CASE OF STOLBUNOV AND MOO SPRAVEDLIVOST v. RUSSIA

THIRD SECTION

CASE OF STOLBUNOV AND MOO SPRAVEDLIVOST v. RUSSIA

(Applications nos. 30084/11 and 2 others – see appended list)

JUDGMENT
 

STRASBOURG

15 June 2021

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

In the case of Stolbunov and MOO Spravedlivost v. Russia,

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

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 30084/11, 3402/15 and 24922/15) 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 Russian national, Mr Andrey Borisovich Stolbunov (“the applicant”) and MOO Spravedlivost, Russian non-governmental organisation (“the applicant organisation”), on the various dates indicated in the appended table;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the right to freedom of expression and to declare inadmissible the remainder of the application no. 30084/11;

the parties’ observations;

Having deliberated in private on 15 June 2021,

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

INTRODUCTION

1.  The case concerns a series of interferences with the applicants’ right to report irregularities to a State body competent to deal with such complaints and several sets of defamation proceedings.

THE FACTS

2.  The applicant organisation is a Russian non-governmental organisation publishing articles on human rights on its web-site and defending human rights before the domestic authorities. The second applicant was born in 1972 and lives in Miami, United States of America, and is the founder of the applicant organisation. The applicants were represented by Ms M. Ledovskikh, a lawyer practising in Voronezh.

3.  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.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.Complaints to State authoritiesComplaints to the Federal Financial Monitoring Service of Russia

5.  On 2 October 2008 and 1 July 2009 the applicants submitted complaints to the Federal Financial Monitoring Service of Russia (Rosfinmonitoring) against Mr K., who held various administrative offices with the Moscow Government and was a member of the United Russia political party.

6.  In particular, the applicants stated that according to documents received from interested parties, a group of State officials in Moscow Region, including Mr K., had misappropriated private property by misusing their powers and administrative resources, i.e. acting as so-called ‘raiders’. His wife and he owned huge and expensive parcels of real estate. The applicants assumed that they could not have bought that property with their salaries.

7.  They also stated that, subject to further verification, Mr K.’s family had laundered money via an international company. Some of the evidence suggested that they had used State budget funds for the transactions. They asked the Rosfinmonitoring to conduct an inspection in respect of Mr K.

8.  Mr K. initiated defamation proceedings on the ground of Article 152 of the Civil Code, stating that the applicants had disseminated untrue information about him, which had undermined his reputation.

9.  By a decision of 4 February 2013, upheld on appeal on 24 June 2013, the Korolev Town Court of the Moscow Region allowed Mr K.’s claim. It stated that the applicants had failed to verify properly the information provided in their submissions to the Rosfinmonitoring and ordered to issue a retraction. Mr K. was a prominent State official and therefore any prejudice to his reputation could have serious consequences for his professional career. Taking into account Mr K.’s status, the courts ordered the applicants to pay him 500,000 Russian roubles (RUB) (about 12,400 euros (EUR)) in non-pecuniary damage and RUB 3,003 (EUR 74) in costs and expenses.Complaint submitted to the President’s Administration

10.  On 14 November 2008 the applicants submitted a petition to the President’s Administration, where they stated that the MOO Spravedlivost had received numerous complaints about Mr K.’s alleged misappropriation of budget funds and taking over business and real estate belonging to the State or private persons. These activities were not in line with the implementation of the anti‑corruption programme of the Russian President. The police had ignored their complaints and the reports of victims. They asked the President’s Administration to monitor the results of the investigation carried out by the MOO Spravedlivost with regard to Mr K.’s activities. They also provided a list of the allegedly unlawful transactions in which Mr K. had been involved.

11.  Mr K. initiated defamation proceedings against the applicants.

12.  By decision of 24 October 2012, upheld on appeal on 26 August 2013, the Korolev Town Court of the Moscow Region allowed his claim and ordered the applicants to issue a retraction and pay Mr K. RUB 1,000,000 (EUR 24,600) in non-pecuniary damage and RUB 203,030 (EUR 5,000) in costs and expenses. The courts analysed the contents of the petition and held that the applicants had failed to submit sufficient evidence for their allegations. They held that the contents of the complaint submitted to the President’s Administration compromised Mr K.’s activities in the eyes of the society and State authorities and could substantially prejudice his reputation of a decent State official. Therefore, in the courts’ opinion, Mr K. merited a higher award in non-pecuniary damage.Other defamation proceedings

13.  In several similar sets of proceedings relating to publications describing alleged violations of domestic law by Mr K. and his colleagues the applicants’ statements were held defamatory on the ground that they were unable to prove the veracity of their accusations.

