CASE OF ALEKSEY OVCHINNIKOV v. RUSSIA
No violation of Art. 10
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1974 and lives in Ivanovo. He is a journalist writing for the Ivanovo-Press newspaper. 6. In early July 2002 a nine-year-old boy attending the Stroitel summer camp complained to his parents that he had been beaten up and sexually abused by his twelve-year-old roommates. Further to a complaint by the boy's parents, the police found evidence of criminal offences which, however, were not prosecutable because the offenders were minors. 7. One of the offenders was the son of two federal judges, Mr and Mrs B. Another culprit was the stepgrandson of the deputy head of the Ivanovo Regional Traffic Police, Mr V. 8. As the offenders' parents held prominent positions in the region, the media took an intense interest in the story. The first article about the incident was published on 26 August 2002 by the Kursiv-Ivanovo weekly newspaper. The publication listed the names and positions of the offenders' relatives. 9. After the victim's mother had brought the police reports and the relevant medical records to the applicant's newspaper, the applicant undertook independent research into the events. In particular, he interviewed the principal of the Stroitel summer camp, several of its teachers, an official responsible for the supervision of summer camps in the region, a spokesman for the police department charged with the investigation and the head of the Judicial Qualifications Board. 10. On 3 September 2002 the applicant published an article about the incident at the summer camp in the Ivanovo-Press newspaper, under the headline “Day of reckoning” (Час расплаты). He wrote, in particular, as follows: “Any story [of battery and sexual abuse] deserves the most rapt attention. This one is particularly shameful because of the fact that the parents of one little bastard work as judges in a district court, and a close relative of another is one of the heads of the regional traffic police. It is hard to write about this matter. The case affects children, their lives, their tragedy and their future. It is hard because the guilt and its extent should be determined by a court, but the underage participants in this story are, alas, not liable to prosecution ... Their parents should be responsible for their deeds vis-à-vis society and the State. This is why we have decided to take the matter up ... I believe readers will excuse me for not providing a detailed description of the abuse to which the kid was subjected (in fact, our colleagues from the Kursiv newspaper have already provided one). I will say only one thing: the circumstances of those unchildlish deeds were established by evidence. They amount to assault and battery, punishable by Article 116, and sexual assault, punishable by Article 132 of [the Criminal Code]. Thus, if those moral freaks had been charged with criminal offences and committed for trial, they would have risked long terms of imprisonment. ... [After the parents of the victim had complained to the police,] an investigation was conducted by officers from the Interior Department of the Teykovskiy District, who established that the actions of the three minor rapists indeed disclosed all the elements of criminal offences. However, no criminal proceedings were opened because the suspects were minors. Meanwhile, the press learned about the events and a scandal erupted. It is not the first time that the attention of law-enforcement bodies has been riveted to the children of high-ranking parents. However, as a rule, such cases are abandoned at an early stage of the inquiry. Even when they are referred for trial, the general public hardly ever knows about it. Without any doubt, had the administration of the Stroitel summer camp paid attention to the facts and warned the parents in time, the investigators from [the Interior Department of the Teykovskiy District] would have hardly been allowed to go on with the investigation. The events were, however, left to take their course and were made public. We must do some serious thinking here. How can it be? A kid whose parents work as JUDGES has committed a crime! Is it a coincidence or a pattern? What did his parents teach him? Perhaps they thought that the judge and the Law were one and the same thing, that the judge was not servant but master of the law, a superhuman? And that his children were superhumans, too; they could do whatever they pleased, in the knowledge that their mothers and fathers would exempt them from liability... Another [offender] has a relative in the police force. Not an ordinary one, but a bigwig sporting star-studded epaulettes. So, is anything permitted? If something happened, would he 'cover up' and 'fix' it? How will these people carry on working in the courts and the police force? Delivering judgments, sentencing men to prison terms for crimes for which their progeny could have been convicted? Or are they already used to doing this? After all, all these conjectures are based on real grounds and it is very likely that the case will be hushed up thanks to 'string pulling' by the rogues' parents. We were told that pressure was being put on the victim's parents, that their physical integrity had been threatened. What is more, while our editorial board was working on that publication, we received a number of bizarre telephone calls asking us to stop the journalistic investigation and stay out of the way of the judges and their children. It is strange that none of the 'well-wishers' who called us considered the fate of the injured child, of how he will live after what happened. Nor did they consider the fate of the underage members of the 'criminal trio'. What will become of them? Could it be that, having gone unpunished once, they will resume their 'sexual experiments' in a couple of years? ... P.S. Unfortunately, because of recent amendments to the Media Act, the newspaper may not name the young rascals or their parents and relatives ... We will carry on investigating the matter and in a future issue we will give concrete examples of how the children of judges and police officials have escaped punishment.” 