Communicated on 1 December 2016
THIRD SECTION
Application no. 12996/12
NOVAYA GAZETA and Others
against Russia
lodged on 10 February 2012
STATEMENT OF FACTS
The first applicant (the “applicant company”) is the editorial board and the publisher of the Novaya Gazeta newspaper, a non-commercial legal entity incorporated in Moscow. The second applicant, Mr Aleksey Viktorovich Polukhin, is a Russian national who was born in 1983 and lives in Moscow. The third applicant, Mr Valeriy Mikhailovich Nikolayev, is a Russian national who was born in 1942 and lives in Moscow. The second and the third applicants are journalists. The applicants are represented before the Court by Mr Ya. Kozheurov, head of the legal department of the applicant company.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The articles
In 2009 and 2010 the applicant company published two articles about the lobbying of the Clear Water Programme by the Chairman of the Russian Parliament Mr Gryslov. The purpose of the lobbying was to obtain state funds to finance the installation of new water filters manufactured by OOO Zolotaya Formula Holding at the premises of all state bodies and agencies and subsequently at all residential buildings.
According to the material collected by the journalists, the testing of the filters had not been completed and they were not proven to be safe. The articles raised issues concerning public health and safety, allocation of state funds, cohesion of the interests of business and those of politicians.
On 30 November 2009 the applicant company published an article written by the second applicant under the title “Go clear («На чистую воду»)” which expressed concerns as regards the quality of the water filters. The article mentioned, relying on the data published in the Water Supply and Disposal («Водоснабжение и канализация»)”, that, despite the installation of water filters at many state-funded premises, including schools and kindergartens, there had been an outbreak of aseptic meningitis in pre-school and educational establishments resulting in 19 deaths in the Nizhniy Novgorod Region. The article continued as follows:
“For fairness’ sake, one should acknowledge that the outbreak of aseptic meningitis was registered in other regions of the country. However, the advertisement promises that the Petrik’s[1] filters completely remove pathogenic micro-organisms from the ... water. The [filtered] water need not to be boiled. How was it possible then for the pathogens to be present in schools equipped with the Petrik’s filters in the Nizhniy Novgorod Region? Was it because the water was no longer boiled?
This question, however, should be answered by experts. But the experts keep silent. It is known that the filters were tested by St Petersburg Vodokanal State Unitary Enterprise and the Sysin Scientific Research Institute for Human Ecology and environment. The tests were carried two years ago. Their official results have not been published. The experts did not get in touch with the journalists. [The journalists] have to rely on information found in open sources: “Two hundred tests of original and filtered water have been conducted. The tests of the equipment did not produce successful results as regards the microbiological markers. The use of the hydrogen mixture of high reactivity impregnated with silver iodide fails to produce necessary disinfecting effect. The microbiological markers and the growth of foreign flora do not meet the [quality] standards. . The expected operational goal was not achieved due to the unsatisfactory quality of water as regards microbiological markers.[2]
In other words, it means that the [hydrogen based] filters do not only fail to remove microorganisms from the tap water, but they add undesirable microflora to it.”
On 15 March 2010 the applicant company published an article written by the third applicant under the title “The purgatory («Чистилище»)” on the same issue. In particular, the article contained the following:
“Accordingly, it means that the guaranteed quality of the microbiological content of the water treated by the Zolotaya Formula’s filters is a fiction.
...
There is no need to mention that all cartridge filters, including the hydrogen based ones, provide a comfortable environment for reproduction of microorganisms. It means that they cannot only destroy them, but they boost their growth.”
B. Civil action against the applicants
On an unspecified date the OOO Zolotaya Formula Holding brought an action for damage to its good will and reputation against several newspapers and journalists, including the applicants.
On 29 October 2013 the Commercial Court of St Petersburg and the Leningrad Region found for the plaintiff. Relying on the linguistic analysis report commissioned by the plaintiff, the court found the above quoted parts of the articles to be damaging to the plaintiff’s reputation and goodwill. The court also concluded that the overall style of the first article published by the applicant company was aimed at forming a negative opinion about the plaintiff’s products which was also damaging to the latter’s reputation. The court noted the following expressions used in the article in this respect:
“go clear («на чистую воду»)”, “Khrushchev’s corn («хрущевская кукуруза»)”, “it was impossible to find official documents that would allow, at least, to come to a conclusion that those filters had passed the testing which proved that they were safe («не удалось обнаружить официальных документов, позволяющих, как минимум, утверждать, что эти фильтры прошли испытания, позволяющие судить об их безопасности для здоровья»)”, “[the filters] may be hazardous for public health as they might “disperse” nano-particles” («они могут представлять опасность для здоровья людей, поскольку могут «пылить» наночастицами»)”; “the people in Nizhniy Novgorod did not realise that they were guinea pigs («жители Новгородской области, сами того не ведая, стали подопытными кроликами»)”, “the Duma’s speaker has a conflict of interest («у спикера Госдумы возникает конфликт интересов»)”; “unlimited opportunities to implement ill-considered, populist decisions on a national scale («неограниченные возможности для реализации непродуманных, популистских решений в масштабах всей страны»)”, “from ex-cons to academics («из зеков в академики»)”, “purgatory («чистилище»)”, “mythological test («мифологический анализ»)”, “national programme leaving off-board the health of the absolute majority of the population of the country («национальная программа, оставляющая за бортом здоровье абсолютного большинства страны»)”.
The court ordered, inter alia, that (1) the applicant company, pay damages to the plaintiff in the amount of RUB 200,000 and the court fee in the amount of RUB 4,000. The court found that the above quoted parts of the articles were damaging the plaintiff’s reputation and good will and ordered that the applicant company retract them.
On 21 April 2011 the Thirteenth Commercial Appellate Court upheld, in substance, the judgment of 23 October 2010 on appeal. As regards the retraction imposed on the applicant company, the court specified that the applicant company was to publish the judgment of 29 October 2010 on its website.
On 10 August 2011 the Federal Commercial Court of the North-Western Circuit dismissed the applicants’ cassation appeal.
On 5 December 2011 the Supreme Commercial Court of the Russian Federation dismissed the applicants’ application for supervisory review of the lower courts’ judgments.
COMPLAINTS
The applicants allege a violation of their rights set out in Article 10 of the Convention.
QUESTION TO THE PARTIES
As regards the judgment of 29 December 2010, has there been a violation of the applicants’ right to freedom of expression, in particular their right to impart information and ideas, set out in Article 10 of the Convention?
[1] The inventor of the water filters in question and the owner of the company which manufactures them.
[2] The data was reproduced with the reference to the publication in the Water Supply and Disposal magazine.
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