Information Note on the Court’s case-law No. 162
April 2013
Reznik v. Russia - 4977/05
Judgment 4.4.2013 [Section I]
Article 10
Article 10-1
Freedom of expression
Compensation award against Bar Council President comments regarding prison warders’ “search” of female member of the Bar: violation
Facts – The case concerned defamation proceedings against the President of the Moscow City Bar for critical statements he had made on a live television show about the conduct of male prison warders who had searched a female lawyer representing the prominent businessman Mikhail Khodorkovskiy in criminal proceedings. The applicant had been invited to the talk show with a representative of the Ministry of Justice to speak about a request the Ministry had made for the lawyer to be disbarred after she was allegedly found in possession of a note containing instructions aimed at interfering with the pending investigation into Mr Khodorkovskiy’s affairs. On the talk show, the applicant denied that there had been an attempt to pass a note from Mr Khodorkovskiy outside the remand centre, stated that there had been no grounds for carrying out a search and criticised the fact that it had been carried out by male prison warders “rummaging about the body” of the female lawyer. The remand centre and two of its warders sued him in defamation claiming that they had not carried out a search but had merely inspected the lawyer’s documents. On appeal, the City Court found against the applicant and ordered him to pay 20 Russian roubles in damages. The television channel was ordered to broadcast a rectification. The council of the Moscow City Bar formally rejected the Ministry’s request for Mr Khodorkovskiy’s counsel to be excluded from the Bar.
Law – Article 10: The City Court’s judgment in the defamation proceedings had constituted interference with the applicant’s right to freedom of expression, which interference had a basis in national law and pursued the legitimate aim of protecting the reputation or rights of others.
As to whether the interference had been necessary in a democratic society, the Court noted firstly that the impugned statement had been made in a live television debate over the Ministry of Justice’s request to have Mr Khodorkovskiy’s counsel disbarred. That request had been made in the context of the criminal proceedings against Mr Khodorkovskiy which were themselves the subject of intense public debate and must have sparked a wave of public interest. Yet although very strong reasons were required for restrictions on debates on questions of public interest, there was nothing in the text of the City Court’s judgment to suggest it had performed the necessary balancing exercise.
The Court was not convinced by the Government’s argument that, as a lawyer, the applicant should have been particularly meticulous in his choice of words. Lawyers were entitled to comment in public on the administration of justice provided their criticism did not overstep certain bounds. The applicant had been speaking to a lay audience of television viewers, not to legal experts and his use of the word “search” rather than the technical term “inspection” was in everyday language an appropriate description of the procedure to which Mr Khodorkovskiy’s counsel had been subjected. Moreover, the format of the television discussion had been designed to encourage an exchange of views or even an argument, so that the opinions expressed would counterbalance each other. As the discussion had been broadcast live, the applicant had had no possibility of reformulating his words before they were made public and, in any event, the Ministry representative could have dispelled any allegation he considered untrue and presented his own version of the incident.
In any event, nothing in the applicant’s statement had permitted the warders to be identified: the applicant had described them simply as “men”, without mentioning their names or their employer. Even assuming their names had become public, the applicant’s liability in defamation could not go beyond his own words or extend to statements made by others. So the domestic authorities had failed to establish an objective link between his statement and the claimants in the defamation action.
There had also been a sufficient factual basis for the applicant’s statement that the inspection was devoid of legal grounds: the Court had already established in Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011, Information Note no. 141) that no obvious provision of Russian law prohibited lawyers from keeping notes during meetings with clients and that a legal provision concerning the inspection of visitors carrying prohibited objects did not apply to meetings between defendants and their legal representatives and the Moscow Bar Council had made similar findings when rejecting the request for Mr Khodorkovskiy’s counsel to be disbarred. Further, while the applicant’s suggestion that the warders had “rummaged” through Mr Khodorkovskiy’s counsel’s clothing appeared somewhat exaggerated, it had not gone beyond the limits of acceptable criticism, as he had been seeking a way to convey his indignation at the actions of the male warders who had taken it upon themselves to examine a female lawyer’s clothing in breach of the requirements of Russian law for searches or inspections to be carried out by persons of the same sex. In sum, the applicant had not gone beyond the limits of acceptable criticism. His statement had rested on a sufficient factual basis and the City Court had not based its decision on an acceptable assessment of the relevant facts.
Lastly, in the light of the foregoing factors, the sanction imposed on the applicant, though negligible in financial terms, was not justified and the institution of defamation proceedings against him had been capable of having a deterrent effect on his freedom of expression.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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