Постановление европейского суда по правам человека от 31.07.2007 "дело "чемодуров (chemodurov) против российской федерации" [рус., англ.]

from Russian):
"A normal governor in that situation [having received information about the misappropriation of substantial sums from the budget] would certainly clutch his head in horror and start inquiring how the taxpayers' money had disappeared and who was at fault. He would fire those responsible and seek the assistance of the police, the prosecutor's office and the courts in order to make good the loss to the regional budget...
That would be the logical conduct of a normal governor. But our [governor], having received a letter from the head of the audit department..., wrote the following instruction by hand..."
7. The article then quoted the instruction given by Governor Rutskoy, recommending to his aides that they re-evaluate the work that had been carried out so as to cover up the discrepancy between the amount allocated and the expenses incurred. The article ended in the following manner:
"I do not know what others think, but my view is as follows: a governor who gives such advice is abnormal (ненормальный). Let me clarify, lest I face judicial proceedings: I am talking about the conduct of a [State] official, not Mr Rutskoy's personality, which is none of my business."
8. On 1 August 2000 Governor Rutskoy lodged a civil action for defamation against the applicant and the newspaper's editors. He considered certain facts in the applicant's article to be untrue and damaging to his honour, dignity and professional reputation and claimed 250,000 Russian roubles (RUR) in non-pecuniary damages. In particular, the Governor considered the following words from the final paragraph of the article to be insulting: "...a governor who gives such advice is abnormal... I am talking about the conduct of a [State] official..."
9. 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 from the article which reads "...a governor who gives such advice is abnormal" represents the opinion of the article's author, however, this opinion is expressed in an insulting manner.
The court cannot agree with [the applicant's] arguments that in using the word "abnormal" he was referring to the Governor's conduct and not to his personality. A subsequent clarification by the author which 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] an 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 the violation of the plaintiff's right to a good name, honour, dignity and professional reputation should be remedied, pursuant to Articles 150, 151 of the Civil Code, by requiring the person who caused it to pay compensation in respect of non-pecuniary damage..."
10. The District Court held that this extract was "expressed in an insulting manner which damaged the honour, dignity and professional reputation of A. Rutskoy" and ordered that the applicant should pay RUR 1,000 (42 euros (EUR)) to the Governor. The remainder of the Governor's action was dismissed as ill-founded.
11. On 4 November 2000 the applicant appealed against the judgment. He submitted that the plaintiff had taken the impugned words out of context and that the court had failed to analyse the paragraph as a whole. The word "abnormal" had obviously 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, colloquial meaning.
12. 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 impugned sentence and dismissed the applicant's arguments as follows:
"The grounds of appeal to the effect that the impugned sentence was not 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 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."
II. Relevant domestic law
13. The relevant provisions of the Civil Code read as follows:
Article 150 Incorporeal assets
"1. An individual's life and health, dignity, personal integrity, honour and goodwill, professional reputation... other personal non-property rights and other incorporeal assets which a person possesses by virtue of birth or by operation of law shall be inalienable and shall not be transferable by any means..."
Article 151 Compensation for non-pecuniary damage
"If certain actions impairing an individual's personal non-property rights or encroaching on other incorporeal assets have caused him or her non-pecuniary damage (physical or mental suffering)... the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage..."
Article 152 Protection of honour, dignity and professional reputation
"1. An individual shall be entitled to claim, before a court, a rectification of information damaging his honour, dignity and professional reputation, unless the person who disseminated the information proves that it was true...
5. The individual about whom information damaging to his or her honour, dignity and professional reputation was disseminated shall be entitled to claim, in addition to rectification, compensation for pecuniary and non-pecuniary damage caused by the perpetrator."
THE LAW
I. Alleged violation of Article 10 of the Convention
14. The applicant complained of a violation of his right to impart information guaranteed under Article 10 of the Convention, 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..."
15. The Court notes that it is common ground between the parties that the judgments given in the defamation action against the applicant constituted an interference with his right to freedom of expression as protected by Article 10 § 1. The Court's task is to determine whether the interference was justified within the meaning of paragraph 2 of this Article, that is, whether it was "prescribed by law", pursued a legitimate aim and was "necessary in a democratic society".
