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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