Communicated on 29 March 2016
THIRD SECTION
Application no. 422/11
KOMMERSANT ZAO and Aleksandr Sergeyevich VORONOV
against Russia
lodged on 14 December 2010
STATEMENT OF FACTS
The applicants are the Moscow-based ZAO Kommersant publishing house and its staff writer, Mr Aleksandr Sergeyevich Voronov, who is a Russian national born in 1976. They are represented before the Court by Mr D. Zharkov, a lawyer practising in the Moscow Region.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 25 February 2009 the Kommersant newspaper published an article by Mr Voronov under the headline “Artists exhibit in support of the Central House of Artists. Snowmen and banners crop up on Krymsky Val”. The article concerned a public gathering in protest at the planned demolition of the Central House of Artists, a Soviet-era building located on Krymsky Val Street in Moscow, which the Moscow Mayor Yuriy Luzhkov had decided to remove. It reported the speeches by the participants and the contents of the banners, which were attached to snowmen:
“Artists built a dozen meagre snowmen in front of the building and equipped them with banners calling for a halt of the demolition or scolding the Moscow authorities. All the banners were signed by their authors: for example, the artist German Vinogradov signed the statement calling ‘Yuriy Luzhkov unclumsy thief’ ... ‘For Luzhkov, profit is all that’s important. If he is promised good money, he would agree to tear down the mayor’s office’ – such was the common thinking of protesters, expressed by Gennadiy Borcheyev, a representative of the Council of Moscow Initiative Groups.”
The statement “Yuriy Luzhkov unclumsy thief” («Юрий Лужков уклюжий вор») was an anagram of Luzhkov’s name[1] and the second line of a satirical poem that German Vinogradov had created four years before the protest as part of a performance in which new words were coined from Luzhkov’s name.
On 1 April 2009 Luzhkov sued the applicants and Mr Vinogradov for defamation, claiming that the statement “Yuriy Luzhkov unclumsy thief” and the statement by Mr Borcheyev had impaired his honour, dignity and reputation as the Moscow mayor.
By a judgment of 8 June 2009, the Tverskoy District Court of Moscow granted the part of the claim concerning Mr Borcheyev’s statement. It held that, since Mr Voronov had not asked Mr Borcheyev to join the proceedings as a co-defendant, he must be presumed to have been the author of the statement. As he had not produced any evidence to show the truth of the statement, he was liable for defamation because, in the District Court’s view, he had damaged the mayor’s honour and reputation by implying that he had not discharged his duties in good faith. As regards the statement “Yuriy Luzhkov unclumsy thief”, the District Court found that it did not contain any allegation of dishonesty, unethical behaviour or criminality and was not actionable in defamation. The District Court awarded Mr Luzhkov 35,000 Russian roubles (RUB) against the first applicant and RUB 15,000 against the second applicant.
Both Mr Voronov and Mr Luzhkov lodged appeals against the judgment. According to the applicants, they were not informed of the date or time when the appeals would be heard.
On 22 June 2010 the Moscow City Court heard the appeals against the District Court’s judgment. It upheld the part of the judgment concerning Mr Borcheyev’s statement and, in addition, found the applicants liable for the statement “Yuriy Luzhkov unclumsy thief” which, in the City Court’s assessment, was an allegation of illegality on the part of Mr Luzhkov. It increased the awards in Mr Luzhkov’s favour to RUB 50,000 against the first applicant and RUB 30,000 against the second applicant.
COMPLAINTS
The applicants complain, under Article 10 of the Convention, of a violation of their right to freedom of expression.
The applicants also complain, under Article 6 of the Convention, of not being informed of the appeal hearing before the Moscow City Court which prevented them from attending.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 10 of the Convention? Did the domestic courts distinguish between a value judgment (an expression of opinion) and a statement of fact?
2. Has there been a violation of Article 6 of the Convention on account of the City Court’s failure to apprise the applicants of the date and time of their appeal hearing with the result that they were prevented from taking part in it?
[1]. Note: the non-existent English word “unclumsy” is the closest approximation of the likewise non-existent Russian word which sounds as the opposite of “clumsy”.
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