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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 21.07.2005 ДЕЛО ГРИНБЕРГ (GRINBERG) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

<<< Назад


                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                             FIRST SECTION
                                   
                      CASE OF GRINBERG v. RUSSIA
                      (Application No. 23472/03)
                                   
                             JUDGMENT <*>
                                   
                       (Strasbourg, 21.VII.2005)
   
   --------------------------------
       <*>  This  judgment will become final in the circumstances  set
   out  in  Article  44 з 2 of the Convention. It may  be  subject  to
   editorial revision.
   
       In the case of Grinberg v. Russia,
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mr P. Lorenzen,
       Mrs {N. Vajic} <*>,
   --------------------------------
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
   
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mrs E. Steiner,
       Mr K. Hajiyev, judges,
       and Mr S. Quesada, Deputy Section Registrar,
       Having deliberated in private on 30 June 2005,
       Delivers  the  following judgment, which was  adopted  on  that
   date:
   
                               PROCEDURE
   
       1. The case originated in an application (No. 23472/03) against
   the  Russian Federation lodged with the Court under Article  34  of
   the  Convention for the Protection of Human Rights and  Fundamental
   Freedoms  ("the  Convention")  by  a  Russian  national,  Mr  Isaak
   Pavlovich Grinberg, on 23 June 2003.
       2.  The  applicant was represented before the Court  by  Ms  L.
   Yemelyanenkova,  a  lawyer  practising in  Ulyanovsk.  The  Russian
   Government ("the Government") were represented by their  Agent,  Mr
   P.   Laptev,  Representative  of  the  Russian  Federation  at  the
   European Court of Human Rights.
       3.  The  applicant alleged a violation of his right to  express
   opinions, guaranteed by Article 10 of the Convention.
       4.  The  application was allocated to the First Section of  the
   Court  (Rule  52 з 1 of the Rules of Court). Within  that  Section,
   the  Chamber that would consider the case (Article 27 з  1  of  the
   Convention) was constituted as provided in Rule 26 з 1.
       5.  By  a  decision of 28 October 2004, the Court declared  the
   application admissible.
       6.  On 1 November 2004 the Court changed the composition of its
   Sections  (Rule  25  з  1). This case was  assigned  to  the  newly
   composed First Section (Rule 52 з 1).
       7.  Neither the applicant nor the Government filed observations
   on the merits (Rule 59 з 1).
   
