Communicated on 29 January 2015
FIRST SECTION
Application no. 42182/11
Aleksandr Mikhaylovich TOLMACHEV against Russia
lodged on 10 June 2011
STATEMENT OF FACTS
The applicant, Mr Aleksandr Mikhaylovich Tolmachev, is a Russian national, who was born in 1955 and lives in Rostov-on-Don.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a journalist and a sole owner of “Informatsionno‑pravovoy tsentr Aleksandra Tolmacheva” (“IPT”), a legal entity responsible for editing the “Argumenty Nedeli Yug” newspaper («Аргументы Недели Юг») (“the newspaper”).
A. Defamation proceedings initiated by Ms M.
On 27 May 2010 the newspaper published an article entitled “An Incident Involving the Judiciary” («ЧП судейского масштаба»). The article was an editorial continuing a series of articles criticising certain judges of Rostov-on-Don, in particular, Ms M., president of the S. district court in Rostov-on-Don. One of the earlier articles reported allegations that Ms M. had usurped a part of common space in a block of flats to the detriment of her neighbours. Ms M. had brought defamation proceedings against the applicant. The article of 27 May 2010 covered a court hearing in that case.
Later Ms M. brought civil proceedings for defamation against the applicant, IPT, the newspaper and another legal entity involved in the newspaper’s activities demanding refutation of the following parts of the article:
“Many a man came to see how this lawless person in a judge’s robe would protect her tainted honour and dignity with the help of her colleagues ...
‘Ms M.’s unlawful position’
... I would like to know how the case pending before the Zheleznodorozhny court is related to the defamation claims of Ms M., president of the S ... district court who has disgraced herself in front of the whole country. ... It is high time that Ms M. begs the robbed members of the condominium for forgiveness, apologises for her actions, yet she has taken position having gained support from other lawless people just like herself. After all that has been done by the judges to discredit our newspaper I am persuaded that people like ... and Ms M. should not be vested with judicial powers. They use the latter for their personal gain and are a disgrace for the Russian judiciary.”
Later Ms M. modified her statement of claims asking to declare defamatory the following extract from another article, “Moscow ‘Teachers’ of Ethics” («Московские «учителя» этики») by the applicant published in the newspaper on 15 July 2010:
“Even Mr O ... himself could not say anything of essence. He ... covered up for the president of the S ... district court Ms M. who had usurped common property in the block of flats ... ”
On 4 October 2010 the Oktyabrskiy district court granted Ms M.’s defamation claims in part. It reasoned that the article of 27 May 2010 contained negative information about Ms M. both as a private individual and as a public office holder. The court dismissed the plaintiff’s claims in so far as they concerned the phrase “Ms M.’s unlawful position”, which had served as a subheading and thus could not be considered a statement of facts, and the phrase “I am persuaded that people like ... and Ms M. should not be vested with judicial powers”, which, in the court’s view, was a value judgment. The court described the remainder of the impugned extracts from the article as allegations of Ms M.’s unlawful behaviour and immoral actions. It summarily dismissed the applicant’s argument that those were value judgments. The court ordered that the applicant and the IPT pay Ms M. 507,500 Russian roubles (RUB) each in non-pecuniary damages, that is, a total of RUB 1,014,000 (approximately 25,000 euros (EUR)).
On 13 December 2010 the Rostov regional court dismissed the applicant’s appeal in its substantive part. However, it diminished the total amount of non-pecuniary damages awarded to RUB 214,000 (approximately EUR 5,200).
B. Defamation proceedings initiated on behalf of Mr A.
On 11 July 2008 a judge of the L. district court of Rostov-on-Don, Ms A., resigned from office. It appears that investigative authorities began a pre-investigation inquiry into acts of bribery allegedly committed by Ms. A.
On 31 July 2008 the newspaper published an article by the applicant entitled “A Judge’s Multiplication Table” («Судейская таблица умножения») covering, in particular, Ms A.’s resignation. The article read in so far as relevant as follows:
“Deputy head of the L ... district court Ms A. was caught taking a bribe. For almost a year they could not remove this guardian of law from office. It has just become known that she was deprived of her powers and that a criminal case against her would finally be open.”
In September 2008 the newspaper and the ProRostov magazine published an article by the applicant entitled “What does the bitch have to do with it?” («А сука здесь причем?»), which contained the following passage:
“The experience of the former judge of the L ... district court Ms A. who was caught taking bribes has been a current practice among the judges for a long time ... ”
Ms A. initiated defamation proceedings against, inter alia, the applicant and the ITP legal entity claiming that the two aforementioned articles contained libel against her.
On 6 November 2008 the Oktyabrskiy district court found in Ms A.’s favour and awarded her non-pecuniary damages.
However, once the applicant appealed, Ms A. withdrew her claims. On 29 December 2008 the Rostov regional court accepted her refusal to pursue the claims further, quashed the judgment of 6 November 2008 and discontinued the proceedings.
