CASE OF DYUNDIN v. RUSSIA
Remainder inadmissible;Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
Alvina Gyulumyan;Anatoly Kovler;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1952 and lives in the town of Orsk in the Orenburg Region. He is a journalist. 6. On 21 August 2002 the applicant published an article in issue no. 128\382 of the Orskiy Vestnik newspaper. The article appeared under the headline ‘Tortured suspects confessed to the theft they had not committed’ (“Под пыткой подозреваемые сознались в краже, которой не совершали”). It concerned an investigation into the theft of property of a private company. The company director had identified three of his former employees as prime suspects. Mr S., one of those three, had gone to the Leninskiy District police station of his own will to clear himself of suspicion. The story then switched to a first-person narrative by Mr S., which was preceded by the author’s statement, in bold and in italics: “I switched on the dictaphone recording of S[.]’s story”. 7. Mr S. said that he had been detained overnight at the Leninskiy District police station. The following morning he had been brought to an office where five police officers had been present; Mr G. had been among them. Mr S. continued as follows: “It was a Saturday. They [the police officers] planned to go to a wedding party after lunch; they reeked of fresh alcohol, it looked like they had already been drinking. They discussed how to torture me - using a crow-bar or otherwise? They tied me to a chair, my legs fastened to the chair legs and my arms cuffed behind the chair back. At first they punched me in the chest with their fists, it hurt. I was in a state of shock. Then, a sudden, stunning blow to the neck... I could not see who delivered the blow and with what object. Someone said: ‘What now? The crow-bar?’ G[.] says: ‘Well, but do not stain my table’. And he took all the magazines off the table. One of them, who squinted a bit, took out a tool that looked like a tyre lever. I do not know how they wanted to torture me. G[.] says: ‘No, let’s try a gas mask first’. They put a gas mask on me... I could not breathe in or out, I felt faint and my head shook...” (emphasis added, see below). 8. The article further continued to relate Mr S.’s story as told by him. After a while Mr S. had signalled his readiness to confess. He had been taken to the office next door, where a young man in civilian clothes had written down his statements. Thereafter, Mr S. had been locked in the basement cell of the police station. Switching back to author’s speech, the applicant introduced Mr M., a friend of Mr S., who had gone to the police station to confirm Mr S.’s alibi. With the words “Let us give [M.] the floor”, the story continued as narrated by Mr M.: “At the Leninskiy District police station they took me into office no. 18 on the second floor. The interview was conducted by the investigator G[.], a tall athletic man with red hair. – Where is the snatch? – What snatch? – ...Your friends have already confessed. You are the ‘weak link’. You are an ‘MDP’ – a morally degraded person... He began beating me. Every word was followed by a blow... – Where is the loot? You will tell me! I am a paratrooper. I used to crush people like you and I will do the same to you! Ever heard about disappearances? You will be one of them if you do not give back the loot! ...I heard that if the police accidentally break the leg or arm [of a detainee], operational officers have to finish the victim off and secretly bury him so as to hide the traces of torture... G[.] says: ‘Stop talking like a parrot. Counsel, counsel... Counsel will be at trial, but now you are under pre-trial investigation. Take him to the cell where the faggots are! They are hungry, let them explain to him what he is.’ But he did not hit me. Just banged his fist on the table. As if they started to realise that they had made a mistake and were at a loss what to do next.” (emphasis added, see below). 9. In the conclusion the applicant quoted from a medical report which noted multiple bruises and abrasions on Mr S.’s body. He criticised the passive attitude of supervising prosecutors who had refused to initiate a criminal case against Mr G. and the other police officers, and noted that the prosecutors’ refusals were being appealed against to a court. The real perpetrator had later been identified and convicted of the theft. 10. The senior operational officer of the Leninskiy District police station, Mr G. sued the applicant and the newspaper’s founder for defamation before the Leninskiy District Court of Orsk. Considering that the extracts in bold above were untrue and damaging to his honour, dignity and professional reputation, he sought compensation for non-pecuniary damage and legal costs. He denied that he had ever used violence against Mr S. or Mr M. 11. The applicant maintained that the contested extracts had been a verbatim reproduction of the personal stories of Mr S. and Mr M. and represented their value judgments on these events. He had acted in good faith and verified that neither Mr S. nor Mr M. had a reason to slander or denigrate Mr G. The extracts either did not refer to Mr G. personally (such as “they reeked of fresh alcohol...”) or did not contain any information damaging to his reputation (such as the statement about him being a paratrooper). The applicant produced in evidence a dictaphone recording of his conversation with Mr S., when Mr M. had been also present. He also relied on the medical report noting Mr S.’s injuries, on the records of the confessions made by Mr S. and Mr M. at the Leninskiy District police station, and on their complaints about ill-treatment lodged with the prosecutor’s office. 12. The District Court took oral evidence from Mr S. and Mr M. Mr S. confirmed the accuracy of the story as reproduced in the article. Responding to questions from both parties, he testified that police officers but not Mr G. had reeked of alcohol, that he had been tied to a chair, that Mr G. had indeed warned them against staining his table, that Mr G. had not used violence against him but had been “merely present”. Mr M. also confirmed his story as narrated in the article. 13. On 29 April 2003 the Leninskiy District Court of Orsk granted Mr G.’s action in part. It noted firstly that the applicant and the newspaper could not claim an exemption from liability for defamation on the ground that they had merely reproduced statements made by others, because no such exemption was provided for in the Mass Media Act. Accordingly, they were required to prove the accuracy of the contested statements. However, in the District Court’s view, neither the medical reports noting injuries on Mr M.’s and Mr S.’s bodies, nor their interview records, nor their oral testimony could be considered relevant evidence or proof of the truthfulness of the allegations that Mr G. had tortured them or made intimidating remarks. Furthermore, “...it follows from S[.]’s oral testimony that G[.] had not been in an inebriated state during the interview, that he had not suggested using a gas mask, that he had not resorted to physical violence and that S[.] had not told [the applicant] about that. A comparison of the dictaphone recording of S[.]’s story with the narrative in the article leads to the conclusion that the events were retold in the article in a different chronological order and that the author creatively rewrote S.’s statements, increasing the emotional intensity and emphasising G[.]’s leading part in the use of violence towards the detainees.” 14. The District Court, however, accepted that the statement about Mr G.’s being a paratrooper was not damaging to his reputation and that Mr M.’s statement about the victims being “finished off” by the police did not concern Mr G. personally. The remaining extracts were found damaging to his reputation and liable to rectification. 15. The District Court awarded Mr G. 2,000 Russian roubles (about 70 euros) and legal costs against the applicant. 16. On 31 July 2003 the Orenburg Regional Court, on an appeal by the applicant and the newspaper, upheld the judgment. 17. Article 152 of the Civil Code provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such 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 such statements. 18. Article 1100 provides that compensation for non-pecuniary damage is payable irrespective of the tortfeasor’s fault if damages were sustained through dissemination of information damaging dignity, honour or reputation.