Communicated on 10 February 2016
THIRD SECTION
Application no. 22835/11
Irina Georgiyevna GREBNEVA against Russia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
The applicants, Ms Irina Georgiyevna Grebneva (“the first applicant”) and Ms Natalya Vladimirovna Fonina (“the second applicant”), born in 1943 and 1976 respectively, are Russian nationals. The first applicant lives in Vladivostok, Primorskiy Region. The second applicant lives in Dalnerechensk, Primorskiy Region.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The first applicant is the editor-in-chief and the second applicant is a journalist of a weekly newspaper, Arsenyevskie Vesti (Арсеньевские вести) with a circulation of about 15,000 copies. The newspaper is published and distributed in the Primorskiy Region.
1. Application no. 22835/11
(a) Publication
In issue no. 8, of 24 February-2 March 2010 Arsenyevskie Vesti published an article headlined “”Kefir” fraud with the Pacific Fleet’s money” (Кефирная махинация с деньгами Тихоокеанского флота), with the subtitle ‘Servicemen’s money sails into back pockets, but the law-enforcement authorities are sitting on their hands’ (“Деньги военных уплывают в «левые» карманы, а правоохранительные органы сидят сложа руки”). The article was authored by Mr R., a freelance journalist, and described a conflict concerning a local dairy factory, OOO Vostokagromoloko (Востокaгромолоко).
According to the article, the dairy factory had once been owned by a certain Ms K., who had signed several supply contracts with the Pacific Fleet and had taken a bank loan in order to be able to discharge the factory’s contractual obligations. However, the factory’s obligations under the contracts had not been met, as that money had been misappropriated. According to the article, this had been confirmed by the evidence in a criminal case instituted against the commander of the Pacific Fleet. The article went on to say that in an attempt to conceal the factory’s problems Ms K. sold it to Ms S. and Mr K. At the time it was sold the factory was in very poor condition and required capital repairs. After the buyers had invested in the factory and changed its equipment, Ms K. had made several unsuccessful attempts to take her business back by illegal means. The article continued:
“Eventually, it became clear that Ms [K.] was Sitzhead Funt[1] (do you remember Sitzhead Funt from The Little Golden Calf?). In fact, her fraudulent actions were masterminded by Mr [V.]. He owns many sham companies located around the 3rd Stroitelnaya street, including OOO Dalnerechensk Dairy [(ООО Дальнереченский молочный комбинат)], which on paper is owned by Ms [Z.].“
In the following paragraphs the author listed numerous fruitless complaints submitted by the buyers to the law-enforcement authorities seeking criminal proceedings against Ms K. and Mr V. The article continued, as follows:
“Since the law-enforcement authorities have not until now taken any measures with respect to Ms [K] and Mr [V.], these dubious persons have continued their unlawful actions which significantly undermined the financial well-being of OOO Vostokagromoloko.”
At the end the author promised that the article would be continued in the next issue of the newspaper.
(b) Defamation proceedings
On an unspecified date Mr V. brought a defamation claim against the first applicant, Mr R., the editorial board of Arsenyevskie Vesti and its founders.
Mr V. stated that the defendants had disseminated false information which was damaging to his reputation. He requested the court to declare ten paragraphs of the article, including those quoted above, defamatory and impose on the defendants an obligation to publish a retraction. He also sought compensation for non-pecuniary damage in the amount of 2,000,000 Russian roubles (RUB, approximately 52,220 euros (EUR)).
At the trial Mr V. claimed that the impugned statements were false, because they implied his involvement in criminal offences, but no criminal cases had ever been opened against him.
The first applicant argued that the impugned expressions, except for the two quoted above, did not concern Mr V. As regards those two, she noted that the author had evidence to support the information published in the article, but at that moment he was out of the region on a journalistic assignment. She also requested the court to obtain the evidence in the criminal case against the commander of the Pacific Fleet, and those of the preliminary checks carried out, stating that they contained documentary evidence substantiating the impugned information. She further argued that Ms S., the new owner of OOO Vostokagromoloko, could confirm the facts of the publication, and requested the court to call and examine Ms S. as a witness.
The Frunzenskiy District Court of Vladivostok (“the District Court”) summoned Mr R., but the latter failed to appear. His summons had been returned to the court as Mr R. did not live at the indicated address and therefore had not received the letter. It further rejected the first applicant’s request for evidence to be obtained and for Ms S. to be called as a witness. According to the first applicant, no reasons were given.
On 2 July 2010 the District Court allowed the claim in part.
