Communicated on 19 September 2016
THIRD SECTION
Application no. 17229/13
Oleg Dmitriyevich FEDCHENKO
against Russia
lodged on 10 January 2013
STATEMENT OF FACTS
The applicant, Mr Oleg Dmitriyevich Fedchenko, is a Russian national who was born in 1968 and lives in Suponevo, the Bryansk Region.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been editor of a weekly newspaper, Bryanskiye Budni (Брянские будни), since he founded it in 1999.
1. Background
In June 2010 the prosecuting authorities conducted a check into compliance with fire safety rules at the Tymoshkovykh shopping centre (ТРЦ Тимошковых). The report stated that fifteen breaches of the rules had been found.
On 21 June 2010 the prosecutor applied to a court with a request, inter alia, to order N.K. Timoshkov, the owner of the shopping centre, to rectify the breaches.
By a final decision of 2 August 2010 the application was allowed in that part.
Enforcement proceedings were instituted and subsequently discontinued.
In September 2011 the prosecuting authorities conducted another check. They found that the breaches had not been rectified and, moreover, found new breaches. Overall, fifty violations of fire safety regulations were found, of which fifteen were considered to pose a threat to the life and health of people inside the centre.
The bailiffs’ decision to discontinue the enforcement proceedings was set aside.
At the same time the prosecutor instituted new court proceedings against the shopping centre, seeking to have the fire safety breaches rectified. The prosecutor also asked the court to close the shopping centre temporarily as a provisional measure until fire safety regulations had been complied with fully.
On an unspecified date the Bryansk Regional Court ordered the shopping centre to close temporarily. The proceedings on the merits remained pending, and a further hearing was scheduled for 27 March 2012.
On 23 March 2012 the Regnum Centre news portal published an article on its website about the temporary closure of the Tymoshkovykh shopping centre due to breaches of fire safety rules.
On 26 March 2012 the iB news portal published an article on its website about a meeting between Mr Timoshkov and representatives of the Ministry of Emergency Situations, the Bryansk prosecutor, the head of the Bryansk Administration and Mikhail Klimov, a deputy governor of the Bryansk Region.
On 27 March 2012 the news portal published an article about a court order to close the shopping centre. The article also stated that the owner of the shopping centre considered the measure to be too severe, and that Nikolay Denin, governor of the Bryansk Region, had instructed Mr Klimov to personally take charge of the matter.
On the same date Regnum Centre published an article that at the 27 March 2012 hearing the Bezhitskiy District Curt of Bryansk had dismissed an application to lift the provisional measure. The article also stated that Mr Timoshkov had been very active in connection with the closure of the shopping centre and had already met representatives of the Ministry of Emergency Situations, the Bryansk prosecutor, the head of the Bryansk Administration and Mr Klimov. The news portal reported that as the court hearing had taken place after the meeting, Mr Timoshkov had been outraged by the decision and had said as follows: “In my opinion, which is shared by officials at the Ministry of Emergency Situations and Deputy Governor Klimov, there is no threat to people’s safety. I do not know why [the court delivered] such a decision. We shall appeal against it.”
On 29 March 2012 the news portal published an article on its website saying that the Bryansk prosecutor’s office had applied to the court to lift the suspension of the shopping centre’s activities, as announced by the deputy prosecutor, A. Stupak, at a meeting of the regional Duma. The article said that he had stated that the breaches that had been found were not considered by the Ministry of Emergency Situations as posing a threat to the life of employees and customers at the centre and that the owner had rectified some of the breaches.
On 30 March 2012 the Tymoshkovykh shopping centre reopened.
On 11 April 2012 published an article on its website which read as follows:
“On 27 March the building was closed due to breaches of fire safety rules. By a court decision provisional measures were applied for one month pending rectification of the breaches.
Those events caused a stir. Businessmen talked to the regional prosecutor. Town and regional officials pleaded on behalf of the business. As a result, on 30 March the prosecutor’s office withdraw its complaint and the shopping centre opened again.
However, yesterday the regional court refused to lift the provisional measures. That means that before 27 April the building may be closed again. Today the shopping centre is open as usual. However, tenants say that bailiffs might visit them again on 13 April. In the meantime, the businessmen are going to again ask the prosecutor’s office for clarification.”
