THIRD SECTION
CASE OF SHENDEROVICH v. RUSSIA
(Application no. 77086/14)
JUDGMENT
STRASBOURG
10 January 2023
This judgment is final but it may be subject to editorial revision.
In the case of Shenderovich v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Yonko Grozev, President,
Peeter Roosma,
Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 77086/14) 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 5 December 2014 by a Russian national, Mr Viktor Anatolyevich Shenderovich, born in 1958 and living in Moscow (“the applicant”) who was represented by Ms K. Kostromina, a lawyer practising in Moscow;
the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr A. Fedorov, former Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office;
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. On 10 February 2014 the applicant published a blog post drawing certain parallels between the 2014 Sochi Olympics with the 1936 Berlin Olympics on the website of the Ekho Moskvy radio station. On 12 February 2014, in an interview given to the Dozhd TV channel, he commented on the fact that his article had been criticised by certain officials, in particular, Mr V. Vasilyev, Deputy Chairperson of the State Duma and the head of the United Russia parliamentary group, saying, “If I lived in a democratic country, then from today on I would have stopped working and spent the rest of my life living on fines [paid] by numerous scoundrels, from Vasilyev and many State Duma deputies, who called me a fascist, to [the State‑owned TV channel] VGTRK ...”.
2. On 28 February 2014 Mr V. Vasilyev brought defamation proceedings against the applicant. A summons was sent by telegram at the applicant’s registered home address, but he did not receive it.
3. On 4 April 2014 the Preobrazhenskiy District Court of Moscow held a hearing in the applicant’s absence. It found it established that the use of a word “scoundrels” amounted to a “public insult” of Mr Vasyliev. Emphasising that the claimant was “a well-known politician and a holder of a high public office”, the District Court awarded him 1,000,000 Russian roubles (RUB) in damages.
4. On 10 June 2014 the Moscow City Court, having refused to admit into evidence an expert report supplied by the applicant to prove that the impugned word was an expression of his value judgment, dismissed the applicant’s appeal. The applicant’s cassation appeals were unsuccessful.
5. On 4 August 2014 the applicant paid RUB 1,000,000 (approximately 20,910 euros[1]) in execution of the judgment.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION6. 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.
7. It is not in dispute between the parties that the civil defamation proceedings complained of amounted to an interference with the applicant’s right to freedom of expression, as well as that it was “prescribed by law” and pursued a legitimate aim of “the protection of the reputation ... of others”. It remains to be established whether they were “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 160, 27 June 2017).
8. The relevant general principles of the Court’s case-law have been summarised in Bédat v. Switzerland ([GC], no. 56925/08, §§ 48-54, 29 March 2016).
9. When examining the defamation claims against the applicant brought by a Deputy Chairperson of the State Duma, the domestic courts did not assess whether the word “scoundrels” represented a value judgment not susceptible of truth rather than a statements of fact (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 96, ECHR 2004‑XI, and Tolmachev v. Russia, no. 42182/11, § 50, 2 June 2020), or whether this expression should be seen in the context of the claimant’s position as a member of parliament open to close scrutiny of word and deed by both journalists and the public at large (see Jerusalem v. Austria, no. 26958/95, § 38, ECHR 2001‑II, and Redaktsiya Gazety Zemlyaki v. Russia, no. 16224/05, § 42, 21 November 2017). The domestic courts appear to have acted on the assumption that Mr Vasilyev’s interests in protecting his reputation prevailed over the applicant’s interest as a journalist in informing the public, thus failing to strike a fair balance when protecting the two competing values guaranteed by the Convention (see Skudayeva v. Russia, no. 24014/07, § 36, 5 March 2019). Moreover, they did not consider the applicant’s financial situation at all when making a very substantial award to be paid to the claimant (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49, Series A no. 316‑B, and Timakov and OOO ID Rubezh v. Russia, nos. 46232/10 and 74770/10, § 70, 8 September 2020).
10. The Court has previously found a violation of Article 10 of the Convention in a large number of cases concerning freedom of the media in Russia for the reason that the domestic courts had failed to apply the Convention standards when deciding on a defamation dispute (see, among many others, OOO Ivpress and Others v. Russia, nos. 33501/04 and 3 others, § 79, 22 January 2013; Kunitsyna v. Russia, no. 9406/05, §§ 46-48, 13 December 2016; Terentyev v. Russia, no. 25147/09, §§ 22-24, 26 January 2017; OOO Izdatelskiy Tsentr Kvartirnyy Ryad v. Russia, no. 39748/05, § 46, 25 April 2017; Skudayeva, cited above, § 39; Novaya Gazeta and Milashina v. Russia, no. 4097/06, §§ 66‑73, 2 July 2019; Tolmachev, cited above, § 47; and Rashkin v. Russia, no. 69575/10, § 18, 7 July 2020).
11. Having carefully examined the case materials and the parties’ submissions before it, the Court concludes that the domestic courts did not give due consideration to the principles and criteria as laid down by the Court’s case‑law for balancing the right to respect for private life and the right to freedom of expression. They thus exceeded the margin of appreciation afforded to them and failed to demonstrate that there was a reasonable relationship of proportionality between the interference in question and the legitimate aim pursued (see, with further references, Tolmachev, cited above, § 56, and Timakov and OOO ID Rubezh, cited above, § 71). Nothing in the Government’s submissions indicates otherwise. It thus has not been shown that the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”.
12. There has accordingly been a violation of Article 10 of the Convention.
OTHER COMPLAINTS13. The applicant also complained under Article 6 § 1 of the Convention that the District Court had heard the defamation case in his absence. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that the applicant’s remaining complaint is admissible but that there is no need to give a separate ruling on it (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
14. The applicant claimed 20,910 euros (EUR) in respect of pecuniary damage.
15. The Government insisted that no award should be made.
16. The Court awards the applicant EUR 20,910 in respect of pecuniary damage.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 10 of the Convention;Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention;Holds(a) that the respondent State is to pay the applicant, within three months, EUR 20,910 (twenty thousand nine hundred and ten euros) in respect of pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Yonko Grozev
Deputy Registrar President
[1] At the official exchange rate applicable on 4 August 2014, that is, 47,82 roubles to one euro.