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

§ 34).
25. The Court agrees with the domestic courts' characterisation of the word "abnormal" as a value judgment rather than a statement of fact. It cannot, however, accept their finding that in the context of the applicant's article the word was employed to suggest that the Governor was insane. The Court notes that the article opened with a description of the contents of an audit report which had revealed a shortage of funds allocated for the purchase of office furniture. The applicant stated his view that under such circumstances an imaginary "normal governor" would have attempted to identify those responsible, ensure their prosecution and seek restitution of the stolen money. He then contrasted the conduct of that fictitious "normal governor" with the real-life reaction of Governor Rutskoy, who had advised his assistants to re-evaluate the work that had been carried out so as to cover up the deficit. The article concluded with an expression of the applicant's opinion on the "abnormality" of a State official's dispensing such advice. Against this background, the Court considers that the term "abnormal", taken in its context, should be understood in the sense given to it by the applicant, namely to describe the conduct of a State official which did not appear appropriate in the circumstances of the case.
26. The Court further reiterates 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 Grinberg, cited above, §§ 30 - 31, with further references). However, the question remains whether there was a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem, § 43, cited above). In the present case the domestic courts were satisfied as to the accuracy of the facts related in the applicant's article - in particular, as regards the handwritten instruction by Governor Rutskoy for his assistants to re-evaluate the work that had been carried out - and dismissed that part of the Governor's claim as unfounded. It follows that the applicant's value judgment had a solid factual grounding.
27. Finally, the Court notes that the applicant took care to avoid an ambiguous reading of his conclusion. He made it clear that his statement on "abnormality" referred to Governor Rutskoy's conduct rather than to his persona, and he did so in the piece itself, that is, before the defamation suit was filed. The domestic courts did not explain why they favoured the interpretation of the statement suggesting that the Governor was mentally deficient over the one criticising shortcomings in the discharge of his duties. In these circumstances, the Court considers that the need to put 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 has not been convincingly established.
28. In the light of the above considerations and taking into account the task of journalists and the press of imparting information and ideas on matters of public concern, even those that may offend, shock or disturb, the Court considers that the use of the term "abnormal" to describe Mr Rutskoy's conduct did not exceed the acceptable limits of criticism. That the proceedings were civil rather than criminal in nature and the final award was relatively small does not detract from the fact that the domestic decisions were not based on an acceptable assessment of the relevant facts (see paragraph 17 above). Accordingly, the Court finds that the interference at issue was not "necessary in a democratic society".
29. There has therefore been a violation of Article 10 of the Convention.
II. Application of Article 41 of the Convention
30. 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
31. The applicant claimed EUR 47 in respect of pecuniary damage, representing the amount he had paid to Governor Rutskoy in pursuance of the domestic judgments, adjusted for inflation. As regards non-pecuniary damage, the applicant considered that a finding of a violation would constitute a sufficient just satisfaction.
32. The Government accepted the claim for pecuniary damage in the amount of RUR 1,070 which the applicant had actually paid to the Governor. They stated that the applicant had not submitted a calculation of inflation-related losses.
33. The Court considers that there is a causal link between the violation found and the alleged pecuniary damage in so far as the applicant referred to the amount which he had to pay to Mr Rutskoy 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 Grinberg, § 39, cited above). Consequently, the Court awards the applicant EUR 50 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
34. The applicant claimed RUR 35,000 (EUR 1,026) for his representation before the Court by Ms Arapova. He submitted a legal services contract and two payment receipts.
35. The Government submitted that the amount of legal fees was excessive and unreasonable. Furthermore, they claimed that the only acceptable evidence of payment would be the representative's tax declaration, stamped by the tax authority.
36. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Examining the documents submitted by the applicant, the Court is satisfied that the applicant paid his representative the amounts stipulated in the legal services contract. Whether the applicant's representative paid taxes on these amounts is immaterial for making an award under Article 41 of the Convention. It further considers that the legal fee was reasonable as to quantum and awards the applicant the entire amount he claimed in respect of costs and expenses, namely EUR 1,026, plus any tax that may be chargeable on it.
C. Default interest
37. 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 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 50 (fifty euros) in respect of pecuniary damage;
(ii) EUR 1,026 (one thousand and twenty-six euros) in respect of costs and expenses;
(iii) any tax that may be chargeable;
(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.
Done in English, and notified in writing on 31 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar