Communicated on 25 June 2015
FIRST SECTION
Application no 34981/10
Leonid Natanovich FEYTLIKHER against Russia
and 3 other applications
(see list appended)
1. The applicant, Mr Leonid Natanovich Feytlikher is a Russian and Israeli national. He was born on 9 January 1960 and lives in Saratov. He is represented before the Court by Ms Y. Kobzarenko, a lawyer practising in Saratov.
2. The facts of the cases, as submitted by the applicant, may be summarised as follows.
A. The 2008 letter
3. In December 2008 the applicant, member of the Saratov City Duma, sent a letter to high-level officials, including the federal prosecutor and the President of Russia, in which he denounced an anti-Semitic campaign waged against him by members of the United Russia party as well as by its Saratov branch and called for urgent measures to combat it. The letter contained an annex titled “Instigators and actors of anti-Semitic campaign in the Saratov Region” featuring a list of names of party members and MPs alongside a selection of their public statements and extracts from local newspapers.
4. On an unspecified date the Administration of the President of Russia forwarded the letter to the investigative department of the Prosecutor of the Saratov Region for an inquiry.
5. Two members of the Russian State Duma, MPs I. Lobanov and N. Pankov sued the applicant for defamation, because their names appeared in the list of “Instigators and actors of anti-Semitic campaign in the Saratov Region”, while the Saratov branch of United Russia lodged a defamation claim in connection with the contents of the letter introducing the list.
1. Defamation claim brought by the Saratov branch of United Russia (application no. 45255/10)
6. In September 2009 the Saratov branch of United Russia brought a defamation claim against the applicant considering parts of the letter to be harmful to its reputation. The relevant part of the applicant’s letter read as follows:
“As a Russian citizen and member of the Saratov City Duma, I consider that rampant anti-Semitism rapidly sprouting in the Saratov regional branch of United Russia is a threat to Russian statehood.”
7. In its judgment of 10 February 2010, the Oktyabrskiy District Court of Saratov first assessed the nature of the statement on the basis of a linguistic expert report of 28 January 2010 and rejected alternative expert reports on formal grounds. It concluded that the applicant’s assertion about “anti-Semitism sprouting in the Saratov branch of United Russia” was a statement of fact while “the description of anti-Semitism as rampant and representing threat to Russian statehood” reflected the applicant’s opinion and was a value judgment.
8. The applicant sought to prove the genuine character of the statement, relying on three articles published in local press and containing “statements of extremist character”. The applicant also argued that the Saratov branch of United Russia coordinated mass gatherings of anti-Semitic nature.
9. The court dismissed this evidence finding that it concerned the articles’ authors and a youth organization “Young Guard of United Russia” rather than the party’s Saratov branch, and referred to events that took place after dispatch of the impugned letter.
10. The District Court found that the statement – starting from the words “rampant anti-Semitism” and to the end of the paragraph – was untrue and damaging to the plaintiff’s reputation. The court rejected the plaintiff’s claims concerning other parts of the letter as ill-founded and awarded the party RUB 200,000 against the applicant.
11. On 23 March 2010 the Saratov Regional Court dismissed the applicant’s appeal, endorsing the findings of the District Court. In particular, it rejected the applicant’s argument that the disputed statement must be construed as a value judgment and an element of a political debate.
2. Defamation claim brought by MP I.V. Lobanov (application no. 34981/10)
12. In February 2010 a member of the Russian State Duma, Mr I. Lobanov sued the applicant for defamation. He complained that the applicant had included his name on the list of “Instigators and actors of anti‑Semitic campaign in the Saratov Region”.
13. In its judgment of 8 April 2010, the Oktyabrskiy District Court of Saratov first observed that the headline of the list should be regarded as a statement of fact:
“The disputed phrases cannot be perceived as an expression of the defendant’s opinion since they contain a strictly affirmative factual statement about the existence of an anti-Semitic campaign in the Saratov region and about [the plaintiff’s] participation in it as its instigator and actor.”
14. The District Court continued by addressing the applicant’s arguments and examined the plaintiff’s allegedly anti-Semitic remarks published in the local press in 2007. It observed as follows:
“Statement [by the plaintiff] published in ... ‘Moskovskiy Komsomolets v Saratove’ newspaper on 27 June 2007:
“All treachery brings harm. So MP Feytlikher, a Russian and, at the same time, Israeli citizen has once promised a reward to one of my assistants for regular detailed updates about my activities. This is a well-known work pattern of Soviet secret services as well as MOSSAD ... I’ll repeat once again, I have a strong personal belief that the man possessing Israeli citizenship is collecting information about people working in regional legislatures. In my opinion, a dual national must not do this kind of things on Russian territory.”
– and a statement published in ... ‘Provintsialnyy Telegraf’ newspaper on 10 July 2007:
“It’s sad to see how city mayor O.G. ... is channelling commercial aspirations of an oligarch with dual citizenship – Leonid Feytlikher ...”
– do not prove [the plaintiff’s] participation in anti-Semitic campaign in the Saratov Region. Nor do they corroborate the assertion that [the plaintiff] controls mass media as a mastermind of the anti-Semitic campaign.
Having examined the above statements, the court finds that they reflect the plaintiff’s personal negative attitude towards L.N. Feytlikher as a dual national.”
15. The District Court concluded that the applicant failed to prove the impugned statement of fact and did not show that the plaintiff had indeed coordinated an anti-Semitic campaign against him. The applicant’s argument about the political character of the discussion he wished to trigger, was rejected, the District Court having considered that the statement did not contain any criticism of the plaintiff’s work.
16. The District Court granted the claim and ordered the applicant to pay RUB 100,000 in respect of non-pecuniary damage.
