CASE OF REBECHENKO v. RUSSIA

THIRD SECTION

CASE OF REBECHENKO v. RUSSIA

(Application no. 10257/17)

JUDGMENT

STRASBOURG

16 April 2019

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

In the case of Rebechenko v. Russia,

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

Helen Keller, President,
Pere Pastor Vilanova,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 26 March 2019,

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

PROCEDURE

1.  The case originated in an application (no. 10257/17) 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 Maksim Sergeyevich Rebechenko (“the applicant” or “Mr R.”), on 30 December 2016.

2.  The applicant was represented by Mr A. Zabaznov. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 4 September 2017 notice of the application was given to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1992 and lives in Voronezhskaya, Krasnodar Region.

5.  In summer 2014 Ms F., the head of the Ust-Labinskiy District and of the non-governmental organisation “Human Rights Defender”, spoke at a television talk show on the situation in the eastern region of Ukraine and relations between Russia and Ukraine.

6.  On 28 July 2015 the applicant published on YouTube a video with the title “Kolkhoz TV on Ukrainian crisis” (Колхозное телевидение об украинском кризисе) where he made comments on Ms F.’s speech as follows:

“Ms F.: Nobody in the whole world has ever thought that Russia would become such a strong country and ... that Russia would reach new horizons...

The applicant (Mr R.): Nodding ironically, showing the brochure “Life of a galley slave”.

Ms F.: ... would organise worldwide renowned Olympic Games...

Mr R.: Nodding ironically, showing brochure “Winter Olympic Games in subtropics”.

Ms F.: ...and would host the Eurovision competition and, at the same time, would become a leading leader among gases (станет лидирующим лидером среди газа).

Mr R.: Yet today, according to the latest reports of the Mendeleyev international rating agency, Russia has reached the top of the list, drawing ahead of such gases as carbon, hydrogen and oxygen.

Ms F.: ...There is a war against Russia, which has become a first-rate power and everybody is annoyed by this fact...They want us to die of drug and alcohol abuse and poverty etc.

Mr R.: But it is not true that we die of alcohol, drugs and poverty... poverty?

Ms F.: ... Ukraine is, so to say, our Russian belly...

Mr R.: I am afraid of asking what the Far East is.

Ms F.: And that’s why we must, certainly, help these people who have found themselves in a horrible situation because Kyiv, to be honest, does not need these people. It needs gas.

Mr R.: But who is ‘the leading leader among gases’? That means they need Russia!

Ms F.: So, Slavyansk means gas...

Mr R.: Slavyansk means gas. As we know, gas means Russia. This proves that Slavyansk belongs to us on lawful grounds. In fact, it does not.

Ms F.: ... We must not get involved in a war...

Mr R.: Wait! You have said that a war has been declared on us. How can we not get involved in the war if we have been drawn into the war, as everybody knows, by Bulgarians?

Ms F.: ... we may not interfere [with what is happening in Ukraine]. Yes, we are sorry, yes, people die there. As has previously been said, what if our people go there and die?

Mr R.: I would recommend that this woman go to mothers of Russian soldiers, in particular those who had been dismissed from the service or who were on leave and who returned from Ukraine in coffins, so she could tell them that we did not interfere and that we do not have troops there.

Ms F.: And if now the economic situation in the country worsens and Russian people seek to rebel? We are already under pressure from various religious conventions (конвенций) which have infiltrated the country. Even in Krasnodar Region there are many such protestant, so to say, religious cults, as I call them, which influence people’s minds.

Mr R.: What, [beep] you are talking about?!

Ms F.: I guess they are now trying to convince us ideologically that if we are not happy with regional authorities’ decisions we need to organise rallies, revolutions etc. I believe that we must not take the bait!

Mr R.: ... because this breaks with long traditions and principles: to stay in a horsebox and eat all this sh** coming from the television.

Ms F.: We all, including all human rights defenders, need to work together as a team...

Mr R.: A person who claims to be a human rights defender must know what human rights are... Now you have an idea of what is happening inside the heads of those who watch television! Next patient, please!”

7.  On 11 January 2016 Ms F. brought an action against the applicant, stating that he had offended her and had harmed her reputation.

