Communicated on 20 September 2017
THIRD SECTION
Applications nos. 13002/10 and 50690/11
Yelena Ilyinichna MAGLEVANNAYA against Russia
and Dmitriy Vasilyevich ORISHCHENKO and REGION-36 against Russia
lodged on 12 February 2010 and 11 July 2011 respectively
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Application no. 13002/10, Maglevannaya v. Russia
(a) Publication
On 14 September and 11 October 2008 and 12 January 2009 Ms Maglevannaya posted the following articles on the Internet: “The Fate of a Chechen in a Russian Prison”, “Torture of Chechen Prisoner Continues”, and “Torture in Russian Prisons”. In her articles she described the detention conditions of a Chechen prisoner, Mr Z., revealed the acts of torture committed in respect of him and posted photos of Z. with bruises. She based her articles mostly on the words of Z.’s sister, his lawyer and a prison medical doctor. The relevant parts of the articles read as follows:
“But even here, [the prison officers] continue to torture him. Now they requested Z. to sign a statement confirming that he did not have any claims against those officers of the Frolovsky [correctional] colony who had tortured him. They had resorted to beatings and torture, a proven method of persuasion. He looked awful in the photos taken when he was examined by a special commission. He was swollen and bruised and had a huge wound on his forehead. Z.’s sister, M., describes him as follows: ‘During a prison visit my sister and I called our brother by his name as we could not recognise him; he opened his eyes with his hand. The blood started running from the corners of his eyes’ ...
Z. lodged a complaint against the deputy head of [penal medical institution no.] LIU-15, one of the officers who had beaten him. Criminal proceedings were initiated against the deputy head for causing grave bodily injuries ...
According to the LIU-15’s physicians and other prisoners, Z.’s state of health is in a critical condition now ...
During a private conversation with Z.’s sister the deputy head of the prison made it clear that his superiors had ordered [him] to put pressure on Chechen prisoners ... E.-B.M., [Z.’s] lawyer, ... confirms that the prisoner’s state of health has worsened...
... On 20 August M. and I were provided with a list of drugs to be bought for Z.; we bought them. On 22 August we gave them to the colony’s pharmacy. But Z. has still not received any of these drugs; he has instead been administered unknown medications which have worsened his state of health. Moreover, the prison staff also beat him ...
The torture in respect of Z. in Volgograd Prison continues ... When the head of the prison found out about these uncontrolled atrocities, he ordered Z. to be placed in an isolation ward. Such a shameless act is only possible when ‘the executioners’ are absolutely bolstered by their impunity ...
By the way, the [prison] doctor, the only person in the colony who is truly sorry for what is happening to Z., said to his sister: ‘They just want to kill him’ ... When I saw Z., he looked very exhausted and barely moved. He was driven to the point of physical and moral exhaustion. He had a huge hematoma on the left side of his face, from his forehead to his chin; his face was distorted, swollen; he had practically lost all sensation in the left side of his face ...’”.
The applicant described the torture further in detail.
(b) Defamation proceedings
On 18 February 2009 penal medical institution no. LIU-15 lodged a defamation claim against the applicant, seeking that the applicant acknowledge that the above-mentioned passages were untrue, publish a retraction and pay compensation.
On 13 May 2009 the Kirovskiy District Court of Volgograd allowed this claim. It analysed the evidence submitted by the parties and held that Z. had received all necessary drugs and treatment, his right to visits had been respected, and his complaints about the alleged beatings had been duly addressed by the prosecutor, who had not found any violations. The court awarded the LIU-15 institution compensation in the amount of 200,000 roubles (RUB – 4,584 euros (EUR)) and ordered the applicant to issue a retraction.
On 14 August 2009 the Volgograd Regional Court upheld this decision on appeal.
2. Application no. 50690/11, Orishchenko and Region-36 v. Russia
The applicants ran a website (). Mr Orishchenko is the owner of the website domain and Region-36 is a PR-company providing informational consulting services and publishing information on this website.
On 17 April and 19 May 2009 the applicants posted on their website two articles about the food products of the company OOO LiskoBroiler: “The Voronezh branch of VTB Bank demonstrated to A.G. their OOO LiskoBroiler project – the largest project in regional agriculture and industry” and “Rospotrebnadzor found violations at LiskoBroiler’s facilities”. The relevant passages of the articles read as follows:
“... the [supermarket] chain used to work with LiskoBroiler, but their products turned out to be non-competitive. ‘We received broiler drumsticks with blood stains. And we refused to work with the company.’...
The local retailers also expressed their concern with regard to the quality of LiskoBroiler’s products. ... I. L., the manager of the ‘Pyaterochka’ supermarket chain in Voronezh, noted that the company had supplied drumsticks with blood stains.”
OOO LiskoBroiler brought a claim for defamation against Mr Orishchenko and Region-36. In his statement of defence Mr Ornishchenko indicated that the above-mentioned information was true. He submitted photos of drumsticks and waybills for products to be returned because of their poor quality.
On 11 January 2010 the Commercial Court of the Voronezh Region allowed OOO LiskoBroiler’s claim and ordered the applicant to delete the defamatory passages, publish retractions and pay compensation in the amount of RUB 100,000 (EUR 2,314), together with RUB 4,000 (EUR 93) in expenses. It held that by describing OOO LiskoBroiler’s products as “non-competitive” and causing “concern”, the applicants had disseminated untrue information which had prejudiced the company’s reputation and that this characterisation could not be considered as constituting “value judgments”.
On 5 May and 1 September 2010 and 11 January 2011 the Nineteenth Commercial Appellate Court of Voronezh, the Federal Commercial Court for the Tsentralnyy District and the Supreme Court of Russia dismissed the applicant’s appeals, reiterating the decision of 11 January 2010 word by word.
B. Relevant domestic law and practice
Article 29 of the Russian Constitution guarantees freedom of expression. Article 33 provides that Russian citizens have the right to petition in person and to submit individual and collective appeals to State authorities and municipal bodies.
Under Article 152 of the Civil Code of Russia, citizens have the right to seek in court that information discrediting their honour, dignity or business reputation be retracted, unless the person who has disseminated such information proves it to be true. A citizen who is the subject of information which has been disseminated and which discredits his or her honour, dignity or business reputation has the right to a retraction and to claim compensation in respect of pecuniary and non-pecuniary damage.
In Ruling no. 3 of 24 February 2005, the Plenary Supreme Court noted that Article 29 § 3 of the Constitution provided that no one could be compelled to express an opinion or belief or be compelled to refrain from expressing them.
According to point 7 of the above-mentioned Ruling and point 6 of Ruling no. 16 of 15 June 2010, a defamation claim relating to allegedly false information that has been posted on the Internet at a data source registered as a media outlet should be considered under the rules relating to the media. A person who has illegally disseminated information via websites which have not been registered as media outlets should bear liability under other provisions of Russian law, not those governing the media.
COMPLAINTS
The applicants complain under Article 10 of the Convention of violation of their right to freedom of expression.
QUESTIONS
1. 1. Has there been an interference with the applicants’ right to freedom of expression, in particular their right to impart information and ideas, as 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) did it pursue a legitimate aim?
(c) was it “necessary in a democratic society”? In particular, were the impugned expressions statements of fact or value judgments? Did the national authorities thoroughly examine the case and adduce relevant and sufficient reasons to justify the alleged interference? Did they distinguish whether the statements in the articles emanated from a journalist or were quotations from others? Was the punishment inflicted on the applicants, and in particular, the amount of compensation to be paid, proportionate?
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
13002/10
12/02/2010
Yelena Ilyinichna MAGLEVANNAYA
15/12/1981
Tiuruniementie, Finland
Roman Yevgenyevich KACHANOV
50690/11
11/07/2011
Dmitriy Vasilyevich ORISHCHENKO
14/03/1981
Voronezh
Region-36
Voronezh
No representative
No representative
Full & Egal Universal Law Academy