It agreed that only the aforementioned two expressions directly concerned Mr V. It further held that those expressions were intended as statements of fact rather than value judgments. They contained direct and unproven assertions accusing Mr V. of fraud and setting up sham companies. The court also rejected the first applicant’s argument that it was Mr R. who had all the relevant evidence. It stated in this respect that, as the editor-in-chief, the first applicant was responsible for the content of the newspaper, and therefore should have ascertained that the information in the impugned article was supported by documentary and factual evidence before deciding to publish it. However, she had failed to do so. The court further dismissed the applicant’s argument that the veracity of the impugned statements could be confirmed by the evidence in a criminal case against a third person or by the documents pertaining to preliminary checks previously carried out, as that evidence could not have been available to the author of the article or the first applicant, as they were not parties to those proceedings. Moreover, there had been no proceedings or preliminary checks in respect of Mr V. Lastly, the court mentioned that Article 10 of the Convention did not protect the authors of defamatory statements.
The District Court then held that the aforementioned two expressions were defamatory and ordered the newspaper to publish a retraction. It further held that the first applicant and the newspaper’s founders were to pay compensation for non-pecuniary damage in the amount of RUB 10,000 (approximately EUR 260) each, and Mr R. was to pay compensation in the amount of RUB 20,000 (approximately EUR 520).
The first applicant appealed. She argued, in particular, that the case should not have been heard in Mr R.’s absence; that the first-instance court had failed to properly summon Mr R. and had dismissed the first applicant’s request to have Mr R.’s place of residence established; that it had not given sufficient weight to the fact that the impugned article had concerned an issue of public interest; and that the claimant had failed to refute the impugned statements, whereas Mr R; had carried out a thorough journalistic investigation and had accurately established as fact the matters referred to in his article. She also complained about unjustified refusals by the District Court to obtain and examine the case file in the criminal case against the commander of the Pacific Fleet, as well as the documents pertaining to the preliminary checks referred to by her, and to call and examine Ms S. as a witness.
On 27 September 2010 the Primorskiy Regional Court upheld the judgment on appeal. It approved the interpretation of the article given by the District Court and the distribution of the burden of proof. It stated that the absence of the author did not affect the rights of the first applicant, nor did it render the judgment unlawful.
2. Application no. 64886/11
(a) Publication
In issue no. 26, dated 30 June-6 July 2010, Arsenyevskie Vesti published an article entitled ‘The Vertical of Contraband’[2] (“Вертикаль контрабанды”), with an interview given by a former Head of the Analytical Unit of the Internal Investigations Division of the Far East Regional Customs Office, Mr E., to the first applicant. The interview touched upon issues of corruption within the law-enforcement authorities in the region, and their involvement in smuggling by rendering protection to smugglers. Mr E. suggested, in particular, that there was only an appearance of a fight against smuggling, because the heads of the relevant law-enforcement agencies were controlled by an organised group of smugglers.
The relevant part of the article read as follows:
“[From 2006] the smuggling entered into the fourth stage. A distinctive feature of this stage is that the unlawful activity [of smugglers] – thanks to the active involvement of ... [Mr M.] (the leading anti-corruption fighter of the Far East Regional Customs Office) and other heads of the law-enforcement agencies – fell under the total control of a higher monopoly, that of an organised smugglers’ group, acting in cooperation with Putin’s law-enforcement agencies,”
(b) Defamation proceedings
On 15 July 2010 the Deputy Head of the Far East Regional Customs Office, Mr M., brought a defamation claim against the first applicant and Arsenyevskie Vesti before the District Court. He referred to the aforementioned paragraph and argued that it contained statements presented as fact and, in the absence of any proof, had accused him of smuggling. He further noted that the defendants had insulted him and tarnished his reputation by “creating an illusion that he was involved in criminal activity”. The damage was particularly serious because of his status as a public official. Mr M. was thus seeking publication of a retraction and compensation for non-pecuniary damage.
The first applicant contended that the impugned publication had been an interview with Mr E., who, having been head of the Analytical Unit of the Internal Investigations Division of the Far East Regional Customs Office for more than ten years, was a competent specialist in the field and knew the problems addressed in the article in question. According to the first applicant, Mr E. had referred to well-known facts about smuggling, and all his conclusions were supported by documentary evidence. The first applicant further insisted that the article concerned an issue of public interest and was not intended to tarnish Mr M.’s reputation. In the latter respect, the first applicant argued that the impugned expressions had not been a gratuitous personal attack on Mr M., but had rather raised an issue of his professional conduct in performance of his duties as one of the senior officers of the Far East Regional Customs Office. She also took issue with the amount of compensation claimed, considering that it was excessive and aimed at punishing her for addressing an issue of public interest.