8.  On 28 January 2016 the Ust-Labinskiy District Court of the Krasnodar Region allowed her claim. The court held as follows:

“... [the applicant] disseminated untrue statements about Ms F. which damaged her honour, dignity and reputation, because these statements referred to unethical behaviour on her part...

The court has established that the defendant used abusive and obscene language in his video ..., therefore [the applicant] intended to humiliate Ms F. and damage her reputation.

... Ms F., the head of the Ust-Labinsk District, has sustained damage of a non‑pecuniary nature due to emotional distress caused by the defendant’s defamatory and discrediting statements and allusions to her unethical conduct. In accordance with the principle of reasonableness, taking into account the seriousness of the wrongful acts, the nature of the offence and the contents of the publication, the degree of suffering involved, and that the information concerned a public activist and was available for the general public, the court allows the plaintiff’s claim for non‑pecuniary damage in part and awards 50,000 roubles (‘RUB’)”.

9.  On 24 February 2016 the applicant lodged an appeal against the decision of 28 January 2016. He submitted that he had not offended Ms F., but had rather commented on her statements regarding the situation in Ukraine; nor had he disseminated any untruths relating to Ms F. As to obscene words, the applicant had used only one word meaning “prostitute”. However this word had been an interjection rather than an offence, and had been bleeped out. The applicant emphasised that the first-instance court had established that Ms F. was a public person who should tolerate critics, but had still issued a decision violating freedom of political speech.

10.  On 5 May 2016 the Krasnodar Regional Court upheld this decision on appeal, stating that the applicant had failed to provide any proof in respect of statements about Ms F. used in his video, and that he had used vulgar and obscene words humiliating Ms F.

11.  On 1 August and 1 November 2016 the Krasnodar Regional Court and the Supreme Court of Russia dismissed the applicant’s cassation appeals.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

12.  Article 29 of the Russian Constitution guarantees freedom of expression.

13.  Under Article 152 of the Civil Code of Russia, citizens may apply to the court for retraction of statements discrediting their honour, dignity or business reputation, unless the person who has disseminated such statements proves them to be true. A citizen who is the subject of statements which have been disseminated and which discredit his or her honour, dignity or business reputation has the right to a retraction and to claim compensation in respect of pecuniary and non-pecuniary damage.

14.  In Ruling no. 3 of 24 February 2005, the Plenary Supreme Court noted that Article 29 § 3 of the Constitution provided that no one could be compelled to express opinions or beliefs, or be compelled to refrain from expressing them.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

15.  The applicant complained under Article 10 of the Convention about a violation of his right to impart information. 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 ...”

16.  The Government submitted that the applicant had prejudiced Ms F.’s reputation and had offended her by using obscene words, saying “a person who claims to be a human rights defender must know what human rights are”, and “next patient, please”. They further submitted that the video did not concern a question of general interest, but had been uploaded to make fun of the guests of a local television talk show. Moreover, the applicant was a blogger, hence the guarantees applied by the Court to journalists and the press did not apply to the present case. Therefore, his freedom of expression had been restricted in accordance with the law in order to protect the rights of others.

17.  The applicant maintained his complaint.

A.  Admissibility

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

B.  Merits

1.  General principles

19.  The Court has repeatedly stressed that the freedom of expression enshrined in Article 10 of the Convention has paramount importance as an essential foundation of a democratic society and a basic condition for its progress and the development of every person. Consequently, the Convention provisions securing this right apply 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 the State or any sector of the population (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Axel Springer AG v. Germany [GC], no. 39954/08, § 78, 7 February 2012; and Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)).

20.  Nevertheless, the guarantees or Article 10 of the Convention are not absolute, and are subject to possible restrictions, which, however, must be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).

21.  It has been the Court’s practice to recognise the essential role played by the press in a democratic society. The Court has previously established that the press, as well as NGOs, exercise watchdog functions, and that the function of bloggers and popular users of social media may be also assimilated to that of “public watchdogs” as far as the protection afforded by Article 10 is concerned (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 165, 166, 168, ECHR 2016; and Falzon v. Malta, no. 45791/13, § 57, 20 March 2018).