                               THE FACTS
   
                   I. The circumstances of the case
   
       8. The applicant was born in 1937 and lives in Ulyanovsk.
       9.  On  6  September 2002 the Guberniya newspaper  published  a
   piece  written and signed by the applicant. The entire text of  the
   piece, entitled "[My] statement" ("Заявление"), read as follows:
       "The  voting  ballots  were still being  counted,  but  it  was
   already  clear that General V.A. Shamanov had been elected Governor
   of  the  Ulyanovsk  Region. That very night he made  the  following
   verbatim  statement: "Let me tell you bluntly  and  frankly  -  the
   local press has to be dealt with thoroughly".
       During  his  electoral  campaign General [Shamanov]  made  many
   promises to the residents of Ulyanovsk. But, in my opinion, he  has
   kept  only one: [he is] "waging war" against the independent press,
   against journalists. The judicial proceedings in Shamanov's  action
   against  the  highly talented Ulyanovsk journalist  Dyomochkin  are
   still  pending.  But the criminal prosecution of  a  journalist  is
   exceptional. Yulia Shelamydova, editor-in-chief of the  Simbirskiye
   Izvestia  newspaper, has been sentenced to one year of correctional
   labour.  Let  us  leave aside the legal aspects of that  case:  the
   full  text of the court judgment has not yet been published  and  I
   hope  there  will be many more judicial proceedings,  not  only  in
   Ulyanovsk,  but also in Moscow. But there is a moral  dimension  to
   this  case. How can three robust men, of whom two are Generals  and
   one  is  a  Hero of Russia, wage a battle against a  woman  who  is
   still  a  young  girl! This brings to mind Shamanov's  support  for
   Colonel Budanov, who killed a 18-year-old [Chechen] girl. No  shame
   and no scruples!"
       ("Еще  шел  подсчет  голосов, но было  уже  ясно:  губернатором
   Ульяновской  области избран генерал Шаманов В.А. Этой же  ночью  он
   заявил  буквально следующее: "С местной прессой, прямо и откровенно
   скажу, предстоит детально разобраться".
       Во  время  избирательной  кампании  генерал  обещал  ульяновцам
   много.  Но  выполнил, с моей точки зрения, только одно:  "воюет"  с
   независимой прессой, с журналистами. Еще продолжаются суды по  иску
   Шаманова  В.А.  к талантливейшему журналисту - ульяновцу  Демочкину
   Г.А.  Но  преследование  журналиста  в  уголовном  порядке  -   это
   уникальный  случай.  Юлия  Шеламыдова  -  главный  редактор  газеты
   "Симбирские  известия"  -  осуждена на  год  исправительно-трудовых
   работ.  Оставим пока в стороне юридический аспект этого  дела:  еще
   не  опубликован полный текст решения суда, по этому  поводу  будет,
   надеюсь,  еще много судов, причем не только в Ульяновске,  но  и  в
   Москве.  Но  есть  моральный аспект в  этом  деле.  Как  могут  три
   здоровых  мужика,  из которых два - генерала, в том  числе  один  -
   даже   герой  России,  "воевать"  с  женщиной,  более  того   -   с
   молоденькой  девчонкой! Почему-то вспоминается поддержка  Шамановым
   В.А. полковника Буданова, убившего 18-летнюю девушку. Ни стыда,  ни
   совести!")
       10. On 10 September 2002 Mr Shamanov brought a civil defamation
   action   against  the  applicant,  the  editor's  office  and   the
   newspaper's  founder - the Fund for Assistance  to  Disenfranchised
   Communities  Goryachev-Fond  ("the  Fund").  He  claimed  that  the
   assertion alleging that he had no shame and no scruples was  untrue
   and  damaging  to  his  honour and reputation.  He  sought  500,000
   roubles  ((RUR), approximately 20,000 euros (EUR)) in  compensation
   for non-pecuniary damage.
       11.  On  14  November  2002  the Leninskiy  District  Court  of
   Ulyanovsk found for the plaintiff. The court held as follows:
       "In  the article the author asserts that Shamanov, Governor  of
   the  Ulyanovsk Region, has no shame and no scruples. The very tenor
   of  the  article  confirms  that the contested  statements  contain
   precisely  such an assertion. [The applicant's] assertion  in  this
   article  that the plaintiff has no shame and no scruples is clearly
   damaging  because  it impairs his honour, dignity and  professional
   reputation... The [applicant] did not produce before the court  any
   evidence  showing  the  truthfulness of that  statement  about  the
   plaintiff..."
       The court ruled:
       "...  the  statement to the effect that the  plaintiff  has  no
   shame  and  no  scruples, published in [the  applicant's]  piece...
   [is]  untrue  and  damaging  to  Shamanov's  honour,  dignity   and
   professional reputation".
       12.  The court held the Fund liable for RUR 5,000 (EUR 200) and
   the  applicant  liable for RUR 2,500 (EUR 100) in respect  of  non-
   pecuniary  damage to the plaintiff. The Fund was  also  ordered  to
   publish,  by  way  of  rectification, the  operative  part  of  the
   judgment.
       13.  The applicant and the Fund lodged an appeal. The applicant
   pointed  out  that  the  District Court had failed  to  distinguish
   "opinions" from "statements". He submitted that his right  to  hold
   and  impart  opinions was guaranteed by Article 29 of  the  Russian
   Constitution   and  the  contested  statement  was   his   personal
   assessment  of Mr Shamanov's actions. Furthermore, he  argued  that
   the  contested expression was an idiom in the Russian language, and
   was  commonly  used  to  give an ethical appraisal  of  a  person's
   deeds.
       14. On 24 December 2002 the Ulyanovsk Regional Court upheld the
   judgment  of  14 November 2002. The court endorsed the  conclusions
   of the first-instance court and added:
       "The  arguments...  about the court's  confusion  of  the  term
   "opinions"  and  the term "statements" (сведения) cannot  be  taken
   into account because [the applicant's] opinion had been printed  in
   a  public  medium and from the moment of publication  it  became  a
   statement."
       15. The applicant's subsequent attempts to initiate supervisory
   review  proceedings  proved unsuccessful. On  22  August  2003  the
   Supreme  Court of the Russian Federation dismissed his  application
   for the institution of supervisory-review proceedings.
   
