CASE OF PORUBOVA v. RUSSIA
No violation of Art. 6-1;Violation of Art. 10
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1970 and lives in Yekaterinburg. At the material time she was a journalist and the editor-in-chief of the newspaper D.S.P. (“D.S.P.” is a Russian abbreviation meaning “For Official Use Only”). 7. In late September 2001 the applicant's newspaper published in the same issue several items concerning the large-scale misappropriation of budgetary funds allegedly committed by Mr V., the head of the Sverdlovsk Regional Government, for the benefit of Mr K., an employee of the Moscow representative office of the Sverdlovsk Region. 8. The first article, entitled “Gay scandal in the White House” (“Гей-скандал в «Белом доме»”), appeared under the name of “Sergey Petrov”. It opened with the following passage: “Once upon a time there lived the head of the Sverdlovsk Regional Government Mr V. He had everything: his position, high esteem and respect. And also the governor's love. But V. fell in love ... not with the governor or with his work, but with a twenty-five year-old employee of the region's representative office in Moscow, Mr K. How does one become a homosexual? Where does this “love” come from? We are simple unsophisticated people ... And we cannot imagine the scene that took place between them in the sumptuous building of the region's representative office in Moscow ... Rumour has it that the governor, on having learnt certain details, was furious ... and even fired K. from his position. But love, as we know, can overcome any obstacle. It finds not only a time, but also a place.” 9. The article further asserted that, under the terms of an order signed by Mr V. in 1997, the regional railway company had extinguished its outstanding regional tax liability by purchasing a three-room flat in Moscow: “The flat was bought in Moscow at the following address: 9 Orshanskaya St., building 1, flat no. ... Initially the flat was even entered in the Government's balance sheet. However, after a while V. made a gift of the flat ... No, please do not think that he gave it to Mr K... [He gave it] to Mr K.'s father. Apparently, as a 'thank-you' for the upbringing of his son...” 10. The author concluded in the following manner: “It might have been a private matter if it were not for two 'buts'. [Firstly,] two public figures, rather than private individuals, were linked together by Shakespearean passions in this story. In the instant case: the head of the Sverdlovsk regional government, V., and a member of the regional parliament, K... Secondly, the flat was purchased at our expense, at the expense of our budget. Two billion roubles disappeared in 1997 into thin air. To date there has been no reimbursement or sanctions on the part of the tax authorities. The [character from a well-known Soviet picaresque novel] blushed a lot as he was stealing official property, but his like-minded accomplice V. never blushes. And yet, to this day the entire budget of the region is channelled through his hands. How can we ensure that he handles that money honestly?” 11. On the left-hand column of the page the newspaper reproduced the text of a letter which the deputy director of the Sverdlovsk regional police had sent to the chairman of the Sverdlovsk regional audit commission. The police officer informed the auditor that the police were investigating the mechanism which involved extinguishing tax liabilities by acquiring a flat in Moscow, and asked the experts of the audit commission to assist by verifying the accounts of the railway company, the Sverdlovsk Regional Government and the private company that had acted as middleman in the transactions. 12. The third item, at the bottom of the page, was an article entitled “History of the flat on Orshanskaya [Street]. Embezzlement of public funds: a step-by-step guide for beginners” (“История квартирки на Оршанской. Пошаговая стратегия для начинающих казнокрадов”). It described, in chronological order, the financial and real-estate transactions between the railway company and the intermediary company, as well as the orders signed by Mr V. and the sale of the flat to Mr K.'s father. 13. On 12 October 2001 the prosecutor's office of the Sverdlovsk Region, acting on requests from V. and K., initiated criminal proceedings against the applicant for criminal libel and insult disseminated via the media, offences under Articles 129 § 2 and 130 § 2 of the Criminal Code. 14. The investigator commissioned a linguistic and cultural expert examination of the articles in question. On 6 November 2001 the expert came to the conclusion that they contained allegations that V. and K. were homosexuals who had engaged in sexual intercourse in the representative office of the Sverdlovsk Region. The expert considered that the articles had sought to present a negative image of V.: “Tolerance towards the customs and mores of others is, in general, uncharacteristic of the Russian mentality, which is also evident in the attitude towards 'sexual minorities'. The Russian popular mindset and the Russian language retain a rigidly negative, rude and discourteous attitude to people of non-traditional sexual orientation (homosexuals and lesbians).” The expert noted that the author of the first publication had “a preference for emotional value-judgments”. The report concluded: “In this context the information on the sale and purchase of a flat in Moscow at the expense of the budget becomes sensational and seeks to persuade the reader to view V. as a dishonest manager, embezzler of public funds, and, in addition, an immoral person who craves sensual pleasure and physical attraction and is wanton and lustful. The pragmatic aim of the articles ... is to undermine [readers'] trust in V. and K. as politicians...” 15. In late November 2001 counsel for the applicant privately commissioned a linguistic expert examination of the articles. The expert found that the word “homosexual” had no negative connotations and, therefore, could not be held to damage or undermine the honour and dignity of others. He noted that Russian society in recent years had become more tolerant towards homosexuality and a disclosure of someone's homosexuality in the mass media was not necessarily damaging to his reputation. Counsel asked the investigator to admit the report in evidence, but her request was refused on the ground that the expert had been a linguist rather than a specialist in cultural studies and thus had not been competent to perform the examination. 