17. On 11 May 2010 the Saratov Regional Court rejected the applicant’s appeal, upholding the conclusions of the District Court.
3. Defamation claim brought by MP N.V. Pankov (application no. 34995/10)
18. In 2009 a member of the Russian State Duma, Mr N. Pankov sued the applicant for defamation. He complained that his name appeared on the list of “Instigators and actors of anti-Semitic campaign in the Saratov Region”.
19. On 30 November 2009 the Oktyabrskiy District Court of Saratov first confirmed the factual character of the impugned statement:
“The headline of the list ... is an expression of [the defendant’s] opinion taking the form of a statement of fact [and of the defendant’s] belief that [the plaintiff] is indeed a mastermind and protagonist of the anti-Semitic campaign in the Saratov region.
The disputed statements cannot be perceived as an expression of the defendant’s opinion as they contain an affirmative factual statement about the disputed facts as if they had taken place.”
20. The court then examined the applicant’s arguments about the plaintiff’s alleged involvement in the anti-Semitic campaign.
21. The applicant first claimed that the plaintiff influenced local media and inspired TV-shows of anti-Semitic character. He based this assertion on a list of regional media drafted by a local journalist Mr K. and allegedly reflecting their anti-Semitic nature. The District Court heard Mr K. in the witness stand but found that the applicant had failed to demonstrate that the plaintiff had somehow shaped the editorial policy of local media.
22. The applicant also referred to two pieces penned by the plaintiff’s assistant, Mr A., and argued that they contained anti-Semitic statements. The court deemed these articles irrelevant as they “did not reflect the plaintiff’s personal view”. The court also observed that the articles had been published before Mr A. had become the plaintiff’s assistant.
23. The District Court found the applicant liable for defamation and ordered him to pay RUB 100,000 to the plaintiff in respect of non-pecuniary damage.
24. On 29 December 2009 the Saratov Regional Court rejected the applicant’s appeal, endorsing the findings of the District Court.
B. The applicant’s statements made in the “Saratovskiy Vzglyad” newspaper and ensuing civil action in defamation (application no. 36473/10)
25. The 10 September 2009 edition of a local newspaper “Saratovskiy Vzglyad” contained an article entitled “Saratov Jews amid political squabbling” featuring the applicant’s comments on the anti-Semitic campaign in the Saratov Region. The relevant part of the applicant’s comment read as follows:
“Could anyone expect that these people would be actively participating in current, I would say, chaos? And all this happens under the ‘United Russia’ banners. In my opinion, the anti-Semitic campaign lasting for at least three years has been launched against me; however, all Jews have become its target. ... All power of the local United Russia branch, with aid from different federal organisations, was bent on my destruction.”
26. The Saratov branch of United Russia sued the applicant and the newspaper’s publisher in defamation.
27. The Oktyabrskiy District Court of Saratov acknowledged the factual character of the statements and rejected on formal grounds the alternative expert reports brought by the applicant.
28. The court continued by examining the evidence the applicant brought.
29. The applicant submitted different articles published in the local press by authors allegedly loyal to United Russia. He sought to demonstrate the anti-Semitic tenor of these publications. The District Court found that these articles “[did] not prove any illegal acts committed by the plaintiff against [the applicant], and ... [did] not contain any information about [the plaintiff]”.
30. The applicant further claimed that local United Russia members had coordinated mass gatherings of anti-Semitic nature. The court dismissed this argument finding that it concerned “members of ‘Young Guard of United Russia’, a youth organisation independent from the party’s local branch, as well as private individuals whose liability for committed acts has individual character and cannot entail the plaintiff’s liability to [the applicant]”.
31. The applicant also relied on a statement of the current head of the Saratov branch of United Russia, Mr G., published on a local web-site. The relevant part of Mr G.’s statement read as follows:
“... I’m convinced that such people must be kept away from state affairs. All the more so as [the applicant’s] dual Russian-Israeli citizenship puts an end to the parliamentary career of this parochial oligarch.”
32. Taking into account the meaning of the above statement as well as a long-standing strife between the applicant and Mr G., the District Court concluded that “there is nothing ... to suggest that these statements represented the official viewpoint of [the plaintiff]”. It admitted that the applicant sought to initiate criminal action against Mr G. but noted that “[the defendant] had never had any complaints against [the plaintiff]”.
33. On 8 February 2009 the Oktyabrskiy District Court granted the claim in part. The court found that the applicant had failed to prove the factual statements of defamatory character, held him liable to pay RUB 150,000 in compensation, and rejected the remainder of the plaintiff’s claims.
34. On 16 March 2010 the Saratov Regional Court dismissed the applicant’s appeal, endorsing the findings of the District Court. In particular it rejected the applicant’s argument to the effect that the statements were to be understood in a broader context of political debate.
COMPLAINT
The applicant complains under Article 10 of the Convention about unjustified interference with his right to freedom of expression.
QUESTIONS to the parties
Was there a violation of Article 10 of the Convention? Did the domestic courts apply standards which were in conformity with the principles embodied in Article 10?
APPENDIX
List of Applications
File no.
Case name
Date of lodging
Name of Representative
1.
34981/10
FEYTLIKHER v. Russia
09/06/2010
Kobzarenko Yelena Mikhaylovna
2.
34995/10
FEYTLIKHER v. Russia
30/05/2010
Kobzarenko Yelena Mikhaylovna
3.
36473/10
FEYTLIKHER v. Russia
23/06/2010
Kobzarenko Yelena Mikhaylovna
4.
45255/10
FEYTLIKHER v. Russia
30/07/2010
Kobzarenko Yelena Mikhaylovna
Full & Egal Universal Law Academy