CASE OF OOO 'VESTI'  AND UKHOV v. RUSSIA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
6. The first applicant had its registered office in Kirov. The second applicant was born in 1951 and lives in Kirov. 7. The first applicant was a limited liability company founded by the State Property Department of the Kirov Regional Government and registered as a legal entity in 1997. 8. On an unspecified date the Kirov Regional Legislative Assembly and the Kirov Regional Government founded the Gubernskie Vesti, Kirov newspaper. On 23 August 2001 it was officially registered as a regional news medium. The official address of its editorial board was the same as that of the first applicant. 9. According to the applicants, the editorial board of the Gubernskie Vesti, Kirov newspaper was not registered as a legal entity and did not have articles of association. The first applicant was the publisher of the Gubernskie Vesti, Kirov newspaper. The applicants were, however, unable to submit a publishing agreement. 10. According to its articles of association, as amended on 24 May 2002, the first applicant’s main activity consisted in issuing the Gubernskie Vesti, Kirov newspaper. It also carried out publishing and advertising activities. The first applicant was managed by its executive body, the editor-in-chief. That position was occupied at the material time by the second applicant, who was at the same time the editor-in-chief of the Gubernskie Vesti, Kirov newspaper. 11. On 16 August 2002 the Gubernskie Vesti, Kirov newspaper published an article under the headline “The Chief Federal Inspector has brought the media to its knees. But not the businessmen” («ГФИ поставил на колени прессу. Но не коммерсантов»). The article was written by the second applicant, who signed it using his pen-name, Semyon Volkov. 12. The article concerned a joint press conference held by Mr P., the Chief Federal Inspector for the Kirov Region, and Mr K., the Mayor of Kirov. The press conference was about the media coverage of the regional project “Kirov, cultural capital of the Volga region for 2002”. The article was critical of the cultural value of the events connected with the project and spoke ironically about Mr P.’s “accomplishments” in that field. Mr P. was further quoted as saying that the allotted funds were insufficient to finance the work of the project’s organising committee and as criticising local businesses for their unwillingness to sponsor the project, allegedly because the project had not received the Governor’s explicit endorsement. The article then went on as follows: “Curiously enough, just before that meeting, I had a chance to talk to some businessmen I know. They told me that the chief federal inspector’s office had literally pestered them with ‘offers’ for them to become sponsors. However, they do not respond to such ‘offers’, not because they fear the Governor, but because they do not want to give money. Some say that [Mr P.] is too deeply involved in political games, of which they want no part. Others are, for some reason, concerned that their money might be wasted on the lovers of the collector of funds rather than spent on cultural events.” 13. On 30 August 2002 Mr P., in his official capacity as the Chief Federal Inspector, brought an action for defamation against the editorial board of the Gubernskie Vesti newspaper and the author of the article, Semyon Volkov. According to his statement of claim, the final paragraph of the contested article had asserted that he was in charge of the collection and distribution of funds for the project, that he was capable of committing a crime by embezzling the funds entrusted to him, and that he had lovers, thereby violating moral and ethical norms. Considering that those statements were untrue and damaging to his honour, dignity and professional reputation, he sought a retraction and compensation for non-pecuniary damage. 14. Mr P. also enclosed the text of the retraction statement that he wished the editorial board of the Gubernskie Vesti newspaper to publish. It contained an apology and an acknowledgement that the last sentence of the paragraph cited above was untrue and damaging to his honour and reputation, a promise to discipline the author of the article and an undertaking to respect the domestic law on the media in the future. 15. On 9 September 2002 Mr G., deputy editor-in-chief of the first applicant, signed a power of attorney appointing Mr K. and Mr R. to act as its counsel in the defamation proceedings. 16. On 13 September 2002 Judge S. of the Leninskiy District Court of Kirov decided to sever the claim against the author of the article for adjudication in separate proceedings because the first applicant had refused to disclose his identity. The proceedings against the author were stayed. 17. On 13 September 2002 the Leninskiy District Court of Kirov, sitting in a single-judge formation comprising Judge S., held a hearing. Counsel, Mr K. and Mr R., asked that the hearing be adjourned because the second applicant, the newspaper’s editor-in-chief and the only person acquainted with the circumstances relating to the contested publication, was on annual leave until 6 October 2002. The court refused the request. 