16. On 29 and 30 November 2001 the applicant was charged with criminal libel and insult disseminated via the mass media. 17. Following the applicant's indictment, she and her counsel filed a number of requests. They pointed out that the indictment did not identify which information the prosecution considered untrue. As the actual scope of the investigation had been limited to the allegations about V.'s homosexuality, the applicant insisted that its scope be extended to include the misappropriation of budgetary funds. Alternatively, if the charges were to be based exclusively on the allegations about V.'s and K.'s homosexuality, the applicant requested that a medical examination of V. and K. be carried out in order to establish their sexual orientation. On 3 and 28 December 2001 the investigator refused all the requests. He replied in general terms that the investigation was complete and that no further interviews or expert reports were necessary. 18. On 28 December 2001 the final bill of indictment was served on the applicant and the case was referred for trial. The applicant was charged with criminal libel and insult on account of her having disseminated the information that “V. and K. [were] homosexuals and lovers who [had] engaged in a homosexual act in the building of the region's representative office in Moscow”. The charges did not refer to the allegations of misappropriation of budgetary funds. 19. The case was referred for trial to the Verkh-Issetskiy District Court of Yekaterinburg, which decided to conduct the trial in private. The applicant and her counsel asked for a public hearing, while the victims and the prosecution stated their objections to giving further publicity to the case. The District Court maintained its decision to hear the case in private, noting that it related to the victims' private life. 20. The applicant pleaded not guilty. She claimed that she had been convinced of the accuracy of the information on K.'s homosexuality because she knew him in person. She also requested leave to adduce in evidence certain material comprising witness statements about a same-sex relationship between V. and K.; the court refused this request. 21. The court examined the witnesses, who testified that the applicant had been in charge of drafting the articles and publishing and distributing the newspaper. 22. On 22 April 2002 the District Court gave judgment. It did not make any findings as to whether the information on V.'s and K.'s homosexuality was true or false. Instead, it noted their statements to the effect that the articles in question had been damaging to their reputation as politicians and public servants. Relying on the conclusions of the linguistic expert examination of 6 November 2001, the District Court found as follows: “Indeed, it has been established beyond doubt that the editor-in-chief of D.S.P., Ya. V. Porubova, deliberately published ... [the impugned articles] which she had drafted. In these articles she stated that the Chairman of the Sverdlovsk Regional Government, Mr V., and a member of the House of Representatives of the Legislative Assembly of the Sverdlovsk Region, K., were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is to say, she disseminated information based on her insinuations and which she knew to be untrue and defamatory in respect of the victims. In an attempt to slander the victims, she arranged for the printing of 500,000 copies of the newspaper and distributed them in the Sverdlovsk Region. The investigating authorities correctly characterised her actions as libel under Article 129 § 2 of the Criminal Code, i.e., dissemination via the mass media of information known to be untrue and damaging to other persons' honour, dignity and reputation. In addition, Mrs Porubova related in these articles untrue information to the effect that [V. and K.] were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is, she deliberately assessed the personal qualities and conduct of the victims [in terms] which were grossly degrading to their human dignity and which contradicted society's prevailing approach to the treatment of individuals. Such treatment of the victims must be considered obscene and damaging to their dignity. In order to make the first issue of the newspaper appear important and sensational, she undermined the honour and dignity of the victims in the mass media. Therefore, the investigating authorities correctly characterised her actions as an offence under Article 130 § 2 of the Criminal Code.” 23. The applicant was found guilty as charged and sentenced to one and a half years' correctional work, with retention of fifteen percent of her wages for the benefit of the State. 24. On 4 September 2002 the Sverdlovsk Regional Court upheld the conviction, endorsing the reasons given by the trial court. 25. Subsequently, the applicant was dispensed from serving her sentence on the basis of an amnesty act in respect of women and minors passed by the Russian legislature on 30 November 2001. 26. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression as well as freedom of the mass media. 27. Article 129 § 1 of the Criminal Code of the Russian Federation defines criminal libel as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person's reputation. Article 129 § 2 provides that criminal libel disseminated in a public statement, a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of up to two years. 28. Article 130 § 1 of the Criminal Code defines criminal insult as undermining the honour and dignity of the victim in an obscene manner. Article 130 § 2 provides that criminal libel disseminated in a public statement, a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of up to one year. 29. Article 137 of the Criminal Code establishes that it is a criminal offence to collect or disseminate information about an individual's private life without his consent or to make such information public through the media. 30. Article 18 of the RSFSR Code of Criminal Procedure (in force at the material time) established that a trial could be conducted in private, in particular with a view to preventing information about intimate aspects of the parties' lives from being disclosed.