14.  In total, in these proceedings the domestic courts ordered the applicants to pay more than RUB 2,000,000 in non-pecuniary damage. There is no information about the payment by the applicants of any of the sums ordered by the courts in the defamation proceedings described above.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

15.  Article 29 of the Russian Constitution guarantees freedom of expression. Article 33 provides that Russian citizens have the right to petition in person and to submit individual and collective appeals to State authorities and municipal bodies.

16.  According to Article 152 of the Civil Code of Russia, citizens have the right to claim in court that information discrediting their honour, dignity or business reputation be retracted, unless the person who has disseminated such information proves it to be true. A citizen who is the subject of information which has been disseminated and which discredits 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.

17.  The Petition Procedure Act of 2 May 2006 (Federal Law no. 59-FZ) sets up a framework for administrative complaints and petitions. According to its section 11 § 3, a petition containing obscene or insulting phrases, threats to life or limb of an official or his or her family members, may be left without examination on the merits; in such cases the complainant should be warned against the abuse of the right.

18.  According to the President’s Decree No. 808 of 13 June 2012, the Rosfinmonitoring examines and resolves citizens’ complaints under the Petition Procedure Act.

19.  Under the President’s Decree No. 201 of 17 February 2010, the Petitions Department of the President’s Administration considers oral and written petitions of Russian and foreign citizens and transfers them to other departments of the Administration or State authorities.

20.  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 or to refrain from expressing an opinion or belief. The Supreme Court also held that the fact that a person lodged a complaint with a public authority alleging, for instance, that a criminal offence had been committed but the allegation proved to be unfounded, could not serve as a basis for an action under Article 152 of the Civil Code. The Supreme Court explained that civil liability could not arise in a situation where an applicant was exercising the right of petition to a public authority, which had to carry out an inquiry. Such a situation did not equate to the dissemination of false defamatory information. A defamation action could only succeed if a court had established that the petition to the public authority lacked foundation and had been intended to cause damage to another person, thus amounting to an abuse of the right.

THE LAWJOINDER OF THE APPLICATIONS

21.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

22.  The applicants alleged a violation of Article 10 of the Convention which reads 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 ...

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 ...”Submissions by the parties

23.  The Government submitted that the domestic courts had correctly established that the information in the letters had been unsupported with any evidence. Mr Stolbunov was a lawyer and knew that his submissions to the domestic authorities were groundless. The Government concluded that the interference with the freedom of expression had been lawful and justified and pursued a legitimate aim of the protection of Mr K.’s reputation.

24.  The applicants maintained their complaints.Admissibility

25.  The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.MeritsDefamation proceedings concerning complaints before State authorities

26.  The Court notes that the finding of the applicants’ liability for defamation and an order to pay compensation to Mr K. constituted interference with their right to freedom of expression. The interference was based on the defamation provisions of the Civil Code and pursued the legitimate aim of protecting the reputation of Mr K. It remains to be ascertained whether it was necessary in a democratic society.

27.  The complaints about violations allegedly committed by Mr K. were submitted to the domestic authorities by way of private correspondence; they were not made public. The Court will therefore apply its well‑established case-law concerning an applicant’s right to report irregular or unlawful conduct of an official to a body 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). In such cases the Court has been prepared to assess an applicant’s good faith and efforts to ascertain the truth according to a more subjective and lenient approach than in other types of cases (ibid.).

28.  It may be necessary to protect public servants from offensive, abusive and defamatory attacks which are calculated to affect them in the performance of their duties and to damage public confidence in them and the office they hold. At the same time, it is one of the precepts of the rule of law that citizens should be able to notify competent State officials about conduct of civil servants which to them appears irregular or unlawful (ibid., see also Zakharov v. Russia, no. 14881/03, § 26, 5 October 2006, and Kazakov v. Russia, no. 1758/02, § 28, 18 December 2008).

29.  In the present case, the applicants did not disseminate the information attacking Mr K.’s conduct via the mass media. They merely reported the acts which they believed to be unlawful using wording that was not abusive or offensive. Neither the domestic courts nor the Government argued that the applicants had not acted within the framework established by law for making complaints to the Rosfinmonitoring or the President’s Administration (see Bezymyannyy v. Russia, no. 10941/03, §§ 38-39, 8 April 2010; see also paragraphs 17-19 above).

30.  Moreover, one of the applicants is a non-governmental organisation acting in the human rights domain. The complaints submitted to the above‑mentioned authorities concerned the possible involvement of a State official in illegal activities. By submitting such complaints the applicant organisation exercised its role of a “social watchdog” which required reinforced protection (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 166, 8 November 2016, and Medžlis Islamske Zajednice Brčko and Others, cited above, §§ 87 and 108).

31.  The domestic courts did not attempt to perform a balancing exercise between the need to protect the plaintiff’s reputation and the applicants’ right to freedom of expression. They did not explain why by submitting their complaints to specific State bodies which had never become public, the applicants could have compromised the State official’s reputation in the eyes of the general public (see paragraph 12 above).