On an unspecified date the District Court, of its own motion, ordered that Mr E. should join the proceedings as a co-defendant, as he had been the source of the impugned information. During the proceedings, Mr E. confirmed that he had given the interview in question and that the publication had accurately reflected his answers to the questions put to him by the first applicant. As to the impugned paragraph, he noted that it was his personal opinion, which he had formed during his work in the Far East Customs Office. Taking cognisance of ongoing criminal cases against other customs officials, his unit had reported Mr M.’s criminal activity to the Head of the Far East Regional Customs Office and the law-enforcement authorities. Mr E. had had documentary evidence showing that Mr M. had prevented smuggling traffic from being blocked. In particular, Mr M. had insisted that certain seizures of contraband goods had been unlawful and that no grounds had been given for criminal investigations pertaining to them.
On 22 October 2010 the District Court examined the case on the merits. It rejected Mr E.’s argument that the impugned expressions represented his personal opinion. The court noted in this respect that the expressions in question had stated that Mr M. was involved in smuggling, that is had concerned a matter that could be verified, therefore they were statements of fact rather than value judgments. The court further considered that the fact that Mr M. was a public official did not justify the publication, as it had directly accused Mr M. of a criminal offence. In the court’s opinion, the publication exceeded the limits of acceptable criticism of a public official, had breached the presumption of Mr M.’s innocence, and had tarnished his reputation. The court thus held that the statements were defamatory and that the first applicant and Arsenyevskie Vesti must publish a retraction. The court also ordered the first applicant and Mr E. to pay Mr M. compensation for non-pecuniary damage in the amount of RUB 3,000 (approximately EUR 75) each.
The parties appealed. The first applicant stated, inter alia, that she had acted in good faith and had published the interview as it was, without any changes. She had no grounds to doubt the accuracy of Mr E.’s allegations, because he had worked in the Far East Regional Customs Office and knew all the aspects of its work. Moreover, Mr E. had referred to commonly known facts about smuggling which had been discussed in the mass media for some time, and he had documents to confirming those references. Mr E. had on numerous occasions reported on those issues to his superiors but no action had been taken.
Mr M. disagreed with the judgment of 22 October 2010 as far as it concerned Mr E. He stated that the court had no power to involve the latter in the proceedings of its own motion, because Mr M. had never wanted to sue him.
On 28 March 2011 the Regional Court examined the case on appeal. It endorsed the first-instance court’s finding that the impugned expressions were unsubstantiated statements of fact which were damaging for the claimant’s reputation, and upheld the judgment regarding the first applicant. It further agreed with Mr M. that the Town Court had had no competence to give judgment against Mr E. and quashed the judgment in the related part.
3. Application no. 62380/13
(a) Publication dated 12-18 October 2011
In its issue dated 12-18 October 2011 Arsenyevskie Vesti published an article headlined ‘A case of torture in a court’ (“Дело о пытках в суде”) written by the second applicant in connection with a criminal case against brothers S.V. and S.F. that was being heard by the Town Court. The brothers were accused of murder. They argued that they had given their self-incriminating statements under torture.
The article began as follows:
“The criminal proceedings regarding use of torture by police officers of operational-search division no. 4 in respect of [Mr S.F. and Mr S.V.] are coming to their end in the Primorskiy Regional Court. [Mr S.F.] and [Mr S.V.] have found themselves in the dock. They are charged with murder. The brothers say that they have given self-incriminating statements under police pressure and that the officers of operational-search division no. 4, Mr D.Kh., Mr A.K., and Mr A.T., had ill-treated them using brutal torture.”
The author then described the course of the hearing before the Regional Court and quoted witness evidence given during the trial. The publication quoted, in particular, Ms M.B., the victims’ sister, as follows:
“During my exchange of confidences with [Mr S.F.], he said that the police officers of operational-search division no. 4 had intimidated him, forcing him to waive his right to a lawyer”.
According to the article, another witness, who also testified at the hearing, Mr O.B., reported the words of Mr S.F.’s lawyer:
“[Mr S. F.] said that the police officers of operational-search division no. 4 had tied his hands behind his back with adhesive tape. Then they had started forcibly twisting his hands, stretching them behind his back ... Then they had put a plastic bag on his head, squeezing his throat with it, which had made him suffocate ...”
Then the author of the article quoted Mr S.F., who stated:
“During the torture I was forced to confess to murdering, along with my brother, businessman Ch.... The police officers of operational-search division no. 4 intimidated me and told me that they would continue torturing me unless I wrote down self-incriminating statements in my own hand”.
Lastly, the author referred to statements made by Mr S.V.’s cellmate:
“[Mr S.V.] told me that he had been tortured. I remember him saying once that he was tied to a car which dragged his exhausted body along the road”.
(b) First publication, dated 9-13 November 2011
In the issue dated 9-13 November 2011 Arsenyevskie Vesti published an article “Punitive measures by the police?”(“Карательные методы полиции”?), also written by the second applicant, on the topic of police brutality.
In the first paragraph the author referred to the statements of Mr D.S., who had allegedly been ill-treated by police officers. According to him, the police officers had handcuffed him to a radiator and beaten him until he lost consciousness. He continued:
“I was brought round by the police officers, who threatened me with the frightful fate of becoming a disabled person or of disappearing from the face of the earth if I complained to anyone.”
Then the author returned to the case described in her previous article and cited Mr S.V.:
“The police officers of operational-search division no. 4, [Mr D.Kh], [Mr A.K], and [Mr A.T], forced me to incriminate myself and make “an open-hearted confession”.
At the end of the article the author noted that Arsenyevskie Vesti received many complaints of police ill-treatment and that the investigating authorities did not investigate such complaints thoroughly.
(c) Second publication dated 9-13 November 2011
In the same issue dated 9-13 November 2011 Arsenyevskie Vesti published a declaration by Mr. D., the president of the “Social Movement Against Corruption in the State and Municipal Authorities of the Primorskiy Region”, entitled “Mr President, Alarm!” (“Господин президент, атас!”).
The author stated that the investigating authorities had fabricated the case against Mr S.V and Mr S.F. Then he continued, as follows:
“As alleged, during the arrest both brothers were tortured with a view to extracting confessions from them. Later, in the presence of numerous witnesses, they were regularly beaten in retribution for their complaints [of ill-treatment] ...”
The author added that at that time the case was awaiting trial, and went on to state as follows:
“According to our information, the court suppresses the slightest attempt to make a statement that a confession has been obtained by means of torture, and that people resembling the officers of operational-search division no. 4 put pressure on witnesses, who then testified that Mr S.V. had not been involved in the murder.”
The article ended with the allegation that the President’s direct subordinates, including the Prosecutor General, the Minister of the Interior and the Head of the Investigation Committee, were regularly notified of instances of police brutality in Primorskiy Region, but did nothing.
(d) Defamation proceedings
On an unspecified date the Primorskiy Regional Department of the Interior brought before the District Court a defamation claim against the first applicant in connection with the aforementioned three publications. It argued that the first applicant had disseminated assertions that officers of operational-search division no. 4 had tortured suspects in an attempt to extract confessions from them, put psychological pressure on suspects, intimidated them, threatened them with torture and murder, and beaten suspects when they complained about ill-treatment. In other words, officers, according to the articles in question, were involved in activities that were unlawful and condemned by society. This had adversely affected the reputation of the Primorskiy Regional Department of the Interior. The latter requested the court to find the aforementioned statements to be defamatory and untrue and to order a publication of a retraction and compensation for non-pecuniary damage.
On an unspecified date the District Court, of its own motion, involved the second applicant and Mr D. in the proceedings.
The defendants argued that the articles had been written on the basis of information given to Arsenyevskie Vesti by the brothers S. V. and S. F.
On 11 December 2012 the District Court examined the case on the merits. It noted that the parties agreed that the impugned expressions had been statements of fact. The court went on to note that those statements were damaging to the claimant’s reputation as they contained accusations of criminal activity condemned by society. The main issue, accordingly, was to establish whether the statements were supported by credible evidence. In that respect the District Court considered that the assertions in the impugned publication were untrue, as they concerned matters and events which had never in reality taken place. The court based that conclusion on the evidence produced by a check carried out by the Primorskiy Regional Department of the Investigation Committee, with three refusals, dated 14 June and 24 November 2011 and 19 April 2012, to institute criminal proceedings in connection with the alleged ill-treatment. The court further noted that the defendants, for their part, had failed to prove that the police officers had indeed tortured the brothers S. V. and S. F.
In the light of the foregoing, the District Court found the impugned statements untrue and defamatory, and that they had tarnished the reputation of the Primorskiy Regional Department of the Interior. It ordered the applicants and Mr D. to publish a retraction in the newspaper and on line and to pay the claimant compensation for non-pecuniary damage in the amount of RUB 3,000 (approximately EUR 75) each.
The applicants and Mr D. appealed. They disagreed with the first-instance court’s decision to involve the second applicant and Mr D. in the proceedings. They also claimed that the authors had not been presenting their statements as fact, but only as value judgments. The impugned statements of fact had emanated from Mr S.V., Mr S.F. and others, rather than from them. The defendants further stated that the articles had been written in good faith and had touched upon matters of public concern. The publications had been the newspaper’s response to a very large number of letters with complaints of police ill-treatment. The articles had been written following a thorough journalistic investigation. The second applicant had visited court hearings in the case of Mr S.V. and Mr S.F. She had also spoken to their lawyers and had contacted the Primorskiy Regional Department of the Investigation Committee for information concerning the investigation into the brothers’ complaints. Moreover, Arsenyevskie Vesti had a letter from Mr S.V. to his lawyer in which Mr S.V. had described the police ill-treatment in his respect. To support their allegations, the defendants submitted extracts from trial court hearings and other documents related to the brothers’ case. As regards the publication of Mr D.’s article, the first applicant argued that she had had no right to edit it, because it had been written as a form of declaration, which had had to be published unchanged.
On 27 February 2013 the Primorskiy Regional Court upheld the judgment on appeal. It agreed with the District Court’s decision to involve the second applicant and Mr D. in the proceedings, because the examination of the case in their absence would have been impossible. The appellate court reaffirmed the reasoning of the lower court and dismissed the defendants’ arguments, noting that the right to freedom of expression could not be used as an instrument for a violation of the rights of others. As regards the first applicant’s responsibility for the publication of Mr D’s article, the court held that his article had not been an official declaration which should be published unchanged. Accordingly, the first applicant should have verified it before publishing.
B. Relevant domestic law and practice
1. Constitution of the Russian Federation
Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
2. Civil Code of the Russian Federation
Article 152 provides that an individual may apply to a court with a request for rectification of statements (сведения) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.
3. Resolutions of the Plenary Supreme Court
Resolution no. 11 of the Plenary Supreme Court of Russia of 18 August 1992 (amended on 25 April 1995 and in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (for example, the commission of a dishonest act, or improper behaviour at the workplace or in everyday life). “Dissemination of statements” was understood to be the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7).
On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Resolution no. 3, which required the courts examining defamation claims to distinguish between statements of facts which could be checked for veracity, and value judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code because they are expressions of a defendant’s subjective opinion and views and cannot be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to extend an apology to a claimant, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18).
COMPLAINTS
The applicants complain under Article 10 of the Convention that their right to freedom of expression was violated.
common QUESTIONS
1. Has there been an interference with the applicants’ right to freedom of expression, in particular their right to impart information and ideas, secured by Article 10 § 1 of the Convention?
2. If so, was that interference justified under Article 10 § 2 of the Convention?
In particular:
(a) Was it “prescribed by law”?
(b) If so, did it pursue a legitimate aim?
(c) If so, was it necessary in a democratic society? In particular, did the expressions, for the publication of which the applicants were held liable in defamation proceedings, represent statements of fact or value judgments? Was the distribution of proof in the applicants’ cases compatible with the requirements of Article 10 of the Convention? Were the reasons adduced by the domestic courts “relevant and sufficient”?
case-specific QUESTIONS
Application no. 62380/13
1. If there has been an interference with the applicants’ right to freedom of expression, did it pursue a legitimate aim given, in particular, that the action was brought by the police authority, rather than by an individual policeman (see, e.g., Lombardo and Others v. Malta, no. 7333/06, § 50, 24 April 2007)?
2. Was the decision of the Frunzenskiy District Court of Vladivostok to involve the second applicant in the proceedings in the absence of an application by the claimant’s motion to that end justified under Article 10 of the Convention?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
22835/11
18/03/2011
Irina Georgiyevna GREBNEVA
06/12/1943
Vladivostok
64886/11
26/09/2011
Irina Georgiyevna GREBNEVA
06/12/1943
Vladivostok
62380/13
27/08/2013
Irina Georgiyevna GREBNEVA
06/12/1943
Vladivostok
Natalya Vladimirovna
FONINA
06/03/1976
Dalnerechensk
[1] The name of a figurehead character from a satirical novel “The Little Golden Calf” (Золотой телёнок) by I. Ilf and Ye. Petrov.
[2] The title connotes the State policy of the “strengthening of the vertical of power” meaning the top-down command structure established by the Russian President.
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