2. Article
On 29 March 2012 the applicant published an article in Bryanskiye Budni no. 639/12 headlined “...and were Timoshkov’s errand boys” (“... и служили у Тимошкова на посылках”)[1], where he criticised the officials who had taken the side of the shopping centre in the above events. The relevant part of the article reads as follows:
“The finest forces were mustered in support of Timoshkov. The most notorious sages gathered at the table – deputy governor Mikhail Klimov, the head of the town administration Sergey Smirnov and other officials. They were ordered to rescue their patron Timoshkov, and they did so. Quite a few establishments have been closed on account of a breach of fire safety rules, yet no such cavalry ever came to their rescue. The highest officials rushed to defend the interests of businessman Timoshkov ...
The corrupt Bryansk officials gave themselves away and did not even understand what had happened. Actually, they would not have been very embarrassed even if they had realised that they had revealed their connections. “Who are you with, masters of culture?” they used to say in the times of Stalin. Another question needs to be asked in Bryansk: “Who are you with, masters of thievery? Who are you defending?”
The original Russian version is given below:
“На подмогу Тимошкову бросили лучшие силы. За столом собрались самые отъявленные мудрецы – заместитель губернатора Михаил Климов, глава городской администрации Сергей Смирнов и другие чиновники. Им дали команду спасать кормильца Тимошкова, и они спасали. Мало ли заведений было закрыто из-за нарушений противопожарных норм, но никому не бросали на выручку такой десант. Интересы отдельно взятого коммерсанта Тимошкова кинулись защищать высшие чиновники ...
Брянские коррупционеры засветились и даже не поняли, что случилось. Впрочем, не слишком бы и смутились, если бы все-таки сообразили, что приоткрыли свои связи. «С кем вы, мастера культуры?» - говаривали при Сталине. Для Брянска напрашивается другой вопрос: «С кем вы, мастера воровского ремесла? Кого защищаете?”
3. Court proceedings
On 23 April 2012 Mr Klimov brought an action for defamation against the applicant and sought damages in the amount of 500,000 Russian roubles (RUB). He claimed, in particular, that the following passages were untrue and damaging to his honour and reputation:
1. “The finest forces were mustered in support of Timoshkov. The most notorious sages gathered at the table – deputy governor Mikhail Klimov, the head of the town administration Sergey Smirnov and other officials. They were ordered to rescue their patron Timoshkov, and they did so ... The highest officials rushed to defend the interests of businessman Timoshkov.”
2. “The corrupt Bryansk officials gave themselves away and did not even understand what had happened.”
3. “Another question needs to be asked in Bryansk: “Who are you with, masters of thievery? Who are you defending?”
On 27 September 2012 the Bryansk District Court of the Bryansk Region allowed the claim. In its decision it relied on a linguistic expert’s examination of 1 August 2012. According to the expert’s report, the passages in question were susceptible of being looked at in terms of their factual accuracy. In the first and second passages the information was presented in the form of assertions. The third passage contained rhetorical questions which expressed the author’s opinion. However, there was also an implied assertion that those concerned, including the claimant, were “masters of the thieves’ trade”, that is they were engaged in unlawful activities.
The court dismissed the applicant’s argument that all the facts described in the article were true, whereas in the passages concerned he had expressed his opinion. Relying on the above report, the court found that the claimant had been referred to in the passages concerned, which constituted negative statements that discredited his moral character and damaged his honour, dignity and business reputation.
The court ordered the applicant to publish a retraction within ten days of the judgment’s entry into force and awarded the claimant damages in the amount of RUB 5,000 (approximately 125 euros).
The applicant appealed.
On 27 November 2012 the Bryansk Regional Court upheld the judgment.
On 19 February 2013 the Bryansk Regional Court refused leave to the applicant to lodge a cassation appeal.
B. Relevant domestic law and practice
For a summary of the relevant domestic law and practice see Fedchenko v. Russia, no. 33333/04, §§ 17-20, 11 February 2010.
COMPLAINT
The applicant complains under Article 10 of the Convention that the judgments of the domestic courts violated his right to express his opinion and to impart information and ideas on matters of public interest.
QUESTION TO THE PARTIES
Having regard to the publication of the article “... and were Timoshkov’s errand boys” in the newspaper Bryanskiye Budni, was the interference with the applicant’s freedom of expression, in particular his right to impart information and ideas, justified under Article 10 § 2 of the Convention?
[1]. The headline is an allusion to Alexander Pushkin’s The Tale of the Fisherman and the Fish where an old man catches a magical golden fish that can grant three wishes. He takes the fish to his wife. She becomes greedier with each wish and says on the third one that, “The goldfish I want for my servant to do my commands and my errands.”
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