11. According to the applicant, subsequent publications in the KursivIvanovo and Rabochiy Kray newspapers and on the Internet gave the names and official positions of the offenders' parents and relative. 12. On 17 September 2002 the applicant published a follow-up article, under the headline “Chocolate Kids. High-ranking parents of minor rapists seek to hush up the scandal” (“Шоколадные детишки. Высокопоставленные родители малолетних насильников пытаются замять скандал”). He wrote as follows: “The case developed into a scandal because the parents of one suspect were the spouses [Mr and Mrs B.], judges in a district court of Ivanovo, and a close relative of another, [Mr V.], was deputy head of the regional traffic police. Quite naturally, these high-ranking parents were not prepared to put up with the course of events. In addition to the ethical dimension, the scandal was a potential threat to their careers and financial well being. In the beginning they attempted to portray the events as an ordinary fist fight! With that purpose, and with the complicity of the regional administration, the prosecutor's office ordered an additional inquiry ... Judging from the diligence with which all that has been done, as well as from the fact that the official newspapers were suddenly full of lengthy articles about this year's wonderfully organised summer holidays for children, attempts are being made to exert pressure on the course of the resumed investigation. Most likely, this inquiry will establish that all the suspects are 'warm and fuzzy'. Yet, the fact that the abuse did indeed take place is confirmed by the fact that, precisely because of those scandalous events, one of the little scoundrels has been placed in a detention centre for juvenile offenders pursuant to an order of the Oktyabrskiy District Court. It follows that the son of simple factory workers is segregated from society, while his accomplices, the children of judges and bigwigs from the police, are at liberty! ... Our journalistic inquiry uncovered sensational information about [Mr V.] It turns out that this criminal scandal is not the first one in his family. His eldest son, Valeriy, has been on the list of fugitives from justice since 1995: he was suspected of assault with intent to rob. His youngest son, also a traffic police officer, caused a road accident a few years ago, in which a young woman was seriously injured ... But he managed to escape responsibility. And now this gloomy story involving [Mr V.'s] stepgrandson. It begs a question for the management of the regional police, who are certainly aware of these facts: how can such a person still work in the field of law enforcement in a position of leadership in the traffic police? This week the [judicial] qualification board will decide on the destiny of the judges [Mr and Mrs B]. If they carry on working as judges, this again begs a question: how will these people sentence others if they were unable to bring up their own child [properly]? ...” 13. Mr and Mrs B. brought a civil action for defamation and disclosure of private information on their own behalf and on behalf of their minor son. They named as defendants the founders of the Kursiv-Ivanovo newspaper and its journalists, as well as the applicant and the company that owned his newspaper. They sought a retraction and compensation for non-pecuniary damage. They enclosed the text of the retraction, containing an apology that they wished the applicant's newspaper to publish. 14. On 12 March 2003 the Sovetskiy District Court of Ivanovo gave judgment. It noted that the statements accusing Mr and Mrs B.'s son of violent acts were true because the police had found evidence of a criminal offence. The allegedly insulting statements (“little bastards”, “young rascals” and the like) were not actionable because they constituted value judgments not amenable to verification. The alleged breach of the duties of a journalist arising out of the Media Act, namely, disclosure of confidential or private information, was not actionable in civil proceedings because the Media Act provided for criminal or disciplinary, rather than civil, sanctions for such breaches. On the other hand, relying on Article 152 of the Civil Code, the court granted the claimants' request for a retraction of the allegation that they “had attempted to interfere with the investigation” because the journalists had not produced any proof of such interference. It ordered that the newspaper and the applicant publish a retraction containing an apology to Mr and Mrs B. It further ordered that the applicant pay Mr and Mrs B compensation in respect of non-pecuniary damage in the amount of 3,000 Russian roubles (RUB, approximately 85 euros (EUR)). 15. The applicant appealed. He submitted, in particular, that the articles authored by him did not contain any statements accusing Mr and Mrs B. of interfering with the investigation. He further complained that the order to publish a retraction containing an apology had had no basis in domestic law. 16. On 16 April 2003 the Ivanovo Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. As regards the order to publish an apology, the Regional Court found that it was for the District Court to determine the contents of the retraction. 17. Mr V., on his own behalf, and his daughter-in-law, on behalf of her son, brought a civil claim against the same defendants for defamation and disclosure of information about their private life. They sought compensation for non-pecuniary damage under Article 152 of the Civil Code. They also sought a retraction and submitted a draft retraction containing an apology. 