Communicated on 13 May 2015
FIRST SECTION
Application no. 42982/08
Andrey Nikolayevich SAVELYEV
against Russia
lodged on 16 August 2008
STATEMENT OF FACTS
The applicant, Mr Andrey Nikolayevich Savelyev, is a Russian national, who was born in 1962 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.
1. Background to the case
At the material time the applicant was a member of the Russian parliament, the State Duma.
In April 2007 representatives of the Movement against Illegal Immigration, those of the Congress of Russian Communities and members of the former party “Rodina”(Motherland) decided to found a new political party, “Velikaya Rossiya” (Great Russia).
During the founding congress of 5 May 2007 the applicant was elected as the chairman of the party.
On 25 June 2007 he applied for the registration of the political party.
On 24 July 2007 the Federal Registration Service refused to register the party, with reference to certain defects in its charter and false data concerning the party’s members.
2. The applicant’s letter to the Minister of Justice
On 20 August 2007, being unsatisfied with the decision of 24 July 2007, the applicant sent an official letter to the Minister of Justice of Russia, alleging that the refusal was arbitrary. He also published that letter on his website.
As far as relevant, it read as follows:
“I address you in the capacity of a member of the State Duma and the chairman of the party “Velikaya Rossiya”. My relationship with the Federal Registration Service, which is a part of the Ministry of Justice, headed by yourself, is complicated by illegality and by the Federal Registration Service official’s unprofessional conduct, which manifests itself in serious breaches of the legislation and a cynical attack on the constitutional system.
I ask you to pay attention to the following facts:
...
The refusal of the registration of the political party was arbitrary. It lacked a factual and documentary basis. I suppose that the defects of the party’s charter referred to [by the Federal Registration Service] are the result of intentional disregard and arbitrary interpretation of the charter [by the Federal Registration Service].
...
As for the “dead souls” [i.e. wrongfully accounted members of the political party], the Head of the Federal Register Service, [Mr V.], intentionally held back that out of 60,000 party members only four were erroneously included in the list of the members of the party. Moreover, this allegation was not substantiated by documentary evidence. The “numerous violations” are insignificant. I regret that one of the most important sub-divisions of the civil service, which is involved in the formation of the system of power and the expression of people’s will during elections, is headed by a cynic and liar.
...
The Head of the Federal Registration Service, [Mr V.], probably set his hopes solely upon delayed justice in order to postpone the exposure of his unlawful and simply disgraceful acts ...”
3. Defamation proceedings
On 13 September 2007 Mr V. brought a defamation claim against the applicant seeking to declare the following three expressions defamatory:
“1. “The refusal in the party’s registration was arbitrary. It had insufficient factual and documentary basis”;
2. “... one of the most important subdivisions of the civil service, which involved in the formation of the system of power and the expression of people’s will during elections, is headed by a cynic and liar”; and
3. “The Head of the Federal Registration Service, [Mr V.], probably set his hopes solely upon delayed justice in order to postpone the exposure of his unlawful and simply disgraceful acts”.”
He also sought the withdrawal of the letter of 20 August 2007, publication of a disclaimer on the applicant’s website, public apologies and compensation for non-pecuniary damage in the amount of 400 roubles (RUB) (11.36 euros (EUR)).
The applicant argued that the impugned expressions had been taken out of context and that they were value judgments rather than factual allegations. The applicant also stated that letters similar to his one were a common practice among the members of the parliament and that none of those had been sued. As regards the publication of the letter on the Internet, he argued that it had been necessary to ensure the publicity of his work as a member of the parliament.
On 9 November 2007 the Savelovskiy District Court of Moscow delivered its judgment. The court found that the first expression had been a value judgment and that therefore it had not defamed Mr V. It further held that the remaining expressions had been defamatory factual statements unsupported by evidence and that, accordingly, they must be disclaimed.
The court imposed on the applicant an obligation to send a disclaimer to the Ministry of Justice and to publish it on his website. It also ordered the applicant to pay Mr V. compensation for non-pecuniary damage in the amount of RUB 400 (EUR 11.36) and court fees in the amount of RUB 700 (EUR 19.88).
The applicant challenged the judgment on appeal, claiming that he should not have been held liable for the contents of his formal complaint addressed to the Minister of Justice, that the expressions had been taken out of context and that those had been value judgments and had not aimed at defaming Mr V.
On 21 February 2008 the Moscow City Court upheld the judgment on appeal, endorsing the first-instance court’s arguments.
B. Relevant domestic law and practice
1. Constitution of the Russian Federation
Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
2. Civil Code of the Russian Federation
Article 152 provides that an individual may apply to a court with a request for the rectification of statements (“svedeniya”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non‑pecuniary damage sustained as a result of the dissemination of such statements.
3. Resolutions of the Plenary Supreme Court
Resolution of the Plenary Supreme Court of the Russian Federation no. 11 of 18 August 1992 (amended on 25 April 1995 and in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (for example, the commission of a dishonest act, or improper behaviour at the workplace or in everyday life). “Dissemination of statements” was understood to be the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7).
On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Resolution no. 3, which required the courts examining defamation claims to distinguish between statements of facts which can be checked for veracity, and value judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code because they are expressions of a defendant’s subjective opinion and views and cannot be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to extend an apology to a claimant, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18).
COMPLAINT
The applicant complains under Article 10 of the Convention about a violation of his freedom of expression, in particular his right to impart information and ideas.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicant’s right to freedom of expression, in particular his right to impart information and ideas? If so, was that interference justified under Article 10 § 2 of the Convention? In particular, was it “prescribed by law”? If so, did it pursue a legitimate aim? If so, was it necessary in a democratic society?
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