CASE OF NOVAYA GAZETA AND MILASHINA v. RUSSIA
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
5. The applicant company, an editorial and publishing house registered in Moscow, edits and publishes a national newspaper with a circulation of 500,000, the Novaya Gazeta (“the newspaper”). The second applicant was born in 1977 and lives in Moscow. 6. At 11.30 a.m. on 12 August 2000 K-141 Kursk, a nuclear cruise missile submarine of the Russian Navy (“the Kursk”), while in the Barents Sea on a naval training exercise, sank as a result of explosions on board. Most of the crew died within minutes of the explosions. However, twentythree crew members (of the 118 aboard) survived the explosions and gathered in a stern compartment. They wrote a note to report the events. All of these twenty-three men died on board the Kursk before the arrival of a rescue team. 7. The Chief Military Prosecutor’s Office launched an official investigation into the accident under Article 263 § 3 of the Russian Criminal Code (a provision on “a breach of safety procedures while using a means of transportation which causes the death of two or more persons by negligence”) in case no. 29/00/0016-00 (“the investigation”). 8. On 22 July 2002 the Chief Military Prosecutor’s Office terminated the investigation for lack of evidence of a crime. 9. On 30 December 2002 B.K., counsel for the relatives of the deceased members of the Kursk crew, challenged the decision to terminate the investigation before the Chief Military Prosecutor. On 4 January 2003 his complaint was dismissed. B.K. challenged both decisions in court. 10. On 21 April 2004 the Military Court of the Moscow Garrison confirmed the decision of 22 July 2002. On 29 June 2004 the Appeal Tribunal of the Military Court of the Moscow Garrison upheld the judgment on appeal. 11. Between 2000 and 2005 the applicant company published in the newspaper a number of articles written by the second applicant covering the Kursk catastrophe and the investigation into it. 12. In late 2004 B.K. lodged an application before the Court on behalf of R.K., the father of D.K., lieutenant-captain of the Kursk, alleging a violation of D.K.’s right to life. 13. On 24 January 2005, in issue no. 5 of 2426 January 2005, the newspaper published an article written by the second applicant entitled “The Kursk case is now before the European Court” (“‘Дело ‘Курска’ - в Европейском суде” – “the first article”). 14. The first article reported that R.K. had lodged an application before the Court alleging a violation of Article 2 of the Convention. It described D.K. as the person who had written the note stating that twenty-three men had survived the explosions and had been waiting for rescue in the stern compartment. The note had been discovered in October 2000. According to the first article, the note refuted the official version that all crew members had died as a result of the explosions. The first article stated that after the Kursk had sunk a series of knocks making an SOS signal in Morse code had been audible from the stern part of the submarine. Russian officials, including the then Prosecutor General, V.U., had refused to consider those knocks a plea for rescue, and had established that the noise had originated outside the stern part of the submarine. R.K. had unsuccessfully tried to prove in courts that the omission to consider the knocks an SOS signal amounted to an abuse of public office (“должностное преступление”). His complaints had been rejected by the Moscow Garrison Military Court and the Moscow Circuit Military Court. In particular, the first article read as follows: “R.K., the father of D.K., and his counsel B.K. have repeatedly tried to prove in Russian courts that this [failure to characterise the noise as an SOS signal] is absurd and [constitutes] an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office, according to the claimants, was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts, V.K. and S.K. The reports by those two military officials (V.K. is the chief forensic expert of the Ministry of Defence, S.K. is the chief navigating officer of the Russian Navy) were relied upon by the investigators, headed by A.E. and V.U., who terminated the criminal case in relation to the Kursk catastrophe and delivered a decision refusing to prosecute eleven officers of the Northern Fleet.” 15. On 27 January 2005, in issue no. 6 of 27-30 January 2005, the newspaper published another article by the second applicant entitled “The prosecutor’s office is worried about the prospect of the Kursk case being examined by the European Court. All reasonable offers welcome?” (“Перспективы Европейского суда по ‘делу “Курска”‘ взволновали прокуратуру. Торг уместен?” – “the second article”). The second article described State officials’ reaction to R.K.’s lodging the application. It reported that the Leningrad Military Circuit prosecutor had tried to persuade R.K. that his counsel had lodged the application exclusively for the purposes of self-promotion. B.K. had reportedly stated that his client had been willing to cooperate with the prosecutors, and had implied that R.K. had received an offer to have