FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 14888/03
by Gennadiy GODLEVSKIY
against Russia
The European Court of Human Rights (First Section), sitting on 9 December 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 24 April 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Gennadiy Vasilyevich Godlevskiy, is a Russian national, who was born in 1958 and lives in Oryol. The applicant is a journalist and the editor-in-chief of the Orlovskiy Meridian newspaper owned by the limited company Mir Novostey. The applicant is represented before the Court by Mr V. Suchkov, a lawyer practising in Oryol. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant's publication
On 21 March 2001 the applicant's newspaper published his article “Entangled in the system, or Why do generals wait for hour X?” (“В путах системы, или Почему генералы ждут часа «Ч»?”). The article told the readers about a criminal investigation opened by the regional prosecutor's office into the operations of six (out of fourteen) officers of the regional anti-narcotics unit (ОБНОН УВД Орловской области). It was alleged that on several occasions the officers of the unit had unlawfully terminated criminal prosecution of drug-dealers who agreed to “co-operate” with them and to share the profit from drug sales. The article also featured an interview with a former drug dealer V. who had been selling drugs under the unidentified officers' “cover” for several years until they “betrayed” her and she was arrested:
“They apprehended me at a market when I was purchasing opium, [they] wrote down my contact details... Like many others, I had been paying them, and they, 'as a thank-you sign', at first overlooked my buying and consuming drugs, later my selling them... They said: here is a new drug, try it and describe us the effect. That was heroin... I assure you that the police knows every single [sale-purchase] point and every single dealer – in this sense they work very well [because] it brings them profit... I had to remember all of their birthdays – theirs, their wives' and children's. All of them expected presents. Also, they needed money all the time: once [they asked for money] to buy gas for the police car... They set me up... Now I am in prison. There is only my kind here, because we cannot buy them off – our income from drug-dealing is barely sufficient for a 'pay-off' and our own dose. As to the dealers... I bear witness that all of them left the pre-trial detention facility...” (emphasis added, see below)
The article described the alleged wrongdoings of the anti-narcotics unit in general terms, without identifying any officers in anticipation of a court decision:
“These persons who are charged today do not admit their guilt. They claim that they were slandered by drug addicts and avenged by the regional prosecutor's office for a drug-related arrest of the prosecutor's son in the past... Nevertheless, it is for the court to determine the matter – this is why I do not name any of the police officers. But one fact is indisputable: the extent to which the drugs have spread in the Oryol Region is such that one sees no way to save [oneself]. Taking into account that the duties of various state authorities are clearly demarcated, no matter what subterfuges you use, it is precisely the police that are responsible for the prosperity of drug-dealers in Oryol and, more specifically, the anti-narcotics unit. The anti-narcotics unit is also to be blamed for the deaths of 39 persons who died last year from an overdose and for accessibility of drugs to each school student in Oryol. And also for the fact that drug-dealers are still at liberty.”
The article further related that the officers charged had used drugs to pay for “information and services”:
“The investigation found that a few officers in the unit, as a matter of course, used drugs to pay for services and information. Question: where from does a police officer get drugs? Answer: a part [of the drugs] seized from drug addicts and drug dealers, in contravention of all laws and regulations, was retained for the needs of the police. And when such a dreadful weapon ends up in the hands of people with not quite strong moral convictions, one can expect anything: drugs become a means of payment, a means of blackmail, and a threat to life... A police officer becomes a criminal.”
Concluding paragraphs of the article referred to a statement of a high-ranking general of the Russian security service who said that the police knew all criminals and only waited for hour X when an order would come to exterminate them. The article doubted the general's illusion of omnipotence and expressed concern for the future of the region.
2. Defamation action against the applicant
On an unspecified date all 14 officers of the Oryol Region anti-narcotics unit, including those six charged with drug-related offences, filed a civil action against the applicant's newspaper. Without referring to any specific parts of the article, the officers asserted that the publication had damaged their honour, dignity and professional reputation and they claimed compensation for non-pecuniary damage.
One of the plaintiffs subsequently died.
