Communicated on 4 June 2015
FIRST SECTION
Application no. 44376/09
Andrey Gennadyevich PARFENTYEV
against Russia
lodged on 26 November 2008
STATEMENT OF FACTS
The applicant, Mr Andrey Gennadyevich Parfentyev, is a Russian national, who was born in 1968 and serving a prison term in Bor prison no. 11, Nizhniy Novgorod Region.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant and a publication
The applicant was arrested on 6 April 2005 on suspicion of molestation of minors.
On an unspecified date, the criminal case against the applicant was set for trial before the Sosnovskiy District Court of the Chelyabinsk Region.
On 18 May 2005 a local newspaper published an article “Major’s shameful passion”, which read as follows:
“Major’s Shameful Passion.
Major molested underage offenders
Andrey Parfentyev, Chief Officer of the Inspectorate on cases relating to minors was well respected by his fellow colleagues and superiors ... The well-appreciated major molested underage hooligans in his office. He had no wife and no children of his own, while being aged 37 y.o. He was residing together with his mother and brother. The latter had no problems with his private life.
Andrey was jealous of his brother. He did try to have an affair but, despite his grade and status, ladies would not maintain a relationship with him ...
The major is now in detention. The investigation will have to clarify how many souls he “saved” with his advice. The police have so far received one complaint from the parents of one minor ... Parfentyev pleaded not guilty ... The district prosecutor disagrees:
“Numerous schoolboys who “visited” the major’s office are reluctant to talk about the loving officer ... He has been charged with molestation of minors and can be punished with up to twelve years’ imprisonment.” ”
The article was accompanied with the applicant’s photograph, apparently taken from the applicant’s private album, which he kept in his office. The article also contained a photograph of the district prosecutor.
By judgment of 28 April 2006 the District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment. On 11 August 2006 the Chelyabinsk Regional Court upheld the judgment.
The applicant brought defamation proceedings against the publishing house.
By judgment of 22 May 2008 the Tsentralnyy District Court of Chelyabinsk rejected his claims. The court held as follows:
“... [The applicant] was convicted of the criminal offences and he has been serving a prison term ... The mass media’s information about the criminal offence committed by the claimant does not amount to an interference with his private life or a violation of the presumption of innocence. The circumstances of his life, which relate to the offence, do not fall within the scope of private life. The above information is an exercise of the principle of openness of proceedings, protected by Article 10 of the Convention ...”
The applicant appealed.
On 19 August 2008 the Chelyabinsk Regional Court upheld the judgment. It held as follows:
“Article 152 of the Civil Code provides that a citizen can seek refutation of utterances, which tarnish his honour ... The relevant circumstances include the fact of dissemination of the information relating to the claimant, its tarnishing character and that it does not correspond to reality (не соответствует действительности) ... The absence of one of the above elements entails rejections of the claim ... The court rightly concluded that the information in “Major’s shameful passion” corresponds to reality, does not tarnish the claimant’s honour and reputation and does not violate his rights ...
The photographs and information relating to family are not subject of private or family secret. Their publication does not violate inviolability of private life, as protected by Article 23 of the Constitution.”
2. Proceedings before this Court
The applicant’s first letter to the Court (dated 26 November 2008) bears an inscription made by a prison officer in Nizhniy Tagil prison no. 13 (registration number, date: 27/11/09 and signature of the officer).
The application form submitted by the applicant bears an inscription made by the prison officer (registration number and date: 12/02/09). This application form was sent to the Court with a cover letter indicating the number of enclosed pages and the nature of the correspondence.
The same concerns the applicant’s letters to the Court dated 16 June and 10 September 2009.
The applicant’s letter dated 12 January 2012 was accompanied with a cover letter issued by an official in Bor prison no. 11. The cover letter stated that the applicant “had been informed of the rules for correspondence and complaints” and that his letter contained a request (to the Court) to maintain correspondence with him at the new address.
B. Relevant domestic law and practice
1. Protection against untruthful statements of fact affecting honour or reputation
Article 152 of the Civil Code provides that a citizen has a right to apply to a court with a claim seeking refutation of statements, which tarnish his or her honour or reputation unless the author of these statements proves that they correspond to reality.
A court action fails in the absence of one of the following elements: an established dissemination of the statements affecting the claimant; the tarnishing character of these statements, and the proof that they do not correspond to reality (Plenary Supreme Court of Russia, ruling of 24 February 2005).
The above concerns statements of fact, while statements of value or opinions fall outside the scope of protection afforded by Article 152 of the Civil Code (ibid.).
2. Convicts’ correspondence
Article 91 § 2 of the Code of Execution of Sentences, as amended on 8 December 2003, provides that detainees’ correspondence is subject to monitoring by the prison authorities. Correspondence with courts, prosecutors, prison officials, the Ombudsman, the public monitoring board and the European Court is not subject to monitoring. Correspondence between a convict and counsel (or another authorised representative) is not subject to monitoring, except when the administration has good reasons to believe that it is aimed at criminal ends. In that event the correspondence is monitored on the basis of a reasoned decision by the prison governor or his deputy.
Under the 2001 Internal Prison Regulations, as amended in 2004, all detainees’ correspondence was to be processed by the prison authorities. Correspondence was to be placed in mailboxes or handed to staff unsealed (Chapter 12). On 3 November 2005 new Regulations were adopted. Rule 50 provides that detainees must put their unsealed letters into mailboxes or give them to prison staff, except for correspondence which is not subject to monitoring.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the publication entitled “Major’s shameful passion” violated his private life in a disproportionate manner. The publication mentioned, inter alia, his name, contained statements about his private relationships and contained his photograph.
The applicant also alleges a violation of Article 6 § 2 of the Convention, in particular, in that the author of the publication stated the adverse opinion expressed by the district prosecutor.
QUESTIONS TO THE PARTIES
1. Was there a violation of Article 8 of the Convention on account of the publication entitled “Major’s shameful passion” and dissemination of the applicant’s photograph? Did the courts carry out a proper proportionality analysis, weighing the applicant’s right under this provision vis-à-vis specific considerations of a legitimate public interest (see, for comparison, Egeland and Hanseid v. Norway, no. 34438/04, §§ 53-65, 16 April 2009, and Khuzhin and Others v. Russia, no. 13470/02, § 117, 23 October 2008)?
2. (a) Did the Russian authorities, including the courts, fail to protect the presumption of innocence allegedly violated on account of the article “Major’s shameful passion”? If yes, was there a violation of Article 6 § 2 of the Convention?
(b) Did the district prosecutor violate the presumption of innocence?
3. Was there a violation of Articles 8 and 34 of the Convention, on account of the circumstances presented in “Facts” section in relation to the applicant’s correspondence with the Court?
Full & Egal Universal Law Academy