18. Mr K. and Mr R. further submitted that the contested statements did not concern Mr P., who was not the collector of funds for the cultural project. The funds were being collected by the Kirov Town Administration. 19. Counsel for Mr P. submitted that the article had been entirely devoted to Mr P. It stated, in particular, that he had “pestered” local businessmen with requests to become sponsors of the cultural project. The last sentence of the article, which concerned the collector of funds, could easily be interpreted as directed at Mr P. Such an interpretation had indeed been made by a number of local newspapers, which had also understood the last sentence of the article as referring to Mr P. 20. On 13 September 2002 the Leninskiy District Court of Kirov granted Mr P.’s claim against the editorial board of the Gubernskie Vesti newspaper in full. The court found that the final paragraph of the article contained false information about the plaintiff, who it had falsely alleged was the collector of funds that might have been wasted on lovers rather than spent on cultural events. The court noted that the defendant had not produced any proof of the truthfulness of that information. It ordered the editorial board to pay the plaintiff 20,000 Russian roubles (RUR) (approximately 650 euros (EUR)) in compensation for non-pecuniary damage, and RUR 1,000 in court fees. It further ordered an immediate publication of the retraction statement as drafted by Mr P. 21. On 18 September 2002 enforcement proceedings were opened. On the same day, the first applicant applied to the Leninskiy District Court for a stay in the enforcement proceedings. It submitted that the court had ordered the enforcement of the judgment against the editorial board of the Gubernskie Vesti newspaper, which had no legal entity status and, accordingly, could not be a defendant in civil proceedings. Furthermore, the order for immediate enforcement was unlawful and violated the first applicant’s right to know the reasons for the judgment (at that time, the full text of the judgment was unavailable) and to lodge an appeal against it. 22. On 19 September 2002 Judge S. issued two interim decisions. By the first decision he refused the first applicant’s request for a stay of enforcement as unsubstantiated. No further reasons were given. The second decision rectified an error in the operative part of the judgment. It held that the defendant’s name was “the limited liability company The Editorial Board of the Vesti Newspaper” rather than “the editorial board of the Gubernskie Vesti newspaper”. 23. On 20 September 2002 the Gubernskie Vesti, Kirov newspaper published the retraction statement as drafted by Mr P. and endorsed in the judgment of 13 September 2002. 24. On 24 September 2002 the first applicant lodged an appeal against the judgment of 13 September 2002, submitting that the article had not named the collector of funds for the project or suggested that it was Mr P. who had collected the funds. Nor had it stated that Mr P. had lovers or that he had embezzled any funds entrusted to him. It was clear from the text that the contested sentence did not concern Mr P. at all. The first applicant further complained about the District Court’s unreasoned refusal to adjourn the hearing until the second applicant had returned from leave. The second applicant was the only person who knew the identity of the author of the article and who was able to give an informed response to the statement of claim. 25. The second applicant lodged a statement in support of the appeal. He disclosed that he was the author of the article and stated that the judgment of 13 September 2002 had been poorly reasoned. Although Mr P. had failed to prove that the contested sentence concerned him personally, the District Court had accepted his claim without analysing whether the impugned statements were indeed directed at him. 26. On an unspecified date the proceedings against the author of the article were resumed and the second applicant was summoned to appear before the Leninskiy District Court as the defendant in Mr P.’s defamation case instituted on 30 August 2002. His case was heard by a bench composed of the presiding judge S. and two lay assessors. The second applicant lodged an objection against Judge S. on the ground that he had already expressed his position in the judgment against the editorial board. Lay assessors examined and rejected the objection, finding that the second applicant’s fears as to Mr S.’s impartiality were not justified. 