On 18 June 2001 the Sovietskiy District Court of Oryol invited the plaintiffs to specify which extracts of the publication they believed to be damaging to their honour and reputation. Between mid-2001 and early 2002 the plaintiffs filed identically worded addenda to their original statements of claim, according to which the italicised statements in the extracts quoted above damaged their reputation.
On an unspecified date the staff lawyer of the applicant's newspaper commissioned a linguistic examination of the publication, which was carried out by a professor of the Oryol State University with a degree in language studies. His report pointed out that the publication had not referred to any police officer by name or otherwise and the blame had been placed on the state authorities as a whole and the Oryol Region anti-narcotics unit in particular. The expert concluded that none of the quoted extracts could be considered as damaging the honour or dignity of any specific person as an individual.
3. Judgments of the national courts
On 4 October 2002 the Sovietskiy District Court of Oryol delivered the judgment in the defamation action. The assessment of the damaging nature of the extracts was based on the statements by the plaintiffs and their relatives who claimed that the publication had been a cause of their moral anxiety. The court did not address the issue whether the publication had targeted the plaintiffs or made a distinction between the author's speech and the statements quoted as having been made by V. during an interview. In the court's opinion, the applicant failed to prove that the published information had been true on the date of its dissemination. It held:
“The information designated by the plaintiffs was published in the Orlovskiy Meridian newspaper and contains the statements to the effect that the Oryol Regional anti-narcotics unit is to be blamed for the prosperity of drug-dealers in Oryol, for the deaths of 39 persons by overdose and for the fact that most dealers are still at liberty; that the officers of the anti-narcotics unit used drugs seized from drug addicts and drug-dealers and unlawfully retained for the needs of the police in order to pay for information; that the officers of the anti-narcotics unit were paid off, that drug addicts knew their birthdays and those of their family members because they had to offer them gifts on these days, that they offered her to test a new drug...
The court considers that this information damages honour, dignity and professional reputation of [the 13 plaintiffs] as officers of the anti-narcotics unit whose main duty is the fight against the crime and, more specifically, against unlawful trade in drugs...
The plaintiffs are not found guilty of any crime or offence in accordance with the procedure set out in the law, and because of that the information damaging their honour, dignity and professional reputation is untrue and is subject to a refutation in the same media...”
The court ordered the applicant's newspaper to pay 5,000 Russian roubles (approximately EUR 200) to each of the plaintiffs, to publish a refutation and also to apologise to each plaintiff.
The applicant appealed against the judgment of the Sovietskiy District Court of Oryol. His grounds of appeal alleged, in particular, a procedural violation in that the editor's office had not been duly notified of the hearing before the first instance court. The applicant also submitted that the first instance court had failed to establish whether six of the plaintiffs had indeed been charged with the offences described in the publication.
On 27 November 2002 the Civil Section of the Oryol Regional Court heard the applicant's appeal. It found that the applicant had been duly notified of the hearing by phone, which was a valid method of summoning a party under the Russian Code of Civil Procedure. It also pointed out that the representative of the editor's office had been present at subsequent hearings and had had an ample opportunity to present his case, therefore, there had been no violation of the applicant's right of access to a court. As to the merits of the applicant's appeal, the court held:
“The [article in question] had been published in March 2001, i.e. before the criminal case, including the indictment bill, was sent to a court. As of today, there is still no conviction in the criminal case against [six plaintiffs]. Therefore, the first instance court has correctly concluded that there was no proof of the truthfulness of the information contained in the publication and contested by the plaintiffs...
The Civil Section considers that a negative appraisal of the performance of the anti-narcotics unit by the police officials of the Oryol Region after the publication of the article may not be a proof of the truthfulness of the information contested by the plaintiffs because in the present case the only such proof would be a court judgment.
With regard to the foregoing, the Civil Section considers that.. the applicant's argument that the contested publication did not contain information on specific individuals, but only referred to a structural unit of the police, is not a valid ground to quash the judgment. Under Article 306 § 2 of the Russian Code of Civil Procedure a judgment that is correct in substance shall not be quashed because of merely formal defects.”