2.  Application of the above principles in the present case

22.  The Court notes that the proceedings, leading to an award of non‑pecuniary damages for offence and defamation, constituted an interference with the applicant’s rights under Article 10 of the Convention. Furthermore, it was not disputed that such interference was prescribed by law and pursued a legitimate aim to protect the reputation or rights of others.

23.  Consequently, it falls to the Court to examine whether the interference was necessary in a democratic society, and specifically whether it was proportionate to the aim pursued (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999‑I).

24.  Whether the interference was “necessary in a democratic society” will depend on who spoke, about whom, on what subject of debate, whether the expressions used were facts or value judgments, and on procedural guarantees in the domestic courts, including reasoning of decisions and the nature and seriousness of penalties.

25.  In the present case, the applicant was a blogger who uploaded his video to a YouTube channel with more than 2,000 subscribers. The video was viewed by more than 80,000 visitors. In these circumstances, the interference must be examined on the basis of the same principles applied when assessing the role of a free press in ensuring the proper functioning of a democratic society.

26.  The applicant commented on the statements of Ms F., who was not only a human rights defender but also a local official, the head of a town district. She delivered her speech in public, which was reported by local television. Ms F.’s standing as the head of the district is closer to that of professional politicians, who should be prepared to tolerate a more demanding public scrutiny (see Zakharov v. Russia, no. 14881/03, § 25, 5 October 2006).

27.  The Court notes that in the present case the issues raised in the video were undeniably part of a political debate on a matter of general and public concern: relations between Russia and Ukraine, Russia’s position in the international arena, and the impact of its foreign policy on other countries and on Russia itself. The Court reiterates in this connection that its constant approach has been to require very strong reasons for justifying restrictions on political speech (see Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001‑VIII; and Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).

28.  The applicant’s statements were clearly made in a political context. As to the interjection which was beeped, it did not concern Ms F. and was used as an exclamation to express emotions. The applicant made remarks which described his personal perception of the crisis in Ukraine and involvement of Russia in this situation. There is nothing to suggest that it was made otherwise than in good faith and in pursuit of the legitimate aim of protecting the democratic development of, and contributing to free political debate in, the State of which the applicant was a national.

29.  The Court further observes that the applicant’s statements were value judgments, the truth of which is not susceptible of proof. The Court cannot agree with the position of the domestic courts, which treated his comments as statements of fact. Moreover, as far as the reasoning of the domestic decisions is concerned, the Court notes that the courts failed to analyse the contents of the video; they did not even use any extracts from the video to support their position on the case. There is no evidence that the domestic courts performed a balancing exercise between the need to protect Ms F.’s reputation and the applicant’s right to impart information on issues of general interest.

30.  As to the sanction imposed on the applicant, the Court notes that he was ordered to delete the video, publish a retraction, and pay about 714 euros (EUR) in non-pecuniary damage. The Court notes that these sanctions could discourage the participation of the press in debates on matters of legitimate public concern.

31.  In view of the above, the Court finds that the domestic courts failed to strike a fair balance between the relevant interests and to establish a “pressing social need” for putting the protection of the claimants’ reputation above the applicant’s right to freedom of expression. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them in matters of debate of public interest and that the interference was not “necessary in a democratic society”.

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

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  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.  Damage

34.  The applicant claimed 770 euros (EUR) in respect of pecuniary damage representing the award he was made to pay to the claimant Ms F. in civil proceedings against him and EUR 500 in non-pecuniary damage.

35.  The Government stated that the applicant’s claim was ill-founded.

36.  The Court observes that, in the present case, it has found a violation of the applicant’s rights, as guaranteed by Article 10 of the Convention. It considers that there is a clear link between the violation found and the pecuniary damage caused to the applicant. Accordingly, in respect of pecuniary damage, it awards the applicant EUR 714, plus any tax that may be chargeable on that amount. It awards the applicant EUR 500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.  Costs and expenses

37.  The applicant also claimed EUR 6 for the costs and expenses incurred before the domestic courts and EUR 65 for those incurred before the Court.

38.  The Government stated that this claims were unsubstantiated.

39.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 71 plus any tax that may be chargeable, covering costs under all heads.

C.  Default interest

40.  The Court 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 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 714 (seven hundred and fourteen euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 71 (seventy-one 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.

Done in English, and notified in writing on 16 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelen Keller
RegistrarPresident

 

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