27. At the hearing on 2 October 2002 the second applicant was represented by Mr R. as counsel. The second applicant and his counsel both argued that the last sentence of the article did not concern Mr P. It concerned the collector of funds, who had not been identified in the article. The fact that other newspapers had interpreted the last sentence as directed at Mr P. was irrelevant because the second applicant could not be held responsible for the actions of other people. They further submitted that the second applicant had simply repeated the reservations expressed by businessmen with regard to the distribution of the funds collected for the project. 28. Counsel for Mr P. repeated the arguments he had advanced at the hearing of 13 September 2002, in particular the reasons why Mr P. believed that the contested statements were directed at him. He submitted, in particular, that the title and the structure of the article showed that it was entirely about Mr P. and that other people had understood the last sentence of the article as concerning Mr P., and this had been proved by articles in other newspapers. 29. On 3 October 2002 the Leninskiy District Court issued a judgment against the second applicant. The court found that the article read as a whole gave the impression that the contested statements concerned Mr P. The same interpretation had been arrived at by other newspapers, which had been unanimous in considering that the last sentence had been about Mr P. The contested statements, which accused Mr P. of spending public funds on lovers, were damaging to his honour, dignity and professional reputation. The second applicant had failed to prove the truthfulness of his statements about Mr P. The second applicant was ordered to pay RUR 2,500 (approximately 80 euros) in compensation for non-pecuniary damage, and RUR 10 in court fees. 30. The second applicant appealed. He repeated the arguments advanced in his statement in support of the first applicant’s appeal. He further argued that the outcome of his case had been predetermined by the judgment against the editorial board. Judge S., who had examined the case against the editorial board, was bound to have had a preconceived opinion on his case. 31. On 31 October 2002 the Kirov Regional Court adjourned the examination of the appeals. It established that the interim decision of 19 September 2002 rectifying an error in the judgment of 13 September 2002 had been issued in the absence of the interested parties. Moreover, the parties had not received a copy of that decision and had thereby been deprived of an opportunity to appeal. Until that omission had been remedied, the appeal against the judgment of 13 September 2002 could not be examined, nor could the appeal against the judgment of 3 October 2002. Because both cases were based on the same claim, the determination of one of them would prejudge the outcome of the other. On that ground, the Kirov Regional Court decided that the two cases should be joined and all appeals should be examined simultaneously. 32. On 14 November 2002 the first applicant lodged an appeal against the interim decision of 19 September 2002. It argued that that decision was unlawful for the following reasons: the rectification had been made by the District Court of its own motion; the decision had been taken in the absence of the parties; and, in substance, the decision was the disguised substitution of a defendant rather than a correction of a clerical error or an obvious mistake. The first applicant submitted that the limited liability company The Editorial Board of the Vesti Newspaper and the editorial board of the Gubernskie Vesti newspaper were two distinct entities: the first was registered as a legal entity, while the second was operating without State registration. The fact that the District Court had issued a judgment against the wrong entity demonstrated that the adjudication of the case had been superficial and the essential aspects of the case had not been examined properly. 33. On 29 November 2002 the Leninskiy District Court, by a new interim decision, confirmed its earlier decision of 19 September 2002 on the rectification of the error regarding the defendant’s name. The first applicant lodged an appeal repeating the arguments advanced in the appeal statement of 14 November 2002. 34. On 24 December 2002 the Kirov Regional Court examined all the appeals. Both applicants were represented at the hearing by Mr R. 35. The Kirov Regional Court quashed the interim decision of 19 September 2002 on the ground that it had been issued in the absence of the parties, but upheld the interim decision of 29 November 2002, which, in its view, was lawful. Thus, it found that counsel who had taken part in the hearing of 13 September 2002 had represented the interests of the first applicant, the limited liability company The Editorial Board of the Vesti Newspaper. It was clear that the judgment of 13 September 2002 defined the rights of, and imposed obligations on, the first applicant, because no other organisation had been involved in the proceedings. The amendment of the defendant’s name had therefore been no more than a rectification of a clerical error not related to the merits of the case and having no effect on the substance of the judgment. 