THIRD SECTION
CASE OF PRIVEZENTSEV v. RUSSIA
(Application no. 29131/14)
JUDGMENT
STRASBOURG
10 January 2023
This judgment is final but it may be subject to editorial revision.
In the case of Privezentsev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,
Jolien Schukking,
Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 29131/14) 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 31 March 2014 by a Russian national, Mr Maksim Vyacheslavovich Privezentsev, born in 1971 and living in Moscow (“the applicant”) who was represented by Mr Ye. Borisenko, a lawyer resident in Berlin;
the decision to give notice of the complaint concerning the right to freedom of expression 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 this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s criminal conviction on the charges of false denunciation for reporting an alleged abuse of power by a public official.
2. The applicant is a former president of the homeowners’ association in the Ramenki District in Moscow. According to him, his successor in that position Ms S., invoking her friendship with the wife of the Deputy Minister of Interior, had brought pressure on him, causing him to resign. When the homeowners’ assembly voted to oust Ms S. from presidency one year later, she refused to hand over her post to the new president and called the Deputy Minister’s wife for support. Within an hour, a tactical police unit arrived, along with the heads of the city and district departments of the Ministry of Interior and the head of the local police department.
3. On 23 October 2009 the applicant sent a letter to the President of Russia complaining about the Deputy Minister’s misuse of his official position. He submitted that the Deputy Minister had used his powers to assist his wife’s friend in the unlawful takeover of the association by securing the intervention of high-ranking police officials and a tactical police unit. The President’s Administration office referred the applicant’s complaint to the General Prosecutor’s office, which found no evidence of misconduct.
4. The Deputy Minister lodged a criminal complaint against the applicant on the charges of false denunciation. On 16 May 2011 the applicant was convicted and sentenced to a fine; the conviction was upheld on appeal by the Moscow City Court. On 10 August 2012 a judge of the Supreme Court referred the applicant’s case for supervisory review on the grounds that the courts had failed to consider the Deputy Minister’s professional status, the limits of acceptable criticism applicable to him and whether the applicant had overstepped them. On 7 September 2012 the Presidium of the Moscow City Court dismissed the request for the supervisory review.
5. Following another request for supervisory review, on 17 June 2013 the Supreme Court quashed the courts’ judgments and remitted the case for a new examination. It found that the applicant might have had cause to believe that his complaint had a valid factual basis and the courts had failed to substantiate their finding that the applicant had intended to falsely accuse the Deputy Minister. On 21 November 2013 the Moscow City Court found the applicant guilty and sentenced him to a fine, but relieved him from criminal liability by applying the statute of limitations.
6. The applicant complained, relying on Article 10 of the Convention, that his conviction for reporting the irregularities in the conduct of a public official violated his right to impart information.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
7. 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.
8. The applicant’s conviction for making a report constituted an interference with his right to freedom of expression. The Court will proceed on the assumption that the interference was prescribed by law and pursued the legitimate aim of the protection of the Deputy Minister’s reputation. It remains to be ascertained whether the interference was proportionate to the legitimate aim and whether the reasons adduced by the national authorities in its justification were relevant and sufficient.
9. The applicant addressed his complaint by private correspondence to the President of Russia, whose office forwarded it to the authority competent to examine the allegations. Accordingly, in the present case, the requirements of the protection of a public official’s reputation must be weighed against the applicant’s right to report irregularities in the conduct of a public official to the authority competent to deal with such complaints (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 82, 27 June 2017, with further references). Therefore, the Court has to consider the means and form of the statement, the status of the person whose reputation has been attacked, and the respective limits of acceptable criticism, as well as the impact of the statement on the aggrieved party’s reputation, and the gravity of the penalty imposed (ibid., § 88).
10. The applicant sent his complaint to the authority which he believed was competent to sanction an abuse of power by a public official. As stressed by the Supreme Court, the applicant had set out the facts known to him at the time, and nothing suggested that he had acted in bad faith or had intended to falsely accuse the Deputy Minister. Considering the nature and form of the complaint, the applicant could not expect to be subjected to the same burden of proof as someone making a criminal complaint. Since the allegations had not been made public, its negative impact on the Deputy Minister’s enjoyment of public confidence was very limited. On the whole, the applicant did not go beyond the limits of acceptable criticism, especially given that these limits are wider with regard to public officials (see Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 46, 27 May 2004). However, the domestic courts failed to consider any of the above factors, even after the Supreme Court highlighted them in the supervisory review judgment, and failed to identify the reasons for putting the protection of the Deputy Minister’s reputation above the applicant’s rights.
11. Having regard to the above considerations, the Court finds that the domestic courts did not adduce relevant and sufficient grounds for the interference with the applicant’s right to impart information and that his criminal conviction was not proportionate to the legitimate aim pursued. There has accordingly been a violation of Article 10 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,500 in respect of costs and expenses incurred before the Court.
13. The Government considered the claims to be excessive and unsubstantiated.
14. The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, and EUR 1,500 for costs and expenses, plus any tax that may be chargeable.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 10 of the Convention;Holds(a) that the respondent State is to pay the applicant, 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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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;
Dismisses the remainder of the claim for just satisfaction.Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President