32.  The reporting of alleged misconduct of the authorities in a private letter requires the application of a more subjective and lenient approach than in the situation where an applicant makes such allegations publicly available. Therefore, the above failings call for the conclusion that the domestic courts did not “apply standards which were in conformity with the principles embodied in Article 10” and did not give relevant and sufficient reasons to justify the interference.

33.  As regards the severity of the sanction, the Court reiterates that unpredictably large awards in defamation cases are capable of having a chilling effect on the freedom of expression and therefore require the most careful scrutiny on its part (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 III, and Kasabova v. Bulgaria, no. 22385/03, § 71, 19 April 2011). Mr K. was awarded RUB 1,500,000 in total in non-pecuniary damage, that is to say more than EUR 36,000 at the material time (see paragraphs 9 and 12 above). These awards were unusually high in absolute terms but also many times higher in relation to awards in comparable defamation cases that have come before the Court (see for example, Fedchenko v. Russia, no. 33333/04, § 15, 11 February 2010, and Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 15, 28 March 2013).

34.  When making the award against the applicants, the domestic courts failed to carry out assessment of its proportionality in relation to the applicants’ financial situation and resources. The Court has previously considered it appropriate to use as a relevant comparator the monthly minimum wage (“MROT”) which is set and regularly reviewed by the Federal Assembly (see Tolmachev v. Russia, no. 42182/11, § 54, 2 June 2020). In 2012 and 2013 the monthly minimum wage went up from RUB 4,611 to RUB 5,205 (about EUR 111 to 129). Therefore, the amounts awarded were far beyond the monthly minimum wage.

35.  As to the courts’ justification for granting such large amounts in damages because the plaintiff was a State official (see paragraph 9 and 12 above), this position sits ill with the Convention compliant approach that prominent political figures should be prepared to tolerate strongly worded criticism and may not claim the same level of protection as a private individual unknown to the public, especially when the statement did not concern their private life or intrude on their intimacy (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 84 and 123, ECHR 2015 (extracts)).

36.  In these circumstances, a high award of damages to Mr K. did not pursue a “pressing social need” and was not “necessary in a democratic society”.

37.  To sum up, the reasons given by the domestic courts in justifying the interference with the applicants’ right to freedom of expression cannot be regarded as relevant and sufficient. In assessing the circumstances submitted for their assessment, 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 failed to demonstrate that there was a reasonable relationship of proportionality between the interference in question and the legitimate aim pursued. The Court concludes that it has not been shown that the interference was “necessary in a democratic society”.

38.  Accordingly, there has been a violation of Article 10 of the Convention as regards the defamation proceedings relating to the applicants’ complaints before the domestic authorities.Other defamation proceedings

39.  Having regard to its findings above and the similarity of the subject‑matter, the Court considers that there is no need to give a separate ruling on the applicants’ complaints about other defamation proceedings under Article 10 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  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.”

41.  Mr Stolbunov claimed 30,000 euros (EUR) in respect of non‑pecuniary damage and EUR 6,100 in respect of legal costs and expenses. The applicant organisation claimed EUR 10,000 in respect of non-pecuniary damage.

42.  The Government submitted that the claims were unsubstantiated and excessive.

43.  The Court reiterates that there is a possibility under Article 41 of the Convention that a legal entity may be awarded monetary compensation for non-pecuniary damage (see OOO Regnum v. Russia, no. 22649/08, § 91, 8 September 2020). The Court awards each applicant EUR 4,000 in respect of non-pecuniary damage and awards Mr Stolbunov EUR 850 in respect of legal costs and expenses, plus any tax that may be chargeable to the applicants.

44.  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, Decides to join the applications;Declares the complaints under Article 10 of the Convention admissible;Holds that there has been a violation of Article 10 of the Convention on account of defamation proceedings which terminated on appeal on 24 June 2013 and 26 August 2013;Holds that it is not necessary to examine the complaints under Article 10 of the Convention relating to other defamation proceedings;Holds

(a)  that the respondent State is to pay, 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 4,000 (four thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 850 (eight hundred and fifty euros) to Mr Stolbunov, 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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 15 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

{signature_p_2}

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

List of cases

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

1.

30084/11

Stolbunov and MOO Spravedlivost v. Russia

08/04/2011

Andrey Borisovich STOLBUNOV
1972
Miami Beach
Russian

MOO SPRAVEDLIVOST
Moscow
Russian

Margarita Aleksandrovna LEDOVSKIKH

2.

3402/15

Stolbunov

v. Russia

26/12/2014

3.

24922/15

Stolbunov

v. Russia

24/04/2015

 

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