On 10 June 2010 the newspaper published another article by the applicant entitled “Heirs to the Judiciary” («Наследники судебной власти»), which read in so far as relevant as follows:
“We covered this issue in the articles in which we were bringing to daylight a former judge of the L ... district court and a bribe taker Ms A.”
On an unspecified date Ms A. brought defamation claims against the applicant and the IPT legal entity on the basis of the article of 10 June 2010.
On 13 July 2010 Ms A. died.
On 13 September 2010 the Oktyabrskiy district court terminated the proceedings for the reason that the plaintiff died. It reasoned that successors could not pursue the defamation proceedings in Ms A.’s stead as the right to reputation was not transferrable.
In November 2010 defamation proceedings in relation to the three articles were brought in the name of Ms A.’s minor son, Mr A., born in 1995. The applicant, the ITP and the newspaper’s publishing house, Glas («Глас») were listed as defendants. Mr A. argued that his late mother had suffered immensely because of the three articles, which had caused his own profound suffering.
The Oktyabrskiy district court accepted the statement of claims and commenced the proceedings. It initially scheduled a hearing on 14 December 2010. Later it rescheduled it twice, for 27 January and 28 February 2011. The applicant informed the court that he could not attend the hearing of 28 February 2011 because of a business trip and requested postponement.
On 28 February 2011 the Oktyabrskiy district court of Rostov-on-Don, having dismissed the applicant’s request to postpone as unsubstantiated, examined the case in his absence. It found in the plaintiff’s favour. Briefly touching upon the issue of whether Mr A. had had standing to bring defamation claims in his own name following his mother’s death, the court emphasised that although the decision of 29 December 2008 remained res judicata, Mr A. had a right to protect his right to reputation and dignity as “dissemination of the untruthful defamatory information regarding a deceased person defames to a certain extent [Ms A.’s] son as well.” The court further found that the impugned statements in the three articles were statements of facts and that the applicant had produced no proof to their veracity. It ordered refutation and awarded Mr A. RUB 500,000 (approximately EUR 12,500) to be paid by the applicant and the IPT, respectively, and RUB 250,000 (approximately EUR 6,250) to be paid by the publishing house.
On 5 May 2011 the Rostov regional court upheld the judgment on appeal in full.
COMPLAINTS
1. The applicant complains under Article 10 of the Convention about interference with his freedom of expression on account of the proceedings that ended with the Rostov regional court’s judgments of 13 December 2010 and 5 May 2011 arguing that the domestic courts failed to distinguish between statements of facts and value judgments in the two sets of defamation proceedings against him and his legal entity. He also complains about the excessive amount of judicial awards in both cases.
2. The applicant further complains in substance under Article 6 of the Convention that the domestic courts wrongly accepted the claims brought on behalf of Mr A., a person whose name had not appeared in the impugned articles, despite the defamation proceedings challenging the same articles instituted by Ms A. had been discontinued in the breach of the res judicata principle.
3. The applicant complains in substance under Article 6 § 1 of the Convention that the Oktyabrskiy district court of Rostov-on-Don held a hearing of 28 February 2011 in his absence.
QUESTIONS TO THE PARTIES
1. Having regard to the two sets of defamation proceedings that ended with the final judgments of the Rostov regional court of 13 December 2010 and 5 May 2011, respectively, was there an interference with the applicant’s rights under Article 10 of the Convention? If so, did it comply with the requirements of the second paragraph of that Convention provision? In particular, can it be said that the domestic courts respected the distinction between statements of facts and value judgments in the course of examination of the claims brought by Ms M. and of those brought on behalf of Mr A., respectively? Was the applicant offered adequate and effective safeguards against disproportionately large awards in the defamation cases against him (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 50, Series A no. 316‑B)?
2. Having regard to the civil proceedings brought on behalf of Mr A., did Mr A. have locus standi to bring claims in the defamation dispute related to the alleged libel of his late mother? If not, has there been a violation of Articles 6 and/or 10 of the Convention?
3. Having regard to the rulings of the Rostov regional court of 29 December 2008 and of the Oktyabrskiy district court of 13 September 2010 terminating the defamation proceedings instituted by Ms A. and considering that the domestic courts accepted and partly granted the defamation claims brought on behalf of Mr A., has there been a breach of the res judicata principle contrary to Article 6 of the Convention? If so, did such breach have a “chilling effect” on the applicant’s freedom of expression as protected by Article 10 of the Convention?
4. Has there been a violation of the applicant’s right to fair trial guaranteed by Article 6 § 1 of the Convention on account of his absence from the Oktyabrskiy district court’s hearing of 28 February 2011?
5. The parties are requested to provide a copy of the appeal judgment of the Rostov regional court of 5 May 2011.
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