AS TO THE ADMISIBILITY OF
Application no. 72683/01
by Viktor CHEMODUROV
The European Court of Human Rights (First Section), sitting on 30 August 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 21 May 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Viktor Vladimirovich Chemodurov, is a Russian national who was born in 1951 and lives in Kursk. He is represented before the Court by Mmes G. Arapova and M. Andruk (Ledovskikh), lawyers practising in Voronezh. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 July 2000 the Kurskiy Vestnik newspaper (“Kursk Bulletin”) published the applicant’s article “Twelve chairs from the Governor’s suite of furniture, or How yet another million dollars from the regional budget vanished into thin air” («Двенадцать стульев из гарнитура губернатора, или Как ‘испарился’ из областного бюджета еще один миллион долларов»). The article related a story of misappropriation of budgetary funds allocated for the purchase of furniture and renovations and Governor Rutskoy’s stolid reaction to these events. The relevant parts read as follows (translated from Russian):
“A normal governor in that situation [having received information about the misappropriation of an important amount of budgetary funds] would certainly clutch his head in horror and start inquiring how taxpayers’ money disappeared and whose was the fault, he would fire those responsible and seek the assistance of the police, prosecutor’s office and courts in order to compensate for the loss to the regional budget...
Such would be the logic of conduct of a normal governor. But our [governor], having received a letter from the head of the audit department..., wrote by hand the following instruction...
[The author quotes the instruction of Governor Rutskoy who recommended his aides to re-evaluate the accomplished work so as to cover the gap between the amount allocated and the expenses incurred.]
I do not know what others think but I have the following opinion-judgment: a governor giving such advice is abnormal. Let me clarify in case of judicial proceedings: I mean the conduct of a [State] official, not Mr Rutskoy’s personality which is none of my business.”
[“Не знаю, как у кого, а у меня такое мнение-суждение: губернатор, дающий подобные советы, является ненормальным. Уточняю сразу на случай судебного иска: я говорю о поведении должностного лица, а не о личности Руцкого, до которой мне нет никакого дела.”]
On 1 August 2000 Governor Rutskoy lodged a civil defamation action against the applicant and the newspaper’s editors. He considered several extracts of the article to be damaging to his honour, dignity and professional reputation and claimed 250,000 Russian roubles (“RUR”) in respect of non-pecuniary damage. In particular, the Governor considered insulting the following words from the final paragraph of the article: “...governor giving such advice is abnormal... I am talking about the conduct of a [State] official...”
On 19 October 2000 the Leninskiy District Court of Kursk allowed the defamation action in part. The court was satisfied that the facts contested by Governor Rutskoy were shown to have been true by the applicant. As regards the final sentence, it found as follows:
“The extract of the article ‘...governor giving such advice is abnormal’ represents an opinion of the article’s author, however, this opinion is expressed in an insulting form.
The court cannot agree with [the applicant’s] arguments that in using the word ‘abnormal’ he referred to the Governor’s conduct and not to his personality. A subsequent clarification by the author that reads ‘...I am talking about the conduct of a [State] official, not Mr Rutskoy’s personality’ does not eliminate the ambiguity of perception, including [the perception of] the insulting meaning, as the purpose and structure of the main clause suggested that ‘abnormal’ referred precisely to the word ‘governor’ and not to his behaviour...
The court considers that a violation of the plaintiff’s right to a good name, honour, dignity and professional reputation shall be remedied, pursuant to Articles 150, 151 of the Civil Code, by recovering compensation in respect of non-pecuniary damage from the person who caused it...”
The court held that this extract was “expressed in an insulting form that damaged honour, dignity and business reputation of A. Rutskoy” and ordered that the applicant should pay RUR 1,000 (EUR 42) to the Governor. The remainder of the Governor’s action was dismissed as ill-founded.
On 4 November 2000 the applicant appealed against the judgment. He submitted that the plaintiff had taken the contested words out of the context and the court failed to analyse the paragraph as a whole. The word “abnormal” clearly referred to the acts of Governor Rutskoy as a State official and public figure. Furthermore, according to an authoritative dictionary of the Russian language, the first meaning of the word “abnormal” was “divergent from the norm” and the meaning of “insane, mentally ill” was the second and colloquial.
On 28 November 2000 the Kursk Regional Court upheld the judgment of 19 October 2000. The Regional Court confirmed the first-instance court’s finding as to the insulting meaning of the contested sentence and dismissed the applicant’s arguments as follows:
“The arguments of the appeal to the effect that the contested sentence was insulting because it referred not to the personality, but to the conduct of a public official cannot be taken into account because the [first instance] court had correctly proceeded from the literal meaning of the sentence and the interpretation of that sentence suggested in the points of appeal did not conform to its substance.”