                II. Relevant domestic law and practice
   
       Constitution of the Russian Federation
       16.  Article  29 guarantees freedom of thought and  expression,
   together with freedom of the mass media.
       Civil Code of the Russian Federation of 30 November 1994
       17.  Article  152 provides that an individual may  apply  to  a
   court   with  a  request  for  the  rectification  of  "statements"
   ("сведения")  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.
       Resolution  No. 11 of the Plenary Supreme Court of the  Russian
   Federation of 18 August 1992 (amended on 25 April 1995)
       18.  The  Resolution (in force at the material  time)  provided
   that,  in  order to be considered damaging, statements ("сведения")
   had  to  be untrue and contain allegations of a breach, by a person
   or  legal  entity,  of laws or moral principles  (commission  of  a
   dishonest  act, improper behaviour at the workplace or in  everyday
   life,  etc.).  Dissemination of statements was  understood  as  the
   publication  of  statements  or their  broadcasting,  inclusion  in
   professional  references, public speeches,  applications  to  State
   officials and communication in other forms, including oral,  to  at
   least one another person (section 2).
       19.  Section  7 of the Resolution governed the distribution  of
   the  burden of proof in defamation cases. The plaintiff was to show
   that  the statements had indeed been disseminated by the defendant.
   The  defendant  was to prove that the disseminated  statements  had
   been true and accurate.
   
                                THE LAW
                                   
         I. Alleged violation of Article 10 of the Convention
   
       20. The applicant complained under Article 10 of the Convention
   about  a  violation of his right to impart information  and  ideas.
   Article 10 provides as follows:
       "1. Everyone has the right to freedom of expression. This right
   shall  include freedom to hold opinions and to receive  and  impart
   information and ideas without interference by public authority  and
   regardless of frontiers...
       2.  The  exercise of these freedoms, since it carries  with  it
   duties  and  responsibilities, may be subject to such  formalities,
   conditions, restrictions or penalties as are prescribed by law  and
   are  necessary  in  a  democratic  society,  in  the  interests  of
   national security, territorial integrity or public safety, for  the
   prevention  of disorder or crime, for the protection of  health  or
   morals,  for  the  protection  of  the  reputation  or  rights   of
   others..."
   
                      A. Arguments by the parties
   
       21.  The applicant submitted that the article at issue had been
   part  of  an  on-going  political debate.  He  emphasised  that  Mr
   Shamanov  had  not challenged the facts on which  the  article  had
   been  based  and  that  the  contested sentence  had  assessed  the
   latter's  deeds  rather  than  his  personality.  Furthermore,  the
   applicant  submitted  that the Russian  idiom  in  question  was  a
   typical value judgment, not susceptible of proof or refutation.  It
   was  an ethical appraisal and one person's opinion about the  deeds
   of another, universally perceived as a value judgment and not as  a
   statement of fact.
       22.  The Government submitted that, pursuant to Article 152  of
   the  Civil Code, it was incumbent on the applicant to show that the
   information had been true, and he had failed to satisfy the  burden
   of  proof.  They conceded that there had been an interference  with
   the  applicant's  right  to  freedom of  expression  and  that  the
   article  had concerned the governor's relations with the  press,  a
   subject  which  could be considered a matter for political  debate.
   However,  they maintained that the contested statement had referred
   to   Mr   Shamanov's  personality  rather  than  to  his  political
   activities and that the applicant could have couched his  criticism
   in  different  terms without resorting to the defamatory  assertion
   that  Mr  Shamanov had "no shame and no scruples".  The  Government
   considered  that the interference had been justified and  necessary
   in  a  democratic society for the protection of the reputation  and
   rights of others.
   