36. The Regional Court further upheld the judgments of 13 September and 3 October 2002 in substance. In particular, it found that the District Court had addressed the applicants’ arguments relating to the existence of an objective link between the contested statements and the plaintiff. It had analysed the tile, structure and contents of the impugned article and had correctly found that its last sentence concerned Mr P. Moreover, it had taken into account that Mr P. was not the only one to have understood that the sentence had been directed at him; other newspapers had also drawn the same conclusion. The District Court had therefore correctly required the defendants to prove the truthfulness of their allegations, which they had failed to do. Both applicants had been represented at hearings by counsel, and their procedural rights had therefore been respected. Finally, the Regional Court held that the severance of the claim against the second applicant from the proceedings “had not involved a substantially incorrect determination of the dispute”. 37. The Regional Court found, however, that the District Court had incorrectly required the first applicant to publish the retraction statement drafted by the plaintiff. The requirement for an apology, a promise to discipline the author and an undertaking to respect domestic law contained in the retraction statement had no basis in domestic law. The order for immediate enforcement had also been unlawful. The court ordered that the first applicant publish an amended retraction statement. It also reduced the award payable by the first applicant to RUR 10,000 (approximately 325 euros). 38. On 14 January 2003 the first applicant published the amended retraction statement. 39. On 6 August 2007 the first applicant was declared insolvent and dissolved. 40. Article 152 of the Civil Code provides that an individual may apply to a court with a request for the retraction of statements (svedeniya) 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. 41. Ruling no. 11 of the Plenary Supreme Court of the Russian Federation, adopted on 18 August 1992 (as 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 in the workplace or in everyday life). Dissemination of statements was understood as the publication of statements or their broadcasting (paragraph 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (paragraph 7). 42. On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Ruling no. 3, requiring courts hearing defamation claims to distinguish between statements of facts which could be checked for veracity and evaluative judgments, opinions and convictions, which were not actionable under Article 152 of the Civil Code because they were expressions of a defendant’s subjective opinion and views and therefore could not be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to make an apology to a plaintiff, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18). 43. The Mass Media Act (Law no. 2124-I of 27 December 1991) defines an editorial board of a news medium as an organisation, citizen or group of citizens producing and issuing that news medium. An editorial board may start functioning after State registration of the news medium (section 8). An editorial board may – but is not required to – obtain legal entity status through State registration (section 19). An editorial board must have articles of association adopted by the general assembly of journalists and approved by the founder of the news medium (section 20). 44. A publisher of a news medium is defined in the Mass Media Act as a company or business person responsible for the technical, material and logistical aspects of a production process (section 2). The editorial board or the editor-in-chief and the publisher must conclude a publishing agreement (section 22). The functions of an editorial board and a publisher may be combined in one legal entity (section 21). 45. Founders, editorial boards, publishers and distributers of mass media, as well as journalists and authors of distributed statements may be held liable for a breach of the legal provisions governing mass media (section 56 of the Mass Media Act). Ruling no. 11 of the Plenary Supreme Court of the Russian Federation (cited in paragraph 41 above) provides that in cases where articles have been published in a newspaper, the defendants in an action for defamation must be the article’s author and the newspaper’s editorial board. If the author is not indicated, the editorial board will be the sole defendant. If the editorial board does not have legal entity status, the founder of the newspaper will be cited as the defendant (paragraph 6). 46. The RSFSR Code of Civil Procedure (in force up to 1 February 2003) provided that after pronouncing a judgment, a court could not quash or amend it. However, the court could, of its own motion or at the request of a party, rectify clerical errors or obvious errors in calculation. In such a case the court had an obligation to hold a hearing and notify the parties of its date. The parties could appeal against the rectification order (Article 204).