Communicated on 13 May 2015
FIRST SECTION
Application no. 49108/11
Marina Anatolyevna SAMOYLOVA
against Russia
lodged on 19 June 2011
STATEMENT OF FACTS
The applicant, Ms Marina Anatolyevna Samoylova, is a Russian national, who was born in 1961 and lives in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s husband was a prosecutor in Moscow and retired in 2006. Subsequently, he was charged with a number of criminal offences and stood trial (see also Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012). The applicant was not accused of or charged with any criminal offence in relation to these criminal proceedings.
In August 2009 the case against Mr Samoylov was submitted for trial.
On 10 September 2009 Channel One, a nationwide television station, broadcasted a popular TV-programme Chelovek I Zakon. This programme contained a reportage relating to the ongoing trial against Mr Samoylov. Prior to the broadcasting of the reportage, the journalists had collected, from an unspecified source or unspecified sources, certain information concerning the applicant (her home address, her tax-payer identification number, her income, her estate), as well as a video recording and photographs showing the interior of her residence. The applicant did not give consent to the processing of this information, including its collection, disclosure and dissemination.
According to the applicant, following the disclosure of her home address, she was harassed by numerous journalists at her place of residence.
Considering that various aspects of the above reportage encroached upon the inviolability of their home, private and family life, as well as their honour and dignity, the applicant and her husband brought civil proceedings.
The applicant referred to the following aspects:
- the programme showed a document, which was presented as the applicant’s income certificate. In addition to the annual income data for 2004-2007, it indicated the applicant’s full name, her home address and her official tax-payer identification number. She had not given any consent to the dissemination of the above information.
- The annual income data was false. It was much lower that the applicant’s actual income, which, being presented together with the ‑ inaccurate - indication that her house costs 2,000,000 US dollars, implied that the applicant had received income from doubtful sources.
- A video and photographs of the interior of her residence were shown during the TV-programme. It appeared that the TV journalist had made the recordings when allowed by the investigating officer.
By judgment of 18 May 2010 the Ostankinskiy District Court of Moscow dismissed her claims. The court’s findings may be summarised as follows:
- A prosecutor’s stature requires strict compliance with the requirement of law and implies transparency of his income and expenditure. This is especially important on account of the then and ongoing anti-corruption campaigns. The journalist’s indication of the residence’s cost of USD 2,000,000 and presentation of the claimants’ income certificates, taken together, amounted to an admissible exaggeration aimed at showing the disparity between the claimants’ income and the luxurious residence they owned. The claimants’ actual income and the residence’s cost are immaterial in the above circumstances.
- The certificate was obtained by lawful means and disclosure of the income information without the claimants’ consent pursued the legitimate interest of informing the public about the income received both by the former official and his family members.
- The video shown in the TV-programme was obtained lawfully with the investigator’s permission.
- Referring to Article 161 of the Code of Criminal Procedure, the court stated that the income certificate and video recordings were pieces of evidence in the criminal case and thus could not be obtained by the journalist otherwise than following the investigator’s permission. It was open to the journalist to give his own assessment of this evidence; the veracity of such information could not be reviewed by the court in this civil case.
The applicant appealed, arguing, inter alia, as follows:
- the first-instance court failed assess her claim relating to the respondent’s collection and dissemination of such information as the applicant’s full name, her home address and the fact of the ongoing criminal prosecution against her husband.
- the court provided no legal basis for its conclusion that the respondent had lawfully obtained the information contained in the income certificate.
On 20 December 2010 the Moscow City Court upheld the judgment. It stated that while the claimants did prove the dissemination of information tarnishing their honour and dignity (распространение порочащих сведений), this information “corresponded to reality” (соответствовала действительности).
According to the applicant, the information concerning her name, home address and alike remained available on the website of the TV-programme.
B. Relevant domestic law and practice
1. Russian Constitution
Article 23 of the Constitution protects inviolability of one’s private life, honour and good name.
Article 24 of the Russian Constitution prohibits collection, storage, use or dissemination of information about one’s private life, with his or her consent.
Article 25 of the Constitution guarantees inviolability of one’s home. None should be permitted to enter one’s home despite the will of its residents, except in the cases prescribed by a federal law or by a court order.
2. Mass Media Act of 27 December 1991
Section 49 of the Act provides that a journalist is legally required to seek consent of the interested person for disseminating information relating to this person’s private life, except when “it is necessary for protecting public interests”.
3. Personal Data Act of 27 July 2006
Section 3 of the Act defines “personal data” as any information directly or directly identifying a specific person.
A journalist can process such data, without the person’s consent, for the purposes of his professional activities and/or lawful activities of the mass media, provided that such processing does not violate the person’s rights (section 6 of the Act).
According to the Supreme Court of Russia, a tax-payer identification number does not contain information of a personal nature, relating to one’s family situation or relationships, and thus does not fall within the scope of protection of the inviolability of private life (decision no. GKPIOO-402 of 30 May 2000).
4. Code of Criminal Procedure
Article 161 of the Code provides that an investigator may authorise disclosure of the “information” relating to the preliminary investigation of a criminal case, if such disclosure does not impinge upon the investigation and does not violate the rights or legitimate interests of the persons involved in the investigation. The investigator should determine the scope of disclosure.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the domestic courts failed to deal with a part of her claims regarding collection and dissemination of information concerning her family and private life, such as her full name and home address; dissemination of the video and photographs showing the interior of her residence.
The applicant complains under Article 8 of the Convention about unlawful collection, unlawful and disproportionate disclosure of the following data and information, including the following:the applicant’s full name;the applicant’s home address;the video and photographs showing the interior of her residence;the applicant’s tax identification number, her income information, the information on her estate.
The applicant also alleges that the State officials directly provided or assisted the journalist in obtaining this information and data. She also contends that the journalists gave a distorted presentation of true information and presentation of false elements of information (income, cost of the house); a defamatory assessment of it, suggesting criminal sources of the applicant’s income.
QUESTIONS TO THE PARTIES
1. Did the domestic courts examine and sufficiently reply to all the claims, as raised and substantiated by the applicant? If not, was there a violation of Article 6 § 1 of the Convention?
2.1. Has there been an interference by a public authority with the applicant’s right to respect for her private and family life, home or correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was each aspect of the interference in accordance with the law and necessary in terms of Article 8 § 2?
Reference is, inter alia, made to the handling and disclosure of the applicant’s home address, her income information and information concerning her estate, her tax identification number; to the context in which the video and photographs showing the interior of her residence were made or obtained.
2.2. Did the domestic authorities discharge their position obligation to ensure effective respect for the rights protected by Article 8, including the adoption of measures in the sphere of the relations of individuals between themselves? In particular:
- Were the collection of various information, for instance about the applicant’s address, and its disclosure to the public lawful and proportionate (cf. Alkaya v. Turkey, no. 42811/06, § 30, 9 October 2012)?
- Was the authorities’ granting access to the journalists to the premises of the applicant’s residence and/or otherwise making possible their video‑recording or photographing lawful and proportionate?
2.3. The respondent Government are requested to submit a full copy of the civil case file and the full transcript of the relevant part of the TV-show and/or, possibly, its video recording.
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