nationals.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On an unspecified date in 2009, the first applicant’s father and some other law-enforcement officers were charged with abuse of power, abduction and extortion in respect of a Mr X. Investigator F. was in charge of the preliminary investigation. The criminal case was submitted for trial. They were then convicted as charged. It is unclear whether there were public hearings in the trial and in the (eventual) appeal proceedings.
In the meantime, X. was convicted of molestation of the first applicant, who had been 14-15 years old at the time of the crime, under Article 134 of the Criminal Code. On an unspecified date, the conviction became final. It is unclear whether there were public hearings at the trial and in the (eventual) appeal proceedings.
On an unspecified date in June or July 2010 Investigator F. met with R., a journalist, and talked to him about the criminal case against the officials that was pending before a trial court.
A local newspaper then published R.’s article. The journalist modified the first applicant’s last name but kept his first name; he mentioned his father’s first name, his grade and the name of the police unit he worked for; certain other people were mentioned in the article under their full names without any modification.
The article started with an account of the acquaintance between X. and the first applicant, and then focused on the alleged extortion, threats and abuse of power by the first applicant’s father and other law-enforcement officers in respect of X. and some other people.
The article contains a quotation from the investigator.
This article was also made accessible on the newspaper’s website and was then further disseminated on other Internet pages.
The applicants sued the publishing house, the newspaper, the journalist, the investigator and the Investigations Department before a district court for violation of privacy and defamation.
They contested as untrue and defamatory certain parts of the article.
They also argued that it had been both unlawful and unjustified to disseminate such private information relating to sexuality and intimacy.
The judge dismissed the applicants’ request to have the public excluded from the hearings.
The District Court rejected the merits of the claims.
The applicants appealed.
The appeal court held a hearing and upheld the judgment. The appeal court considered that the journalist had sufficiently modified the major details that would allow identification of the applicants by other people; the article had been based on the official information provided by the Investigations Department after the preliminary investigation in the case against the officials had been completed.
B. Relevant domestic law and practice
1. Constitution of the Russian Federation
Article 23 of the Constitution of the Russian Federation guarantees protection of private life, privacy in personal and family affairs, good name and honour. Article 29 protects freedom of thought and expression, together with freedom of the mass media.
2. Civil Code
Until October 2013 the Civil Code of the Russian Federation contained the following relevant provisions:
“Article 150: Intangible rights
1. Life and health, the dignity of an individual, personal integrity, honour and good name, business reputation, the inviolability of personal life, personal and family privacy ... belong to an individual by birth or by law, are inalienable and are not transferrable by any other means ...
2. Intangible rights are protected in accordance with this Code and other [relevant] laws ... as well as in such cases and within such limits where the use of the methods for the protection of ... those rights ... flows from the nature of the intangible right breached and the nature of the consequences of such a breach.
Article 151: Compensation for non-pecuniary damage
If non-pecuniary damage (physical or psychological suffering) has been inflicted upon an individual by acts violating his or her personal non-pecuniary rights or encroaching upon other intangible interests belonging to the individual, as well as in other cases set out in law, a court may order the perpetrator to pay monetary compensation for the said damage.
In determining the amount of compensation, the court takes into account the degree of liability of the perpetrator and other relevant circumstances. The court also has to take into account the degree of physical and psychological suffering in the light of the individual situation of the person on whom the damage was inflicted.
Article 152: Protection of honour, dignity and business reputation
1. An individual has a right to claim in court a retraction of the information damaging his or her honour, dignity or business reputation, if the person having disseminated such statements has failed to prove that they corresponded to reality ...
2. If damaging statements were disseminated in the media, they should be retracted in the same media ...
5. An individual about whom damaging information has been disseminated ... has the right, along with the right to request a court-ordered retraction of such information, to ask for damages and compensation for non-pecuniary damage resulting from such dissemination ...
6. Where it is impossible to identify the person responsible for the dissemination of the [defamatory information], the individual concerned has the right to apply to court, seeking to have the information in question declared false.”
On 24 February 2005 the Plenary Supreme Court of Russia adopted Resolution no. 3 on judicial practice in cases concerning the protection of the honour and dignity of individuals and the business reputation of individuals or legal persons, in which it reminded the lower courts that they should take into account the provisions of the European Convention on Human Rights and the case-law of the Strasbourg Court. More specifically, in part 8 of the Resolution, the Plenary Supreme Court noted that cases concerning the protection of honour, dignity and business reputation should be differentiated from cases concerning the protection of other intangible rights, the inviolability of which is specifically protected by the Constitution of Russia and other laws and the dissemination of which may cause non‑pecuniary damage even if the information in question is truthful and non-defamatory. In particular, in cases concerning the dissemination of information about the private life of an individual, it should be taken into account that unauthorised dissemination of even truthful information concerning private life may lead a court to award compensation for any non‑pecuniary damage resulting from the dissemination of such information (Articles 150 and 151 of the Civil Code). The only exception to this rule was when the information about the private life of a plaintiff had been disseminated with the aim of protecting some public interest (section 49 of the Media Act). If false information about the person’s private life was disseminated, then a defendant could be obliged not only to retract such information, but also to compensate for any resulting non-pecuniary damage under Article 152 of the Civil Code.