18. On 19 February 2004 the Sovetskiy District Court granted the claim in part. It found that the journalists had failed to prove the allegation that Mr V. “had interfered with the investigation”, as required by Article 152 of the Civil Code. It rejected as unsubstantiated, without further reasoning, the applicant's argument that his articles had not contained any such statements. It also held the journalists liable for a violation of the claimants' constitutional right to the inviolability of their private lives, finding as follows: “Under Article 151 of the Russian Civil Code, if a citizen has incurred non-pecuniary damage through actions impairing his personal non-pecuniary rights ... the court may order the person responsible to compensate for the damage. In accordance with Articles 23 § 1 and 24 § 1 of the Russian Constitution, everyone has the right to the inviolability of his private life, to personal and family secrets, [and] to the protection of his honour and goodwill; it is an offence to collect, keep, use or disseminate information about a person's private life without that person's consent. The court has not seen any proof that the authors of the articles published in the Kursiv-Ivanovo and Ivanovo-Press newspapers obtained consent to the dissemination of information about the private lives of [Mr V. and his minor stepgrandson]. Accordingly, [their] constitutional right to the inviolability of their private lives has been breached.” 19. The court ordered that the newspaper and the applicant publish a retraction containing an apology to Mr V. and his family. It further ordered that the applicant pay compensation to Mr V. and his daughter-in-law in the amount of RUB 2,000 (approximately EUR 55). 20. In his grounds of appeal the applicant complained about the District Court's inconsistent approach to the issue of whether disclosure of private information was actionable in the civil proceedings. In holding the applicant responsible for dissemination of personal information, the District Court had disregarded the fact that the information had been first published by another newspaper, Kursiv-Ivanovo, and that from that moment it had entered the public domain. Furthermore, the District Court had not identified any statements which could be construed as implying that Mr V. had interfered with the investigation. 21. On 19 April 2004 the Ivanovo Regional Court upheld the judgment, finding that disclosure of personal information was actionable under Article 151 of the Civil Code. 22. Article 24 prohibits collecting, storing, using or disseminating information about a person's private life without that person's consent. 23. Article 29 guarantees freedom of thought and expression and freedom of the mass media. 24. Article 151 provides that a court may award compensation for non-pecuniary damage to an individual who has incurred such damage as a consequence of acts that have violated his personal non-pecuniary rights. Article 150 lists, among other personal non-pecuniary rights, the inviolability of a person's private life, and personal and family secrets. 25. Article 152 provides that an individual may apply to a court with a request for a retraction of “statements” (сведения) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated the statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of the statements. 26. The Mass Media Act (Law no. 2124-I of 27 December 1991) provides that the mass media may not publish information which permits a minor who has committed a criminal or an administrative offence or is suspected of such an offence to be identified, directly or indirectly, unless the minor concerned and his or her guardian has consented to the publication (section 41(3)). 27. An individual or an organisation is entitled to require that the editorial board of a mass medium publish a retraction of untrue statements that are damaging to his/her/its honour, dignity or professional reputation. If the editorial board is unable to prove the truthfulness of the contested statements, it must publish a retraction in the same mass medium. If the individual or the organisation submits a draft text of the retraction, the editorial board must publish the submitted text, provided that it is compatible with the Act (section 43). A retraction must specify which statements are untrue, as well as where and when they were published (section 44(1)). 28. A journalist is entitled to express his personal opinions and valuejudgments in the publications bearing his name (section 47 (9)). 29. A journalist must check the truthfulness of the information he publishes. Before publishing information about an individual's private life, a journalist must obtain the consent of the individual concerned or his or her guardian, except in cases where the publication of such information serves the public interest (section 49(2) and (5). A journalist who has not complied with these duties may be held criminally, administratively or disciplinarily liable in accordance with the law (section 59(2)). 30. Editorial boards, editors-in-chief and journalists are not liable for untrue statements damaging the honour and dignity of individuals or organisations, or for statements infringing the rights and lawful interests of citizens, if such statements are a verbatim reproduction of statements or materials, or extracts of them, that have been published earlier by another mass medium that may be identified and held liable (section 57(6)). 31. Resolution of the Plenary Supreme Court of the Russian Federation no. 11 of 18 August 1992 (amended on 25 April 1995 and in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (for example, the commission of a dishonest act, or improper behaviour at the workplace or in everyday life). “Dissemination of statements” was understood to be the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7). 32. On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Resolution no. 3, which required the courts examining defamation claims to distinguish between statements of facts which can be checked for veracity, and value judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code because they are expressions of a defendant's subjective opinion and views and cannot be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to extend an apology to a claimant, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18).