                       B. The Court's assessment
   
                         1. General principles
   
       23. According to the Court's well-established case-law, freedom
   of  expression  constitutes one of the essential foundations  of  a
   democratic  society  and  one  of  the  basic  conditions  for  its
   progress   and  each  individual's  self-fulfilment.   Subject   to
   paragraph  2  of  Article  10,  it  is  applicable  not   only   to
   "information" or "ideas" that are favourably received  or  regarded
   as  inoffensive or as a matter of indifference, but also  to  those
   that  offend, shock or disturb. Such are the demands of  pluralism,
   tolerance   and  broadmindedness,  without  which   there   is   no
   "democratic   society"  (see  Handyside  v.  the  United   Kingdom,
   judgment  of  7 December 1976, Series A No. 24, p. 23,  з  49;  and
   Jersild  v.  Denmark, judgment of 23 September 1994, Series  A  No.
   298, p. 26, з 37).
       24.  The  press fulfils an essential function in  a  democratic
   society.   Although   it   must  not   overstep   certain   bounds,
   particularly  as regards the reputation and rights  of  others  and
   the  need  to  prevent the disclosure of confidential  information,
   its  duty  is nevertheless to impart - in a manner consistent  with
   its  obligations and responsibilities - information  and  ideas  on
   all  matters  of  public  interest (see  De  Haes  and  Gijsels  v.
   Belgium,  judgment of 24 February 1997, Reports  of  Judgments  and
   Decisions  1997-I,  pp.  233 - 34, з 37; and  Bladet  {Tromso}  and
   Stensaas  v.  Norway [GC], No. 21980/93, з 59, ECHR 1999-III).  Not
   only  does  it  have  the task of imparting  such  information  and
   ideas:  the  public  also  has a right to  receive  them.  Were  it
   otherwise,  the  press would be unable to play its  vital  role  of
   "public  watchdog"  (see Thorgeir Thorgeirson v. Iceland,  judgment
   of  25  June  1992,  Series A No. 239, p. 28, з  63).  Journalistic
   freedom  covers  possible recourse to a degree of exaggeration,  or
   even  provocation (see Prager and Oberschlick v. Austria  (No.  1),
   judgment  of  26 April 1995, Series A No. 313, p. 19, з  38).  This
   freedom  is subject to the exceptions set out in Article  10  з  2,
   which  must,  however,  be construed strictly.  The  need  for  any
   restrictions must be established convincingly.
       25.  The  Court  reiterates that there is  little  scope  under
   Article  10  з  2 of the Convention for restrictions  on  political
   speech  or debates on questions of public interest (see {Surek}  v.
   Turkey  (No. 1) [GC], No. 26682/95, з 61, ECHR 1999-IV).  Moreover,
   the  limit  of  acceptable criticism is  wider  with  regard  to  a
   politician  acting in his public capacity than  in  relation  to  a
   private  individual, as the former inevitably  and  knowingly  lays
   himself  open to close scrutiny of his every word and deed by  both
   journalists and the public at large, and he must display a  greater
   degree  of  tolerance. A politician is certainly entitled  to  have
   his  reputation  protected, even when  he  is  not  acting  in  his
   private  capacity, but the requirements of that protection have  to
   be  weighed  against  the  interests  of  the  open  discussion  of
   political issues (see Lingens v. Austria, judgment of 8 July  1986,
   Series A No. 103, p. 26, з 42).
   