Constitution of the Russian Federation
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
Article 151 provides that a court may award compensation for non-pecuniary damage to an individual who incurred such damage as a consequence of the acts that violated his personal non-pecuniary rights. Article 150 lists among other personal non-pecuniary rights, dignity of a person, his/her honour, good name and the professional reputation.
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.
The applicant complained about a violation of his right to impart information under Article 10 which reads 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...
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, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government concede that there has been an interference with the applicant’s right to freedom of expression and that the article concerned distribution of the Kursk regional budget, a subject which could be considered a matter for political debate. However, they maintain that the contested statement referred to Mr Rutskoy’s personality rather than to his political activities and that the applicant could have couched his criticism in different terms without resorting to the assertions damaging to Mr Rutskoy’s dignity. They refer to the Court’s findings in the case of Constantinescu v. Romania (no. 28871/95, ECHR 2000-VIII). The domestic courts examined and rejected the applicant’s arguments, having established an impairment of Mr Rutskoy’s non-pecuniary rights and an obvious ambiguity of the applicant’s statement that the governor was “abnormal”. The Government consider that the interference has been justified and “undoubtedly necessary in a democratic society” for the protection of the reputation and rights of others, especially taking into account that the applicant was held liable for a thousand roubles.
The applicant submits, firstly, that the interference was not “prescribed by law” as the legal norms applied in his case were not “formulated with sufficient precision to enable the citizen to regulate his conduct” (^ , no. 41205/98, § 37, ECHR 2001-I). Having examined the civil defamation action from the standpoint of Article 152 of the Civil Code, the domestic courts were satisfied that the information in the applicant’s article was true. Nevertheless, they found him liable for proffering an insulting value-judgment, under Article 150 and 151 of the Civil Code. However, these provisions are vague and imprecise, they do not enable the citizen to foresee liability for publishing an insulting value-judgment. Nor do they give a definition of insult. Article 130 of the Criminal Code defines the offence of insult as “negative appraisal of the victim’s personality expressed in an indecent form”. Respecting that legal prohibition, the applicant used a neutral, correct word “abnormal” which was not indecent and could not have engaged his criminal responsibility. However, the domestic courts went beyond what could reasonably be foreseen by the applicant and found him civilly liable for insult under Article 150, without giving an explanation as to what constituted insult in the civil law. Therefore, the law, on which the finding of his liability was based, lacked sufficient precision and clarity.
The applicant further contends that the interference was, in any event, not necessary in a democratic society. Mr Rutskoy was a politician who at the material time stood for re-election for Governor. The domestic courts’ finding that the adjective “abnormal” related to Mr Rutskoy’s personality rather than to his professional conduct, did not take into account the context of the article. The entire article concerned Mr Rutskoy’s reaction to the information about a large-scale misappropriation of budgetary funds; Mr Rutskoy’s private life or his health, mental or physical, were never mentioned. It was clear that the journalist wrote about the “abnormality” of the governor’s professional conduct. The applicant included a special reservation – he specified that he meant Mr Rutskoy’s conduct, not his personality – in order to eliminate any vestige of ambiguity. Moreover, a consistent reading of the article demonstrates that the applicant first examined what the conduct of a “normal” governor should have been in a similar situation and then expressed his view on Mr Rutskoy’s reaction. The applicant did not state that the governor was generally abnormal, his judgment referred to one specific manifestation of the governor’s professional conduct (his giving advice to cover-up the budget deficit).
The applicant finally submits that he acted in good faith. He verified all facts in the article and the courts were satisfied as to their truthfulness. He thus expressed a value-judgment which reposed on a solid and sufficient factual basis. In this aspect his case is distinguishable from the Constantinescu case (cited above) where the applicant alleged that certain persons were found guilty of fraudulent conversion, although no conviction had been pronounced (§ 73). Having regard to the importance of the issue discussed in his article, the applicant considers that his case is similar to the Oberschlick case, where the public use of a much stronger word “idiot” (Trottel) in respect of a politician was found not to be disproportionate (Oberschlick v. Austria (no. 2), judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, § 34). The applicant considers that the need for putting the protection of the politician’s personality rights above his right to freedom of expression and the general interest in promoting this freedom where issues of public interest are concerned, has not been established.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Sшren Nielsen Christos Rozakis
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