By Federal Law no. 142-FZ of 2 July 2013 (in force since 1 October 2013) Articles 150-52 of the Civil Code were amended. They read as follows:
“Article 150. Intangible rights and goods
1. An individual’s life and health, human dignity, personal security, honour and good name, business reputation, intangible private life, intangible home, personal and family privacy, freedom of movement, freedom to choose one’s place of residence, a citizen’s name and other non-physical goods should not be removed or transferred by any means ...
If necessary, non-physical rights may be protected, for instance, by way of judicial recognition of a violation, by way of a publication of a court decision about such a violation or by way of putting an end to or prohibiting certain actions that violate or would violate protection of non-physical rights or goods ...
Article 151. Compensation in respect of non-pecuniary damage
A court may order monetary compensation in respect of non-pecuniary damage where certain actions violate a person’s personal non-physical rights or impinge upon non-physical goods or in other situations prescribed by law, thus causing non‑pecuniary damage (physical or psychological suffering) to a citizen ...
Article 152. Protection of honour, dignity and business reputation
1. A citizen may lodge a court action for a court-ordered retraction of information that tarnishes his or her honour, dignity or business reputation, where the person who disseminated such information fails to prove that it corresponded to reality. A retraction or court-ordered retraction should be made in the manner in which the impugned information was disseminated or in a similar manner ...
2. A court-ordered retraction should be made in the same mass media ... In addition to a court-ordered retraction, a citizen has a right to require publication of his or her reply in the same mass media ...
Article 152.2. Protection of a citizen’s private life
1. Unless otherwise provided by law, it is not permissible to collect, store, disseminate or use information about an individual’s private life without this person’s consent ... It is permissible to collect, store, disseminate or use such information, on account of State, societal or other public interests or where such information is already accessible to the general public or was divulged by the person or on his or her behalf ...”
According to the Supreme Court of Russia, utterances that amount to opinions (мнения) or value judgments (оценочные суждения) cannot be challenged by way of an action under Article 152 of the Civil Code (decision no. 305-ЭС15-3006 of 10 April 2015, among others).
Pursuant to the new Article 152 of the Civil Code and section 46 of the Mass Media Act (Federal Law no. 2124-1 of 27 December 1991) if an individual considers that an opinion or a value judgment in the mass media affects his or her rights and freedoms, that person may have recourse to the right to reply or comment in the same mass media.
3. Other relevant legislation
Article 161 of the Code of Criminal Procedure (“the CCrP”) provided at the relevant time that it was prohibited to divulge information relating to the preliminary investigation in a criminal case, except if authorised by an investigator and in so far as he or she finds acceptable, provided that disclosure would not impinge upon the investigation and would not violate an individual’s rights or freedoms. It was prohibited to divulge, without their consent, information relating to the private lives of people involved in a criminal case.
Under Article 241 of the CCrP, it is permissible to exclude the public from hearings in criminal cases relating to sexual offences or to other offences where there was a possibility that information relating to an individual’s intimate life or tarnishing his or her honour and dignity would be divulged.
Under section 41 of the Mass Media Act, as in force at the relevant time, a mass media outlet was prohibited from divulging in its publications, either directly or indirectly, a minor’s identity where he or she was a victim of a criminal case, without his or her consent or his or her legal representative’s consent.
Article 10 of the Code of Civil Procedure provides that the public may be excluded from hearings in cases at the request of a party, referring to the need to protect the inviolability of his or her private life where public discussion would impinge upon it.
COMPLAINTS
The applicants allege that the investigator’s provision of privileged information to the journalist, the court’s failure to protect their private lives against an adverse article and the refusal to hold hearings in camera violated Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Was any information relating to the first applicant’s private life already in the public domain prior to the publication of the article, for instance on account of any public hearings held in the proceedings against the public officials and those against X.? Were the applicants sufficiently identified in the impugned article or otherwise sufficiently identifiable on account of some factual information in the article, for instance, through a contextual or keyword search on the Internet?
2.1. Has there been a violation of Article 8 of the Convention in respect of the first applicant on account of (i) the information provided by the investigator to the journalist and the statements made in the article, (ii) the court decisions in the civil case, and (iii) the refusal to hold hearings in camera (see Bédat v. Switzerland [GC], no. 56925/08, §§ 48-78, ECHR 2016)?
2.2. Was there a violation of Article 8 of the Convention in respect of the second applicant?
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