CASE OF KAZAKOV v. RUSSIA
Remainder inadmissible;Violation of Art. 10
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
4. The applicant was born in 1948 and lives in the town of Karachev in the Bryansk Region. 5. In January 1999 the applicant, a former military officer, sent a letter to the commander of military unit no. 64176, who supervised the command of unit no. 92919. The letter read as follows: “On 24 December 1998 the command of military unit no. 92919 held a meeting of war veterans ... who live in the military compound. The meeting adopted an open letter to the Ministry of Defence of the Russian Federation with a request to return the town baths to the compound residents and to stop discrimination against the residents on account of their social or official status ... Commanders of the military unit conduct themselves as ‘usurpers, invaders and occupants’. In a short period of time the new commander of military unit no. 92919, Colonel Shatov, destroyed the town dance hall and the warehouse for vegetables, locked up the leisure centre of the unit, performed an unauthorised dismantling of the bus park and threw everyone out of the bathhouse which he converted into a ‘brothel’ for a narrow circle of chosen ones.” 6. Mr Shatov lodged a defamation action against the applicant, claiming that the letter of January 1999 had impaired his honour and dignity. He sought compensation in respect of non-pecuniary damage and a written apology, enclosing its proposed text. 7. By judgment of 13 July 2000, the Karachevskiy District Court of the Bryansk Region found for the plaintiff. It established that the dance hall and the warehouse had been indeed dismantled, but the materials had been used for the needs of the military unit, that the leisure centre was open, and that the soldiers and officers and their family members could still use the baths. The court noted that the document the applicant produced to prove the dismantling of the bus park could not be used in evidence as it bore no stamp. 8. The District Court found that the information stated in the letter of January 1999 had been untrue and damaging to Mr Shatov’s honour and dignity, and ordered as follows: “Pursuant to Articles 152 § 5 and 151 of the Civil Code, the court orders [the applicant] to pay Mr Shatov 500 Russian roubles in respect of non-pecuniary damage because the allegations about Mr Shatov’s ‘discrimination against citizens, [his acting as an] usurper, invader, occupant, destruction of the dance hall and the warehouse, unauthorised dismantling of the bus park and throwing everyone out of the bathhouse which he converted into a ‘brothel’ for a narrow circle’ have impaired Mr Shatov’s honour and dignity... ...to order that [the applicant] make a written apology to Mr Shatov within one month, worded as follows: “In January 1999 I, [the applicant], sent to the commander of military unit no. 64176 a letter containing information on your professional activities, which was untrue and damaging to your honour and dignity. This fact was established by the Karachevskiy District Court on 13 July 2000. I apologise to you for having disseminated such information, for undermining your authority in the eyes of your subordinates and superiors, compound residents and the Karachev town residents, and for causing you personal suffering”; ...and to make an apology to the commander of military unit no. 64176 of Moscow worded as follows “In January 1999 I, [the applicant], sent you a letter containing information on the professional activities of the commander of military unit no. 92919, Mr Shatov, which was untrue and impaired Mr Shatov’s honour and dignity. This fact was established by the Karachevskiy District Court on 13 July 2000. I apologise for misleading the command of military unit no. 64176 by giving untrue information.” 9. The applicant appealed against the judgment of 13 July 2000. He claimed that the letter of January 1999 contained his own value judgments, which were not amenable to proof. On 15 February 2001 the Bryansk Regional Court upheld the judgment, endorsing the reasons of the first-instance court. 10. Article 29 of the Russian Constitution guarantees the freedom of expression. Article 33 provides that Russian citizens shall have the right to petition in person, as well as to submit individual and collective appeals to, State authorities and local self-government bodies. 11. Article 12 of the Civil Code is a general provision containing a list of the forms of redress which can be obtained in respect of civil rights. It includes recognition of a right, restitutio in integrum, compensation in respect of pecuniary or non-pecuniary damage and other forms of redress prescribed by law. Article 152 of the Code reads in its relevant parts as follows: “1. A citizen shall have the right to claim through the court that the information discrediting his honour, dignity or business reputation be refuted, unless the person who has disseminated such information proves its truthfulness ... 2. If the information discrediting the honour, dignity or business reputation of the citizen has been disseminated by the mass media, it shall be refuted by the same media ... 3. The citizen with respect to whom the media have published the information infringing upon his rights or protected interests shall have the right to publish his reply in the same media ... 5. The citizen with respect to whom the information discrediting his honour, dignity or business reputation has been disseminated shall also have the right, in addition to the refutation of the given information, to claim compensation in respect of pecuniary and non-pecuniary damage caused by the dissemination. 6. If the person who has disseminated the information ... cannot be identified, the citizen shall have the right to turn to the court with a demand that it recognise the disseminated information as untruthful ...” 12. Resolution no. 11 of the Plenary Supreme Court of 18 August 1992 (as amended on 25 April 1995, in force at the material time) established that the notion “dissemination of information” employed in Article 152 of the Civil Code 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. It specified, however, that “communication of such information to the person whom it concerned could not be treated as dissemination”. 13. In their Resolution of 24 February 2005, the Plenary Supreme Court recalled that under Article 29 § 3 of the Constitution no one can be compelled to express his opinions or beliefs or compelled to refrain from expressing them. It thus instructed the courts below that an apology, whatever its form, was not prescribed under Russian law, including Article 152 of the Civil Code, as redress (point 18). The above does not exclude the possibility for a judge to approve a friendly-settlement agreement the terms of which require such an apology. The Supreme Court also instructed the other courts that when a citizen lodges a complaint with a public authority alleging, for instance, that a criminal offence has been committed and when such an allegation proves to be unfounded, the latter fact cannot serve as a basis for an action under Article 152 of the Civil Code. The Supreme Court explained that civil liability could not arise in such a situation in view of the applicant’s exercise of his right of petition to a public authority, which was to carry out an inquiry, and that such a situation did not equate to dissemination of false defamatory information (point 10). A defamation action may only succeed if a court has established that the petition to the public authority lacked any foundation and was intended to cause damage to another person, thus amounting to an abuse of the right (ibid). 14. Until 2006 the general administrative complaints procedure was prescribed by Decree no. 2534-VII issued by the Presidium of the USSR Supreme Council on 12 April 1968, as subsequently amended in 1980 and 1988, in so far as it was compatible with the 1993 Constitution and the 1993 Judicial Review Act. A number of public authorities had individual regulations on the matter. 15. According to the 1968 decree, a written petition or complaint should be signed by the complainant and should indicate his or her full name and place of residence (point 1). A petition or complaint should be submitted to the official or authority who is the immediate superior of the official or authority against whom the complaint is directed (point 3). The filing of defamatory petitions or complaints should be punishable by the law (point 15). 16. The Petition Procedure Act of 2 May 2006 (Federal Law no. 59-ФЗ) sets up a new framework for administrative complaints and petitions. According to its section 11 § 3, a petition containing obscene or insulting phrases, threats to life or limb of an official or his or her family members, may be left without examination on the merits; in such cases the complainant should be warned against the abuse of the right.