                  2. Application to the present case
   
       26.  The  Court  notes  that it is common  ground  between  the
   parties  that  the  judgments pronounced in the  defamation  action
   constituted  an  "interference"  with  the  applicant's  right   to
   freedom  of expression as protected by Article 10 з 1.  It  is  not
   contested  that the interference was "prescribed by  law",  notably
   Article  152  of  the Civil Code, and "pursued a  legitimate  aim",
   that  of  protecting the reputation or rights of  others,  for  the
   purposes  of  Article 10 з 2. The dispute in the  case  relates  to
   whether the interference was "necessary in a democratic society".
       27.  The test of necessity in a democratic society requires the
   Court  to  determine  whether  the  "interference"  complained   of
   corresponded   to  a  "pressing  social  need",  whether   it   was
   proportionate  to  the  legitimate  aim  pursued  and  whether  the
   reasons  given  by  the national authorities  to  justify  it  were
   relevant and sufficient. In assessing whether such a "need"  exists
   and  what  measures should be adopted to deal with it, the national
   authorities are left a certain margin of appreciation.  This  power
   of  appreciation is not however unlimited, but goes  hand  in  hand
   with  a European supervision by the Court, whose task it is to give
   a  final  ruling  on  whether a restriction  is  reconcilable  with
   freedom of expression as protected by Article 10. The Court's  task
   in  exercising its supervisory function is not to take the place of
   the  national authorities, but rather to review under  Article  10,
   in  the light of the case as a whole, the decisions they have taken
   pursuant  to their margin of appreciation. In so doing,  the  Court
   has  to  satisfy  itself  that  the  national  authorities  applied
   standards which were in conformity with the principles embodied  in
   Article  10  and, moreover, that they based their decisions  on  an
   acceptable  assessment  of  the relevant  facts  (see  Dichand  and
   Others v. Austria, No. 29271/95, з 38, 26 February 2002).
       28.  One  factor  of  particular  importance  for  the  Court's
   determination  in  the  present case  is  the  distinction  between
   statements  of fact and value judgments. The domestic  courts  held
   the  applicant liable for his failure to prove the truthfulness  of
   his assertion that Mr Shamanov had "no shame and no scruples".
       29.  The Court notes that the Russian law on defamation, as  it
   stood  at  the  material  time, made no distinction  between  value
   judgments  and  statements  of fact, as it  referred  uniformly  to
   "statements"  ("сведения") and proceeded from the  assumption  that
   any  such statement was amenable to proof in civil proceedings (see
   paragraphs  17  and 18 above). Irrespective of the actual  contents
   of  the  "statements", the person who disseminated the "statements"
   had  to  satisfy  the  courts  as to their  truthfulness  (see,  in
   particular,  section  7 of the Resolution of  the  Plenary  Supreme
   Court,  paragraph  19  above). Having regard to  these  legislative
   provisions,  the domestic courts did not embark on an  analysis  of
   whether  the  applicant's contested statement  could  have  been  a
   value judgment not susceptible of proof.
       30.  However, it has been the Court's constant view that, while
   the  existence  of facts can be demonstrated, the  truth  of  value
   judgments  is  not susceptible of proof. The requirement  to  prove
   the  truth  of  a  value  judgment  is  impossible  to  fulfil  and
   infringes  freedom of opinion itself, which is a  fundamental  part
   of  the  right secured by Article 10 (see Lingens, cited  above,  з
   46,  and  Oberschlick v. Austria (No. 1), judgment of 23 May  1991,
   Series A No. 204, p. 27, з 63).
       31.   The   Court  considers  the  contested  comment   was   a
   quintessential  example of a value judgment  that  represented  the
   applicant's  subjective  appraisal of the  moral  dimension  of  Mr
   Shamanov's behaviour. The finding of the applicant's liability  for
   the  pretended damage to Mr Shamanov's reputation was solely  based
   on  his  failure to show that Mr Shamanov had indeed lacked  "shame
   and  scruples".  This burden of proof was obviously  impossible  to
   satisfy.
       32.  It  is also relevant for the Court's assessment  that  the
   contested  statement  was  made  in  the  context  of  an   article
   concerning  an  issue of public interest, that of  freedom  of  the
   media  in  the Ulyanovsk region. It criticised the conduct  of  the
   regional  governor, elected by a popular vote - in other  words,  a
   professional   politician  in  respect  of  whom  the   limits   of
   acceptable  criticism  are wider than in  the  case  of  a  private
   individual (see paragraph 25 above). The facts which gave  rise  to
   the  criticism  were not contested and the applicant expressed  his
   view in an inoffensive manner.
       33.  The  domestic  courts did not convincingly  establish  any
   pressing   social   need  for  putting  the   protection   of   the
   politician's  personality  rights above the  applicant's  right  to
   freedom  of  expression and the general interest in promoting  this
   freedom   where  issues  of  public  interest  are  concerned.   In
   particular, it does not appear from the domestic courts'  judgments
   that  the  applicant's  statement affected Mr Shamanov's  political
   career or his professional life.
       34. In conclusion, the Court finds that the Russian authorities
   overstepped  the margin of appreciation afforded to  member  States
   under  the Convention. Accordingly, the interference complained  of
   was  not "necessary in a democratic society" within the meaning  of
   Article 10 з 2 of the Convention.
       35.  There has therefore been a violation of Article 10 of  the
   Convention.
   
            II. Application of Article 41 of the Convention
   
       36. Article 41 of the Convention provides:
       "If  the  Court  finds that there has been a violation  of  the
   Convention  or  the Protocols thereto, and if the internal  law  of
   the   High   Contracting  Party  concerned  allows   only   partial
   reparation  to be made, the Court shall, if necessary, afford  just
   satisfaction to the injured party."
   
                               A. Damage
   
       37.  The  applicant claimed 10,000 euros (EUR)  in  respect  of
   compensation for pecuniary and non-pecuniary damage.
       38.  The  Government  contested the claim.  In  their  view,  a
   finding   of   a   violation  would  constitute   sufficient   just
   satisfaction.
       39. The Court finds that in the circumstances of the case there
   is  a  causal  link  between the violation found  and  the  alleged
   pecuniary  damage  insofar as the applicant refers  to  the  amount
   which  he  had to pay to Mr Shamanov under the domestic  judgments.
   Moreover, some pecuniary loss must have been occasioned on  account
   of  the period that elapsed from the time when the above amount was
   paid  until the Court's award (see Dichand and Others, cited above,
   з  62, with further references). Consequently, the Court awards the
   applicant EUR 120 in respect of the pecuniary damage, plus any  tax
   that may be chargeable on that amount.
       40. The Court accepts that the applicant has also suffered non-
   pecuniary damage - such as distress and frustration resulting  from
   the  judicial decisions incompatible with Article 10 - which is not
   sufficiently  compensated by the finding  of  a  violation  of  the
   Convention. However, it finds the particular amount claimed by  the
   applicant  excessive. Making its assessment on an equitable  basis,
   the  Court awards the applicant EUR 1,000 under this head, plus any
   tax that may be chargeable on that amount.
   
                         B. Costs and expenses
   
       41.   The   applicant  did  not  claim  costs   and   expenses.
   Accordingly, there is no call to make an award under this head.
   
                          C. Default interest
   
       42.  The  Court  considers  it  appropriate  that  the  default
   interest  should  be  based on the marginal  lending  rate  of  the
   European  Central  Bank, to which should be added three  percentage
   points.
   
               FOR THESE REASONS, THE COURT UNANIMOUSLY
   
       1.  Holds that there has been a violation of Article 10 of  the
   Convention;
       2. Holds
       (a)  that the respondent State is to pay the applicant,  within
   three  months from the date on which the judgment becomes final  in
   accordance  with  Article 44 з 2 of the Convention,  the  following
   amounts,  to  be  converted  into  Russian  roubles  at  the   rate
   applicable at the date of settlement:
       (i)  EUR  120  (one  hundred twenty euros) in  respect  of  the
   pecuniary damage;
       (ii)  EUR  1,000 (one thousand euros) in respect  of  the  non-
   pecuniary damage;
       (iii) any tax that may be chargeable on the above amounts;
       (b)  that  from the expiry of the above-mentioned three  months
   until  settlement  simple interest shall be payable  on  the  above
   amounts  at  a  rate  equal to the marginal  lending  rate  of  the
   European  Central  Bank  during  the  default  period  plus   three
   percentage points;
       3.  Dismisses the remainder of the applicant's claim  for  just
   satisfaction.
   
       Done  in  English,  and notified in writing on  21  July  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
   
                                                      Christos ROZAKIS
                                                             President
                                                                      
                                                      Santiago QUESADA
                                                      Deputy Registrar
   
   

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