The Regional Court upheld the judgment of 4 October 2002 in substance. It also ordered that the newspaper should print the operative part of the judgment as the refutation, but it struck out the requirement to apologise to the plaintiffs on the ground that such requirement had no basis in the domestic law.
The applicant lodged several applications for supervisory review of the judgments of 4 October and 27 November 2002. His applications were refused by the Oryol Regional Court on 17 December 2002 and 25 February 2003 and by the Supreme Court of the Russian Federation on 5 February 2003.
On 20 January 2003 enforcement proceedings were initiated to recover the court's award from the applicant's newspaper.
B. Relevant domestic law
Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of the mass media.
Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a claim for the refutation of information damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its truthfulness. In addition to the refutation, the aggrieved individual may also claim compensation for losses and non-pecuniary damage sustained as a result of dissemination of the information.
COMPLAINTS
1. The applicant complains under Article 10 of the Convention about a violation of his right to impart information. The applicant submits that the domestic courts failed to make a distinction between value-judgments and statements of facts and imposed on him the requirement to prove the truthfulness of his opinions. Moreover, the courts failed to address the issue whether the publication had indeed targeted the individuals who lodged a defamation action against him.
2. The applicant complains under Article 6 § 1 of the Convention about procedural irregularities in the hearing of the defamation action. Firstly, the newspaper's office was not duly notified of the date and time of the final hearing and he was therefore unable to attend it. Secondly, the applicant complains that five plaintiffs did not appear before the first instance court and that the court permitted one of the other plaintiffs to represent them without a power of attorney or other legal documents required for the representation before courts.
THE LAW
1. The applicant complained about a violation of his right to freedom of expression under 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, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government submit that the applicant and his newspaper did not show the truthfulness of the information contained in the article because the plaintiffs' guilt had not been established in the judicial proceedings. They emphasise that the domestic courts only found untrue and damaging to the plaintiffs' reputation specific information in the article rather than the entire article which critically appraised the functioning of the State authorities.
The applicant submits that the respondent Government did not explain why the domestic courts had accepted that the plaintiffs had had the standing to sue, although none of them had been identified in the publication. His articles imposed moral blame for the extent to which drugs had spread in the region on the officers of the regional anti-narcotics unit who were paid from the budget precisely to wage a battle on drugs. The imposition of moral responsibility was a value-judgment, not verifiable by facts. His statement that 39 persons had died of drug abuse was factually accurate and corroborated with a certificate by a regional health protection authority. Some of his statements were taken out of context and distorted: in particular, he never claimed that the unit officers had unlawfully retained all drugs seized from drug-addicts in order to pay their informers. The applicant submits that the persons whose duty is to fight against drugs should have been more tolerant to the criticism of their work, given that their work answers the needs of the society and is financed by that very society through regional and federal budgets.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant complained under Article 6 of the Convention that he had not been given an opportunity to attend the final hearing before the first-instance court and that the plaintiff who represented the other plaintiffs before the first-instance court had lacked authority to do so. The relevant parts of Article 6 § 1 provide as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal...”
(a) Insofar as the applicant complained about the court's failure to ensure his presence at the final hearing, it is not contested that on 17 September 2002 the judge had personally contacted the applicant's newspaper's office and informed them of the adjournment of the hearing until 10 a.m. on 4 October 2002. The applicant confirmed to the appeal court that it had been so. Even assuming that the court summons sent on 20 September 2002 did not contain sufficient information about the date and hour of the hearing, it does not appear that the applicant was prevented from contacting the court registry in order to find out when the hearing would take place, it being incumbent on the interested party to display special diligence in the defence of his interests (see Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001). Having regard to the foregoing, the Court finds that, in the circumstances of the present case, the authorities' presumption that the applicant had waived his right to be present at the hearing had a sufficient basis. In any event, the Court notes that no evidence was produced or examined at that hearing where the judgment was pronounced and a copy of that judgment was made available to the applicant without undue delay.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) Insofar as the applicant complained about allegedly inadequate legal basis for the plaintiffs' representation, the Court notes that it does appear from the materials submitted by the applicant that he had raised this issue before the appeal court.
It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant's complaint about a violation of his right to freedom of expression;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy