Communicated on 2 February 2016
THIRD SECTION
Applications nos 37482/10 and 37486/10
ZAO KOMMERSANT IZDATELSKIY DOM and
Mariya-Luiza TIRMASTE against Russia
and Boris NEMTSOV against Russia
lodged on 22 June 2010
STATEMENT OF FACTS
1. The applicants in the first case are the Moscow-based ZAO Kommersant publishing house and one of its journalists, Ms Maria-Luisa Urmasovna Tirmaste, a Russian national born in 1978 in Sommerlingi, Estonia. They are represented before the Court by Mr D. Zharkov, a lawyer practising in the Moscow Region.
2. The applicant in the second case, Mr Boris Yefimovich Nemtsov, was a Russian national who was born in 1959 and lived in Moscow. Mr Nemtsov was assassinated in Moscow on 27 February 2015; on 25 December 2015 his daughter, Ms Zhanna Borisovna Nemtsova, informed the Court of her wish to pursue the proceedings in his stead. She is represented by Mr V. Prokhorov and Ms O. Mikhaylova, lawyers practising in Moscow.
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. Mr Nemtsov was a former governor of a Russian region and a former Government minister before becoming an opposition leader in the lower chamber of the Russian Parliament and a founder of the Solidarnost opposition movement. He was also one of the authors of independent expert reports providing an overview of President Putin’s political and economic record. In 2009, just before elections to the Moscow city legislature, Mr Nemtsov released a report on the accomplishments and failures of long-time Moscow mayor Mr Luzhkov, entitled “Luzhkov: Results”. The forty-page report detailed widespread corruption in Moscow, drawing on sociological data, publications in the Russian and foreign media, expert opinions and other sources, all of which were listed in an annex to the report. It concluded, in particular:
“2. Corruption in Moscow is not just problematic, it is systemic. It is an open secret for many Muscovites that corruption has permeated all levels of officialdom in Moscow. It is obvious to us that Luzhkov and his wife have set a harmful example. In the past ten years alone, Luzhkov has signed dozens of orders authorising his wife to start construction work on more than 1,300 ha of land in Moscow. In addition, the Moscow government approved the privatisation of ... the largest manufacturer of prefabricated houses in Moscow. The privatisation resulted in [Luzkhov’s wife] gaining control over approximately 20% of the Moscow housing market ... [She] has become the only Russian woman with a fortune of more than one billion dollars. Pursuant to Article 34 of the Family Code, property which is acquired by one spouse is jointly owned with the other. This means that Luzhkov, during his years as mayor, has become a dollar billionaire, just like his wife.”
5. On 17 September 2009 the Kommersant newspaper published an article by Ms Tirmaste under the headline “Moscow mayor ready to sue Boris Nemtsov. Opposition politician to be called to account for the report ‘Luzhkov: Results’”. The article stated that the Moscow mayor would bring several defamation claims against Mr Nemtsov. The journalist asked for comment from Mr Tsoy, the head of the press service of the Moscow mayor and Moscow government, who said that Mr Luzhkov and Mr Nemtsov were “men of a different calibre”. He continued:
“How could they be compared? Luzhkov is a well-known figure while Nemtsov is a nonentity. Even at a distance of a thousand kilometres he would not measure up to the mayor.”
The article also quoted Mr Nemtsov’s reply to the spokesman’s statement:
“I fully agree with Mr Tsoy that Luzhkov and I are men of a different calibre: I consider that Luzhkov is a corrupt official and a thief while I am neither!”
6. On 7 October 2009 the Moscow Government and its mayor, Mr Luzhkov, sued Mr Nemtsov, Ms Tirmaste and the Kommersant newspaper for defamation. They challenged various statements in the report, including the first three sentences of the above-cited conclusion no. 2. Mr Luzhkov also claimed that Mr Nemtsov’s description of him as a “corrupt official and a thief” was untrue and damaging to his reputation.
7. In preparation for the trial, counsel for Mr Nemtsov commissioned a linguistic study. A linguist from the Vinogradov Russian Language Institute at the Russian Academy of Sciences concluded that all the impugned expressions were value judgments or suppositions.
8. On 30 November 2009 the Zamoskvoretskiy District Court of Moscow granted the defamation claim in part. It found that most of the impugned statements in the main text of the report either did not concern Mr Luzhkov or did not imply that he had committed any wrongful acts. By contrast, the court found, with regard to the second and third sentences of the second paragraph of the report’s conclusions (“It is an open secret ... a harmful example” - see the full citation above), that they were damaging to the honour and dignity of the Moscow mayor and to the business reputation of the Moscow Government because:
“... they contain allegations that the complainants acted contrary to the norms of law and morals, and used their official position to harm the lawful interests of society and the State ... The information created the impression that the activities of the Moscow Government under the leadership of Mr Luzhkov had brought about widespread corruption in all spheres of city life ... [These sentences] ... contain allegations of a crime ... and the word ‘harmful’ means ‘wicked, pernicious’.”
The court rejected the findings of the linguistic study, noting that “only the court is competent to determine what information was damaging”.
As to Mr Nemtsov’s reaction to Mr Tsoy’s comment, the court held that the statement contained “assertions about the commission of a crime by Mr Luzhkov”, that it damaged his honour, dignity and business reputation and was also offensive.
The court awarded Mr Luzhkov 500,000 Russian roubles (11,430 euros) in compensation for non-pecuniary damage, payable by Mr Nemtsov and the Kommersant publishing house.
9. On 9 February 2010 the Moscow City Court rejected appeals by all parties to the proceedings and upheld the findings of the District Court in a summary fashion.
COMPLAINT
10. The applicants complain under Article 10 of the Convention of a violation of their right to freedom of expression.
QUESTIONS
Has there been a violation of Article 10 of the Convention? Did the courts take into account the electoral and political context of the impugned statements? How did they determine the amount of compensation in respect of non-pecuniary damage?
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