the official investigation reopened in exchange for the withdrawal of his application to the Court. In particular, the second article read as follows: “B.K., counsel who represents the forty-seven families of the deceased crew members, has also confirmed that the application before the European Court was the last resort. There was no other prospect of success for the Kursk case in Russia, owing to the position adopted by V.U., the Prosecutor General, and A.S., the Chief Military Prosecutor. Apparently, those two officials took a decision to help the officers in command of the Northern Fleet escape criminal responsibility and to terminate the investigation. (B.K. has written about this in his book ‘It has sunk ... The truth about the Kursk hidden by Prosecutor General U.’).” 16. After the publication of the two articles, V.K., the chief forensic expert of the Russian Ministry of Defence, A.E., the head of an investigative group within the Chief Military Prosecutor’s Office in charge of the Kursk investigation, A.S., the Chief Military Prosecutor of Russia, and the Chief Military Prosecutor’s Office of Russia as a legal entity lodged civil actions for defamation against the applicants with the Basmannyy District Court of Moscow (“the District Court”). Each claimant sought compensation for non-pecuniary damage and the retraction of certain statements appearing in the articles. 17. V.K. sought the retraction of the following statement: “... this is ... an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office ... was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts ...” 18. A.E. insisted that his reputation as the head of the investigative group in charge of the Kursk case had been tarnished by the following text: “... this is ... an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office ... was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts ...” 19. The Chief Military Prosecutor’s Office and its head, A.S., sought to have the following parts of the articles retracted: “... this is ... an abuse of public office, the purpose of which is to help the Navy officers escape criminal responsibility. The abuse of public office ... was perpetrated not only by investigators of the Chief Military Prosecutor’s Office, but also by experts ...” “There was no other prospect of success for the Kursk case in Russia, owing to the position adopted by V.U., the Prosecutor General, and A.S., the Chief Military Prosecutor. Apparently, those two officials took a decision to help the officers in command of the Northern Fleet escape criminal responsibility and to terminate the investigation.” 20. On 3 March and 7 July 2005 the District Court joined the proceedings instituted by V.K., A.E., A.S. and the Chief Military Prosecutor’s Office. 21. On 11 April 2005 an expert linguist of the Russian Language Institute of the Russian Academy of Sciences, at the applicant company’s request, delivered an expert report on the impugned articles. The expert concluded that it was possible to perceive the texts as the reported opinions of R.K. and B.K., and not those of the journalist. 22. On 7 December 2005 the District Court decided the case. It found that it had been established that the newspaper had indeed disseminated information concerning the claimants. It further found that the information in question was damaging to the claimants’ reputation for the following reasons. The allegations that investigators and experts had tried to help the Navy officers escape criminal responsibility had suggested that these officials had lacked the requisite impartiality when performing their duties. The District Court found the expression “to help escape criminal responsibility” defamatory, as it contained an allegation of criminal conduct. The applicants had failed to provide evidence that the claimants had committed a crime. The District Court dismissed as unsubstantiated the applicants’ reference to the fact that the second article had merely reproduced B.K.’s position as reflected in his book. Furthermore, the District Court reasoned that the applicants had been under an obligation to verify the truthfulness of the information before publishing it. It dismissed the applicants’ assertion that the impugned statements amounted to value judgments. The District Court found in the claimants’ favour, ordered the retraction of the statements concerning the claimants’ involvement in an abuse of public office, and awarded each claimant 50,000 and 7,000 Russian roubles (RUB – approximately 1,470 and 205 euros (EUR)), to be paid by the applicant company and the second applicant respectively. To reimburse court fees, the applicant company was ordered to pay RUB 85 and the second applicant was ordered to pay RUB 15 to each claimant. 