CASE OF SHABANOV AND TREN v. RUSSIA
Violation of Art. 6-1;No violation of Art. 10;No violation of Art. 10;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed
Peer Lorenzen
5. The applicants were born in 1959 and 1963 and live in the town of Chernyakhovsk in the Kaliningrad Region. They are businessmen and founders of the Pravo Znat newspaper (“The Right to Know”). 6. On 27 April 2001 the applicants' newspaper published an article under the headline “What power costs: part 2” (“Сколько стоит власть-2”). The article gave a detailed account of the wages and benefits received by mid-range employees in the town council. The relevant extract read as follows: “For the sake of clarity, let us look at the elements that make up the wages. Let's take, for example, those of the head of the legal department... In total... 5,805 roubles. Not bad for a twenty-year-old professional who recently graduated from a teachers' college.” 7. Ms P., the head of the legal department, brought a defamation action against the applicants. She submitted that she possessed higher legal education and more than three years of relevant experience, and that the article had harmed her authority in that it had sown doubts as to her professional qualifications. 8. On 13 June 2001 the Chernyakhovsk Town Court of the Kaliningrad Region heard the claim and gave judgment. It found that the applicants had been aware of the identity of the head of the legal department and they had intended to expose a specific person, namely Ms P. The court established that Ms P. had been appointed to her position in September 2000 after having completed a course of higher legal education. It found as follows: “Having indicated in the article the salary of the head of the legal department and having referred to a twenty-year-old professional just out of college, the [applicants] related inaccurate information, given that Ms P., whom the [applicants] described as having graduated from a teachers' college four years previously, was at the material time the head of the legal department and had higher legal education. The article 'What power costs: part 2' implies that municipal employees receive high wages, paid out of the budget, and cites as an example a young professional with college-level education and no work experience. The court considers that such information damages Ms P.'s professional reputation and honour, in that it was disseminated to a large readership and begs the conclusion that the position of head of the legal department is occupied by an employee who lacks the requisite qualifications and work experience, which undermines the authority of the local administration and of Ms P.” The court ordered the applicants to publish a rectification and pay 300 roubles (RUR, 12 euros (EUR)) each to Ms P. 9. On 20 June 2001 both applicants appealed against the judgment of 13 June 2001. They submitted that the information had not been proven to be untrue and that it had not undermined Ms P.'s authority. They also alleged a procedural violation, in that the case had been examined by a formation consisting of one professional judge and two lay judges, one of whom, lay judge Ms Kr., had participated in a previous hearing on 5 February 2001, whereas lay judges could only sit in court once a year and for no longer than fourteen days. 10. On 18 July 2001 the Kaliningrad Regional Court confirmed the judgment of 13 June 2001. It upheld the District Court's findings that Ms P. had graduated from a teachers' college, but noted that this had occurred in 1997 and that, by the time of her appointment, she had also completed higher legal education. The court concluded that the article had been intended to cast a shadow of doubt on Ms P.'s professional fitness and had thus damaged her reputation. As to the alleged procedural violation, the court held that the applicants had not proved that the lay judge in question had sat for more than fourteen days and stated that their allegations had been based on an erroneous interpretation of the Lay Judges Act. 11. On 19 January 2001 the applicants' newspaper published an article by Mr V. under the headline “The army with wet feet” (“Армия с мокрыми ногами”). The article related the living conditions of soldiers in a military unit where almost two hundred men had fallen ill because Mr K., the unit commander, had not provided them with dry footwraps or arranged for a place to dry their boots. 12. Mr K. sued the applicants and Mr V. for the protection of his honour, dignity and professional reputation and claimed compensation for non-pecuniary damage. As evidence of the non-pecuniary damage sustained, Mr K. enclosed a medical certificate issued by a psychiatrist. The certificate was made available to the applicants in their capacity as defendants. 13. On 13 July 2001 the newspaper published a follow-up article “There are different kinds of syndromes. But still no footwraps” (“Синдром синдрому рознь. И без портянок”). The article commented on various aspects of Mr K.'s statement of claim. The relevant part read as follows: “So, our character '...had to visit a psychiatrist on 13 February 2001...'. 'Intellect with no peculiarities', noted the doctor, [who] found that K. had ... moderately pronounced asthenia syndrome and prescribed treatment. Asthenia means impotence, a kind of disease. It means that the commander of the regiment is not quite healthy. Or quite unhealthy?” 14. Mr K. subsequently supplemented his original statement of claim with a complaint about the publication of information on his state of health, which, in his opinion, was an unjustified interference with his right to respect for private life. 15. On 25 September 2001 the Chernyakhovsk Town Court of the Kaliningrad Region gave its judgment. The court established that the facts concerning the mass outbreak of illness among soldiers, described in the article of 19 January 2001, were accurate and dismissed Mr K.'s action in this part. However, it established that Mr K. had referred to his visit to a psychiatrist in his statement of claim, that only a limited number of people had access to the case file, and that Mr K. had not consented to having his diagnosis published in a newspaper. The court concluded that the article of 13 July 2001 violated Mr K.'s personal non-pecuniary rights, namely the right to inviolability of one's private life and personal and family secrets, which was protected by the Constitution. Relying on Article 151 of the Civil Code, it awarded him RUR 1,500 (EUR 55) and RUR 1,000 (EUR 37) against the first and second applicants respectively. 16. On 24 October 2001 the Kaliningrad Regional Court upheld on appeal the judgment of 13 July 2001. The court dismissed the applicants' argument that the public should have been informed of Mr K.'s state of health because he was the commander of a military unit. 17. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of the mass media. 18. The relevant provisions of the Civil Code read as follows: “1. An individual's life and health, dignity, personal integrity, honour and goodwill, professional reputation, the inviolability of one's private life, personal and family secrets, the right to liberty of movement and to choose one's place of temporary and permanent residence, the right to a name, copyright, 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 untransferable by any means...” “If certain actions impairing an individual's personal non-property rights or encroaching on other incorporeal assets 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...” “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.” 19. On 10 January 2000 the Federal Law on Lay Judges of Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. By section 1 (2) of the Act, lay judges are persons authorised to sit in civil and criminal cases as non-professional judges. 20. Section 2 provides that lists of lay judges must be compiled for every district court by local self-government bodies, such lists being subject to confirmation by the regional legislature. Section 5 determines the procedure for the selection of lay judges. It provides that the president of a district court is to draw random lots from a list of lay judges assigned to that court. The number of lay judges assigned to every professional judge should be at least three times as many as that needed for a hearing. 21. By section 9, lay judges are to be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay judges may only be called for service once a year. 22. Civil cases may be examined by a formation comprising two lay assessors and a professional judge. In the administration of justice lay assessors enjoy the same rights as professional judges (Article 6). 23. Civil proceedings are public in all cases, except where a hearing in private is necessary for the protection of information concerning State secrets, intimate details of parties' lives or the confidentiality of adoption (Article 9). 24. Written evidence is read out in open court and made available to the parties and their representatives (Article 175).