16. As regards the legal basis for the interference, the present case is different from previous freedom-of-expression cases against Russia that have been before the Court, in that the domestic courts held the applicant liable not for his failure to prove the truthfulness of his assertions under Article 152 of the Civil Code (see, for example, Karman v. Russia, No. 29372/02, § 31, 14 December 2006, and Grinberg v. Russia, No. 23472/03, § 26, 21 July 2005) but for having proffered an insulting statement (the word "abnormal") which was degrading to the Governor's dignity, a personal non-pecuniary right protected under Article 150 of the Civil Code. The applicant contended that, since the notion of "insult" was defined only in criminal law but not in the Civil Code, he had not been able reasonably to foresee that the use of such a neutral word would give rise to civil liability. The Court considers that it need not determine whether the legal norms applied in the defamation claim were formulated with sufficient precision to enable the applicant to regulate his conduct, since the interference was, in any event, not "necessary in a democratic society" for the following reasons.
17. The Court recalls that, in applying the test of necessity, its task is to determine whether the interference 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, for example, Grinberg, cited above, §§ 26 - 27, with further references).
18. In examining the particular circumstances of the case, the Court takes the following elements into account: the position of the applicant, the position of the plaintiff in the defamation claim, the subject matter of the publication and qualification of the contested statement by the domestic courts, the wording used by the applicant, and the penalty imposed on him (see Krasulya v. Russia, No. 12365/03, § 35, 22 February 2007, and Jerusalem v. Austria, No. 26958/95, § 35, ECHR 2001-II).
19. As regards the applicant's position, the Court observes that he was a journalist. It reiterates in this connection that 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, 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, § 37, and Bladet {Tromso} and Stensaas v. Norway [GC], No. 21980/93, § 59, ECHR 1999-III). 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, § 38).
20. The thrust of the criticism in the applicant's publication was directed against the regional governor Mr Rutskoy, a professional politician in respect of whom the limits of acceptable criticism are wider than in the case of a private individual (see Krasulya, § 37, and Grinberg, § 32, both cited above, and Lingens v. Austria, judgment of 8 July 1986, Series A No. 103, § 42). At the material time Mr Rutskoy was standing for re-election to his position. As a prominent actor on the political scene, Mr Rutskoy inevitably and knowingly laid himself open to close scrutiny of his every word and deed by both journalists and the public at large. The Court stresses that in these circumstances he should have displayed a greater degree of tolerance to critical publications.
21. The applicant's article concerned Governor Rutskoy's reaction to an official audit report which revealed a substantial deficit in the regional budget. The Government and the applicant were in agreement that this subject could be considered as part of a political debate on a matter of general and public concern. The Court reiterates in this connection that it has been its constant approach to require very strong reasons for justifying restrictions on political speech, as broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see Feldek v. Slovakia, No. 29032/95, § 83, ECHR 2001-VIII, and {Surek} v. Turkey (No. 1) [GC], No. 26682/95, § 61, ECHR 1999-IV).
22. The main point on which the parties disagreed was the characterisation of the word "abnormal" by the domestic courts. Referring to the Court's findings in the case of Constantinescu v. Romania (No. 28871/95, ECHR 2000-VIII), the Government submitted that the word had been used to describe Mr Rutskoy's personality rather than his political activities and that the applicant could have couched his criticism in different terms without resorting to assertions degrading to Mr Rutskoy's dignity. The Government pointed out that the applicant had been ordered to pay a mere thousand roubles in damages.
23. The applicant maintained that the domestic courts had not taken into account the context of the article, which had concerned Mr Rutskoy's professional conduct rather than his private life or mental health. The applicant pointed out that, in order to eliminate any vestige of ambiguity, he had expressly stated that he had been referring to Mr Rutskoy's conduct rather than his personality. A consistent reading of the article would have revealed that the applicant had 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. Finally, the applicant stressed that he had not stated that the governor had been generally abnormal; his value judgment had referred to one specific manifestation of the governor's professional activities, namely his advising his assistants to cover up the budget deficit.
24. The applicant also submitted that he had acted in good faith. He had verified all the facts in the article and the courts had been satisfied as to their accuracy. He had therefore expressed a value judgment which had rested on a solid and sufficient factual basis, thus distinguishing his case from the Constantinescu case. On the other hand, his case was similar to the Oberschlick case, where the public use of a much stronger word "idiot" (Trottel) in respect of a politician had been found not to be disproportionate (see Oberschlick v. Austria (No. 2), judgment of 1 July 1997, Reports 1997-IV,