23. In so far as relevant, the District Court’s judgment read as follows: “... assessing the impugned statements, the court considers that they contain affirmations that V.K., A.E., A.S. and investigators of the Chief Military Prosecutor’s Office broke the Russian law which was in force and committed an abuse of public office, and that such statements tarnish the honour, dignity and business reputation of V.K., A.E., [and] A.S., as well as the business reputation of the Chief Military Prosecutor’s Office as an agency performing, in the name of the Russian Federation, State functions of supervision with regard to respect for the Constitution of Russia and laws in force within the Russian territory. ... The defendants have failed to produce any evidence to prove the veracity of the disseminated statements that the claimants abused public office and adopted unlawful decisions. Looking into the defendant’s claim that the impugned articles reflect the opinion of ... B.K., ... expressed in his complaint before the European Court and his book “It has sunk. The truth about the Kursk hidden by Prosecutor General U.”, the court finds as follows. ... page 170 of the book by B.K. ... contains the following text: “I think that the final decision not to find commanders of the Northern Navy criminally liable was taken by ..., A.S. and ...” In view of the above, comparing the impugned statements of the article ... and the text of the book, the court considers that the meaning of the phrase “to take a decision not to find [somebody] criminally liable” is not equivalent to the phrase “to take a decision to help [somebody] escape criminal responsibility”. The complaint ... lodged by B.K. before the European Court ... does not contain statements alleging that the claimants committed an abuse of public office. Furthermore, the defendants’ arguments that ... the editorial department and the author of the articles are not the authors of [B.K.’s] statements cannot serve as grounds to absolve a mass media outlet and a journalist of responsibility, in view of the following. Under section 49 of ... the Mass Media Act, a journalist must verify the truthfulness of the information he communicates, and section 57 of the Act sets out an exhaustive list of grounds for absolving an editorial department, an editor-in-chief, or a journalist of responsibility for disseminating untruthful statements that tarnish the honour and dignity of individuals and organisations ... The court cannot accept as grounds to dismiss the [defamation] action the defendants’ arguments that the impugned statements are opinions, value judgments that could not be retracted under Article 152 of the Civil Code, for the following reasons. Under Article 17 of the Constitution, freedom of thought and expression, as well as the right to protect one’s honour and good name, are recognised and guaranteed ... At the same time, the realisation of the rights and freedoms of an individual and citizen should not breach the rights and freedoms of other citizens. In view of the Constitution’s provisions, freedom of thought and expression guaranteed by the Constitution should not serve as an instrument to violate the honour and dignity of others. Therefore, expression by a journalist of his opinion on any topic, or the publication of an opinion by another person does not give grounds to absolve [the journalist] of responsibility where damage has been unlawfully inflicted on the values protected by the Constitution and the Civil Code of Russia, [such as] honour, dignity and the business reputation of an individual.” 24. The applicants appealed, arguing in particular that the information contained in the impugned articles amounted to value judgments, and that the articles had reflected the opinions of R.K. and B.K., opinions expressed in the former’s application to the Court and the latter’s book. 25. On 16 March 2006 the Moscow City Court (“the City Court”) dismissed the appeal and upheld the District Court’s judgment in full. In particular, it reasoned “the defendants have not submitted evidence of the veracity of the disseminated statements, [while] the claimants have provided evidence proving that they did not commit the actions mentioned in the disseminated statements.” 26. The applicants also unsuccessfully applied for supervisory review. 27. On 7 December 2005 the District Court issued two writs of execution against the applicant company in V.K’s favour. The first writ contained an order to publish a retraction, and the second one ordered the applicant company to pay V.K. RUB 50,085. 28. On 3 May 2006 the bailiffs’ service received the writs and commenced enforcement proceedings. 29. The newspaper published the retraction regarding V.K. in its issue of 22-25 June 2006. 30. On 26 June 2006 the applicant company transferred RUB 50,085 to the bailiffs’ bank account to be paid to V.K. 31. On 27 June 2006 the bailiffs’ service terminated the enforcement proceedings against the applicant company in respect of the retraction. 32. On 28 June 2007 the second applicant transferred RUB 7,490 to the bailiffs’ bank account to be paid to V.K. 33. On 12 February 2008 the bailiffs’ service initiated enforcement proceedings against the applicants on the basis of writs of execution in A.E.’s favour. They ordered the applicant company and the second applicant to pay RUB 50,085 and RUB 7,015 respectively. 34. On the same date the applicant company transferred to the bailiffs’ bank account RUB 50,085 on its own behalf and RUB 7,015 on behalf of the second applicant, to be paid to A.E.